Punjab-Haryana High Court
Warjit Singh vs Avtar Singh And Others on 7 August, 2013
Author: Surinder Gupta
Bench: Surinder Gupta
RSA No. 1610 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: 07.08.2013
RSA No. 1610 of 1987
Warjit Singh ...Appellant
Versus
Avtar Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA Present: - Mr. Gurcharan Singh, Advocate for the appellant.
1 To be referred to the Reporters or not?
2 Whether the Judgment should be reported in the Digest? SURINDER GUPTA, J Having failed before the trial Court as well as the Lower Appellate Court , the Appellant-Warjit Singh has preferred this regular second appeal.
2) Warjit Singh-plaintiff-appellant was the owner of 19 acres of land situated at village Peedal, Tehsil Guhla, District Kurukshethra. He had appointed his wife as General Power of Attorney. She entered into an exchange of land of Warjit Singh with the land of Avtar Singh and Smt. SurjitKaur-respondents on 12.01.1977. A judgment and decree dated 21.02.1978 (Ex. P-5) whereby Avatar Singh and his wife were declared to be owners in possession of land they got in exchange was passed. The plaintiff was declared owner of land measuring 36 kanal as per decree Atul Kumar Tripathi 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 2 dated 21.02.1978 (Ex. P-4). Consequently, the mutation was effected on the basis of exchange and entry of possession was changed in the revenue records. Defendants No. 1 and 2 sold 8 Kanals of land out of the land which they got in exchange to one Pal Singh.
3) Warjit Singh-plaintiff had challenged the mutation effected by his wife on the ground that at the time of exchange, he was living outside India for about 15 years and had appointed his wife as his General Power of Attorney. He used to remit the money of his wife to invest the same on land. On his return in 1977, he asked for account from his wife, which she did not provide and thereafter left the company of the plaintiff and started living separately. The plaintiff got Power of Attorney in the name of his wife cancelled. The mutation was sanctioned on the basis of exchange on the basis of exchange on 04.04.1979. The Civil Court decree has been challenged on the ground that it has recognized and exchange of the immovable property worth more than Rs. 1,000/- without registration and further that the oral exchange is not permissible. The plaintiff had also impleaded his wife as defendant No.3 in the suit who had partly admitted the claim of the plaintiff thereby denying the exchange. The pleadings of the parties led to the framing of the following issues:
"1. Whether the plaintiff has been in exclusive possession of land detailed in the heading of the plaint as a co-owner? OPP
2. Whether the alleged exchange is illegal and void and Atul Kumar Tripathi 2013.08.08 15:17 resultant decree dated 21.02.1978 and mutations sanctioned I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 3 on 04.04.1979 on the basis of the said decree are liable to be set aside on the grounds mentioned in para No. 15 of the plaint?
3. Whether the plaintiff is entitled to injunction sought for? OPP
4. Whether the plaintiff is entitled to declaration sought for?
OPP
5. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD
6. Whether the suit is not maintainable as framed? OPD
7. Whether the suit is collusive of plaintiff and defendant No. 3 if so, its effect? OPP
8. Whether the defendant No. 1 and 2 have sold any part of the suit land to Pal Singh, if so, its effect? OPD
9. Whether the other co-sharers are necessary parties to the suit? OPD
10. Relief.
Additional Issue Whether the plaintiff has been in exclusive possession of land detailed in the heading of the plaint as a co-owner? OPP."
4) Learned trial Court found no substance in the contention of the plaintiff and held that exchange is duly proved and dismissed the suit. The similar finding has also been recorded by the First Appellate Court, while dismissing the appeal of Warjit Singh.
Atul Kumar Tripathi 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 4
5) I have heard learned counsel for the appellant and perused the record with his assistance.
6) The substantial question of law which arises for consideration is as to whether the oral exchange in this case, which was later on approved by way of judgment and decree of the Civil Court, is legal and valid?
7) The learned counsel for the appellant has argued that the wife of the appellant had entered into exchange of valuable land measuring 9 acres with 4 ½ acres of land of defendants-respondents No. 1 and 2 and this reflected that it was not bona fide and genuine exchange of land. The above arguments of the learned counsel for the appellant is without any substance. The land given in an exchange by the respondents is near the metalled road, rice sheller and Dera. The witnesses namely, DW-1 Tikkan Singh and DW-2 Bharat Singh, Lambardar in village Peedal have stated that the land given by Avatar Singh-respondent No.1 was more valuable than the 9 killas of Banjar land received in exchange by him. On the other hand, the appellant has not substantiated his plea with any evidence that the land given by him was more valuable.
8) So far as the question of oral exchange of land is concerned, the same is permissible under the law and this fact has not been disputed during the course of the arguments. The possessions have exchanged hands and even the plaintiff while appearing as PW-4, has not stated anything regarding his possession over the suit land. The contention of the Atul Kumar Tripathi 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 5 learned counsel for the appellant that the exchange of the land valuing more than Rs. 100 is required to be registered carries no weight.
9) The provisions of Section 118 of the Transfer of Property Act, 1882 (for short 'T.P. Act') have not been made applicable to the State of Haryana and oral exchange is permissible, which is not required to be registered compulsorily. The provisions of Sections 54 (sale), 107 (lease) and 123 (gift) of the T.P. Act were made applicable to the State of Punjab when the State of Haryana was also the part of the Punjab State. If the intention was to make Section 118 of the Transfer of Property Act, applicable to the State then while issuing notification for making Sections 54 and 103 of the T.P. Act applicable to Punjab would have included Section 118 as well.
10) In case of Sardara Singh and another v. Harbhajan Singh and others 1974 PLJ 341, Hon'ble the Supreme Court held as under:
"In the first place, it is common ground that the Act does not apply to Punjab and only sections 54, 107 and 123 of the Act have been made applicable with effect from April 1st, 1955. In this connection, reference may be made to notification dated March 26, 1955, which is reproduced below:
"No. 1605-(CH)-55/ 589.- In exercise of the powers conferred by Section 1 of the Transfer of Property Act, IV of 1882, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to extend the provisions of Atul Kumar Tripathi Sections 54, 107 and 123 of the said Act with effect from the 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 6 1st April, 1955, to the entire State of Punjab. The Punjab Government notification No. 183-St, dated the 27th April, 1935, is hereby cancelled."
Section 54 is in Chapter III which deals with sales of immovable property, Chapter IV starts with Section 58 and deals with mortgages of immovable property and charges. Chapter V deals with leases of immovable property and Chapter VI deals with exchanges. The very 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 Act, an exchange can be made only in the manner provided for a sale. Mr. Jain, learned counsel for the appellants, for his wonderful argument relies on Section 1 of the Act which is in the following terms.
"This Act may be called the Transfer of Property Act, 1882.
It shall come into force on the first day of July, 1882.
It extends in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.
But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned.
And any State Government may...................from time to time, by notification in the official Gazette, exempt, either Atul Kumar Tripathi retrospectively or prospectively, and part of the territories 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1610 of 1987 7 administered by such State Government from all or any of the following provisions namely:-
Section 54, paragraphs 2 and 3, 59, 107 123.
Notwithstanding anything in the foregoing part of this section, Sections 54, paragraphs 2 and 3, 59, 107 and 123, shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 1908, under the power conferred by the first section of that Act or otherwise."
11) From the above observations by Hon'ble the Apex Court coupled with the facts that provisions of Section 118 of the T.P. Act, have not been made applicable to the State of Haryana, the substantial question of law as framed in this appeal is decided against the appellant. Learned counsel for the appellant has not been able to assail or point out any legal or factual infirmity in the concurrent finding of both the courts below.
12) In view of the above discussions, I find no merit in this appeal and the same is dismissed.
(SURINDER GUPTA) JUDGE 07.08.2013 Atul Atul Kumar Tripathi 2013.08.08 15:17 I attest to the accuracy and integrity of this document Chandigarh