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In the High Court of Punjab and Haryana, at Chandigarh

1.

Regular Second Appeal No. 3494 of 2006 (O&M)

Nagar Singh

... Appellant(s)

Versus

Pirthi and Others

... Respondent(s)

AND

2.

Regular Second Appeal No. 3495 of 2006 (O&M)

Ram Kumar

... Appellant(s)

Versus

Pirthi and Others

... Respondent(s)

DATE OF DECISION: 02.08.2022

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:

Mr. Rakesh Gupta, Advocate

for the appellant(s).

Mr. Rajinder Goyal, Advocate

for the respondent No.1 and 2.

Anil Kshetarpal, J.

1.

The Regular Second Appeal in the States of Punjab, Haryana

and Union Territory, Chandigarh is governed by Section 41 of the Punjab

Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure,

1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi

(Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157.

2.

These two regular second appeals have arisen from a common

DEEPAK KUMAR BHARDWAJ

2022.08.10 15:25

I attest to the accuracy and

integrity of this document

Regular Second Appeal No. 3494 of 2006 (O&M) AND

2

Regular Second Appeal No. 3495 of 2006 (O&M)

judgment passed by the learned trial Court as well as the First Appellate

Court. Two defendants assail the concurrent findings of fact arrived at by

both the Courts below by filing two separate appeals. The learned counsel

for the parties are ad idem that these appeals can conveniently be disposed of

by a common judgment.

3.

The plaintiffs filed a suit for grant of decree of declaration to

the effect that they are owners in the enjoyment and actual possession of the

land measuring 10 kanals and 15 marlas out of the land described in para 1

of the plaint and the judgment and decree dated 28.02.1989 suffered by the

predecessor of the defendant No.4 to 10 in favour of the defendant No.1 to 3

and the sale deed dated 11.10.1996 are not binding on their rights along with

seeking the consequential relief of permanent injunction.

4.

Sh.Deep Chand son of Sh.Bakhtawar was owner in possession

of the land to the extent of 1/6th share in the joint land measuring 46 kanals

and 8 marlas. He transferred the aforesaid share to the plaintiffs vide sale

deed dated 11.01.1988. Similarly, Sh.Manga was also owner to the extent of

1/6 share share equivalent to 7 kanals and 15 marlas of the land. It is the

case of the plaintiffs that Sh.Manga transferred his share in the joint land

measuring 7 kanals and 15 marlas in exchange of 4 kanals and 15 marlas

belonging to the plaintiffs. Thus, the plaintiffs became owner of the land

measuring 7 kanals and 15 marlas received from Sh.Manga and also of the

remaining land measuring 3 kanals after giving the land measuring 4 kanals

and 15 marlas to Sh.Manga.

5.

Subsequently, the aforesaid exchange was acknowledged before

the Civil Court in the Civil Suit bearing No. 189 of 1989 decided on

DEEPAK KUMAR BHARDWAJ

2022.08.10 15:25

I attest to the accuracy and

integrity of this document

Regular Second Appeal No. 3494 of 2006 (O&M) AND

3

Regular Second Appeal No. 3495 of 2006 (O&M)

16.05.1988. However, Sh.Manga, along with his brothers, namely Sh.Chota

and Sh.Devi Chand subsequently suffered a collusive decree on 28.02.1989

in favour of the defendant No.1 to 10 in respect of the land measuring 21

kanals and 4 marlas. The brothers of Sh.Manga also sold the remaining 2

kanals and 8 marlas in favour of the defendant No.11 and 12.

6.

The defendants denied the exchange between Sh.Manga and the

plaintiff. Alternatively, it was pleaded that such exchange could only be

executed by a registered document. The defendant No.11 claims that he is a

bonafide purchaser of the land measuring 2 kanals on payment of the sale

consideration of 25,000/-.

₹

7.

Both the Courts below, on appreciation of the evidence, have

found that there was an oral exchange between Sh.Manga and the plaintiffs,

which was, subsequently, acknowledged by a judgment and decree dated

16.05.1988. Therefore, the rights of the plaintiff