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2018 (10) TMI 1879 - HC - Indian LawsMutation of Exchange - validity of registered sale deed - possession of suit land - cause of action to file the present suit - maintainability of suit of the plaintiffs in the present form - locus standi to file the present suit - estoppel by their act and conduct to file the present suit or not - suit of the plaintiffs is bad for mis-joinder of necessary parties or not - jurisdiction to try the present suit. Whether oral exchange of immovable property worth more than ₹ 100/- is permissible? - HELD THAT:- The issue in question, in fact, is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court as have been taken into consideration by a Co-ordinate Bench of this Court (Sandeep Sharma, J.) in a fairly recent decision in PIAR CHAND AND ORS. VERSUS SANT RAM AND ORS. [2017 (5) TMI 1753 - HIMACHAL PRADESH HIGH COURT] wherein it was observed that this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land. Learned counsel for the respondents has failed to show any other authority taking a contrary view one taken by the learned Single Judge in the aforesaid cases and the reason for the same is otherwise obvious. Accordingly, taking the support from the aforesaid judgment by holding that the oral exchange of more than ₹ 100/- is impermissible in law. Whether the alleged exchange could have been transacted and effected on behalf of the appellants/plaintiffs by their father and that too when the father appears to have not been appointed as attorney of the appellants/plaintiffs? - HELD THAT:- It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein - issue answered in favour of the appellants. Could the first appellate court have reversed the decree of the learned trial Court based on the reasoning that there was variance between the plea taken in the written statement and the testimony of defendant No. 3 as to the mode of exchange viz. In the written statement it was alleged that there was an oral exchange and in the testimony it was stated that a deed of exchange had been executed? - HELD THAT:- This Court has already observed that an oral exchange of immovable property worth ₹ 100/- was impermissible. Therefore, the plea of exchange as set up by the defendants was rather not maintainable as no valid title would pass in their favour. That apart, once there was admission by defendant No. 3 in his cross examination with regard to execution of exchange deed, then it was incumbent upon defendant No. 3 to have produced the said deed or else an adverse inference was required to be drawn. To say the least, the findings recorded by the learned first appellate Court are totally perverse and contrary to law. Accordingly, this question is decided in favour of the appellants. This Court has no hesitation to conclude that the findings rendered by the learned first appellate Court are not only perverse, but are contrary to law and are, therefore, not sustainable - Appeal allowed.
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