JATTU RAM Vs. HAKAM SINGH

JUDGEMENT

(1.) THIS appeal by special leave is at the behest of the plaintiff -Jattu Ram. He laid a suit for declaration that Hakam Singh, the first respondent, had delivered possession of the plaint scheduled property in exchange and for consequential orders. In Case No. 253 -1 of 1981 by Addl. Senior Sub -Judge, Ferozepore, decreed on September 8,1983. On appeal, the Additional DistrictJudge in Civil Appeal No. 161/83 allowed the appeal and dismissed the suit on February 12, 1986. The High Court of Punjab and Haryana in R.S.A. No. 758/86 dismissed in limine.

(2.) THE admitted facts are that the appellant possessed of 90 kanals 7 marl as of land scattered at different places in the Village Malikzada. The first respondent had agreed to exchange those lands with his land in an extent of 90 kanals 12 marlas and for the excesss 5 marlas, the appellant had paid the money. It transpired later on that the first respondent had defective title of his land since he had purchased from Kartan Kaur and her two minor sons. The minor sons filed a civil suit against Hakam Singh claiming 2/3rd share and the Civil Court decreed the suit holding that the sale made by the mother of their 2/3rd share was void. Consequently on demand made by the minors, the appellant had to surrender 52 kanals 10 marlas of land to the minor sons of Kartar Kaur. As compensation thereof, the first respondent delivered 47 kanals 1 maria of land and promised to pay compensation for the balance loss of land and also promised to get mutation effected in the revenue records. Thereafter, when the first respondent started alienating the land in favour of the respondent Nos. 2 to 9, the appellant filed the above suit. The first respondent admitted the factum of the exchange as well as his purchasing the property from and decree of the civil Court that sale to the extent of 2/3rd share of minors as void and that the appellant had parted with possession of 52 kanals and 10 Marlas of lands in favour of the minors. However, he pleaded that the appellant had without his consent, voluntarily parted with possession of the lands. He further averred that the lands in the possession of the appellant are only as tenant -at -will. Yet the first respondent had admitted that no rent was paid after the delivery of the possession of 47 kanals 1 marla. The appellate Court also found in column 90fExh. P8Jamabandi "Tassawar Tabadla" (as a result of exchange), but however, it proceeded on the premise posing a question in the beginning of the Consideration whether the appellant came into possession only as a tenant and based on the entry of the Patwari in that behalf, without any further evidence, concluded that the appellant was only a tenant. The question, on these admitted facts, is whether the appellant is in possession of the plaint scheduled lands on exchange as a consequence of compensating him for the loss of 52 kanals 10 marlas.