Shri Jagtar Singh vs Gurditta and another

D.V. Sehgal, J.—Gurditta and Gainda, Plaintiffs-Respondents, filed a suit against Jagtar Singh, Defendant-Appellant, for possession of the site ''ABCDE'' shown in site-plan Exhibit P. 1, alleging that their father was the owner of the property ''FECD'' mentioned in the said site-plan. He exchanged part of this property with Bhulla Singh, father of Jagtar Singh Defendant, on 28-9-1959 and had given the site ''ABEF'' to Bhulla Singh, which is shown in blue in the site-plan. The exchange is evidenced by a writing which is mark ''A''. They stated that, after the death of their father Nama, they continued to be the owners of the remaining portion of the plot ''ABCD''. However, a few years before the institution of the suit, the Defendant took forcible possession of this site and raised constructions thereon. They asked for removal of this encroachment but the Defendant refused to do so. Consequently, the present suit was filed. The Defendant contested the suit and stated in his written statement that the entire plot ''FECD'', mentioned in the site-plan Exhibit P. 1, had been received by his father Bhulla Singh from the Plaintiffs'' father in exchange. He further stated that he is in possession of the entire plot (taur) since 1952 without any interference and has thus became its owner by adverse possession. The learned Sub Judge 1st Class, Nawanshar, who tried the suit, dismissed the Plaintiffs'' suit, vide judgment and decree dated 11.42.1975 which was appealed against by them before the learned Additional District Judge, Jullundur, who accepted the appeal and decreed their suit. The Defendant-Appellant has consequently filed the present regular second appeal in this Court.

I have heard the learned Counsel for the parties. Despite strenuous arguments raised by the learned Counsel for the Appellant, I find that the learned lower appellate Court was right in its conclusion that when the Appellant claimed that the entire plot, in dispute, was received in exchange by his father from the father of the Respondents, he could not set up a title on the basis of adverse possession unless, at any given time after the date of exchange, by some overt-act, he set up his hostile title.

The second contention of the learned Counsel for the Appellant is that the learned lower appellate Court wrongly took into account the contents of the writing mark ''A'' which evidence the exchange. It is an admitted case of both the parties that this document was inadmissible in evidence for want of registration. Learned Additional District Judge, however, observed that, to find out as to whether the whole of the plot described in the site-plan Exhibit P. 1 or only a part of it was the subject-matter of exchange, it can be ascertained from the document mark ''A'' because it would be a collateral purpose for which mark ''A'' can be taken into consideration. He relied on Vishvanath Haibatrao Deshpande Vs. Ranganath Dhondo Deshpande, . There can be no dispute about the observations contained therein to the effect that collateral purpose referred to in proviso to Section 49 of the Indian Registration Act, 1908, is any purpose other than that of creating, declaring, limiting or extinguishing a right to immovable property. In fact, the said proviso inter alia lays down that an unregistered document affecting the immovable property and which is required by the Registration Act to be registered, may be received as evidence of any collateral transaction not required to be effected by registered instrument. Exchange of the entire plot depicted in site-plan Exhibit P. 1 or a part of it, excluding the site ''ABCDE", required registration. Document mark ''A'', therefore, cannot be looked into to find out whether the whole plot or a part of it was given in exchange. It is certainly not a collateral purpose as envisaged by proviso to Section 49 ibid. Collateral transaction must be independent and divisible from the transaction which the law requires to be registered. To establish the claim for possession to a part of the plot "ABCDE" shown in site-plan Exhibit P. 1, by contending that it was not the subject-matter of exchange, the document mark ''A'' cannot be read into evidence, If we exclude document mark ''A'' from consideration, there is no other evidence worth credence on the record to establish the claim of the Plaintiffs-Respondent, which, in my view, was rightly rejected by the learned trial Court.

I, therefore, allow this appeal, set aside the judgment and decree dated 7-11-1977 of the learned Additional District Judge, Jullundur, restore the judgment and decree dated 11-12-1975 of the learned trial Court and dismiss the suit of the Plaintiffs-Respondents. There shall, however, be no order as to costs.