RATTAN CHAND Vs. PIAR SINGH

JUDGEMENT

(1.) Respondent-Plaintiff (hereinafter referred to as, 'plaintiff') namely Piar Singh filed a suit i.e. Civil Suit No. 549/95/94 for declaration to the effect that he has become owner of the land comprising of Khata No. 238, Khatauni No. 585, Khasra Nos. 1213 and 1215, measuring 0-40-40 H.M. situate in Village and Mauza Barot, Sub Tehsil Fatehpur, District Kangra, Himachal Pradesh (hereinafter, 'suit land') . Plaintiff further averred in the plaint that the parties are closely related to each other being real brothers and have their residential house and vacant land in Khasra No. 1988, within Lal Lakir Abadi at Village Barot. In the year 1983, appellant-defendant (hereinafter, 'defendant') exchanged the suit land with the plaintiff. Plaintiff relinquished his share in the ancestral house and vacant land adjoining to that ancestral house in the Abadi Tika. It is further averred in the plaint that the defendant became owner-in-possession of the land and ancestral house alongwith vacant land and plaintiff became owner of the land in dispute but the entries in the revenue record were not changed. It is also averred in the plaint that the defendant admitted before the Panchayat factum of exchange and executed a writing to this effect, which was duly signed by the parties and other witnesses on 6.2.1983 (Exhibit PW-2/A) . Plaintiff also averred that the defendant under the garb of wrong entries in his favour in the revenue record is trying to interfere in the suit land and unlawfully claims himself to be owner of the suit land and has moved an application for partition of the land in dispute. Plaintiff also alleged that the defendant also threatened the plaintiff to dispossess him forcibly from the suit land qua which the defendant has no right. It is averred in the plaint that defendant threatened to alienate the suit land on the basis of wrong entries existing in his favour. Defendant was orally requested to desist from his unlawful deeds but since the defendant refused to admit the claim of the plaintiff, suit detailed herein above came to be filed by the plaintiff.

(2.) Resisting the suit of the plaintiff, defendant refuted the claim of the plaintiff by filing written statement, taking therein preliminary objections of maintainability, locus standi and cause of action. Defendant further claimed that he is owner-in-possession of share of the suit land and he never exchanged his share with the plaintiff. Defendant though admitted averments contained in para Nos. 1 and 2 of the plaint, but denied rest of the paras. He categorically denied that exchange had taken place between the parties and sought dismissal of the suit.

(3.) Learned trial Court, on the basis of pleadings of the parties, framed following issues on 21.1998: