Bhagwan Singh vs Madan Lal and Another

N.K. Kapoor, J.—This is petition for review of judgment dated 20.5.19%. SLP was filed but the same was withdrawn with a liberty to approach this court in a review petition. The apex Court accordingly dismissed the petition as withdrawn and permitted the petitioner to approach this court within a period of thirty days from the passing of the order and in case he fried such a petition within the stipulated period, question of limitation shall not be raised.

Petitioner has sought review of judgment dated 20.5.1996 on the following grounds (i) that whereas it is not necessary to have reduced in writing the exchange of land in the State of Punjab but in Jammu and Kashmir exchange of land without writing is not permissible. Since there was no written document with regard to exchange of land in Jammu & Kashmir, judgment dated 20.5.1996 suffers from this infirmity, (ii) the provisions of Transfers of Property Act are not applicable to the State of Punjab and so on this ground too there could not be any exchange of land situate in the State of Jammu & Kashmir with the land within the bound; of State of Punjab; (iii) that as per Section 118 of the Transfer of Property Act 1977 (1920 A.D.) applicable to the State of Jammu and Kashmir, a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. Since these matters escaped the notice of the court and otherwise have vital bearing on the point in controversy, the judgment deserves to be recalled and decided afresh in the light of aforesaid objections.

Notice of this application was given to the respondents who have filed reply to the same. Besides replying on merit, certain preliminary objections too have been raised by the answering respondents. It has- been stated by the respondents that the present review petition is wholly misconceived and otherwise unwarranted as by means of this review petition fresh ground are to be urged which were never raised when the appeal was argued before the court. New points of attack cannot be made basis for reviewing a judgment. The review petition is otherwise misconceived as no affidavit has been filed either by the applicant or by the counsel who argued the main appeal that the points and the grounds now raised were either raised or argued. Plea of limitation too has been taken stating that since the apex court granted the applicant only 30 days to approach this court, review petition is not within time.

Learned counsel for the review petitioner argued that the primary dispute between the parties is as to whether there had been an exchange of land between Sadhu Ram and Ved Parkash; and, secondly, whether the exchange satisfies the essential ingredients of Section 118 of the Transfer of Property Act, 1977 applicable to the State of Jammu and Kashmir. According to the counsel, basis of claim of the respondent is an entry in regard to the exchange between Ved Parkash and Sadhu Ram (brothers). As per the verbal exchange, Ved Parkash gave up his claim in the suit land to Sadhu Ram and the latter too gave up his land qua the land situate in village Prema Chack (Jammu & Kashmir) to Ved Parkash. According to the counsel, Transfer of Property Act is not applicable to the State of Punjab but the provisions of Transfer of Property Act are applicable to the State of Jammu & Kashmir as per Act No. XLII of 1977 (Transfer of Property Act, 1977 (1920 A.D.)). According to counsel, as per Section 118 of the Act ibid even in respect of transfer of property by means of exchange, the mode of transfer is the same as applicable in case of transfer of property by sale i.e. even in case of exchange, it has to be by means of a registered document. So the alleged exchange set up by the defendant-present respondent could not be legally given effect to as no such document has come into existence pursuant to the alleged agreement between the parties in this regard. No doubt, precise point was not addressed at the time of arguments, but all the same it goes to the root of the matter and so the same deserves to be examined by this Court. This error is apparent on record as in the State of Jammu & Kashmir no oral exchange of property in envisaged. Thus, the judgment deserves to be recalled and the matter decided afresh.

Learned counsel for the respondents argued that SLP had been dismissed as counsel for the petitioner expressed his desire to withdraw the same and so it cannot be taken that the apex Court desired that the matter be examined by means of a review petition. ln any case, even such a petition could be filed within 30 days from the passing of the order and as the same has not been filed within time it deserves to be dismissed. Even otherwise, petition is wholly devoid of merit.The review petition is to be considered in the light of Section 114 and Order 47 Rule 1 of the Code of Civil Procedure. It is not a case of discovery of new matter or evidence nor it is a case that despite exercise of due diligence, the same did not come to the knowledge of the petitioner. A perusal of the judgment reveals that the issue raised has been examined in the light of evidence on record. Reliance has been placed upon the decision of the apex court in case reported as Dokka Samuel Vs. Dr Jacob Lazarus Chelly, ; M/s. Avijit Tea Co. Pvt. Ltd. Vs. M/s. Terai Tea Co. and others, ; and Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, .

Primary submission of learned counsel for the applicant seeking review of the earlier judgment is that the so called exchange could not be given effect to as the same was not a written document nor the same was registered according to law in the State of Jammu & Kashmir Section 118 of the Transfer of Property Act, 1977 (1920 A.D.) defines "Exchange" which reads as under:-

"118. When two persons mutually transfer ownership of one thing for the ownership and another, neither thing nor both things be money only, the transaction is called an "exchange"

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale." Since Section 118 of the Transfer of Property Act, 1977 (1920 A.D.) envisages that a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale, the same is per se to be a registered document. As noticed above, defence of the respondent-defendant from the beginning has been that there has been exchange of ownership between Ved Parkash on one hand and Sadhu Ram on the other hand. On the basis of this mutual exchange, Ved Parkash gave up his share on the property situate at village Shikar. Copy of jamabandi forth for the year 1962-63 record Sadhu Ram to be in possession of the property and in the relevant column it is recorded "Bawaiah Tabadla Hasab Arazi Raisat Jammu". In the subsequent entries for the year 1967-68, 1972-73 and 1977-78 too Sadhu Ram is recorded to be in possession. There is slight change in the subsequent entries but since no explanation had been rendered the subsequent entries were ignored and so it has been held that Sadhu Ram is in possession as owner. Concededly, provisions of Transfer of Property Act pertaining to exchange of land are not applicable to the State of Punjab but all the same broad principles are still attracted. It is in the light of Section 118 of the Transfer of Property Act that it was held that exchange of property between Ved Parkash and Sadhu Ram came into effect.

How far the provisions of Transfer of Property Act, 1977 (1920 A.D.) will effect the exchange accepted by two brothers is another point which has now been raised for the first time, is to be examined. The factum of exchange is not in dispute. Only form of it is being disputed. Thus, whereas for the purpose of State of Punjab even oral exchange is permissible, the same is not attracted to a property situate in the State of Jammu & Kashmir. Be that as it may be, exchange is complete qua the property situate in the State of Punjab. Even as regards the property situate in the State of Jammu & Kashmir, the same has been given effect to. No doubt, this document has not been registered, but all the same cannot be construed so as upsetting the settled position almost after a gap of 40 years. It is not even the case of the erstwhile owner, namely, Ved Parkash that Sadhu Ram or his predecessor-in-interest at any time disowned the exchange. So even on merit, plea has no substance. Otherwise too, this point was never raised before the Court and precisely for the same reason the same was not dilated upon. It is now well settled that there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found. It may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. The apex court in the aforesaid decisions cited by counsel for the respondents emphasized upon the same. Thus, no useful purpose would be served on dilating upon the same.

Resultantly, finding no merit in the review petition, the same is dismissed.