Chander Bhusan Barowalia, J. - (1.)The present regular second appeal is maintained by the appellant, who was defendant No.2 before the learned Trial Court (hereinafter to be called as "the defendant No.2") , laying challenge to the judgment and decree, dated 15.05.2002, passed by learned District Judge, Hamirpur, H.P., in Civil Appeal No. 86 of 1994, whereby by allowing the appeal, the judgment and decree, dated 04.05.1994, passed by the then Sub-Judge (II) , Hamirpur, in Civil Suit No.194/91, was set aside.
(2.)Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the land entered in Khata No.25 min, Khatoni No.29 min, Khasra Nos. 982, 1192 kita 2 area measuring 58 kanals & 1 marla, as per the jamabandi for the year 1987-88, situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. (hereinafter to be referred as 'the suit land') is in the ownership and possession of the plaintiff and defendant No.1, besides they are also recorded owners of the land entered in Khata No.25 min, Khatoni No.29 min. Khasra Nos. 138, 160, 181, 432, 460, 989 measuring 34 kanals 3 marlas situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. It has been alleged that they have also an old house consisting number of rooms inherited from their father situated in Abadi Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. The suit land situated at a far off place from the ancestral Abadi of plaintiff and defendant No.1 and is called 'Cheli Nala', the same is even called as 'Pani-ka-panga' and 'Rase-dapanga.
It was, thus, not possible to look after the same. The defendant No.1 had thus given the entire suit land to the plaintiff by way of exchange and in lieu thereof, the plaintiff had given his entire share in the Abadi as well as in the land adjoining thereto. After such exchange, the parties even took the possession of their respective land according to such exchange. It is the suit land came to the plaintiff. He had broken the same and made cultivable because earlier it was 'Kharatar' and 'Banjar Kadim'. He even raised the construction of residential house by spending huge amount. The exchange dated 29.1.1987 is stated to be admissible and has been made by way of family arrangement by the parties and as such binding on defendant No.1. The defendant has thus left with no right, title or interest in the suit land. Thus, exchange even duly acknowledged by defendant No.1, as he served the notice dated 27.6.1989 on the plaintiff which was duly replied. The said defendant, however, in connivance with defendant No.2, has executed sale deed on 19.8.1991 and thereby sold a portion of the suit land i.e. half share of the land bearing Khasra No.1119, measuring 19 kanals without any right, title and interest to defendant No.2. Such alienation of the suit land is stated to be absolutely illegal because the sale is not complete. Otherwise also, the plaintiff, (hereinafter to be referred as 'defendant No.1) , who is in exclusive possession of such suit land by way of family arrangement as well as exchange and as such the same should not have been sold by defendant No.1 to defendant No.2. Hence, the suit for the decree of permanent prohibitory injunction restraining the defendants from causing any interference in the suit land because of the plaintiff is owner in possession thereof and defendant No.1 has no right, title and interest therein and as such the sale deed dated 19.8.1991 is null and void and not binding on the plaintiff, in the event of the exchange is not proved, in that event for the decree of permanent prohibitory injunction and declaration that the plaintiff being co-sharer has got the preferential right to acquire the suit land on consideration of market value or assessed by the Court, as he being co-sharer in the Khata and also real brother of defendant No.1 has got preferential right to acquire the same under Section 22 of the Hindu Marriage Act.

(3.)The defendants on entering appearance have contested the suit. They raised preliminary objection so as to maintainability, locus standi and valuation of the suit etc. On merits, while admitting the suit land to be joint of the plaintiff and defendant No.1, being inherited from their father as well as the exchange of the suit land with the plaintiff on 29.1.1987, it has been submitted that the plaintiff did not implement the exchange as he never lodged any report in this behalf with the revenue authorities and also failed to exchange the land in terms of instrument of exchange. Thus, the defendant remained in possession of the suit land throughout. It has been denied that the plaintiff has broken the land or constructed the residential house thereon. It has also been denied that it was the plaintiff who submitted that since defendant No.1, is the owner in possession of half share of the land in possession and as such the same has rightly been sold by him to an extent of half share to defendant No.2/appellant herein.