Punjab-Haryana High Court
Sona Ram And Anr. vs Mulakh Raj Alias Lekh Raj And Anr. on 18 February, 1999
Equivalent citations: (1999)123PLR811
JUDGMENT V.K. Jhanji, J.
1. This second appeal is by plaintiff (now represented by appellants) against the judgment and decree of the Courts below whereby his suit for declaration has been dismissed.
2. Plaintiff filed suit for declaration to the effect that he is owner in possession of the land in suit and the judgment and decree dated 13.9.1990 of Shri T.C. Tanwar, Sub Judge, 1st Class in Suit No. 1730 of 1990 tilted Suna Ram v. Mulakh Raj has been procured by the defendant through fraud, impersonation and does not affect his proprietary as well as possessory rights in respect of the suit land.
3. Defendant, who is none else but the son-in-law of plaintiff Suna Ram, put in appearance, filed written statement and controverted the various material averments made in the plaint. Defendant specifically denied that the judgment and decree was obtained by fraud or impersonation.
4. On the pleadings of the parties, the trial Court framed the following issues:-
(1) Whether the plaintiff is owner in possession of the suit land as alleged? OPP.
(2) Whether the judgment and decree dated 13.9.1990 passed in the Civil Suit No. 1730 of 1990 titled as Suba Ram v. Mulakh Raj are illegal, based on fraud and misrepresentation, null and void, ineffective and not binding on the rights of the plaintiff and liable to be set aside on the grounds mentioned in the plaint? OPP. (3) Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD (4) Whether the plaintiff has no cause of action to file the present suit? OPD (5) Whether the suit is not maintainable in the present form? OPD (6) Whether the suit is false and frivolous and the defendant is entitled to the special costs as alleged? OPD (7) Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD (8) Relief.
5. Trial Court decided Issue Nos. 1 and 2 against the plaintiff, holding that judgment and decree dated 13.9.1990 is legal, valid and binding on the plaintiff as the same was not obtained by impersonation. Issues 3 to 7 were decided against the defendant. In view of the finding recorded on various issues, the trial Court dismissed the suit. In appeal, the first Appellate Court against examined the matter on facts as well as on law and on re-appraisal of the evidence, affirmed the judgment and decree of the trial Court. Hence, this second appeal.
6. Plaintiff Suba Ram died while civil suit was pending in the trial Court and appellants claimed themselves to be the legal representatives of the deceased and by order of the trial Court, they were brought on record. Learned counsel appearing on behalf of the defendant has contended that the appellants are no relations of plaintiff Suba Ram. In this regard, the learned counsel has referred to caveat application dated 13.9.1986 filed by Suba Ram in which he mentioned that he has only one daughter i.e. the wife of the defendant and no other issue. In my view, for the purpose of this appeal, it is not necessary to determine as to whether the appellants are the heirs of Suba Ram because by order of the trial Court, they have already been brought on record.
7. Learned counsel appearing on behalf of the plaintiff (appellants) has contended that the finding of the Courts below is based upon misreading of the evidence brought on record. It is contended that the defendant, in order to grab the land of the plaintiff, succeeded in procuring civil court decree dated 13.9.1990. It is contended that there was no occasion for the plaintiff to transfer the land in favour of the defendant and it is only to deprive the plaintiff off the land that he succeeded in procuring decree dated 13.9.1990. Against this, learned counsel appearing on behalf of defendant has contended that both the Courts below have recorded a concurrent finding of fact that plaintiff himself had filed suit and the judgment and decree was not obtained by impersonation.
8. After hearing the learned counsel and going through the record, I do not find merit in the contention of the learned counsel for the plaintiff. In the plaint, plaintiff specifically alleged that the defendant procured decree by impersonation. It was averred that neither the plaintiff-thumb marked any plaint nor filed any suit nor engaged any counsel nor appeared in Court. Defendant, in order to prove that it was not a case of impersonation but the plaintiff himself had filed the suit, examined Anil Kumar Gupta, Document Expert and got compared the admitted thumb impressions of the plaintiff with the disputed thumb impressions on the plaint, application dated 7.6.1991 and the Vakalatnama. Anil Kumar Gupta, Expert vide his report opined that the disputed thumb impressions, Mark Q1 to Q4 and standard thumb impressions, Mark S1 and S2 are identical and affixed by one and the same person. Excepting the bald assertion of the plaintiff that he had not filed the suit or thumb marked the plaint or Vakalatnama, there is no evidence that some one else other than the plaintiff had filed the suit or thumb marked the application or the Vakalatnama. If at all, it was a case of impersonation, it was for the plaintiff to explain as to under what circumstances his thumb impressions came to be appended on the plaint, the application and the Vakalatnama. Plaintiff, as a matter of fact, has miserably failed to discharge the onus which heavily lay upon him.
9. Learned counsel appearing on behalf of the plaintiff, next contended that civil court decree dated 13.9.1990 was required to be registered because it purported to extinguish rights of the plaintiff in the immovable property and created rights in favour of defendant. In this regard, counsel cited judgments in Bhoop Singh v. Ram Singh Major and Ors., (1996-1)112 P.LR. 559 (S.C.), Sheela Wati v. Chand Kaur and Ors., 1996 H.R.R. 584 and Balbir Singh and Ors. v. Surinder Kaur etc., 1997(1) P.LJ. 104. There is no dispute with the proposition of law laid down in the afore-mentioned judgments that if the compromise decree was to create for the first time, right title or interest in the immovable property of a value of Rs. 100/- or upwards in favour of any party to the suit, decree or order would require registration. In this case, however, this is not the position. In Civil Suit No. 1730 of 1990 titled Suba Ram v. Mulkh Raj, plaintiff Suba Ram had sought declaration to the effect that he is owner in possession of land measuring 28 Kanals 00 Maria situated in village Mirjapur, Tehsil and District Sirsa and defendant is owner in possession of land measuring 80 Kanals 19 Marlas situated in village Shahpurbegu, Tehsil and District Sirsa and the entries in the revenue record to the contrary are wrong and need correction. Plaintiff claimed ownership on the basis of oral exchange which had already taken place between the parties to the suit, much before the filing of the said suit. No right in the immovable property for the first time was created by the decree. Reference to the oral exchange by delivery of possession which had already taken place, was only a recital of the fact that the parties to the suit are in possession on the basis of oral exchange. This is very different from saying that it is the decree that created a right and cast obligation on the party.
10. Faced with this situation, counsel contended that even if the parties to the said suit had come in possession on the basis of exchange, then also that exchange would be inoperative because the exchange could be effected only by a registered document. This contention too is without any merit. Sections 54, 107 and 123 of the Transfer of Property Act were made applicable to the State of Punjab with effect from 1.4.1955 vide notification issued on March 26, 1955. After these provisions were made applicable, sales, mortgages and leases of immovable property could only be made by a registered document. Exchange of immovable property of the value of Rs. 100/- or move could be made orally followed by delivery of possession. Reference in this regard be made to a Division Bench judgment of this Court in Sardara v. Harbhajan, A.I.R. 1974 Punjab and Haryana 345 in which it has been held that only Sections 54, 107 and 123 have been extended to Punjab. The Division Bench held that the scheme of the Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Transfer of Property Act, an exchange can be made only in the manner provided for a sale.
11. In Sewa Singh v. Joginder Singh and Ors., 1986 P.LJ. 113, learned Single Judge of this Court held that oral exchange relating to immovable property of the value of Rs. 100/- or more is permissible in Punjab as the provisions of Section 118 of the Transfer of Property Act regarding exchange are not applicable to the State of Punjab.
12. Similarly, in Mata Din v. Sultan and Ors., 1986 P.LJ. 696, another learned Single Judge of this Court held that in the State of Haryana, mutual exchange of immovable property with delivery of possession of any value, can be effected without a registered document.
13. Resultantly, the appeal fails. It is accordingly dismissed.