RAM NATH Vs. SHAM SUNDER

JUDGEMENT

(1.) DISPUTE in this case is between two brothers, namely, Ram Nath and Sham Sunder sons of Devi Dass.

(2.) ORIGINALLY , the shop marked ABCD was owned by the mother of the parties, Smt. Kamla Wati. She executed sale-deed dated 6.5.1992 regarding shop marked ABCD in favour of Ram Nath-plaintiff (appellant herein). The shop and room shown in red colour in site plan, Ex.P-1, were owned by the father of the parties, Sh. Devi Dass. He executed sale-deed dated 29.1.1999 in favour of Sham Sunder-defendant (respondent herein). Both the brothers, i.e. Ram Nath and Sham Sunder, entered into agreement of exchange dated 11.4.1993 and exchanged possession, meaning thereby that as a result of exchange, Sham Sunder came in possession of shop marked ABCD and Ram Nath came in possession of shop and room shown as red in site plan, Ex.P-1. Subsequently, Ram Nath filed suit, out of which the present second appeal has arisen, against Sham Sunder for possession of shop marked ABCD which was given to Sham Sunder in exchange and for permanent injunction restraining Sham Sunder from interfering in his possession of shop and room shown as red in the site plan. He alleged that exchange was not voluntary and the same is not binding on him. Trial Court dismissed the suit of Ram Nath regarding possession of shop marked ABCD, holding that agreement of exchange has been voluntarily acted upon between the parties and is binding. It, however, decreed the suit for permanent injunction relating to shop and room shown as red in the site plan as according to it, it was given to Ram Nath by Sham Sunder in exchange. In first appeal by Ram Nath, the learned Additional District Judge, held that agreement of exchange being an unregistered document cannot be taken into evidence and Sham Sunder cannot retain possession of the shop marked ABCD merely on the basis of possession delivered to him through agreement of exchange. It further held that Ram Nath is not entitled to injunction relating to shop and room shown as red in the site plan, given to him by Sham Sunder on the basis of agreement of exchange. Accordingly, the Additional District Judge passed decree for possession of the shop marked ABCD but dismissed the suit regarding injunction relating to shop and room shown as red in the site plan. Now, Ram Nath has come in second appeal in regard to dismissal of his suit for grant of injunction relating to shop and room, shown as red in the site plan, which was given to him by Sham Sunder in exchange. On the other hand, Sham Sunder has filed cross-objections stating that if the plaintiff, Ram Nath wants possession of shop ABCD which he had given to him in exchange, then he is liable to return possession of shop and room shown as red in the site plan. The precise contention of Sham Sunder is that Ram Nath cannot seek possession of shop marked ABCD and also retain possession of shop and room shown as red in the site plan.

(3.) LEARNED counsel appearing on behalf of Ram Nath plaintiff contended that the remedy of Sham Sunder defendant is to file suit for possession regarding shop and room shown as red in the site plan, and it is only after a decree is passed in his favour, possession can be taken from Sham Sunder defendant. I find no merit in the contention of the counsel. In case exchange is not acceptable to the plaintiff, in equity he must return possession of the shop and room, possession of which was given to him by Sham Sunder defendant in exchange.