Validity of oral exchange and the legal requirement for compulsory registration of a memorandum of exchange.

L.N.Mittal, J.

1. This is second appeal by plaintiff Randhir Singh who was successful in the trial court but has been non-suited by the lower appellate court.

2. Kishan Singh was grand-father of both the parties. Plaintiffs case is that defendant was owner of the suit property measuring 21/2 marlas situated in Mathurapuri, Phillaur whereas plaintiff was owner in possession of 13 marlas 3 sarsahi land in village Haripur (hereinafter called the exchanged land) being l/6th share of 4 kanals land. The parties orally exchanged the aforesaid properties and also exchanged possession thereof. Thereafter memorandum of settlement dated 7.4.2000 was also recorded. Accordingly, the plaintiff became owner in possession of the suit property. Defendant became owner in possession of the exchanged land. The defendant also constructed boundary wall of big kothi in village Haripur around the exchanged land. The plaintiff accordingly sought declaration that he is owner in possession of the suit property in view of exchange and defendant has taken the exchanged land in lieu thereof. The plaintiff also sought permanent injunction.

3. The defendant denied the plaint allegations. The plea of exchange of the properties and exchange of possession thereof was controverted. It was pleaded that the defendant is owner in possession of the suit property which he purchased vide sale deed dated 15.10.1998 from plaintiffs father for one lac. It was pleaded that ground floor of the suit property is in possession of tenant-Bank and first floor thereof is in possession of the defendant. It was also alleged that defendants father had 5/6th share in 4 kanals land in question whereas the plaintiffs father has remaining l/6th share but plaintiff is not sole heir of his father as plaintiffs mother and two sisters are also legal heirs of plaintiffs father. Various other pleas were also raised.

4. Learned Civil Judge (Junior Division), Phillaur vide judgment and decree dated 13.6.2007 decreed the plaintiffs suit. However, first appeal preferred by the defendant has been allowed partly by learned Additional District Judge, Jalandhar vide judgment and decree dated 21.7.2009 and thereby suit filed by the plaintiff stands dismissed except that the plaintiff was declared to be in possession of the suit land. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

5. I have heard learned counsel for the parties and perused the case file.

6. Factum of exchange between the parties and subsequent execution of memorandum of exchange Annexure A/1 is fully proved and has also been held proved by the courts below. The parties also exchanged the possession of the properties in question as held by the courts below. In this context, it has to be noticed that the plaintiff himself appeared in the witness box and also examined two attesting witnesses of the memorandum of exchange namely Surinder Singh PW5 and Balvinder Singh PW4. The plaintiff also examined scribe of the said document Satnam Singh PW2. All of them have stated that the said document was executed by the parties. The defendant has examined Bhajan Singh DW1, Santokh Singh DW2 and Jaswinder Singh DW3 who are also witnesses of the aforesaid document. They have denied the execution of the document. However, their statements have been rightly discarded by the courts below. They have admitted their signatures on the aforesaid document. However, they stated that their signatures had been obtained on blank papers. Obviously, the said statement made by these witnesses is unbelievable and unreliable. They are relatives of the defendant and therefore, by making said statement they have tried to depose in favour of the defendant against facts. Bhajan Singh stated that in fact compromise had taken place between the parties on the day of this document. Similar statement has been made by other witnesses. It is, thus, apparent even from the evidence of the defendant also that the aforesaid document has been execut