GULAB SINGH Vs. DILBARU

JUDGEMENT

(1.) Feeling aggrieved from the judgment and decree dt. 20-5-1978 passed by Additional District Judge, Kulu, the appellants (hereinafter the plaintiffs) have filed this appeal.

(2.) The facts are that Gulab Singh, Girdhari Lal and Hira Lal are the sons of Khub Ram. Gulab Singh and Girdhari Lal (hereinafter the plaintiffs) filed a suit for possession of 12 Biswas of land in Khasra No. 1469 (disputed land) situate in Phati Parli of Tehsil Kulu alleging that they along with their brother Hira Lal (hereinafter defendant 2) were owners and in possession of this land. Defendant 2 was living separately from the plaintiffs and he in collusion with Dot Ram (hereinafter defendant 1) entered into a fictitious transaction of exchange with defendant 1, by which defendant 1 agreed to give in exchange one half share of Khasra No. 1480 (measuring 1 Bigha 5 Biswas) of Phati Parli to defendant 2 and defendant 2 also agreed to give disputed Khasra No. 1469 to defendant 1. Mutation No. 782 of exchange was sanctioned on 31-6-1963. The plaintiffs alleged that the possession of the land had not passed and the mutation of exchange was a sham transanction and was not binding on the plaintiffs. The plaintiffs share could not be transferred by defendant 2, because defendant 2 had no authority to exchange the land on behalf of the plaintiffs. In order to deprive the plaintiffs of their legitimate rights, the defendant 1 made some construction on the disputed land which is unauthorised. Further, no oral exchange was permissible and for this reason the exchange was invalid and not binding on the plaintiffs.

(3.) Defendant 1 had contested the suit and had alleged that the exchange was a valid one and it was made with the consent of the plaintiffs. The plaintiffs could not file a suit for more than their share and that the plaintiffs were estopped from filing the suit by their act and conduct because the plaintiffs were seeing the possession of defendant 1 on the suit land from year 1963 and defendant 1 had made valuable improvements on the suit land. The plaintiffs along with defendant 2 were in possession of Khasra No. 1480 which was given to them in exchange of the suit land.