DAYAL SINGH AND ANR. Vs. ANIL KUMAR SACHDEVA

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 15.10.1996 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 11 -N/13 of 1994 whereby he allowed the appeal filed by the Respondent (hereinafter referred to as the 'Defendant'), dismissed the Cross Objections filed by the Appellants (hereinafter referred to as the 'Plaintiffs') and set aside the judgment and decree dated 21.1.1994 passed by the learned Sub Judge, 1st Class, Kandaghat, Camp at Rajgarh, District Sirmaur in Civil Suit No. 15/1 of 1990 whereby the suit of the Plaintiffs was partly decreed and resultantly, the Plaintiffs' suit has been dismissed.

(2.) BRIEFLY stated the facts of the case are that the Plaintiffs filed a suit before the learned Trial Court in which it was alleged that they had exchanged their property comprised in Khewat/Khatauni 9/12 min. Khasra No. 242/12/2 and Khasra No. 13 measuring 3 bighas 14 biswas situated in village Neri Jagyala, Tehsil Rajgarh, District Sirmaur, H.P. with the land of the Defendant comprised in Khasra No. 292/6, Khatauni No. 10/13 min., measuring 1 -2 bighas and Khata No. 9/12 min., Khasra No. 9 measuring 2 -19 bighas total 4 -1 bighas in village Neri Jagyala, Tehsil Rajgarh, District Sirmaur, H.P. According to the Plaintiffs, the agreement dated 22.8.1988 vide which this exchange had taken place was void for want of proper stamps and registration. Further according to the Plaintiffs, the Defendant had promised that he would bring water from 'Giri' river or 'Pervi Khad' for his factory and out of this water, he would allot 11/2" of water for drinking and irrigation purposes to the Plaintiffs. According to the Plaintiffs, it was orally agreed that this part of the agreement would be complied with within one year. There were other conditions also that even if the factory is closed or the same is transferred, the Plaintiffs would have a right to get the water but they would then have to bear the electricity charges for lifting the water. On this basis, the Plaintiffs prayed for a decree in the following terms:

(3.) IT would be pertinent to mention here that since the Defendant did not file written statement in time, his right to file the same was closed by the learned Trial Court on 20.11.1990 and his defence was struck off under Order 8 Rule 10, CPC. Thereafter, the Defendant filed a Revision Petition in this Court which was dismissed as withdrawn in view of the law laid down by the Apex Court in ModulaIndia v. Kamakshya Singh : AIR 1989 S.C 162.