2007 PLP 567 (MLD)

MAULVI ANWARUL HAQ, J.

On 23-9-1984, the petitioners filed a suit against the respondent seeking a declaration that they are owners in possession of the suit-land mentioned in the plaint on the basis of an exchange mutation No.727 attested on 25-5-1974. It was stated that the suit-land was given by the defendants in exchange to the petitioner and the possession delivered, but they are now trying to interfere with their possession. The plea taken by the respondent was that the mutation is void as the petitioners were not owners of the entire suit-land given in exchange. Thereafter the respondents filed a suit against the petitioner for possession of the suit-land measuring 87 Kanals 12 Marlas located in village Dhola Klan, Tehsil Phalia as also the land measuring 9 kanals 1 marla located in village Chhani Saidan. Subject-matter of mutation No.727 attested on 25-5-1974 and mutation No.371 attested on 24-4-1974. According to the plaint, they delivered their said land to the petitioner and respondents purported to transfer them the land located in village Khai vide mutation Nos.1218 and 1217 attested on 26-4-1974. It was stated that inheritance mutation in favour of the petitioners was challenged and according to the decision, of the learned Civil Judge a portion of the land has been lost by the petitioners. The matter is pending in the High Court. It was further prayed that the possession has also not been delivered of the remaining land. It was accordingly prayed that a decree for possession of the suit-land be granted to them. A written statement was filed by the petitioners. It is evasive qua the said material contents of the plaint. Both the suits were consolidated. Issues were framed including the following issue No.3:-- (3) Whether the exchange was defective for disparity of properties and pendency of suit? Vide the judgment and decree, dated 12-9-1979 learned trial Court decreed the suit filed by the respondent but dismissed the suit filed by the petitioner. Learned Addl. District Judge, Gujrat allowed the first appeal filed by the petitioner on 27-2-1983 and remanded back the case with the direction to the learned trial Court to retry and redecide only issue No.3 and consequently the issue No.5 pertaining to relief. Vide the judgment and decree, dated 15-2-1986, learned trial Court dismissed the suit field by the petitioners but decreed the suit filed by the respondent for possession. The petitioners filed first appeal which was allowed by learned Addl. District Judge, M.B. Din on 19-10-1996 who reversed the said judgment and decree passed by the learned trial Court. R.S.A. No.6/97 was filed by the respondent in this Court which was allowed on 5-7-1999 and the appeal was directed to be decided afresh after taking into consideration the judgment Exh.D.14. The appeal was reheard accordingly and has been dismissed by learned Addl. District Judge, M.B. Din on 16-2-2002.

2. Learned counsel for the petitioner has not much to say on merits. He has come out with a new plea. According to him since the respondents had claimed some other proper relief also, instead of delivering back possession, a decree for compensation be passed in their favour. Learned counsel for the respondent has supported the impugned judgment and decree and has vehemently contended that upon plain reading of the plaint the respondents have claimed back their land as they have lost a part of the land given to them in exchange and further that the possession has not been delivered to them of even that land which was owned by the petitioner.

3. I have gone through the copies of the records. The finding delivered by the learned Courts below concurrently that the petitioners were not owner of the entire land purported to be given to the respondent in exchange is based upon proper reading of the judgment, dated 24-9-1962 (Exh.D.14). The exact area actually owned by the petitioners has also been very correctly worked out in the light of their shares declared in the said judgment. First appeal against this judgment and decree was dismissed vide Exh.D-15 and there is no dispute that the R.S.A. No.546/64 has also been dismissed by this Court.

4. Now coming to the said contention of the learned counsel, he relies on the provisions of section 119 of Transfer of Property Act, 1882 which may be reproduced as follows:-- 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 to 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, is still in the possession of such other party or his legal representative or a transferee from him without consideration." Now I have read the plaint which was filed as far back as in the year, 1974. It leaves no manner of doubt that the petitioners had alleged the loss of title and then have claimed back the possession of the land given by them to the petitioner in exchange for the land a part whereof stands lost. What is being termed as claim for compensation are usual vernacular words used in such like plaints i.e. If at all the same refers to an additional relief which A can be awarded to the respondent under said head of general relief i.e. mense profits for use and occupation of the land of the respondents by the petitioners since 1974 without any corresponding benefit to the respondents. Reference is made to the case "Muhammad Hussain and others v. Muhammad Nawaz, etc." (PLD 1991 Lahore 262).

5. C.R. is wholly frivolous and is accordingly dismissed with costs through out. Counsel fee is fixed at Rs.10,

000. F.B./B-43/L Petition dismissed.