(1) THIS is defendants Regular Second Appeal challenging the judgment dated 2-6-1983 passed by District Judge, Sirsa in Civil Appeal No. 14 of 1983 whereby the judgment and decree of the trial Court have been set aside and suit of the respondent Ratti Ram has been decreed in favour of the plaintiff for possession of the suit land. The substantial question of law which arises in the present Regular Second Appeal is as to whether an oral exchange of land, which is subsequently evidenced by a writing executed between the parties to the exchange, is compulsorily registrable under Section 17 of the Registration Act, 1908, provided the land exchanged is of value of more than Rs. 100/ -.

(2) BRIEFLY stated the admitted facts may now be noticed : ratti Ram hereinafter referred to as the plaintiff instituted a Civil Suit on 24-1-1979 being case No. 121 of 25-1-1979 seeking a decree for possession in respect of the land fully described in the title of the suit, which was as under:

"suit for possession in respect of land measuring 30 kanal 9 marlas bearing sq. No. 95 Killa No. 3/2 (1-8), 4 (7-18). 5 min (7-18) 6/1 (5-9) 7/1 (1-12) 7/2 (6-9) vide jamabandi for the year 1973-74 situated at village Shergarh Tehsil Dabwali, District Sirsa of which the plaintiff is the sole owner. But in the revenue papers it has been shown as exchange is wrong against law and facts and the plaintiff is entitled to get its possession on the basis of oral and documentary evidence of all kind. "

(3) ON 18-11-1963, Paramjit Singh hereinafter referred to as the appellant had purchased 52 kanals 2 marlas of land from Sohan Lal, brother of the plaintiff. After selling the aforesaid land to the appellant Sohan Lal exchanged the same land with the plaintiff. This exchange of land between the brothers was challenged by the appellant by filing a civil suit, which was decreed in favour of the appellant on 30-7-1968. It was held that the exchange executed between Sohan Lal and Ratti Ram with regard to the suit land, was not binding on the appellant.

(4) AGGRIEVED against the aforesaid judgment and decree, Ratti Ram filed Civil Appeal No. 183 of 1968, which was decided on 25-3-1969. In the appeal, it was held that the judgment and decree of the trial Court is set aside. The appeal is accepted and the following decree is passed :

"4. A decree for declaration to the effect that the plaintiffs are owners of 20 kanals and 16 marlas of land Rect. No. 94 killa Nos. 1 (7 kanals 16 marlas) 10 (8 kanals) Rect. No. 95 killa 6/2 (2 kanals 11 marlas) 15/11 (2 kanals 9 marlas). As entered in the jamabandi 63-64 is granted. The plaintiff are also granted a decree for possession of 27 kanals 5 marlas of canal Irrigated Land Rect. 94 Killa No. 11 (8 kanals) 12, (8 kanals), 13/2 (5 kanals 14 marlas) Rect. No. 95 killa No. 15/2 (5 kanals 11 marlas) and for possession of 4 kanals of land out of Rect No. 117 Killa No. 3/2 measuring 5 kanals. This 4 kanals of land out of killa No. 117/3/2 shall be given adjacent to the land of the plaintiffs or in such a way that it is most beneficial to them. In these circumstances of the case the parties are left to bear their own costs. Announced. Dated : 25-3-1969 sd/- V. P. Aggarwal, ex. Officio Addl. District judge, Camp at Hisar 25-3-1969. "

(5) IN view of above, the appellant became owner of 20 kanals and 16 marlas of land out of Rectangle No. 94 and 4 kanals of land out of Rectangle No. 117 and 5 kanals from Killa No. 3/2, the appellant was given possession of 31 kanal 5 marlas in total. Thereafter, appellant orally exchanged the aforesaid land with the plaintiff in lieu of the suit land proceedings of which have culminated in the present Regular Second Appeal. This exchange was oral. Subsequently, however, by writing Ex. D1 dated 16-10-1969, the factum of oral exchange was admitted by the parties. Thereafter, on 24-1-1969 the plaintiff filed a suit for possession alleging therein inter alia that the exchange not having been registered in accordance with the Section 17 of the Registration Act, 1908 is not binding on the plaintiff and the same can also not be admitted into evidence in proof of the oral exchange. The appellant controverted the plea set up by the plaintiff, it was claimed that exchange did not require registration as it was only an oral exchange. Ex. Dl was merely a document whereby the parties had admitted the factum of oral exchange. The appellant also raised a plea that they have been in adverse possession of the suit land and had, therefore, become owners thereof. On the basis of the pleadings of the parties, the trial Court framed the following issues :

1. Whether the plaintiff is the owner of the suit land O. P. P.

2. If issue No. 1 is proved, whether the plaintiff is entitled to the possession of the suit land O. P. P.

3. Whether the plaintiff has no locus standi to file the present suit O. P. D.

4. Whether the suit land has not been properly described If so, its effect O. P. D.

5. Whether the defendant has become the owner of the suit land by way of adverse possession and is in possession since 8-11-1963 O. P. D.

6. Whether the plaintiff is estopped from filing this suit by his act and conduct O. P. D.

7. Whether the suit is not maintainable in the present form O. P. D.

8. Whether the defendant has made any improvements on the suit land If so, to what effect O. P. D.

9. Whether the suit is time barred O. P. D.

10. Whether the defendant is entitled to special costs O. P. D.

11. Whether the plaintiff has waived his right in the suit land If so, its effect O. P. D.

12. Relief.

(6) AFTER noticing the facts as narrated above on issue No. 1, the trial Court came to the conclusion that the plaintiff is owner of the suit land. Issues Nos. 2, 5 and 9 have been decided together. It has been held on the basis of the evidence given by DW 1 Hari Singh and DW 2 Dilawar Singh that the appellant had been in possession of the suit land for the last 16/17 years. DW 1 Hari Singh is an attesting witness to the writing Ex. D1. The trial Court has also adverted to the revenue record and observed that in the jamabandi for the year 1973-74 the appellant has been shown to be in possession of the suit land on account of the exchange. In fact, Khasra Girdawaris from Kharif 1964 till Rabi 1972 also show that the appellant was recorded to be in possession of the suit land. It has also been observed that the plaintiff has not adduced an iota of oral or documentary evidence to show that the possession had been taken from the appellant at any stage after the same had been handed over pursuant to the decree which has been mentioned earlier in the judgment. Consequently, the appellant has been held to be owner of the suit land and having been in hostile and adverse possession of the same since 1963. Coming to the exchange deed Ex. D1, the trial Court has held the same to be proved, again on the basis of the evidence given by the attesting witness DW 1 Hart Ram. Even PW-1 in the cross-examination admitted his signatures on the writing. The trial Court notices that in the document Ex. D1 it is clearly recited that the ownership of the suit land had been exchanged while the possession was already with the ppellant. Thereafter, the trial Court had dealt with the legal position as to whether Ex. D1 was required to be registered and whether its non registration would make the same inadmissible in evidence. The trial Court notices the Judgment in the case of Mohammad Aslam v. Azad Khan, AIR 1947 Peshawar 27. In the aforesaid judgment, it is held that exchange of immovable property can be effected by an oral agreement between the parties. Thereafter, the trial Court notices the judgment in the case of Hardit Singh v. Gulzara Singh, 1973 PLJ 329. In the aforesaid judgment, it has been held that Section 118 of the Transfer of Property Act, 1882 has not been made applicable to Punjab, therefore, the document with regard to the exchange of immovable property of the value of more than Rs. 100/- is not required to be registered compulsorily. Consequently, the plea of the plaintiff with regard to the non-ad-missibility of Ex. D1 in evidence was rejected. Thereafter, the trial Court also notices that since the plaintiff had been declared to be owner of the suit land, it cannot be said that he has no locus standi to file the suit. However, in view of the findings with regard to the oral exchange being valid, the suit of the plaintiff was dismissed. The lower Appellate Court has reversed the aforesaid findings of fact and law. Mr. Sarin, learned counsel for the appellant submits that the judgment of the lower Appellate court runs contrary to the settled law, which has been noticed by the trial Court. Ex. D1 according to the learned counsel was merely a document acknowledging the earlier oral exchange on the basis of which the possession has been given by the plaintiff to the appellant. This fact is mentioned in Ex. D1 itself and has been rightly relied upon by the trial Court. Learned counsel submits that the lower Appellate Court has wrongly rejected the claim of the appellant with regard to adverse possession. In support of the submission, learned counsel relies on a judgment of this Court in the case of Sona Ram v. Mulakh Raj alias Lekh Raj, 1999 (1) PLJ 165 and a Division Bench Judgment of this Court in the case of Sardara Singh v. Harbhajan Singh, 1974 PLJ 341.

(7) ON the other hand Mr. K. S. Godara appearing for the respondent, submits that the judgment of the lower appellate Court does not call for any interference in Regular Second Appeal. The judgments relied upon by the trial Court, have been rightly distinguished by the lower appellate Court. He relies on a judgment of this Court in the case of Shishpal v. Vikram, 1999 (1) RCR (Civil) 629 in support of the submission that Ex. D1 could not have been admitted into evidence.

(8) I have considered the submissions made by the learned counsel for the parties and I am of the considered view that there was sufficient evidence before the trial Court to come to the conclusion that there was an oral exchange of the suit land between the plaintiff: and the appellant. The fact that there was an oral exchange of the land is not disputed by the plaintiff throughout the proceedings. He has filed the suit after a period of 10 years, for the first time raising the plea that since Ex. D1 was not a registered document, the exchange itself was invalid. I am of the opinion that the suit filed by the plaintiff was wholly misconceived. Document Ex. D1 clearly shows that there was an oral exchange of the land between the plaintiff and the appellant. Possession of the land was handed over to the appellant in the year 1963, Revenue record from 1963 onwards continuously shows that the appellant has been recorded to be in possession of the land. Therefore, for all intents and purposes, the oral agreement between the parties had been fully acted upon. May be out of abundant caution, the parties decided to execute Ex. D1 to put beyond doubt the factum of oral exchange. Therefore, the trial Court was correct in holding that the exchange which was based on an oral agreement, did not require compulsory registration. Execution of Ex. D1 cannot be permitted to be used to deprive the appellant of the ownership rights which accrued to the appellant on the basis of oral exchange. In my opinion, the lower Appellate Court has misdirected itself by styling Ex. Dl as the instrument of exchange. No new right or title was conveyed by Ex. D1. It merely recognized pre-existing legal rights of the parties, which came into existence on the basis of the oral agreement. It is well settled proposition of law that any document even a decree which merely recognises pre -existing rights, does not require registration. This view of mine finds support from a Division Bench judgment of this Court in the case of Gurdev Kaur v. Mehar Singh, 1989 PLJ 182. In the aforesaid Division Bench judgment, it has been held as follows :

"for the reasons recorded above, by agreeing with the view taken in the judgments cited above that a compromise decree does not require registration, provided the immovable properly is subject matter of the suit, we hold that a compromise decree regarding immovable property which is subject matter of the dispute in the suit, does not require registration, even if title is created in favour of the decree holder for the first time under the decree, whether with consideration or without consideration. "

(9) THE ratio of the aforesaid Division Bench judgment came up for consideration of the Supreme Court in the case of Bhoop Singh v. Ram Singh Major, AIR 1966 SC 196. The view taken in the aforesaid judgment of this Court was substantially approved by the Supreme Court in paragraph 12. In paragraph 16 of the judgment in Bhoop Singhs case (supra), it has been held as follows :

"we have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in prae-senti in immovable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. "

(10) AS noticed above, in the present case, the right and the title of suit property was created by oral exchange which formed the foundation of the writing Ex. Dl. No new right or title was created or passed or extinguished by writing Ex. D1. I am of the considered opinion that the lower appellate Court has erroneously reversed the findings recorded by the trial Court. The trial Court had rightly relied on the judgment in Mohammad Aslams case (supra) and Hardit Singhs case (supra). This view of mine also finds support from the judgment of this Court rendered in the case of Sona Ram (supra). The question posed in the present Regular Second Appeal has been squarely answered in paras 10, 11 and 12 as under :

"10. Faced with this situation, counsel contended that even if the parties to the said suit had come in possession on the basis of exchange, then also that exchange would be inoperative because the exchange could be effected only by a registered document. This contention too is without any merit. Sections 54, 107 and 123 of the Transfer of Property Act were made applicable to the State of Punjab with effect from 1-4-1955 vide notification issued on March 26, 1955. After these provisions were made applicable, sales mortgages and leases of immovable property could only be made by a registered document. Exchange of immovable property of the value of Rs. 100/- or more could be made orally followed by delivery of possession. Reference in this regard be made to a Division Bench judgment of this Court in Sardara v. Harbhajan, AIR 1974 Punj and Har 345 in which it has been held that only Sections 54, 107 and 123 have been extended to Punjab. The Division Bench held that the scheme of the clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Transfer of Property Act, an exchange can be made only in the manner provided for a sale. 11. In Sewa Singh v. Joginder Singh, 1986 PLJ 113, learned single Judge of this Court held that oral exchange relating to immovable property of the value of Rs. 100/-or more is permissible in Punjab as the provisions of Section 118 of the Transfer of Property Act regarding exchange are not applicable to the State of Punjab. 12. Similarly, in Mata Din v. Sultan, 1986 PLJ 696, another learned single Judge of this Court held that in the State of Haryana, mutual exchange of immovable property with delivery of possession of any value, can be effected without a registered document. "

(11) MR. Sarin is correct in his submission that Ex. D1 would not require registration as Section 118 of the Transfer of Property Act, is not applicable in the States of Punjab and Haryana. The aforesaid proposition has been answered in favour of the appellant by the Division Bench of this Court in Sardara Singhs case (supra). The Division Bench was considering the case pertaining to oral exchange. The learned District Judge took the view that an oral exchange was permitted in the Punjab and held the exchange to be valid. It was also held that the plaintiff was estopped from challenging the exchange. The plaintiffs being dissatisfied came up in appeal to this Court. The only matter agitated before the learned single Judge was that an oral exchange is not permissible. The learned single Judge took the view that an oral exchange was permissible in Punjab. The contention of the learned counsel for the appellant therein was based on Section 118 of the Transfer of Property Act, 1882 which is as follows :

"a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. "

(12) BASED on the aforesaid , it was contended that an exchange has to conform to the formalities of sale and as no sale under the can be effected without a registered instrument, the exchange was void. This contention was rejected by the learned single Judge. The appellants filed a Letters Patent Appeal under Clause 10 of the Letters Patent Act. That is how the matter came up to be decided by the Division Bench.

(13) AFTER noticing the submissions, the Division Bench held as follows :

"the same contention that was advanced before the learned single Judge has been advanced before us. It may be mentioned that the rule is firmly settled that where the provisions of the are not applicable, as is the case in Punjab: inasmuch as only certain parts of the are in force, its provisions as to matters of principle are followed as rules of justice, equity and good conscience. But this does not apply to provisions which embody technical rules. In this connection, reference may be made to Bhagwan v. Bunyadi, 85 PR 1902, Safdar All v. Ghulam, 103 PR 1915, Jhuman v. Dulia (1923) 4 Lahore 439, Dulia Singh v. Bela Singh, AIR 1925 Lahore 92, Mohammad Abdullah v. Mohammad Yasin, AIR 1933 Lahore 151, Tara Chand v. Sher Singh, AIR 1936 Lahore 944, and Milkha Singh v. Mst. Shankari, AIR 1947 Lahore 1 (FB). "

(14) AFTER considering the various provisions of the Transfer of Property Act, 1882 it was held that the does not apply to the State of Punjab.

(15) AT this stage, Mr. Sarin has clarified that Section 118 of the Transfer of Property Act, 1882 has been made applicable to the urban areas in the State of Punjab by a subsequent notification.

(16) FOR the purposes of this case, the aforesaid observations of the Division Bench fully support the submissions made by Mr. Sarin on behalf of the appellant.

(17) IN view of above the lower appellate Court has erred in law in holding that the oral exchange was registrable. The appellate Court also erred in law holding that Ex. D1 was not admissible in evidence. To be fair, it must be noticed that Mr. K. S. Godara had relied on the judgments rendered by this Court in Shishpals case (supra). However, perusal of the aforesaid judgment shows that therein this Court was dealing with alleged family settlement. After examining the merits of the case this court had come to the conclusion that there was no family settlement. It was held that family settlement can be made by the members of the family when there is a dispute among themselves. The Court observed that it is well settled that a family settlement is based on the assumption that there is an antecedent title of some sort in the party and the agreement acknowledges and defines what that title is. The Court was dealing with property which admittedly belonged to one Gyani Ram exclusively. Gyani Ram during his lifetime wanted to give the entire property to the plaintiff. It was held that such transfer can only be effected by a gift or settlement deed. Under Section 123 of the Transfer of Property Act, a gift can be made only by a registered document attested by witnesses. The Court further noticed that it was not the case of the plaintiff that there can be an oral gift in the State of Punjab and the provisions of Section 123 of the Transfer of Property Act are not applicable. The Court also referred to the decision of the Court in Malkiat Singh v. Gram Panchayat, AIR 1974 P and H 28 wherein it has been held that oral gift is not saved from the requirement of validity under the Transfer of Property Act. Under Section 17 of the Registration Act. right in the immovable property can only be relinquished by the original owner by a registered document. In those circumstances, it was held that since the gift was not registered it could not be acted upon. The aforesaid judgment in my view, would not be applicable to the facts and circumstances of this case.

(18) IN view of the discussion above, I am of the considered opinion that the lower appellate Court has wrongly reversed the findings of fact and law recorded by the trial Court. At this stage Mr. Sarin has submitted that the grounds with regard to adverse possession are not being pressed. It, however, makes, no difference to the ultimate result as the judgment of lower appellate Court has to be set aside and the judgment of the trial Court has to be restored. The appeal is allowed and the judgment of the lower appellate Court is set aside. Suit filed by the plaintiff is dismissed by affirming the judgment and decree passed by the trial Court.

(19) NO costs. Appeal allowed.