P L D 1969 Peshawar 103 (PLP)

Muhammad Shah (hereinafter called the plaintiff) entered into a transaction of exchange with Mst. Mulkhan (who is now dead and is being represented by her only brother Sher Muhammad). The exchange was in this way that Muhammad Shah gave 45 Kanals and 15 Marlas of his land situated in Village Dandasbah Bilawal to Mst. Mulkhan. In return Mst. Mulkhan gave her land measuring 54 Kanals and 11 Marlas situated in Village Mianwala to Muhammad Shah. The transaction of exchange is incorporated in a registered deed Exh. P. 1, dated the 5th of May 1958.

2. Regarding land given to Mst. Mulkhan in Village Dandashah Bilawal. Mst. Mulkhan after getting the aforesaid in exchange, sold the whole of it to one Shah Zaman. The brother of Mst. Mulkban, Sher Muhammad by name, filed a suit for pre empting the said sale in which he succeeded and thus the said land was acquired by him.

3. Regarding land given to Muhammad Shah in Village Mianwala.‑-- The land in Village Mianwala was obtained by Muhammad Shah from Mst. Mulkhan. Mst. Mulkhan was widow of Amir. Amir had also one daughter Mst. Khurshidan by name. The said Mst. Khursbidan filed a suit claiming that in the land held by Mst. Mulkhan, which she had subsequently given over to Muhammad Shah, she had a larger share. She in this way claimed an area of 23 Kanals and 19 Marlas, in the land which at that time was in the hands of Muhammad Shah. The suit was decreed and it was held therein that Mst. Mulkhan had no title with respect to the area which was being claimed by Mst. Khurshidan.

4. Present suit.‑When Muhammad Shah was deprived of an area of 23 Kanals and 19 Marlas, in the manner aforesaid from the land which had been' received by him from Mst. Mulkhan, he filed a suit on 19‑1‑1963, in which he made Slier Muhammad as the only defendant and subsequently, added Shah Zaman as defendant No.

2. The case of Muhammad Shah plaintiff was that since he has been deprived of a part of the area given to him in exchange by Mst. Mulkhan, therefore, corres ponding area from the land which he himself had given to Mst. Mulkhan should be given back to him. The suit was dismissed by the learned Civil Judge, Pindi Gheb on 15‑7‑1963. Muhammad Shah filed an appeal which also met the same fate and was dismissed by the learned District Judge, Attock at Cambellpur on 11‑5‑1964. The Courts below held that Sher Muhammad was a bona fide purchaser for value and, therefore, his title could not be disturbed by means of any agreement which may have been entered into by the parties to the parent transac tion of exchange. They applied section 41 of the Transfer of Property Act.

5. Learned counsel for the plaintiff‑appellant argued that in the agreement of exchange there was a covenant which reads as follows: Learned counsel submitted that according to the covenant hereinbefore reproduced, when Muhammad Shah plaintiff had been deprived of a part of the land taken by him in exchange then he is entitled to recover a corresponding area from the land which he himself had given in exchange to Mst. Mulkhan. The contention has no force. The covenant hereinbefore reproduced does not prescribe that the land which had been given in exchange by one party to another could be followed if any party was deprived of a part of the land taken by him in exchange. The covenant, reproduced in the earlier part of this judgment, simply A creates a personal liability and does not create any charge on the land itself. In other words, the covenant was not of such a type which. in the legal terminology is known as "to run with the land." When confronted with this situation, learned counsel for the plaintiff‑appellant relied on the principle contained in section 119 of the Transfer of Property Act. I am afraid the principle of the said section has no application to the suit of the plaintiff. The said section says that, "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 the 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".

6. As the wording of the aforesaid section will show (so fart as relevant for the purposes of the present case), that it contemplates that a party who has suffered can get the entire transaction rescinded and claim for the return of the whole of the property which he may have himself given in exchange. The section has no application where the whole of the transaction is not sought to be rescinded, or to put in other words, where it is endeavoured to approbate in one part and reprobate in the other. It is well settled that if a person has suffered in contracts of the present kind then it is his choice either to retain the contract in spite of the defect occurring therein or to rescind it altogether. He cannot retain it in part and at the same time rescind it. For the view which I have taken, an authority can also be cited which is reported in Salabat v. Abdul Rehman and others (41 1 C 248) (Justice Scott Smith and Justice Shadi Lal), the headnote of which reads as follows : In the absence of an agreement to the contrary parties making an exchange are deemed to convenant for title, and if in consequence of defective title either party to the transaction is deprived of the property, or part thereof, received by him in exchange, he is entitled at his option either (a) to cancel the bargain and to get back his property or (b) to obtain compensa tion for the loss suffered by him. He is not, however, entitled to recover an equivalent portion of the land given by him in exchange.

7. Another point to be taken note of is that the principle of section 119 of the Transfer of Property Act can be applied only uptil a certain stage, namely, so long as the property is lying in the hands of the person to whom it was given in exchange. If, however, the said person has parted with that property further on, in favour of a third person, then the case goes out of the mischief of the said section. In the instant case, it is a common ground that Mst. Mulkhan sold the land in question to Shah Zaman and then the said sale was pre‑empted and the property was further on transferred to Sher Muhammad defendant No. 1 herein. The plaintiff, in these circumstances, can neither succeed on the terms of the covenant hereinbefore reproduced nor on the principle of section 119 which was sought to be invoked in this case.

8. The upshot of the above discussion is that the present appeal must fail. The result, therefore, remains the same, namely, that the suit of the plaintiff stands dismissed though the reasons which I have given are different from the one which were contained in the judgments of the Courts below. The said Courts had held that since defendant No. 1 was a bona fide purchaser for value, therefore, his title could not be affected under the principle of section 41 of the Transfer of Property Act. The said section or its principle is not stricto senso applicable in this case though in the ultimate analysis the result remains the same. The appeal is dismissed. The plaintiff‑appellant must pay the costs of the contesting defendant No. 1 throughout. Appeal dismissed.