SARDARA SINGH Vs. HARBHAJAN SINGH

JUDGEMENT

(1.) THIS is an appeal under Clause X of the Letters Patent and is directed against the decision of a learned Single Judge of this Court affirming on appeal the decision of the Lower Appellate Court reversing the decision of the trial Court.

(2.) SARDARA Singh, Dara Singh and Chanan Singh jointly owned a large tract of land in village Ahrwan. The share of Chanan Singh in this land was 1/4th. He exchanged an area measuring 213 kanals 11 marlas out of the joint holding with Harbhajan Singh, Sucha Singh, Har Randhir Singh and Balbhadar Singh, for 206 kanals 2 marlas, in the same village. This exchange was oral. A mutation of the exchange was entered and the same was attested on April 10, 1965. Sardara Singh and Dara Singh, filed a suit challenging this exchange and for possession of the land exchanged. They pleaded that the oral exchange was invalid and as it had been effected to injure their interests, it be set aside and the possession of the land decreed in their favour. This suit was contested by Harbhajan Singh, Sucha Singh. Har Randhir Singh and Balbhadar Singh. They maintained that oral exchange was permissible and it suffered from no infirmity. They further pleaded that the exchange had not been obtained either by fraud or by misrepresentation. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the transaction of exchange in dispute is liable to be set aside on the grounds mentioned in Para No. 4 of the plaint? 2. Whether the plaintiffs are entitled to challenge the share of Chanan Singh, defendant No. 5?

(3.) WHETHER the plaintiffs are estopped from bringing the suit? 3. The trial Court held that the exchange was oral and as no notice of it was given to the plaintiffs, it was illegal and void and was liable to be set aside. It was further held that as the oral exchange was void, the exchange made regarding the share of Chanan Singh could also be challenged, and that the plaintiffs were not estopped from bringing the suit. Against this decision, defendants Harbhajan Singh and others preferred an appeal to the District Judge. This appeal was heard and decided by the Additional District Judge, Hissar. The learned Judge allowed the appeal, reversed the decision of the trial Court and dismissed the plaintiff's suit. An attempt was made before the learned Additional District Judge to lead additional evidence, but without success. The learned Judge took the view that an oral exchange was permitted in Punjab and accordingly, the exchange was valid. The learned Judge also held that the plaintiffs were estopped from challenging the exchange. The plaintiffs being dissatisfied came up in appeal to this Court and the only matter that was agitated before the learned Single Judge was that an oral exchange is not permissible. The learned Single Judge took the view that an oral exchange was permissible in Punjab. The contention of the learned counsel for the appellants based on the following part of Section 118 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act): " A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale;" was negatived. The contention was that an exchange has to conform to the formalities of a sale and as no sale under the Act could be effected without a registered instrument, the exchange was void. This contention was overruled by the learned Single Judge. The result was that the appeal was dismissed. The learned Single Judge, however, granted the necessary certificate under Clause X of the Letters Patent and that is how the present appeal has been preferred.