V.P. Gupta, J.@mdashFeeling aggrieved from the judgment and decree dt. 20-5-1978 passed by Additional District Judge, Kulu, the appellants (hereinafter the plaintiffs) have filed this appeal.
2. The facts are that Gulab Singh, j Girdhari Lal and Hira Lal are the sons of Khub Ram. Gulab Singh and Girdhari Lal, (hereinafter the plaintiffs) filed a suit for possession of 12 Biswas of land in Khasra No. 1469 (disputed land) situate in Phati Parli of Tehsil Kulu alleging that they along with their brother Hira Lal (hereinafter defendant 2) were owners and in possession of this land. Defendant 2 was living separately from the plaintiffs and he. in collusion with Dot Ram (hereinafter defendant 1) entered into a fictitious transaction of exchange with defendant 1, by which defendant 1 agreed to give in exchange one half share of Khasra No. 1480 (measuring 1 Bigha 5 Biswas) of Phati Parli to defendant 2 and defendant 2 also agreed to give disputed Khasra No. 1469 todefendant 1. Mutation No. 782 of exchange was sanctioned on 31-6-1963. The plaintiffs alleged that the possession of the land had not passed and the mutation of exchange was a sham transanction and was not binding on the plaintiffs. The plaintiffs'' share could not be transferred by defendant 2, because defendant 2 had no authority to exchange the land on behalf of the plaintiffs. In order to deprive the plaintiffs of their legitimate rights, the defendant 1 made some construction on the disputed land which is unauthorised. Further, no oral exchange was permissible and for this reason the exchange was invalid and not binding on the plaintiffs.
3. Defendant 1 had contested the suit and had alleged that the exchange was a valid one and it was made with the consent of the plaintiffs. The plaintiffs could not file a suit for more than their share and that the plaintiffs were estopped from filing the suit by their act and conduct because the plaintiffs were seeing the possession of defendant 1 on the suit land from year 1963 and defendant 1 had made valuable improvements on the suit land. The plaintiffs along with defendant 2 were in possession of Khasra No. 1480 which was given to them in exchange of the suit land.
4. Defendant 2 filed a separate written statement and he admitted the plaintiffs'' claim in his written statement.
5. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether no valid exchange of the land, in suit took place between the plaintiffs and defendant 1 and 2, as alleged? OPP.
2. Whether the plaintiffs can sue for more than their share? OPP.
3. Whether defendant 1 made improvements in the suit land, if sowhenand of what value and what effect? OPD.
4. Whether the plaintiff is estopped to file the suit? OPD.
5. Relief.
6. The trial Court (Subordinate Judge), Kulu vide his judgment dt. 30-5-1977 decreed the plaintiffs'' suit after holding that the disputed exchange was not valid and the plaintiffs could sue for the whole of the suit land. It was held that defendant 1 was not entitled to any amount on account of the improvements, although the same had been made by defendant 1 and the plaintiffs were not estopped from filing the present suit.
7. Feeling aggrieved from this judgment, and decree of Sub Judge, Kullu, defendant 1 filed an appeal which was accepted by the learned Additional District Judge on 20-5-1978.
8. The learned Additional District Judge found that the exchange wasa valid one and that the plaintiffs were not entitled to claim the possession of the suit land and were estopped from filing the present suit.
9. I have heard the learned counsel for the parties.
10. The learned counsel for the appellants (plaintiffs) contends that the findings of the learned Additional District Judge are incorrect and the alleged exchange between the parties I is not valid. He contends that defendant 1 did not make any improvements and the allegedimprovements were made immediately before the filing of the suit in order to defeat the plaintiffs'' claim. He contends that there isno estoppel against law and defendant 2 has no right to exchange the property of the plaintiffs without their consent and authority.
11. The learned counsel for the respondents supports the judgment of the learned Additional District Judge and contends that the exchange is valid and binding on the plaintiffs. The defendant No. 1 made improvements by planting valuable fruit trees and also by making construction. The plaintiffs did not object to these improvements and they kept silent meaning thereby that they accepted the exchange as a valid one. He contends that the plaintiffs waited for a period more than ten years although they had been seeing defendant No. 1 in possession of the suit land. The plaintiffs themselves had also taken possession of Khasra No. 1480 and in view of all these circumstances, the plaintiffs'' suit was rightly dismissed by the learned Additional District Judge.
12. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.
13. The mutation of exchange (Ext. P-2) was entered by the Patwari on 27-5-1963 and was sanctioned on 31-6-1963. By this mutation Khasra No. 1469 measuring 12 Biswas was given by the plaintiffs and defendant 2 to defendant 1 and in exchange of this land defendant 1 gave one half share of Khasra No. 1480 (measuring 1 Bigha and 5 Biswas) to plaintiffs and defendant 2. In the Jamabandi for the year 1961-62 (Ex.P-I) Khasra No. 1469 is entered in possession of Smt. Lambi as a co-sharer and the Kafiyat entries states that the plaintiffs and defendant 2 have inherited Smt. Lambi. Similarly, Khasra No. 1480 is entered in the ownership and possession of defendant 1.
14. In the Jamabandi for 1966-67 (Ex. D 1) Khasra No. 1469 measuring 12 Biswas in possession of defendant 1 and the subsequent entries of Khasra Girdawari from Nov. 1967 to May, 1972 (Ex.D-3) also record defendant 1 in possession of Khasra No. 1469 measuring 12 Biswas by exchange. Similarly, one half share of Khasra No. 1480 is shown as Khasra No. 1480/1, measuring 12 Biswas in the year 1966-67 and it is entered in possession of the plaintiffs and defendant No. 2. These entries are also repeated in the Khasra Girdawari from Nov. 1967 to May, 1972 and Khasra No. 1480/1 is entered in possession of the plaintiffs and defendant 2.
15. Thus, the possession of the property exchanged has passed to the respective parties of exchange from 1963 onwards and the plaintiffs along with defendant No. 2 are in possession of 1480/1 while defendant 1 is in possession of Khasra No. 1469 measuring 12 Biswas.
16. The contention of the learned counsel that an exchange has to be effected by a registered document cannot be accepted because all the provisions of the T.P. Act were not applicable in Tehsil Kullu which was in State of Punjab in the year 1963. By virtue of a Notification No. 1605-R(CH) 55-569, only the provisions of Section 54 (Sale) 107 Lease) and Section 123 (Gift) were made applicable in the State of Punjab. The provisions of T.P. Act based on justice, equity and good conscience could be made applicable in the State of Punjab for deciding various cases, but that does not lead to an inference that all the provisions of the T.P. Act were applicable in the territories where T.P. Act was not enforced. The Courts, however, can rely upon the various provisions of the T.P. Act for guidance if such provisions are in consonance with principles of justice, equity and good conscience. An oral exchange thus was permissible in Tehsil Kullu, because Section 118 of the T.P. Act was not made applicable to the State of Punjab. If the intention was to make Section 118 of the T.P. Act applicable then while issuing the notification for making Sections 54,107 and 123 of the T.P. Act applicable in the State of Punjab the notification could also include Section 118 of the T.P. Act. As such, I am of the view that the learned Additional District Judge is right in holding that an exchange could be effected orally between the parties and it was not necessary to effect the same by a registered document only.
17. Jamabandi for the year 1966-67 (Ex. D 1 and Ext. D-2) pertaining to Phati Parli prove that the share of defendant 2 "(HiraLal) in Phati Parli was more than 12 Biswas. In these circumstances, defendant 2 could transfer a valid title in favour of defendant 1, because he was in possession of the disputed, land and in case the plaintiffs were aggrieved then adjustments could be made between the plaintiffs and defendant 2 at the time of the partition of the joint land.
18. The defendant 2 appeared before the revenue authorities at the time of the sanctioning of the mutation Ex.P-2 and has stated that he had effected the exchange with the consent of the plaintiffs who were willing for this exchange. This mutalion was sanctioned in June, 1963, but the plaintiffs ;did not object to this transaction till June, 1973 when the present suit-was filed. The plaintiffs themselves are also shown to be in possession of Khasra No. 1480/1 with defendant 2 and these facts also prove that the plaintiffs had consented the exchange.
19. Defendant 1 also made improvements in the land for which Local Commissioners were appointed. Ext.LC/1 is the report of Shri Attar Singh, Horticulture Inspector (OW-1), and according to him, there were 8 apple trees in the suit land of Khasra No. 1469 ! valuing Rs. 2155/-. Four trees were of the age of 4 years, while 4 trees were of the age of 7 years. This report was given in March, 1975 and it is thus proved that at least 4 trees had been planted somewhere in the year 1968.
20. Similarly, there is a report (Ex.LC/2) of Shri Suresh Kumar, Junior Engineer, HPPWD. (OW/2) and according to him, the value of the construction made in the suit land was Rs. 24,706/-. This report was submitted in April 1975.
21. The plaintiffs also admit that defendant 1 made a construction in the suit land but according to them this construction was made within about four months prior to the institution of the suit.
22. Defendant 1 has, however, led evidence that the plantation of trees and the construction are old one and he had in fact made improvements on the land immediately after the exchange.
23. The learned Additional District Judge has held that the construction was made earlier.
24. I have already held that the possession of the suit land was taken by defendant 1 and in lieu of this the plaintiffs and defendant 2. have taken the land belonging to defendant 1.
25. Considering the various facts and circumstances, I am of the view that the construction of the house must have been made by defendant 1 immediately after the exchange of the land, specially when the trees were planted some where in the year 1968.
26. The result of the above discussion is that the plaintiffs had in fact accepted the exchange transanction and were consenting parties to the same or at least they rectified the same by their act and conduct. They cannot now seek the possession of the suit land after such a long period and they are estopped from filing the suit by their act and conduct.
27. As a result of the above discussion, it is held that the learned Additional District Judge is right in holding that there was a valid exchange and that the plaintiffs were estopped from filing the present suit and were not entitled to the possession of the suit property.
28. I find that there is no merit in the present appeal which is hereby dismissed.
