2001 PLP R755 (SCMR)

MUNIR A. SHEIKH, J.

Leave to appeal is sought against the judgment of Lahore High Court, Lahore, dated 8-3-2000, through which revision petition filed by respondent No.1 against the judgment of First Appellate Court allowing appeal against -the judgment of trial Court of dismissal of suit of the petitioner, has been accepted and the judgment and decree of the Trial Court restored.

2. The petitioner, along with his brother. Nazir Ahmed Khan, on 6-1-1979 filed a suit for declaration that they were owners of the suit-land through exchange, subject-matter of the suit. It was averred that on 1-2-1968, the petitioner in exchange transferred his land to Ghulam Ahmed respondent No. l and his sister Mandan in lieu of which they had transferred their land in dispute to them, as such they were owners of the same. Admittedly the exchange deed on which the suit was based, had not been signed by either the present petitioner or Mandan. It was signed only by Ghulam Ahmed respondent No.

1. The suit was dismissed by the trial Court through judgment dated 14-3-1983 on the ground that it was merely an agreement and not absolute transfer and as such no right could be claimed on the basis of the same and further that the document had not been registered, therefore, it did not create any right in favour of petitioner, for it had not been signed by 3 persons out of 4 persons, who were party to it.

3. The appeal filed by the petitioner was accepted by the learned Additional District Judge, Faisalabad, through judgment dated 28-11-1983. Against this, Ghulam Ahmad tiled revision petition before the High Court which has been accepted through the impugned judgment against which leave to appeal has been sought.

4. Learned Judge in Chamber of Lahore High Court held that the document which was the basis of the suit, was merely an agreement and the same had also not been signed by 3 of the 4 persons namely, Mandan and petitioner whereas, it had been signed only by Ghulam Ahmed respondent No.1, therefore, it did not affect a legal and valid transfer of land on the basis of exchange. Apart from this, it was held that the document in question was merely an agreement on the basis of which no ownership right created or could be claimed.

5. Learned counsel for the petitioner submitted that in fact two documents were executed one of which was signed by the present petitioner, transferring their land in exchange to Mandan and Ghulam Ahmed. This document was delivered to Ghulam Ahmed which should be in his possession. Ghulam Ahmed signed the other document alienating his land through exchange in favour of the petitioner. When asked learned counsel for the petitioner frankly admitted that before none of the Courts below at any stage, the petitioners ever pleaded that exchange of land was the subject ?matter of 2 simultaneously executed documents. No effort was made to get the said document produced from Ghulam Ahmed by issuing him notice for production of the same as provided in Civil Procedure Code.

6. We have also noticed that Mandan, sister of Ghulam Ahmed died during pendency of the suit and the exchange was given effect to, to the extent of 1/5th share devolved on Ghulam Ahmed, her brother; who was signatory of the document whereas regarding the remaining land of Mandan, it was dismissed even by the learned Additional District Judge. In this view of the fact since Mandan was not held to have transferred the land in exchange, the entire transaction of exchange was not capable of being given effect to, therefore, whole of it was to be struck down.

7. Learned counsel for the petitioner has not been able to satisfy us that the findings recorded by the learned Judge in Chambers of the High Court suffer from any legal infirmity calling for interference by this Court.

8. Consequently, this petition has no merit, and is hereby dismissed. Leave to appeal is refused. Q.M.H./M.A.K./S-63/S?????????????????????????????????????????????????????????????????????? Petition dismissed.