RAJINDER PAUL v. OM PRAKASH — 1998 DIGILAW 247 (HP)

JUDGMENT R.L. KHURANA, J.—This second appeal has been directed by the defendants against the judgment and decree dated 12.4.1990 of the learned District Judge, Kangra at Dharmashala, affirming the judgment and decree dated 26.10.1987 of the learned Sub Judge 1st Class, Kangra. 2. The plaintiff, Om Parkash, filed a suit for possession of the land measuring 0-06-43 hectares comprising of khata No. 2, khatauni No. 4 and khasra Nos. 348, 349 and 350 of Mohal Gaggal, Tehsil and District Kangra, hereinafter referred to as the land in dispute by demolition of the superstructure standing therein. 3. The suit of the plaintiff was decreed by the learned Sub Judge vide judgment and decree dated 26.10.1987 and a decree for possession of the land in dispute was passed in his favour by demolition of the house constructed therein by the defendants. The appeal preferred by the defendants before the learned District Judge was dismissed on 12.4.1990. The findings of the learned Sub-Judge on all the issues were affirmed. 4. The facts of the present case, in brief, may be thus stated. The plaintiff is the owner of the land in dispute. In the year 1980, he was approached by the defendants for the exchange of the land in dispute with some land at Chetru. Being a simpleton, the plaintiff agreed to the proposal. The defendants after taking possession of the land in dispute, started raising construction therein. They, however, did not give the possession of the land at Chetru which was agreed to by them to be given to the plaintiff in exchange for the land in dispute. The defendants instead moved an application before the Tehsildar, Kangra for recording their possession over the land in dispute as trespassers. Since the defendants did not give any land to the plaintiff in exchange, the plaintiff called upon them to deliver back the possession of the land in dispute after removing the super-structure raised by them. On the failure of the defendants to do so, a suit for possession of the land in dispute came to be filed. 5. Defendants while resisting the suit pleaded that the plaintiff and defendant No. 3 (mother of defendants 1 and 2) had good relations/She was inhabitant of village Ichhi and was persuaded by the plaintiff to construct a house on the land in dispute. Defendant No. 3 being a widow preferred to settle down at Gaggal. 5. Defendants while resisting the suit pleaded that the plaintiff and defendant No. 3 (mother of defendants 1 and 2) had good relations/She was inhabitant of village Ichhi and was persuaded by the plaintiff to construct a house on the land in dispute. Defendant No. 3 being a widow preferred to settle down at Gaggal. It was agreed between her and the plaintiff that an equal event of land would be purchased by the defendants and given in exchange to the plaintiff on the Defendant Nos. 1 and 2, who were then minors, attaining the age of a majority. Defendant Nos. 1 and 2 on attaining the age of majority purchased 0-12-07 hectares of land being 1/4th share in the land comprising of khasra No. 671 at Mohal Chetru near the house of the plaintiff from one Karam Chand. The plaintiff was then put in possession of half share of the land so purchased by the defendants. The exchange could not be given effect to in the revenue records since in the meanwhile a dispute arose between the parties. The plaintiff started claiming and demanding the entire area purchased I" by the defendants, which is double than the area of the land in dispute. The I defendants were thus forced to apply for correction of the revenue entries I qua the land in dispute. In the alternative, the defendants claimed to have r acquired title to the land in dispute by virtue of their continuous adverse possession [ for the last more than twelve years before the suit. Objections as to limitation, estoppel and valuation of suit were also raised. 6. The two courts below found the plaintiff to be the owner of the land r in dispute. The exchange was held to be not proved and accordingly the defendants were held to be in illegal and unauthorised possession of the land in dispute. The adverse possession of the defendants was found to have fallen short of the requisite period of twelve years. The suit was held to be within time, having been properly valued. The issue of estoppel was found agaisnt the defendants. The suit for possession was decreed as aforesaid. 7. It is the admitted case of the defendants that they agreed to purchase some land at Chetru at a subsequent date and would give the same to the plaintiff in exchange for the land in dispute. The issue of estoppel was found agaisnt the defendants. The suit for possession was decreed as aforesaid. 7. It is the admitted case of the defendants that they agreed to purchase some land at Chetru at a subsequent date and would give the same to the plaintiff in exchange for the land in dispute. It is in evidence that the defendants purchased an undivided 1/4th share in the land comprising of khasra No. 671 at Chetru vide sale deed Ex. DW 2/A from one Karam Chand on 17.2.1978. 8. Though the defendants have averred that immediately after the purchase of the land by them from Karam Chand, they had placed the plaintiff in possession of half share of such land purchased by them, no evidence has been led in this regard. Ex. P-3 is the copy of jamabandi for the year 1983-84 in respect of the land comprising of khasra No. 671 of village Chetru. A perusal of the same shows that no part of this land is recorded under the possession of the plaintiff. The defendants 1 and 2 are recorded in possession thereof to extent of 1/4th share along with other co-sharers. 9. Admittedly, the land comprising of kahsra No. 671 (in which the defendants 1 ,and 2 had purchased undivided 1/4th share) has not been partitioned till date amongst the co-shareres. It continues to be joint. Therefore, it cannot be said that the plaintiff was put in possession thereof. It is not the case of the defendants that the plaintiff was placed into joint possession of the said land. The evidence coming on record goes to show that there was only an agreement for exchange and though the defendants entered into possession of the land in dispute under such agreement of exchange, they have failed to perform their part of the agreement which was to be performed by them at a future date since admittedly at the time of the agreement they did not own and possession any land at Chetru. 10. Section 119, Transfer of Property Act, 1882, provides:— "119. Right of party deprived of thing received in exchange. 10. Section 119, Transfer of Property Act, 1882, provides:— "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 there return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration." The scope and ambit of the above section came up for consideration before a Division Bench of the Orissa High Court in Ch. Seetaramaswamy v. Narasingha Panda and others (AIR 1975 Orissa 73) It was held:— "Although the section, in terms, contemplates a case of one of the parties to the exchange being, by reason of any defect in title of other party, deprived of the thing received by him in exchange, the principle underlying the section should also apply to the case where instead of a subsequent deprivation of the property transferred, there is no transfer at all. It would impliedly follow from Section 119 that when a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled at his option for the return of the property transferred by him, if this property is still in possession of the other party or his legal representative or a transferee from him without consideration." 11. The High Court of Madras also in M.K. Ranganathan and another v. The Calcutta Tramways Co. Ltd. and others (AIR) 1956 Madras 285) has taken a similar view. It was held:— "It appear to us to follow impliedly from this section, that if a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled to the same reliefs, in the alternative. Ltd. and others (AIR) 1956 Madras 285) has taken a similar view. It was held:— "It appear to us to follow impliedly from this section, that if a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled to the same reliefs, in the alternative. To illustrate the position: If A agrees to transfer property X to B and B in return promises to transfer property Y to A, and in pursuance of this contract, A transfers his property X to B but B is unable to transfer his property Y to A then A can either claim compensation for the loss caused by the failure of B to transfer property Y to him or in the alternative claim the return of his property, which he had transferred to B. No doubt, Section 119 in terms provides for a slightly different case, namely, where B also delivers his property Y to A but by reason of defect in the title of B to the said property A is deprived of property Y. But the principle underlying Section 119. T. P. Act, should also apply to the case where instead of a subsequent deprivation of transfer, there is no transfer at all." 12. In Jaharaddi Maudal v. Debnath Nath Chaudhary (AIR 1916 Calcutta 325), the plaintiff gave up certain land of his for the erection of a market in exchange for lands elsewhere. No such land was, however, given to him in exchange. He, therefore, sued for possession of his land which had been taken from him. It was argued that the remedy of the plaintiff was by way of a suit for specific performance of the alleged agreement to give him land elsewhere or for the recovery of the price of the land. He, therefore, sued for possession of his land which had been taken from him. It was argued that the remedy of the plaintiff was by way of a suit for specific performance of the alleged agreement to give him land elsewhere or for the recovery of the price of the land. The learned Judges of the Calcutta High Court while repelling the contention, observed:— "We cannot possibly accede to their contention that the remedy of the plaintiff is by way of a suit for recovery of the price of the land for specific performance of the agreement to give other lands in exchange." Following the above principle in the present case, since the plaintiff was never placed into possession of any land by the defendants in exchange for the land in dispute, it is open to the plaintiff to claim the possession of the land in dispute under Section 119, Transfer of Property Act, 1882. A contention was raised on behalf of the defendants that since the defendants have raised permanent structure over the land in dispute by construction of a residential house, acting under the agreement, the licence in their favour I has become irrevocable by virtue of clause (b) of Section 60, Easements Act, 1882. Be it stated that no plea was raised by the defendants either in the trial Court or in the first appellate Court with regard to the irrevocability of the licence on the ground of their having executed works of a permanent nature by acting upon the licence. It is well settled that a plea with regard to irrevocability of a licence within ? the ambit of Section 60(b) is a plea of fact which must be specifically raised land proved. Once a party fails to raise such a plea before the trial Court, I he cannot be permitted to raise such a plea for the first time in second appeal. I (See : Jas Bahadur Rai v. Purra Dhan Rai AIR 1981 N.O.C. 121 (Sikkim) land Chevalier I.I. lyyappan and another v. The Dharmodayam Co , Trichur I AIR 1966 SC 1017). In the present case as well, since the defendants failed to raise the plea with regard to irrevocability of the licence before the learned trial Court and 1 the first appellate court, they cannot be allowed to raise such a plea for the [ first time in the present second appeal. In the present case as well, since the defendants failed to raise the plea with regard to irrevocability of the licence before the learned trial Court and 1 the first appellate court, they cannot be allowed to raise such a plea for the [ first time in the present second appeal. Since the plaintiff is entitled to recover the possession of the land in dispute under Section 119, Transfer of Property Act, 1882 and in view of the fact that the defendants cannot be permitted to raise the plea enunciated under Section 60(b) of the Easements Act, 1882, the mere fact that construction was raised by the defendants to the knowledge of the plaintiff without any objection, the same would not be an estoppel against the plaintiff. 13. Even otherwise, if there has been no objection on the part of the I plaintiff to the construction being raised by the defendants, the same was under I a bonafide belief that the defendants in terms of the agreement would be giving I some other land to him in exchange for the land in dispute. The defendants I have failed to perform their part of the agreement, therefore, they cannot be I permitted to take advantage of their own wrong by setting up the plea of estoppel. For the foregoing reasons, the present appeal merits dismissal. The same I is dismissed accordingly with costs quantified at Rs. 2,200. Appeal dismissed.