HOSHIAR SINGH Vs. AJMER SINGH

JUDGEMENT

(1.) Briefly stated, facts of the case are that plaintiff Ajmer Singh had brought a suit against defendants Hoshiar Singh, Rajinder Singh and Khanna Primary Co-operative Development Ltd. through its Branch Manager seeking possession of the suit land and in addition to that craving for declaration to the effect that the exchange deed dtd. 30/8/1991 is illegal, null and void and so is mutation No. 5283 dtd. 27/12/1991 sanctioned on the basis thereof, further that mortgage deeds dtd. 19/9/1997 and 19/4/2002 are illegal, null and void; in addition to that he had sought recovery of Rs.37,740.00 on account of mesne profit and he had sought permanent injunction also.

(2.) As per the case of the plaintiff, he was owner of land measuring 27 Kanals 16 Marlas situated at village Ikolaha, Tehsil Khanna, District Ludhiana; that the defendant No. 1 was the owner of the land measuring measuring 9 Kanlas 5 marlas i.e. 1/2 share in the land measuring 18 kanals 11 marlas situated at village Ikolaha, Tehsil Khanna; that the plaintiff and defendant No. 1 had agreed to exchange the land measuring 9 kanals 5 marlas resultantly, an agreement of exchange was reduced into writing on 30/8/1991 vide which defendant No. 1 agreed to give land measuring 9 kanals 5 marlas to the plaintiff out of his property and plaintiff No. 1 had agreed to give his land to the defendant No. 1; that after execution of the said agreement of exchange, it was given to Patwari Halqa to enter the mutation; subsequently, defendant No. 1 resiled from that agreement and mutation was neither pursued nor acted upon, however, inadvertently the mutation regarding the land agreed to be given in exchange by the plaintiff to defendant No. 1 was wrongly sanctioned by Halqa Patwari in favour of the defendant No. 1 but no mutation was sanctioned in respect to the land given by defendant No. 1 to the plaintiff; that defendant No. 1 had entered into an agreement to sell his land measuring 9 kanals 5 marlas mentioned in para No. 2 of the plaint with one Paramjit Singh son of Ujjagar Singh son of Bagga Singh, which further proves that the land was never exchanged and the exchange was never given effect to; that defendant No. 1 had obtained loan from PADB, Khanna by pledging his 1/2 share out of 18 kanals 11 marlas, thus showing that the land was never exchanged and the said exchange deed was never given effect to by the parties; that even the defendant No. 1 entered into an agreement to sell dtd. 31/5/1999 in respect to land measuring 9 kanals 5 marlas in favour of the plaintiff; that if this land had been exchanged, defendant No. 1 could not have mortgaged this property and could not also enter into any agreement to sell and this land should have been mutated in the name of the plaintiff; that under the agreement to sell dtd. 31/5/1999, the defendant No. 1 delivered the possession of the property mentioned in para No. 2 of the plaint to the plaintiff in part performance of the agreement and the plaintiff moved an application for correction of khasra girdawari in respect to said land, which was contested by defendant No. 1 but it was sanctioned in favour of the plaintiff by the revenue authorities; that defendant No. 1 himself preferred an appeal against the mutation No. 5283 dtd. 27/12/1991 and stated in the grounds of appeal that mutation No. 5283 was illegal, null and void and the same was liable to be set aside; that defendant No. 1 illegally mortgaged the land measuring 3 kanals 3 marlas in favour of defendant No. 2, to which defendant No. 1 has no right, therefore the mortgage deed dtd. 19/4/2002 and report No. 5934 sanctioned on the basis of said mortgage deed was also null and void and liable to be set aside; that similarly the defendant No. 1 had mortgaged land measuring 3 kanals 16 marlas in favour of defendant No. 3 vide mortgage deed dtd. 19/9/1997 and mutation on the basis thereof was sanctioned, which according to the plaintiff was illegal and void and had no effect on the ownership rights of the plaintiff and was also ineffective, inoperative on the rights of the plaintiff. As per the version of the plaintiff, possession of defendant No. 1 was illegal and as that of a trespasser and therefore, the plaintiff is entitled to get the possession being owner since the plaintiff is still the owner of the property; that the defendant No. 1 was illegally and unlawfully using and enjoying the property in dispute, therefore, the plaintiff is entitled to mesne profits at the rate of Rs.8,000.00 per year, coming to Rs.27,750.00 for a period of August 1999 to August, 2002; that the defendant No. 1 threatened to alienate, transfer, mortgage this property, to which he had no right. Feeling aggrieved the plaintiff had brought the suit.

(3.) On notice, only defendant No. 1 put in appearance to offer contest. In the written statement filed by defendant No. 1, he has raised preliminary objections contending that the plaintiff had filed a false and frivolous suit to grab the property of the answering defendant taking advantage of illiteracy and innocence of the answering defendant; that the real facts were that the plaintiff and answering defendant agreed to exchange their land vide exchange deed dtd. 30/8/1991 and the possession of the land was exchanged at that time and since then the parties were in possession of the exchanged properties; that the plaintiff mischievously tried to grab the property of the answering defendant; that the defendant had filed a suit titled "Ajmer Singh v. Hoshiar Singh " for specific performance on the basis of alleged agreement to sell dtd. 31/5/99, which was a complete sham paper transaction and was a result of fraud and misrepresentation; that it was difficult to understand how the defendant could enter into an agreement to sell when he was already litigating; that the plaintiff was estopped by his own act and conduct; that the suit was hopelessly time barred and not maintainable that the exchange deed had already taken place in spirit and letter; that the plaintiff had filed the suit by distorting true facts. On merits, the answering defendant stated that plaintiff had agreed to exchange the land vide exchange deed dtd. 30/8/1991 and the possession of the property was also exchanged and then the parties were owners in possession of the exchanged property; that the agreement of exchange was legal and valid and the plaintiff himself had got the mutation sanctioned; that the defendant No. 1 had obtained a loan from defendant No. 3 and the plaintiff was signatory to that mortgage deed, however, now the plaintiff had concocted a false story. Refuting the remaining allegations, such defendant prayed for dismissal of the suit.