R. S. A. No. 1083 of 2006 1
In the High Court of Punjab & Haryana at Chandigarh
R. S. A. No. 1083 of 2006 (O&M)
Date of decision : 5.9.2008
Pal Mohinder Singh and another ..... Appellants
vs
Baljeet Singh .... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Adarsh Jain, Advocate, for the appellants. Rajesh Bindal J.
The plaintiffs are in appeal before this court against the
concurrent finding of fact by both the courts below whereby suit filed by
them for declaration to the effect that they are owner in possession of the
land measuring 5 bighas 18 biswas was dismissed. Further challenge in the
suit was to the judgment and decree of the civil court dated 10.10.1995
suffered by the parties to the present appeal on the basis of oral exchange.
Briefly the facts as noticed by the lower appellate court are as
under:-
“Plaintiffs Pal Mohinder Singh and Jaswinder Singh
have filed the suit before the learned trial court for
declaration as well as for permanent injunction, inter
alia, alleging that they were owners in possession of land
measuring 5 Bighas 18 Biswas, fully detailed and
described in the head note of the plaint, situated in the
area of Patti Jhutti, Bathinda. The parties to the suit are
related to each other and defendant, being an education
person, having remained in government service, has
influence upon the plaintiffs and the plaintiffs too were
having faith in him. It has been alleged that in the month
of March 1995, the defendants approached the plaintiffs
and requested them that since he was facing some
R. S. A. No. 1083 of 2006 2enquiries initiated by the Vigilance Department
regarding his assets, therefore, in order to reduce his
holdings located at Mandi Dabwali, the plaintiffs may
exchange their land located at Bathinda, with the land of
the defendants located at Dabwali and the defendant
agreed to pay a sum of Rs. 5 lacs along with his 20/3779
share in land measuring 198 kanals 19 marlas comprised
in khewat no. 1475 khatauni no. 2326, situated within
the area of Nai Dabwali, Distt. Sirsa to the plaintiffs and
in view of that, he would receive 5 Bighas 18 Biswas of
land located at Bathinda. The said communication took
place in the presence of Ganda Singh (since deceased),
common relative of the parties and believing the said
representation made by the defendant, the plaintiffs
acceded to the request and they signed the papers as
desired by the defendant but they never put in their
appearance in the court at Dabwali nor they made any
statement in the said suit before the court because Baljit
Singh himself appeared in the court, filed his alleged
written statement dated 29.7.1995 admitting the claim of
the plaintiffs by getting his statement recorded on
29.7.1995 and the plaintiffs were never informed about
the passing of the aforesaid decree dated 10.10.1995.
According to the plaintiffs, in fact, no exchange ever
took place between the parties nor actual possession of
the lands were delivered nor amount of Rs. 5 lacs as
agreed was paid by the defendant to the plaintiffs and
therefore, the impugned decree is liable to be set aside
being bad in law, null and void and not binding on the
rights of the plaintiffs as the defendant has played a big
fraud with the plaintiffs and got mutation no. 34745
sanctioned in his favour regarding the suit land as there
was no reason or logic in giving 5 Bighas 18 Biswas of
land located at Bathinda by receiving only 20/3779
shares in land measuring 188 kanals 19 marlas which
R. S. A. No. 1083 of 2006 3comes to only one kanal. The suit land is more valuable
than the land located at Dabwali. The possession of the
respective properties were not exchanged and thus, the
decree has not been implemented and that the defendant
has not made the payment of Rs. 5 lacs as agreed to by
him and as such, according to the plaintiffs, the
impugned judgment and decree is null and void, against
law and facts and the same is liable to be set aside. As a
consequential relief, the plaintiffs have sought
permanent injunction to restrain the defendant from
alienating the suit land.”
Though the impugned decree was passed in a suit between the
parties on 10.10.1995. The present suit was filed on 12.10.1998, more than
three years thereafter. Primary ground raised for challenging the decree was
that there was no comparison in the exchange of land between the parties
and accordingly a fraud was committed. The value of lands exchanged by
the parties was not comparable. Both the courts below found the ground to
be untenable and dismissed the suit filed by the appellants.
Even before this court, learned counsel for the appellants
referred to documents Ex. P-4 and P-5 in support of his argument that the
value of the land was not similar and the exchange was not possible and
further that as promised a sum of Rs. 5 lacs were not paid by the
respondent/defendant to complete the transaction of exchange. However,
the contention raised by the learned counsel for the appellants is totally
misconceived. It is a case where filing of earlier suit filed by the
appellants/plaintiffs is admitted. It was further admitted by the
appellants/plaintiffs that they had engaged a counsel and filed the suit and
also got their statements recorded in that regard on the basis of which the
suit was ultimately decreed. The claim set up in the earlier suit was
regarding exchange of property as per understanding between the parties.
Even from document Ex. D-3, it was found that respective possessions of
the properties had also exchanged hands. Once these facts are admitted by
the appellants/plaintiffs, no question of challenge to the decree will arise
more than three years thereafter after the possession thereof had also been
exchanged by the parties at the relevant time.
R. S. A. No. 1083 of 2006 4
The findings recorded by the courts below are plain and simple
findings of fact giving rise to no question of law much less a substantial
question of law.
Accordingly, the present appeal is dismissed.
5.9.2008 ( Rajesh Bindal) vs. Judge