IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1810 of 2008 (O&M)
Date of decision: 2.9.2008
Baldev Singh ......Appellant
Versus
Davinder Singh ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Nand Lal Sammi, Advocate for the appellant.
Rakesh Kumar Garg, J .
CM No.5508-C of 2008
For the reasons stated in the application, delay of 47 days in
refiling the appeal is condoned.
RSA No.1810 of 2008
The appellant and the respondent are the real brothers who
are co-sharers of the agricultural land measuring 312 Bigha and 19 Biswa
as detailed in the head note of the suit, along with their mother Smt.
Bachan Kaur and brothers Mohinder Singh and Ujjagar Singh. Out of the
total holding of 312 Bighas and 19 Biswas Smt. Bachan Kaur was the
owner to the extent of 1/10 share and out of the remaining land all the four
brothers are having equal share.
As per the averments made in the civil suit, about 10 years
ago, the defendant-respondent had exchanged the land under his
cultivation comprised in Khewat/Khatoni No.18/41, Khasra Nos.676(9-6),
679(6-5), 680(6-5) and 681 (6-5), total measuring 28 bigha and 1 biswa
with the land under cultivation of plaintiff comprised in Khewat/Khatoni
No.57/108, Khasra Nos.783(5-17), 782 (5-13) and Khewat/Khatoni
No.18/41, Khasra No.697(6-0), 698(5-17), total 23 bigha – 7 biswa. Since
the land under cultivation land of the appellant was of superior quality
whereas the land under the cultivation of defendant was of inferior quality,
the appellant was compensated with 4 bigha and 14 biswa of excess
agricultural land at the time of exchange for parting with superior land in
favour of defendant-respondent. Since then, both the appellant and
respondent are in their respective possession of their exchanged land. At
the time of the said exchange, it was agreed and admitted by the
respondent that he had left his share to the extent of 4 bighas and 14
biswas of land out of his share, due to the above exchange of land
between them. In spite of this, the defendant has filed an application for
partition to the extent of his full share and, therefore, the cause of action
has arisen to the appellant, hence, he filed the instant suit for declaration
that he is entitled to 4 bighas and 14 biswas of land from ΒΌ th share of the
defendant land out of the total joint holdings.
The suit was contested by the respondent by filing written
statement denying that any exchange of land had taken place between the
parties or he had left 4 bighas 14 biswas of his land in favour of the
plaintiff. It was also stated that the parties to the suit along with their two
brothers are co-sharers in the total agricultural land measuring 312 bighas
and 19 biswas and the respondent had moved an application for partition
of the total agricultural land before the Assistant Collector, IInd Grade. It
has been further averred in the written statement that the appellant raised
the plea of exchange before the said authority which was rejected. His
appeal against the said order of the Tehsildar was also dismissed by the
Collector, Sub Division, Patiala vide order dated 29.4.1989. The appellant
then filed a revision petition before the Commissioner, Patiala Division,
Patiala against the said order,which was dismissed in default on 27.6.2000.
It was also denied that the parties are in possession of the exchanged land
and rather it was stated that the parties to the suit are in possession being
co-sharers in the total land. The suit was dismissed by the trial Court vide
judgement and decree dated 28.7.2006.
Aggrieved by the aforesaid judgment and decree, the appellant
filed an appeal which was also dismissed by the Additional District Judge,
Patiala vide impugned judgment and decree dated 16.8.2007. Hence, the
present appeal.
Counsel for the appellant while challenging the judgment and
decrees of the Courts below has argued that the factum of exchange of
land between the parties stands clearly established from the revenue
record. According to the learned counsel, after the death of father of the
parties, a family settlement was reached for partition of the land and, as
such, the parties came in possession of the land which fell to their
respective share and also on account of exchange that took place between
the appellant and the respondent and therefore, the suit of the appellant for
declaration is liable to be decreed. Learned counsel has also argued that
the Courts below have erred in law while ignoring revenue record regarding
the ownership and possession of the appellant.
I have heard learned counsel for the appellant and find no
force in his arguments. The Courts below after hearing counsel for the
parties and after going through the evidence produced on record by both
the parties have concurrently held that the plaintiff-appellant has alleged
exchange of land between the plaintiff and the defendant, but he could not
produce any evidence regarding the exchange of land between the co-
sharers, particularly when both of them have been shown as co-owners in
the property in dispute along with their two other brothers namely Mohinder
Singh and Ujjagar Singh. While recording the said finding of fact , the
Courts below have also noticed the earlier suit filed by the parties bearing
civil suit No.420 of 6.1.1988 decided on 29.5.1989 titled as Davinder
Singh v. Baldev Singh in which defendant-Baldev Singh (presently
appellant) had not taken any plea with regard to the partition of exchanged
land. Thus, in my view, the appellant has failed to prove the alleged
exchange of land with the respondent. Moreover, this plea of the appellant
has already been rejected by the revenue Courts upto the level of the
Commissioner. Apart from this, the proceedings for partition of joint Khata
by metes and bounds are pending before the Revenue Authorities and as
such, whatever plea with regard to share the appellant wants to take, he
may take the same before the Revenue Authorities in the partition
proceedings in accordance with law.
No substantial question of law arises in the appeal.
For the reasons recorded above, the appellant is not entitled to
the relief of declaration as prayed for, as such, the present appeal having
no merit is dismissed.
September 2, 2008 (RAKESH KUMAR GARG) ps JUDGE