***

AMARINDER SINGH GREWAL, J. –

1. The appellant, Jogi Ram, who was the defendant before the learned trial Court, has filed the present Regular Second Appeal against the judgment and decree dated 30.07.2001 passed by the learned Additional District Judge, Hisar, whereby the appeal preferred by the respondent (plaintiff) named as Imarati against the judgment and decree dated 28.04.2000 passed by the learned Civil Judge (Junior Division), Hisar, was accepted.

2. For the sake of convenience, the parties shall be referred to by their status before the learned trial Court.

3. The facts necessary for adjudication of the present appeal are that plaintiff named as Imarati, wife of Bhag Chand, instituted a suit for permanent injunction bearing Civil Suit No. 226-C of 1993-98 against Mansa and another before the learned Civil Judge (Junior Division), Hisar. It was pleaded that the plaintiff was the owner in possession of gair-mumkin Plot Nos. 628 (0-10) and 629 (0-10), measuring one kanal, comprised in Khewat No. 17, Khatuni No. 29, as per the Jamabandi for the year 1985-86, situated at Village Niyana, Tehsil and District Hisar. It was further pleaded that defendants Mansa and another were trying to interfere with the peaceful possession of the plaintiff over the suit property and, therefore, they were liable to be restrained from interfering with her peaceful possession. It was further pleaded that on 20.09.1993, the defendants came to the suit property and threatened to dispossess the plaintiff therefrom, necessitating the filing of the suit.

4. Notice of the suit was issued to the defendants, who appeared and contested the same by filing their written statement and raising various preliminary objections. It was pleaded that the plaintiff was not the owner in possession of the plots in question, as she had exchanged the same with the defendants. In this regard, an agreement/exchange deed was allegedly executed before the Panchayat on 16.06.1990, which was stated to have been duly executed by the plaintiff and her family members. Accordingly, dismissal of the suit was prayed for.

5. The plaintiff filed replication controverting the averments made in the written statement and reiterated the stand taken in the plaint.

6. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:

1. Whether the plaintiff is owner in possession of the suit property as leasee, if so its effect ? OPP

2. Whether the plaintiff has got no locus-standi to file the present suit as alleged ? OPD

3. Whether the suit is not maintainable in the present form as alleged in para no. 2 of the written statement ?OPD

4. Whether the plaintiff is estopped from filing the present suit by her own act and conduct? OPD.

5. Whether the suit is bad on account of mis-joinder and non-joinder of necessary parties? OPD.

6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD.

7. Whether the plaintiff has exchanged her property on 16.6.1990 in favour of the defendants and delivered the possession, if so its effect? OPD.

8. Relief.

7. The parties led evidence in support of their respective pleadings. Upon appraisal of the evidence available on record, the learned trial Court decreed the suit to the extent that the plaintiff was held to be the owner in possession of Plot No. 629 (0-10), comprised in Khewat No. 17, Khatuni No.29, as per the Jamabandi for the year 1985-86, situated at Village Niyana, Tehsil and District Hisar. However, the suit qua Plot No. 628 (0-10), comprised in the same Khewat and Khatuni and situated at the same village, was dismissed vide judgment and decree dated 28.04.2000.

8. In paragraph No. 9 of the said judgment, the learned Civil Judge (Junior Division), Hisar, observed that the defendants had, in their written statement, virtually admitted that Plot No. 629 (0-10) belonged to the plaintiff and that no counter-claim had been raised in respect thereof.

9. Aggrieved against the judgment and decree dated 28.04.2000, plaintiff named as Imarati preferred Civil Appeal No. 56 of 2000 before the learned Additional District Judge, Hisar. Notice of the appeal was issued to the defendants Mansa and another, who contested the same.

10. The learned Additional District Judge, Hisar, after hearing learned counsel for the parties, disbelieved the exchange deed dated 16.06.1990 (Ex. D1) relied upon by the defendants and duly exhibited before the learned trial Court. The learned First Appellate Court relied upon the revenue record and held that the plaintiff was the owner in possession of Plot Nos. 628 and 629. Consequently, the judgment and decree of the learned trial Court to the extent it related to Plot No. 628 (0-10) was set aside vide judgment and decree dated 30.07.2001.

11. Aggrieved by the aforesaid judgment and decree dated 30.07.2001 passed by the learned Additional District Judge, Hisar, defendant-Jogi Ram, who is the appellant before this Court, has preferred the present Regular Second Appeal.

12. At the outset, learned counsel for the appellant has vehemently contended that the learned Additional District Judge, Hisar, committed a grave error in discarding the exchange deed dated 16.06.1990 (Ex. D1), pursuant to which Plot No. 628 was exchanged with Mansa Ram with his house. It was further contended that the learned First Appellate Court erred in observing that the defendants were required to prove the thumb impression of Smt. Imarati on the exchange deed dated 16.06.1990 (Ex. D1), particularly when the plaintiff herself had admitted her signatures on the document. It was further contended that the present appellant-Jogi Ram and Mansa had duly proved the exchange deed dated 16.06.1990 (Ex. D1), as the respondent-Imarati had appended her signatures thereon along with the signatures of her sons Nihal and Umed. Even Rajmal, who is the son of the brother of her husband, had signed the said document. According to learned counsel, the plaintiff had admitted her signatures as well as those of her sons on the exchange deed dated 16.06.1990 (Ex. D1). The appellant had also examined DW-1 Jogi Ram and DW-3 Hoshiyar Singh, who supported and proved the said document.

13. It was, therefore, argued that the learned Additional District Judge, Hisar, could not have discarded the exchange deed dated 16.06.1990, pursuant to which Plot No. 628 (0-10) had been transferred in favour of the present appellant. It was further contended that the learned First Appellate Court had erred in observing that the present appellant was required to examine an expert to prove the exchange deed dated 16.06.1990 (Ex. D1), despite the plaintiff having admitted the document and her signatures thereon.

14. Learned counsel for the appellant further submitted that the learned trial Court had duly appreciated the evidence and recorded a finding that the document Ex. D1, i.e. the exchange deed dated 16.06.1990, stood duly proved and, consequently, the suit of the plaintiff qua Plot No. 628 (0- 10) had rightly been dismissed, as the said plot had been exchanged by the plaintiff in favour of the present appellant. Accordingly, prayer was made for setting aside the judgment and decree dated 30.07.2001 passed by the learned Additional District Judge, Hisar.

15. Per contra, learned counsel appearing for the respondent (plaintiff) contended that although plaintiff named as Imarati who examined herself as PW-1 though had admitted her signatures as well as those of her sons on the alleged exchange deed dated 16.06.1990 (Ex. D1) but the said exchange deed was never acted upon by the parties. It was argued that since the alleged exchange was never acted upon, possession over Plot No. 628 (0-10) continued to remain with the plaintiff-respondent. It was further submitted that the revenue record also clearly reflects the possession of the plaintiff-respondent over the suit property. Further, learned counsel for the respondent also relies upon the judgment of Himachal Pradesh High Court in the case of Brahm Dass (since deceased through Lrs) Vs. Kaur Chand and others, decided on 01.03.2019, wherein, it has been held that no immovable property having value of more than Rs. 100 can be transferred without there being any registered document.

16. According to learned counsel for the respondent (plaintiff), the learned Additional District Judge, Hisar, after duly appreciating the revenue record and the other evidence available on record, had rightly held that respondent was the owner in possession of Plot Nos. 628 and 629. It was, therefore, submitted that the judgment and decree dated 30.07.2001 did not call for any interference and the present appeal, being devoid of merit, deserved to be dismissed.

17. I have heard learned counsel for the parties and have gone through the record with their able assistance.

18. Upon consideration of the respective submissions advanced by learned counsel for the parties, it is not in dispute that respondent-Imarati, wife of Bhag Chand, was recorded as owner in possession of gair-mumkin Plot Nos. 628 (0-10) and 629 (0-10), measuring one kanal, comprised in Khewat No. 17, Khatuni No. 29, as per the Jamabandi for the year 1985-86, situated at Village Niyana, Tehsil and District Hisar. The controversy in the present appeal is confined to Plot No. 628 (0-10), as the appellant-defendant had himself admitted in the written statement that the plot No. 629 (0-10) pertains to the respondent-plaintiff.

19. Much emphasis has been laid by learned counsel for the appellant on the exchange deed dated 16.06.1990 (Ex. D1), contending that the same had been duly proved before the learned trial Court by examining the present appellant-Jogi Ram as DW-1 and Hoshiyar Singh as DW-3, besides relying upon the statement of plaintiff-Imarati, who had admitted her signatures as well as the signatures of her sons on the said document. However, the material question which arises for consideration is whether the alleged exchange deed dated 16.06.1990 (Ex. D1) was ever acted upon by the parties and, consequently, whether any right, title or interest in Plot No. 628 (0-10) stood transferred in favour of the appellant pursuant thereto. Had the exchange deed dated 16.06.1990 (Ex. D1) actually been acted upon, the name of the appellant or Mansa Ram ought to have been reflected in the revenue record in respect of Plot No. 628 on the basis of the alleged exchange.

20. Admittedly, neither the name of the appellant nor that of Mansa Ram was ever recorded in the revenue record as owner of Plot No. 628 on the basis of the alleged exchange deed dated 16.06.1990. The continued reflection of the respondent as owner in possession in the revenue record lends support to the finding that the alleged exchange deed was never acted upon by the parties.

21. Although the learned Additional District Judge, Hisar, observed that the burden was upon the appellant to prove the thumb impression/signature of Imarati on the exchange deed dated 16.06.1990 (Ex.D1) and also noticed that no handwriting or fingerprint expert had been examined, this Court is of the considered view that the matter can be examined from another and more fundamental aspect, namely, the legal enforceability of the alleged exchange itself.

22. Section 118 of the Transfer of Property Act, 1882 defines ‘exchange’ and says that a transfer of property in completion of an exchange must be made only in manner provided for the transfer of such property by sale.

23. Further, Section 17(1) (b) of Registration Act, 1908 makes registration is compulsory for non-testamentary instruments creating, declaring, assigning, limiting or extinguishing rights in immovable property valued at Rs. 100/- or more.

24. The Hon’ble Supreme Court of India in the case of Shyam Narayan Prasad vs Krishna Prasad on 2 July, 2018, had held that where Section 118 of TPA applies, an exchange of immovable property valued at Rs. 100 more must be by a registered instrument.

25. In the present case, the appellant has placed substantial reliance upon the alleged exchange deed dated 16.06.1990 (Ex. D1). However admittedly, the said document is not a registered instrument. Consequently, merely proving the execution of the document would not, by itself, confer any right, title or interest in immovable property upon the appellant where the law requires the transaction to be effected through a registered instrument.

26. Therefore, the alleged exchange deed dated 16.06.1990 (Ex.D1), being an unregistered instrument purporting to effect an exchange of immovable property, cannot be relied upon for the purpose of establishing transfer of title in Plot No. 628 (0-10) in favour of the appellant.

27. In these circumstances, the learned Additional District Judge, Hisar, was justified in declining to rely upon the alleged exchange deed dated 16.06.1990 (Ex. D1) and in relying upon the revenue record while holding the respondent to be the owner in possession of Plot Nos. 628 and 629 measuring one kanal, comprised in Khewat No. 17, Khatuni No. 29, as per the Jamabandi for the year 1985-86, situated at Village Niyana, Tehsil and District Hisar.

28. In view of the judgments passed by the Hon’ble Supreme Court in Pankajakshi (Dead) through Legal Representatives and others Vs. Chandrika and others, (2016) 6 SCC 157, Randhir Kaur Vs. Prithvi Pal Singh and others, (2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurbachan Singh (dead) through LRs and others, (2023) SCC Online SC 875, questions of law are not required to be framed in second appeal before the Punjab and Haryana High Court whose jurisdiction is circumscribed by provisions of Section 41 of the Punjab Courts Act, 1918.

29. No ground is made out for interference with the well-reasoned judgment and decree dated 30.07.2001 passed by the learned Additional District Judge, Hisar.

30. Accordingly, the present Regular Second Appeal is dismissed.

31. Pending applications, if any, stand disposed of.

Appeal dismissed.

********