Himachal Pradesh High Court
Reserved On: 31.03.2026 vs Of on 15 May, 2026
2026:HHC:17174
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 538 of 2007
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Reserved on: 31.03.2026
Date of Decision: 15.05.2026
Prakash Chand (deceased) through LRs ...Appellants
Versus
of
Sheela Devi (deceased) through LRs ...Respondents
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellants : Mr. N.K. Thakur, Senior Advocate
with Mr Divya Raj Singh,
Advocate.
For the Respondents : None.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 14.09.2007 passed by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P. (learned Appellate Court) vide which the judgment and decree dated 31.01.2000 passed by learned Sub Judge First Class (1), Amb, District Una, H.P. (learned Trial Court) were set aside. (The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 16/05/2026 13:07:39 :::CIS 22026:HHC:17174 parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise the present appeal are that the plaintiff filed a civil suit before the learned Trial Court against the defendant to seek permanent prohibitory of injunction for restraining the defendant from interfering in any manner whatsoever or raising any construction over the land rt measuring 0-04-06 hectare comprising Khewat No. 315, Khatauni No. 736 and Khasra No.339 and 340 as entered in the Jamabandi for the year 1993-94 situated in village Chalet Lower, Tehsil Amb, District Una, HP. (hereinafter referred to as the suit land). It was asserted that the suit land is jointly owned and possessed by the plaintiff and other co-sharers. The plaintiff has constructed a shop on the part of Khasra No. 340 and raised an orchard on Khasra No. 339. The defendant is the owner of the adjacent land located towards the western side of the suit land.
The defendant is interfering with the suit land despite requests.
Hence, a suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 3 2026:HHC:17174 and cause of action, the plaintiff having suppressed the material facts from the Court, and the plaintiff being estopped by her act .
and conduct to file the suit. The contents of the plaint were denied on the merits. It was asserted that the defendant had no concern with Khasra No. 339. Chinti Devi was the owner of Khasra No. 340. Her General Power of Attorney, Prakash Chand, of had entered into a compromise with the defendant on 13.07.1992, vide which Khasra No. 340 was exchanged with the rt defendant. The defendant became the owner of the exchanged land. The defendant filled out the foundation of the shop up to the ground level in the presence of the plaintiff and her predecessor without any objection from any person. Hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. The following issues were framed by the learned Trial Court on 18.10.1997:
1. Whether the plaintiff is entitled to the relief of injunctions, as prayed? OPP.
2. Whether the suit is not maintainable, as alleged? OPP.
3. Whether the plaintiff is estopped from filing the suit, as alleged? OPD ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 4 2026:HHC:17174
4. Whether mother of plaintiff entered into an agreement dated 13.07.1992, if so, its effect? OPD
5. Relief.
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6. The parties were called upon to produce the evidence, and the plaintiff examined herself (PW1). The defendant examined himself (DW1), Harbhajan Singh (DW2), Parveen Kumar (DW3) and Bharam Singh (DW4).
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7. The learned Trial Court held that the plea taken by rt the defendant that the suit land was exchanged by an agreement executed between the defendant and General Power of Attorney was duly proved. The plaintiff had concealed the General Power of Attorney from the Court and was not entitled to any relief.
Hence, the learned Trial Court answered issue No.1 in the negative, issues Nos 2 to 4 in the affirmative, and dismissed the suit.
8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned Additional District Judge Fast Track Court, Una, District Una (learned Appellate Court). Learned Appellate Court held that the General Power of Attorney was not brought on record, and it was difficult to gather the extent of ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 5 2026:HHC:17174 Prakash Chand's authority. An exchange is compulsorily required to be registered, and the exchange deed was not .
registered in the present case. Therefore, it was inadmissible in evidence and could not be looked into. The defendant had encroached upon a portion of the suit land bearing Khasra No. 340/1, to which he is not entitled. Hence, the learned Trial Court of decreed the suit for possession of the land measuring 0-00-35 hectares bearing Khasra No. 340/1.
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9. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant has filed the present appeal, which was admitted on the following substantial questions of law vide order dated 10.09.2008: -
1. Whether the defendant, even under the defective document of title, is entitled to protect his possession, and contrary findings are unsustainable?
2. What is the legal effect of non-registration of an exchange deed which has been acted upon, and the defendant has stepped into possession and raised the construction over such part?
3. Whether the plaintiff, as successor, is legally estopped to assail the correctness of the exchange deed after the death of the erstwhile owner?
10. I have heard Mr N.K. Thakur learned Senior Counsel assisted by Mr Divya Raj Singh, learned counsel for the ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 6 2026:HHC:17174 appellant. None appeared for the respondents, and none could be heard.
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11. Mr N.K. Thakur, learned Senior Counsel for the appellant/defendant, submitted that the learned Appellate Court erred in appreciating the material on record. It was duly proved of that Prakash Chand, the General Power of Attorney of Chinti Devi, the predecessor-in-interest of the plaintiff, had rt exchanged Khasra No. 340 with the defendant. An affidavit of the General Power of Attorney filed before this Court was proved on record. An exchange is not required to be registered. Learned Appellate Court failed to notice the affidavit and the correct position of law. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
13. Defendant Prakash Chand (DW1) stated that he had entered into a compromise with Prakash Chand regarding Khasra No. 340 on 13.07.1992. Prakash Chand was the son-in-
::: Downloaded on - 16/05/2026 13:07:39 :::CIS 72026:HHC:17174 law of Chinti Devi and her General Power of Attorney. He used to look after the property of Chinti Devi. The compromise was .
signed by the General Power of Attorney and the defendant.
14. The defendant has not produced the General Power of Attorney on record. An affidavit executed by Captain P.C. of Sharma before this Court in CMP No. 263 of 1982 in RSA No. 2 of 1978 titled Smt. Hukmi Devi versus Chinti Devi, was filed in rt which Captain P.C. Sharma had stated that he was holding a General Power of Attorney on behalf of Chinti Devi. It was submitted that this affidavit proved that Prakash Chand was the General Power of Attorney of Chinti Devi. This submission cannot be accepted. Learned Appellate Court had rightly held that the General Power of Attorney was required to be brought on record to show the extent of Prakash Chand's authority, and in the absence of the General Power of Attorney, it was difficult to conclude that he had the authority to exchange the land with the defendant.
15. It was submitted that an application under Order 13 Rule 2 and Rule 11 and Order 8 Rule 1 was filed for directing the plaintiff to produce the General Power of Attorney, but no ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 8 2026:HHC:17174 General Power of Attorney was produced, and an adverse inference has to be drawn against the plaintiff. This submission .
is only stated to be rejected. General Power of Attorney authorising the holder to deal with the immovable property is compulsorily required to be registered, and its certified copy is available in the office of the Sub- Registrar. The defendant could of have easily procured the certified copy of the General Power of Attorney from the office of the sub-registrar to show the extent rt of Parkash Chand's authority, and in the absence of the General Power of Attorney, it cannot be concluded that Parkash Chand had the authority to exchange the land with the defendant.
16. Learned Appellate Court had rightly held that the exchanged deed was not registered, and it could not be looked into. It was laid down by this Court in Birbal versus Barfu Devi, latest HLJ 2008 (1) 574, that an exchange is compulsorily required to be registered and in the absence of the registration, no reliance can be placed upon it. It was observed:
"8. The Court now has to consider whether the document Ex. DA dated 5.2.1983 was compulsorily required to be registered under section 17 of the Registration Act, 1908. Mr Bhupender Gupta, Sr. Advocate, by drawing the attention of this Court to the document Ex. DA dated 5.2.1983 had urged that the same is an "exchange deed"::: Downloaded on - 16/05/2026 13:07:39 :::CIS 9
2026:HHC:17174 and could not be termed as a family arrangement. He also contended that the contents of document Ex. DA are to be gone in its entirety. Mr Mohan Singh had submitted that .
the Ex. DA is a family arrangement and cannot be termed as an exchange deed, and it was not compulsorily required to be registered. It will be apt at this stage to refer to the bare provisions of section 17 (1) (b) of the Registration Act, 1908, which reads thus:
"17 (1) (b). other non-testamentary instruments which purport or operate to create, declare, assign, of limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property." rt It will also be appropriate to take note of section 118 of the Transfer of Property Act, which defines the word exchange as under:
"118. "Exchange" defined: - When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange." A transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale."
9. It is evident from the caption given at the top of Ex.DA that the document has been styled as "exchange deed"
(Tabadalanama). In the entire body of Ex. DA, the expression exchange has been used by the parties. The reasons for signing the exchange are to avoid litigation and to run the affairs properly. It has also come in the exchange deed that the same will be given effect to after the mutations are attested in favour of the parties. It is not disputed by the parties that the valuation of the land to be exchanged by way of Ex. DA was more than 100/-. If that is so, the same was required for the compulsorily registered under section 17 (1) (b) of the Registration Act, ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 10 2026:HHC:17174 1908. It is clear from the definition clause as contained in section 118 of the Transfer of Property Act, 1882, that the exchange means when two persons transfer the .
ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange". The learned District Judge has not gone into this aspect at all, whether the document Ex. DA dated 5.2,1983 was compulsorily required to be registered. The trial court had taken into consideration the plea raised by the plaintiff that the of document Ex. DA was required to be compulsorily registered, and on that basis, he had come to a just conclusion that mutation Ex.PW-1/D bearing No.149 was not binding upon the plaintiff. The trial court had come to rt a just conclusion that the fact of non-registration of Ex. DA was that it would not confer any title or interest on the defendant. The learned District Judge has only gone into the question whether any fraud was played by the defendant at the time of execution of Ex.DA dated 5.2.1983 and Ex. DB dated 23.2.1982.
10. In Ashutosh versus Mohammad Yusuf Ali, AIR 1987 Patna 102 (Full Bench), it has been held that an unregistered document agreeing to exchange immovable property would not vest any title or affect the same in the said property. Their Lordships have held as under:
"In view of the aforesaid enunciation and the earlier discussion, the answer to the question posed at the outset is rendered in the negative, and it is held that an unregistered document agreeing to exchange immovable property (which otherwise requires compulsory registration under S.17 of the Registration Act) would not vest any title or affect the same in the said property."
17. This position was reiterated in Rattan Chand v. Piar Singh, 2018 SCC OnLine HP 3397, wherein it was observed:
::: Downloaded on - 16/05/2026 13:07:39 :::CIS 112026:HHC:17174 "13. It is quite apparent from the aforesaid exposition of law that the exchange deed Ex. PW-2/A, being an unregistered document, could not be looked at in .
evidence by the learned first appellate Court, while ascertaining the correctness of the claim put forth by the Plaintiff in his Plaint. Even if findings returned by the learned first appellate Court, qua entitlement of Plaintiff to suit property on the basis of the aforesaid document is examined and tested on the touchstone of Section 17 of the Act, ibid, by no stretch of imagination, the same can of be held to be valid and in accordance with law. There is no valid exchange deed adduced on record by the Plaintiff to prove his claim with regard to his having acquired a share in the suit property, and as such, the learned first rt appellate Court has gravely erred in placing undue reliance upon Exhibit PW-2/A...."
18. A similar view was taken in Brahm Dass v. Kaur Chand, 2019 SCC OnLine HP 3706, wherein it was held :
"16. It is quite apparent from the aforesaid exposition of law that no immovable property having a value of more than Rs. 100 can be transferred without there being any registered document, and any document or instrument, which purports or intends to create title, should be registered, and in case the same is not registered, it would not affect any immovable property comprised therein.
Substantial questions of law are answered accordingly."
19. Therefore, the findings recorded by the learned Trial Court that the defendant has no title in Khasra No. 340 cannot be faulted. The defendant has not shown any right to protect the possession, and the learned Appellate Court had rightly ordered the delivery of the possession to the plaintiff. Hence, this ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 12 2026:HHC:17174 substantial question of law is answered accordingly.
Substantial Question of Law No.2:
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20. It has been specifically held by this Court that an unregistered exchange does not confer any right upon any person. Therefore, the exchange effected upon by the defendant of will not help the defendant because no right can be conveyed by an unregistered deed as per the judgments of this Court. Hence, rt this substantial question of law is answered accordingly.
Substantial Question of Law No.3:
21. The exchange deed propounded by the defendant does not have any validity in the eyes of the law. Therefore, the plaintiff is not estopped to assail the correctness of the exchanged deed. Hence, this substantial question of law is answered accordingly.
Final Order:
22. In view of the above, there is no infirmity in the judgment and decree passed by the learned Appellate Court.
Hence, the present appeal fails, and it is dismissed ::: Downloaded on - 16/05/2026 13:07:39 :::CIS 13 2026:HHC:17174
23. Pending application(s), if any, also stand(s) disposed of.
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24. Records of the learned Courts below be sent down forthwith.
(Rakesh Kainthla) Judge of 15th May, 2026 (Nikita) rt ::: Downloaded on - 16/05/2026 13:07:39 :::CIS