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1997 DIGILAW 160 (HP)

SITA RAM v. MANGAT RAM

1997-05-05

R.L.KHURANA

body1997
JUDGMENT R. L. Khurana, J:- This is the plaintiffs regular second appeal against the judgment and decree dated 6.11.1986 of the learned District Judge, Solan and Sinnaur Districts, camp at Nalagarh reversing the judgment and decree dated 30.9.1985 of the learned Sub Judge 1st class, Arid camp at Nalagarh. 2. The admitted facts of the case briefly stated are as under. The plaintiffs were the owners of the land measuring 8 bighas 10 biswas comprising of Khasra No. 100, 241, 245, 246, 247 and 248 in village Surajmajra Gujran, Pargana Dharampur, Tehsil Nalagarh. They exchanged this land with the land measuring 12 bighas belonging to defendants 1 and 2. This 12 bighas of land included 4 bighas 5 biswas of land comprising of Khasra No.404/6 which the defendants had purchased vide registered sale deed dated 31.10.1979 from one Atma Ram son of Munshi of village Juddikhurd Pargana Dharampur. One Lajya Ram filed a suit for possession of this 4 bighas 5 biswas of land by way of pre- exemption of the sale made by his father. The suit, though was dismissed by die trial court on 2.2.1982, was decreed by the appellate court on 20.11.1982. The plaintiffs thus lost this land which was given to them by the defendants 1 and 2. In the meanwhile defendants 1 and 2 sold the land measuring 8 bighas 10 biswas which they received in exchange from the plaintiffs in favour of defendant No.3, who dug out the same for excavation of earth for the manufacture of bricks. 3. The plaintiffs accordingly filed a suit for the recovery of land measuring 4 bighas 5 biswas out of the land measuring 22 bighas 11 biswas comprising of Khasra No. 65/29, 61/37 and 78/46 of village Chak Jangi, Pargana Dharampur, Tehsil Nalagarh, owned by the defendants. It was averred that at the time of exchange of lands between the parties, it was agreed that in the event of the land received by the plaintiff in exchange is taken away them in litigation the defendants 1 and 2 would compensation them by giving an equal area from their other land 4. The defendants while resisting the suit averred that no agreement as alleged by the plaintiffs was arrived at for making good the toss. The defendants while resisting the suit averred that no agreement as alleged by the plaintiffs was arrived at for making good the toss. They admitted the exchange, filing of pre-emption suit by Lajya Ram and also that the possession of land measuring 4 bighas 5 biswas out of the land given in exchange to the plaintiffs was taken by the said Lajya Ram in pursuance to the pre-emption decree passed in his favour. An objection as to maintainability of the suit was further raised. 5. Vide judgment and decree dated 30.9.1985 the learned Sub Judge held the suit to be maintainable as laid and that the Plaintiffs were entitleyt to the recovery of possession of the land measuring 4 bighas 5 biswas out of the land measuring 22 bighas 11 biswas owned by defendants 1 and 2. Consequently, a decree for possession of the said land was passed in favour of the plaintiffs. 6. The learned District Judge, on appeal preferred before him by the defendants reversed the judgment and decree of the learned trial court and dismissed the suit of the plaintiffs. It was held that the suit as laid was no maintainable under section 119, Transfer of Property Act. 7. The plaintiffs have now come up before this court by way of the present regular second appeal assailing the judgment and decree dated 6.11.1986 of the learned District Judge. 8. The sole question for determination in the present case is the applicability of the provisions of section 119, Transfer of Property Act, to the fact? of the present case. Section 119, Transfer of Property Act, reads: "119. Right of party deprived of thing received in exchange If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative of a transferee from him without consideration" 9. A bare reading of the above provisions shows that as and when one of the parties to an exchange is, by reason of any defect in title of other party, deprived of the property received by him in exchange, such party has the option: - (a) either to recover compensation for the loss suffered by him from the other party; (b) or, to seek the return of die property transferred by him to the other party, provided that such property is still in possession of such other party or his legal representatives or a transferee from him without consideration. 10. In the present case, neither of the above mentioned two options, has been exercised by the plaintiffs. They have neither claimed compensation for the loss suffered by them nor they have claimed the return of the land given by them in exchange to the defendants. On the other hand, they have claimed possession of other land to the extent of the area lost by them, which admittedly was not the subject matter of the exchange. 11. The learned District Judge has, therefore, rightly held that the provisions of section 119, Transfer of Property Act, are not attracted in the present case and that the suit of the plaintiffs, as laid was not maintainable. 12. Be, it stated, that the suit of the plaintiffs was not for specific performance of the agreement alleged to have been arrived at between the parties at the time of exchange. 13. Resultantly, the present appeal fails and the same is accordingly dismissed, leaving the parties to bear their own costs. Appeal dismissed.