Chattar Singh vs Girdhari and others

J.V. Gupta, J.—This judgment will also dispose of Regular Second Appeal No. 1612 of 1977 (Chattar Singh v. Bhim Singh etc.) as both these appeals have been filed against the same judgment of the Senior Subordinate Judge (with Enhanced Appellate Powers). Gurgaon. dated 24th September, 1977.

The Plaintiff respondcnts,filed two suits alleging that they were the owners in possession of the suit land situated at village Daultabad. According to them, the suit land originally belonged to Gopal son of Kuray, on whose death the Plaintiffs inherited the same. It was alleged that Defendant Chattar Singh (he was the Defendant in both the suits), who was the collateral of the Plaintiffs, was given the suit land for cultivation as a tenant under them subject to payment of rent at the rate of 1/2 share of the produce per year some 20 years ago; that the Defendant paid the agreed rent of the suit land upto 1971-72; that he declined to pay the rent of the suit land pertaining to the year 1973 about two months before the institution of the suit which was filed on 10th June, 1973, and put forth the claim that he was in possession of the suit land as owner in exchange of his land situated at village Bapdola; that the Defendant did not disclose the particulars of the land given in exchange to the Plaintiffs by him; that the Plaintiffs as also their predecessors- in-interest did not exchange the suit land with the land of the Defendant at village Bapdola; that the Defendant has incurred forfeiture of the tenancy by denying the title of the Plaintiffs in the suit land and by claiming the title in himself to the suit land and that in case the tenancy alleged by the Plaintiffs and the exchange set up by Defendants are not proved, the Plaintiffs are entitled to remain in possession of the land in suit on the basis of their title of the suit land.

The suit was contested inter alia on the grounds that the Plaintiffs and their ancestors have been residing in village Bapdola; that they had given the suit land in exchange of their land at village Bapdola; that during consolidation proceedings in the year 1950-51 the predecessors-in-interest were called and it was finally settled between them that the Defendant would remain in possession of the suit land as owner and they would have nothing to do with the suit land and in lieu of the suit land the predecessors-in-interest would be owner of the land of the Defendant situated in village Bapdola. It was denied that the Defendant had been in cultivating possession of the suit land as tenant under the Plaintiffs upto 1971-72, as is alleged in the plaint. In the alternative it was also pleaded that the Defendant and his ancestors had been in possession of the suit land for more than 12 years as owners openly to the notice and knowledge of the Plaintiffs and as such their adverse possession has ripened into ownerships. Thus the plea of limitation was also taken. The trill court found that the Plaintiffs were not the owners of the suit land and the suit was barred by time as the same had been brought after the expiry of 12 years from the date of the Plaintiffs'' dispossession from the suit land which took place in the year 1952-53. It was further found that the adverse possession of the Defendant in the suit land for over 12 years has ripened into ownership. It was also concluded that the Defendant was in possession of the suit land in exchange of the land with the Plaintiffs, held by him at village Bapdola. The trial court also held that the Plaintiffs were estopped from filing the suit by their acts and conduct and the suit land had not been given for cultivation to the Defendant as tenant by the Plaintiffs or their predecessors-in-interest, as alleged. In view of these findings both the suits were dismissed. In appeal the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Gurgaon, came to the conclusion that there was no document evidencing the transaction of exchange as claimed by the Defendant and in the absence of any document the oral exchange recorded in the revenue record did not prove the exchange by itself. It was, therefore, ultimately held that the Defendant was not in occupation of the suit land as owner in lieu of the exchange of his land at village Bapdola with the predecessors-in-interest of the Plaintiffs. In view of that finding it was held that the Defendant has failed to prove that he was in adverse possession of the suit land. In view of this finding, both the suits filed by the Plaintiffs were decreed. Dissatisfied with the same, the Defendants have filed these two appeals.

The learned Counsel for the Appellant contended that in the State of Punjab oral exchange was permissible and, therefore, the view taken by the lower Appellate Court was wrong and illegal. In support of this contention he referred to a Division Bench judgment of this Court reported in Sardara Singh and Anr. v. Harbhajan Singh 1974 P. L. J. 391. Hardit Singh v. Gulzara Singh 1973 P. L. J. 329 and Amar Singh v. Sarna (died) represented by his L. Rs. 1982 P. L. J. 19, It was further contended that there was no evidence on the record to show that the Defendant was the tenant under the Plaintiffs, as alleged. There is no evidence of the payment of rent which is essential ingredient of the tenancy. In support of this contention reference was made to Jagjit Singh v. The Financial Commissioner, Haryana 1981 P. L. J. 367 and Natha Singh v. The Financial Commissioner, Taxation, Punjab 1976 P. L. J. 293 (S. C). It was also submitted that in view of the entries in the jamabandies from the year 1955-56 upto the year 1970-71 i e, Exhibits D. 1 to D. 9, there is a presumption to its correctness u/s 44 of the Punjab Land Revenue Act and the trial Court on the basis of the said entries rightly came to the conclusion that the Defendant was in possession of the suit land by way of exchange and was not the tenant under the Plaintiffs as alleged. On the other hand, the learned Counsel for the Respondents submitted that whether there was a valid exchange or not is a question of fact and, therefore, the same cannot be interfered with in second appeal.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record. It has been held by a Division Bench of this Court in Sardara Singh''s case (supra) that oral exchange is permissible in Punjab. This was followed in Amar Singh''s case (supra) where it was reiterated that Section 118 of the Transfer of Property Act was not made applicable in the State of Punjab, and, therefore, the exchange of immovable property of the value of more then Rs. 103/- could be made orally. Once it is so held that there could be an oral exchange, the finding of the lower Appellate Court is vitiated because the whole judgment has been proceeded with the assumption that there was no document on the file to show that the predecessors-in-interest of the Plaintiffs got the land of the Defendant situated at village Bapdola in exchange of the suit land in the year 1952-53 or thareafter. The could not be disputed that in the Jamabandies for the year 1955-56 Exhibit D. 9 upto the year 1970 71 i.e. Exhibits D. 1 to D. 8, the entry in the column of lagan is Bila Lagan Bawaia Tawadla Mauja Bapdola. The Plaintiffs never challenged the said entry in the jamabaadis and, therefore, it is quite evident that the Defendant was in occupation of the suit land in lieu of the exchange of his land and not as a tenant, as alleged by the Plaintiffs. As discussed earlier, the whole approach of the lower appellate Court was wrong, illegal and misconceived and thus the findings arrived at are vitiated.

Apart from that there is no cogent evidence on the record to prove that the Defendant ever paid batai to the Plaintiffs. Even the lower Appellate Court has not given any finding in this respect. The trial Court after discussing the entire oral evidence, came to the conclusion that, "the Plaintiffs have led no evidence to rebut the entries in the jamabandis and according to Section 44 of the Punjab Land Revenue Act there is presumption of truth to the entries made in the jamabandis. From the above discussion I am of the considered opinion that from the evidence on the record it has been proved that the Defendant had not been cultivating the suit land as a tenant under the Plaintiffs." Thus the Plaintiffs" suit was liable to fail on this ground alone.

In view of the above discussion, from the evidence on the record it has been amply proved that the Defendant is owner of the suit land because of the exchange as entered in the jamabandis for the year 1955-56 to 1970-71 and never occupied the suit land as a tenant under the Plaintiffs, as alleged by them. The findings of the trial court in this behalf are correct and have been reversed in appeal on surmises and conjectures. Thus the Plaintiffs'' suit was liable to fail on the ground that they are not the owners of the suit land. In view of this finding the question of adverse possession of the Defendant etc., did not arise. Consequently both the appeals succeed and are allowed with costs. The judgment and decree of the lower Appellate Court are set aside and that of the trial court dismissing the Plaintiffs'' suit are restored.