Amar Singh vs Sarna (died) Representative by his L.Rs.

R.N. Mittal, J. (Oral)

This appeal has been filed by the plaintiff against the judgment and decree of the Additional District Judge, Karnal, dated 5th January, 1970.

Briefly, the facts are that the plaintiff was the owner of 57 kanals 6 marlas of land situated in village Alupur, district Karnal and the defendant was owner of 8 kanals of land in the same village. They exchanged the lands mutually and a mutation No. 1188 was attested on 28th September, 1962. The plaintiff challenged the exchange and pleaded that it was void and ineffective against him. He further stated that the defendant had forcibly taken possession of the land in the month of Assadh Sammath 2023. Consequently, he filed a suit for declaration that the mutation would not affect his right and for possession of the land by way of consequential relief.

The defendant contested the suit and controverted the allegations of the plaintiff. He inter alia pleaded that the exchange was proper and he was put in possession of the property by the plaintiff in view of the exchange. Some other pleas were also taken but they are not relevant for the decision of the second appeal.

The learned trial Court held that the property was exchanged between the parties and that the exchange was not hit by the provisions of Transfer of Property Act. Consequently, it dismissed the suit. The plaintiff went up in appeal before the Additional District Judge, Karnal, who affirmed the judgment and decree of the trial Court and dismissed the same. He has come up in second appeal to this Court.

The first contention of the learned counsel for the appellant is that land measuring 57 kanals 6 marlas which included 16 kanals of Nehri land is alleged to have been exchanged by the plaintiff with 8 kanals of Nehri land belonging to the defendant. According to him the transaction on its face appears to be inequitable and unconscionable.

I regret my inability to accept the same. Both the Courts after taking into consideration the evidence on record came to the conclusion that the exchange was effected between the parties. The finding being one of fact cannot be upset by this Court unless it is vitiated. Nothing has been brought to my notice on the basis of which it can be said that the finding is vitiated. Therefore, I confirm the same.

Faced with that situation, the learned counsel for the appellant sought to urge that the transaction of exchange in view of provisions of section 118 of the Transfer of Property Act could not be effected except by a registered document. He, in support of his contention, made reference Dalip Singh v. Munshi and others, AIR 1914 Lahore 108(1), Chidambara Chettiar, by his authorised agent, Ramesasami Iyer v. Viadilinga Padayachi and others, 30 Indian Cases 408, and Jawala v. Waryaman and another, AIR 1927 Lahore 90.

I am not impressed with this contention too. All the provisions of the Transfer of Property Act have not been made applicable to the State of Punjab. Only sections 54, 107 and 123 of the Act have been applied to the Punjab in 1955. It is no doubt provided in section 118 of the Act that a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale, but as the section is not made applicable in the State of Punjab, consequently, the said clause cannot be said to be applicable in the State. It is wellsettled that only principles of Transfer of Property Act are applicable but that does not make the technical provisions applicable in the State. Thus, in my view, the counsel for the appellant cannot drive any benefit from the provisions of section 118 of the Act. In the aforesaid view, I am fortified by my own judgment in Hardit Singh v. Gulzara Singh and another, 1973 P.L.J. 329, wherein I held that the State Government made applicable sections 54, 107 and 123 and not section 118 of the Transfer of Property Act to the State of Punjab. In case, the State Government desired that exchange of immovable property of the value of more than Rs. 100/ should be effected by a registered document, it could apply section 118 by the same notification. In the absence of the notification that section 118 of the Act applies to the State of Punjab, it is not possible to hold that the exchange relating to immovable property of value of more than Rs. 100/ can be effected by only a registered document. Same view was taken by a Division Bench of this Court in Sardara Singh and another v. Harbhajan Singh and others, 1974 PLJ 341. The relevant observations of the learned Bench are as follows :

"The very scheme of the Transfer of Property Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with the 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 sale."

I am in respectful agreement with the observations of the Division Bench.

The case Ramaswami Iyer (supra) was decided by Madras High Court where the Transfer of Property Act was applicable. Consequently, the ratio in that case does not help the appellant. In Munshi and Waryaman''s cases (supra), the matter for decision before this Court was as to whether an instrument of exchange should be registered and this Court was of the view that it should be registered under the Registration Act. The cases are, thus, distinguishable and they are of no assistance to decide the present controversy. Consequently, I reject the contention of the learned counsel for the appellant.

For the aforesaid reasons, I dismissed the appeal with no order as to costs.