RSA No.2745 of 2009(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.2745 of 2009(O&M)

Date of Order: 26.03.2019

Surja

..Appellant

Versus

Subh Ram (since deceased) through his LRs

..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. R.A.Sheoran, Advocate

for the appellant.

Mr. Kuldeep Khandelwal, Advocate

for the respondent(s).

ANIL KSHETARPAL, J(Oral)

Defendant-appellant is in the regular second appeal against the

concurrent findings of fact arrived at by both the courts below decreeing a

suit for permanent injunction for restraining the defendant to interfere in his

peaceful possession.

At the time of admission, following substantial question of law

was framed:-

“Whether the unregistered exchange deed (Ex.P-7) could

be read in evidence?”

Plaintiff claimed that his predecessor had received in exchange

a plot in question in lieu of 2 bighas land handed over to late Sh. Addu son

of Mukh Ram situated in village Khera Tharu.

Defendant on the other hand, claimed that he had purchased the

property from Smt. Naginee Devi widow of Bhagat Ram @ Ram Bhagat

NARESH KUMAR

2019.04.02 12:16

I attest to the accuracy and

integrity of this document

Chandigarh

RSA No.2745 of 2009(O&M)

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vide registered sale deed dated 09.06.1999 for a sum of Rs.40,000/-.

Both the courts on appreciation of the evidence have found that

the plaintiff is proved to be owner in possession of the property.

This court has heard learned counsels for the parties at length

and with their able assistance gone through the judgments and decrees

passed by the courts below and the record.

Learned counsel appearing for the appellant has submitted that

the Registration Act, 1908 (hereinafter referred to as 'the Act of 1908') was

enforced with effect from 18.12.1908 and as per Section 17(1)(b) of the Act

of 1908, any non-testamentary document which creates right, title or

interest in the property is not permissible unless it is registered. Hence, he

submitted that the document Ex.P7 which is alleged document of exchange

is not admissible in evidence. He has also pointed out certain contradictions

in the oral evidence to support his case.

On the other hand, learned counsel appearing for the

respondent has submitted that Section 17(1)(b) of the Act of 1908 would

apply only if it is proved that value of the property was Rs.100/- or upward.

He submitted that there is no evidence to that effect. He further submitted

that it is a vacant piece of land and the possession follows ownership. He

further submitted that the defendant claims title from Smt. Naginee Devi

widow of Bhagat Ram @ Ram Bhagat, however, no evidence has been

produced to prove title of his vendor.

As regards first argument of learned counsel, the answer has

correctly been given by learned counsel for the respondent. The non

testamentary document which creates right, title or interest in the

immovable property worth Rs.100/- or upward only requires registration.

NARESH KUMAR

2019.04.02 12:16

I attest to the accuracy and

integrity of this document

Chandigarh

RSA No.2745 of 2009(O&M)

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Hence, in the absence of evidence that the property in the year 1910 was

worth more than Rs.100/-, the document Ex.P7 cannot be declared to be

inadmissible. In the States of Punjab, Haryana and UT Chandigarh, relevant

provisions of the Transfer of Property Act dealing with exchange have not

been extended and therefore, even oral exchange is permissible. No doubt,

if the exchange is in writing and the value of the property is more than

Rs.100/-, it requires compulsorily registration as held by this court in the

case of Satyawan and others vs. Raghbir, AIR 2002 (Pujab), 290.

However, in the present case in absence of evidence that value of the

property was Rs.100 or more, the document was not required to be

registered.

Learned counsel for the appellant further submitt