The court emphasized the importance of proving ownership and possession in property disputes, and clarified the legal provisions related to exchange and possession under the Registration Act and Transfer of Property Act.

L. N. MITTAL, J (ORAL) - Plaintiff-Pirthi Singh, having lost in both the Courts below, is in second appeal.

2. Plaintiff filed suit for possession of portion depicted by letters 'ABCDEF' in the site plan being part of Gair Mumkin Bara No.441 measuring 10 marlas. The plaintiff alleged that he is owner of the Bara in dispute measuring 10 marlas, but in his absence, defendant-respondent No.1 (who was sole defendant initially) encroached upon the suit portion of the Bara. Accordingly, plaintiff sought possession of the suit portion.

3. Defendant No.1 denied the plaint allegations. It was pleaded that about 35 years ago, plaintiff exchanged half share of Bara No.441 with half share of Bara No.440 measuring 10 marlas with Baru Ram i.e 5 marlas each of Bara Nos.441 and 440 were exchanged. Since then, parties remained in possession of their respective portions as owners. Baru Ram transferred his half portion of Bara No.441 to Jag Ram by exchange. Jag Ram gave the same to his two sons Ram Singh and Sham Singh equally. Ram Singh sold his portion to Puran Singh whereas after death of Sham Singh, his wife Rajpati sold the disputed portion of Bara No.441 to Jaswant (later on impleaded as defendant No.2) vide agreement dated 13.08.1999 for Rs.1,45,000/-. Since then, defendant No.2 is owner in possession of the suit portion. There is also electricity connection therein standing in the name of Rajpati since the year 1996. Similar stand was taken by defendant No.2 after he was impleaded as such on his own application.

4. Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 16.03.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 21.12.2007. Feeling aggrieved, plaintiff has filed the instant second appeal.

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

6. Learned counsel for the plaintiff-appellant vehemently contended that the Courts below erroneously placed the burden of proving that there was no exchange on the plaintiff-appellant, although it was for the defendants to prove that alleged exchange had taken place because they had raised the plea of alleged exchange. The contention appears to be very forceful on first blush, but on examining the same, it is found to be devoid of any merit. There is specific case of the defendants that plaintiff was given half portion of Bara No.440 in exchange of half portion (including suit portion) of Bara No.441. The plaintiff admitted in his cross examination that he is in possession of half portion of Bara No.440. Otherwise Bara No.440 was owned by Baru Ram. The plaintiff had no concern therewith. The very fact that the plaintiff is in possession of half portion of Bara No.440 depicts that the alleged exchange had taken place. Consequently, the plaintiff is left with no right, title or interest in half portion of Bara No.441 (including suit portion) which was given in exchange by him to Baru Ram in lieu of half portion of Bara No.440 with equal area. Thus plaintiff's own admission proves the defendants' version. The plaintiff had no right, title or interest in half portion of Bara No.440 which is now in his possession. Consequently, the said possession can be explained only on the basis of exchange set up by the defendants.

7. In addition to the aforesaid, it is the plaintiff's case that in his absence about three months before the filing of the suit, defendant No.1 occupied the suit portion illegally and forcibly. However, it has come in plaintiff's own evidence that his brothers are also living in adjoining houses. It is, therefore, unbelievable that in absence of the plaintiff, his property was illegally and forcibly occupied by defendant No.1.

8. The plaintiff has also admitted that Ram Singh has sold half portion of nothern side of Bara No.441 to Puran Singh whereas Rajpati has sold her portion to Jaswant defen