1. This second appeal has been filed by plaintiff against the judgment and decree dated 19-08-1994, passed by learned Second Additional District Judge, Sidhi in Civil Appeal No.8-A/1992 allowing the appeal of defendant and thereby setting aside the judgment dated 04-04-1990 and decree dated 09-04-1990, passed by learned III Civil Judge Class-II, Sidhi in Civil Suit No.15-A/1989, decreeing the suit of plaintiff/appellant.

2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for declaration that plaintiff is the Bhumiswami of Survey No.2630 (old No.2697) area 1.85 acres and the registered sale-deed dated 06-06-1988 executed by second and third defendants in favour of first defendant is null and void against the plaintiff and in the alternative, it has been prayed that the plaintiff be declared Bhumiswami of Survey No.380 (old No.330) area 2.85 acres and the possession thereof be also delivered to him.

3. In the plaint, it has been pleaded by the plaintiff that he is Bhumiswami of Survey No.2630 area 1.85 acres, and this land was given to him in exchange by Suryadeen who was the predecessor of second and third defendants and in exchange, plaintiff gave his third land Survey No.380, area 2.85 acres to said Suryadeen and thus, plaintiff is the Bhumiswami of Survey No.2630. According to the plaintiff, Survey No.380, which he gave in exchange to said Suryadeen, was given to him by the then Ilakedar by executing a Patta in Samwat 1998 (corresponding year 1941) and thus, he became Bhumiswami of the Survey No.380. However, the said land was given by plaintiff in exchange to predecessor of defendants No.2 and 3 namely; Suryadeen who in exchange gave the suit land Survey No.2630 to the plaintiff. But defendant No.2 and 3 illegally sold it to first defendant Lalji vide registered sale-deed dated 06-06-1988. Hence it has been prayed by the plaintiff that the suit of plaintiff be decreed by declaring him to be Bhumiswami having possession over Survey No.2630 and the sale-deed dated 06-06-1988 be declared null and void. Alternatively, relief has been claimed that in case the transaction of exchange is not found to be proved, then plaintiff may be declared Bhumiswami of Survey No.380 area 2.85 acres and the possession thereof be also given to him.

4. The first defendant filed written-statement and denied the plaint averments, defendant no.2 did not file any written-statement, however, defendant no.3, Rajeev Lochan, who is the successor of Suryadeen filed a separate written-statement and specifically admitted the averments made in paragraphs 1 to 5 of the plaint to be true. However, other pleadings of the plaintiff has been denied in the written-statement filed by him. The first defendant who is a purchaser from defendants no.2 and 3 also denied the averments made in the plaint.

5. The learned Trial Court after framing necessary issues recorded the evidence of the parties and decreed the suit of plaintiff in toto including the alternative relief which the plaintiff sought. The second and third defendants did not prefer any appeal although first defendant/respondent filed first appeal before the learned First Appellate Court which was allowed and the suit of plaintiff has been dismissed.

6. In this manner, this second appeal has been filed by the plaintiff.

7. This Court on 18-04-1995 admitted the second appeal on the following substantial question of law:

“Whether the alternative claim decreed by the trial Court could be set aside while negativing plaintiffs title over the suit land Khasra No.2630?”

8. The contention of Shri Varma, learned counsel for the appellant is that even if learned First Appellate Court came to the conclusion that the transaction of exchange is not proved, it was incumbent upon that Court to affirm the judgment and decree passed by the Trial Court granting the alternative relief to the plaintiff by passing a decree in that regard. Learn