CHATTAR SINGH Vs. GIRDHARI AND OTHERS

JUDGEMENT

(1.) THIS judgment will also dispose of Regular Second Appeal No. 1612 of 1977 (Chattar Singh v. Bhim Singh etc.) as both these appeals have been filed against the same judgment of the Senior Subordinate Judge (with Enhanced Appellate Powers). Gurgaon. dated 24th September, 1977.

(2.) THE Plaintiff respondcnts, filed two suits alleging that they were the owners in possession of the suit land situated at village Daultabad. According to them, the suit land originally belonged to Gopal son of Kuray, on whose death the Plaintiffs inherited the same. It was alleged that Defendant Chattar Singh (he was the Defendant in both the suits), who was the collateral of the Plaintiffs, was given the suit land for cultivation as a tenant under them subject to payment of rent at the rate of 1/2 share of the produce per year some 20 years ago; that the Defendant paid the agreed rent of the suit land upto 1971 -72; that he declined to pay the rent of the suit land pertaining to the year 1973 about two months before the institution of the suit which was filed on 10th June, 1973, and put forth the claim that he was in possession of the suit land as owner in exchange of his land situated at village Bapdola; that the Defendant did not disclose the particulars of the land given in exchange to the Plaintiffs by him; that the Plaintiffs as also their predecessors - in -interest did not exchange the suit land with the land of the Defendant at village Bapdola; that the Defendant has incurred forfeiture of the tenancy by denying the title of the Plaintiffs in the suit land and by claiming the title in himself to the suit land and that in case the tenancy alleged by the Plaintiffs and the exchange set up by Defendants are not proved, the Plaintiffs are entitled to remain in possession of the land in suit on the basis of their title of the suit land.

(3.) THE learned Counsel for the Appellant contended that in the State of Punjab oral exchange was permissible and, therefore, the view taken by the lower Appellate Court was wrong and illegal. In support of this contention he referred to a Division Bench judgment of this Court reported in Sardara Singh and Anr. v. Harbhajan Singh, 1974 P. L. J. 391. Hardit Singh v. Gulzara Singh, 1973 P. L. J. 329 and Amar Singh v. Sarna (died) represented by his L. Rs. 1982 P. L. J. 19, It was further contended that there was no evidence on the record to show that the Defendant was the tenant under the Plaintiffs, as alleged. There is no evidence of the payment of rent which is essential ingredient of the tenancy. In support of this contention reference was made to Jagjit Singh v. The Financial Commissioner, Haryana, 1981 P. L. J. 367 and Natha Singh v. The Financial Commissioner, Taxation, Punjab, 1976 P. L. J. 293 (S. C). It was also submitted that in view of the entries in the jamabandies from the year 1955 -56 upto the year 1970 -71 i e, Exhibits D. 1 to D. 9, there is a presumption to its correctness under Section 44 of the Punjab Land Revenue Act and the trial Court on the basis of the said entries rightly came to the conclusion that the Defendant was in possession of the suit land by way of exchange and was not the tenant under the Plaintiffs as alleged. On the other hand, the learned Counsel for the Respondents submitted that whether there was a valid exchange or not is a question of fact and, therefore, the same cannot be interfered with in second appeal.