REHMAT ALI Versus ABDUL GHANI

This revision petition is directed against the judgment and decree, dated 6‑2‑1995 and 29‑7‑1985 passed by Additional District Judge, Sheikhupura and Civil Judge, Ferozewala, whereby the suit of the petitioner‑plaintiff challenging the exchange Mutation No.1868 dated 26‑9‑1963 was dismissed.

2. Abdul Ghani, respondent No.1, who was allotted land against his claim form No.40246 RL‑II, No, 1, exchanged this allotted land with Ch. Chanan Din, father of the petitioner, vide Mutations Nos.997 and 1868. The land which was allotted to Abdul Ghani, respondent No.1 and given in exchange to Ch. Chanan Din was subsequently cancelled by the Border Area Committee vide its order, dated 24‑5‑1967. In this view of the matter, the petitioner asserted that he is entitled for the cancellation of the exchange‑mutation. This suit of the petitioners was resisted. During the pendency of the civil suit, Abdul Ghani, respondent, transferred the land in favour of Muhammad Sharif, respondent No.2, who has died and is being represented by his legal heirs respondents Nos.2A to 2D.

3. From the divergent pleadings of the parties; following issues were framed by the learned trial Court:‑‑

(1) Whether the plaintiffs are estopped by their conduct from filing the present suit? OPP

(2) Whether the suit is within time? OPP

(3) Whether the suit is under‑valued for the purposes of court‑fee and jurisdiction? OPD

(4) Whether the plaintiffs have no cause of action against defendant No.2? OPD

(5) Whether the plaintiffs are owners of the suit‑land? OPP

(6) Whether Mutation No. 1868 dated 26‑9‑1963 is illegal and ineffective against the rights of the plaintiffs? OPP

(7) Relief.

4. Parties produced their evidence. The learned Civil Judge dismissed the suit vide his judgment and decree, dated 29‑7‑1985. The appeal filed by the petitioner there against also met the same fate. The petitioners were non‑suited on the ground that they did not challenge the order, dated 24‑5‑1967 of the Border Area Committee through which the land allotted to Abdul Ghani was cancelled, and the suit of the petitioners is barred by Article 120 of the Limitation Act. Further it was observed that the petitioner did not claim the possession, therefore, his suit is barred under section 42 of the Specific Relief Act. Additionally, the petitioners were non‑suited on the ground that at the time of exchange the title of Abdul Ghani was not defective.

5. Learned counsel for the petitioners on the strength of section 119 of the Transfer of Property Act contends that the land allotted to Abdul Ghani was resumed by the Border Area Committee, therefore, the petitioners are entitled far the return of their land transferred to Abdul Ghani. Further contends that the petitioners cannot be deprived from their legal right of getting the land because prayer for possession has not been made in the plaint. It is further contended that Article 143 of the Limitation Act provides 12 years for recovery of possession and both the Courts below fell in error while non‑suiting the petitioners on the ground that the suit of the petitioners was barred by Article 120 of the Limitation Act.

6. On the other hand, learned counsel for the respondents contends that the provisions of section 119 of the Transfer of Property Act are not applicable. Further contends that the title of Abdul Ghani, respondent was not defective when the mutation of exchange was attested. Adds that the petitioners did not pray for possession, therefore, the suit was hit by section 42 of the Specific Relief Act, and that the order dated 24‑5‑1967 passed by the Border Area Committee has not been challenged and the suit filed by the petitioners on 8‑4‑1978 was barred by time, which has been rightly dismissed by applying Article 120 of the Limitation Act.

7. The facts of the case are admitted and straightforward. The exchange Mutations Nos.997 and 1868 were attested through which the land allotted to Abdul Ghani against his claim was transferred in favour of Chanan Din which was subsequently cancelled by the Border Area Committee vide order, dated 24‑5‑1967. The question which arises for consideration, in this case is whether the petitioners, are entitled for the return of their land which was given to predecessor of the respondent, Abdul 6hani, in exchange of his land and the Mutation No. 1868 is liable to be cancelled. To appreciate the contentions of both the parties reading of section 119 of the Transfer of Property Act (IV of 1882) is relevant, which reads 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 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."

8. The impugned Mutation No. 1868 attested on 26‑9‑1963 through which Abdul Ghani has transferred his land measuring 45 Kanals, 4 Marlas in favour of Chanan Din is on the file as. Exh.P.2. This agreement of exchange contained a covenant, which reads as follows:-----

9. If Chanan Din had been deprived of the land taken by him in exchange, then under the terms of the mutation/agreement he is entitled to 'recover' the land which he had given in exchange to Abdul Ghani. The covenant noted above read with the provisions of section 119 of the Transfer of Property. Act makes it clear 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 land taken 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 it is still in the possession of such other party or his legal representative or a transferee from him without consideration. Since Chanan Din was deprived of his land because of defective title of Abdul Ghani which was allotted to him against his claim, therefore, Chanan Din is entitled for the return of his fand by cancellation of mutation.

10. I have noted that both the Courts below fell in error by observing that the land is no more in possession of Abdul Ghani and the same has been transferred by way of sale in favour of Muhammad Sharif, predecessor‑in‑interest of respondents Nos.2‑A to 2‑D. The land was transferred during the pendency of the suit. This transfer has no bearing on the rights of the parties under section 52 of the Transfer of Property Act under the principle of 'lis pendens'.

11. The land transferred by I Abdul Ghani to Chanan Din was cancelled by the Border Area Committee on 24‑5‑1967. For the suit for possession, which is filed on the basis of breach of contract Article 143 of the Limitation Act provides the limitation of 12 years for filing the suit. The petitioners claimed declaration. The possession may follow on awarding the decree of declaration in favour of the petitioner. If the suit is to recover the land under the covenant, Article 143 of the Limitation Act may be attracted, which prescribes a period of 12 years for recovery of the possession. The starting point under Article 143 of the Limitation Act is when the forfeiture is incurred or condition is broken. Admittedly the petitioner has been deprived of the land by the order passed by the Border Area Committee on 24‑5‑1967; the suit filed by the petitioners on 8‑4‑1978 within 12 years under Article 143 of the Limitation Act was within time. Article 120 of the Limitation Act would have applied if the petitioner would have been in possession of the land and sought simple declaration from the Court.

12. In case reported as R. V. Srinivasa Ayyangar v. Kottappakki Johnsa. Rowther (Indian Cases page 939), the Madras High Court while interpreting the provisions of section 119, Transfer of Property Act (IV of 1882) alongwith Article 143 of the Limitation Act, ruled:‑‑

"Transfer of Property Act (IV of 1882), S.119‑‑‑Exchange‑‑‑Covenant for return of property exchanged in event of obstruction‑‑‑Suit based on covenant‑‑‑Limitation Act (IX of 1908), Sched. I, Arts. 112 & 143‑‑‑Vendee from party to exchange, position of.

Where parties to a deed of exchange covenant specifically that, in the event of obstruction to either party's enjoyment of the property exchanged, each should return to the other what is taken, the covenant is in the nature of a condition subsequent, and a suit based on the covenant is governed by Article 143 and not by Article, 113 of Scheduled I of the Limitation Act.

The defendant in such. a suit cannot avail himself of the plea of a bona fide purchase from one 'of the parties to the exchange, as the transferee cannot get a larger estate than the transferor "

No doubt the petitioner has not prayed for possession in the suit, but this objection of the respondents is not entertainable as it is the rule of procedure under Order VII, rule 7, C.P.C. that the Court can grant such relief as justice of case may demand and for determining relief asked for, whole of the plaint must be looked into, so that substance rather than form should be 'examined. In case reported as Samar Gul v. Central Government and others (PLD 1986 SC 35) the Hon'ble Supreme Court as a rule observed:‑‑

"‑‑Court is empowered to grant such relief as justice of case may demand and for determining relief asked for, whole of them plaint must be looked into, so that substance rather than form should be examined."

13. The principle enunciated by the Hon'ble Supreme Court was followed in the case of Muhammad Nazir and 3 others v. Mst. Nasira Sultana and 5 others (1995 CLC 1745) in which the objection that the plaintiff has not asked for the relief in correct form was rejected by the Court.

14. In view of the declaration of title to which the plaintiff has been found entitled, he was also entitled to get the possession of the suit properties by way of consequential relief. In order to do complete justice and to save the parties from further litigation, the plaintiff could be allowed relief by way of possession consequential to the declaration.

Both the Courts below have misread the impugned `Mutation No.1868 (Fxh.P.1), misinterpreted the provisions of the Transfer of Property Act, therefore, committed material irregularity and illegality to non‑suit the petitioners. Resultantly, this revision petition is allowed, the impugned judgments dated 29‑7‑1985 of the Civil Judge and dated 6‑2‑1995 passed by the learned Additional District Judge are set aside. The suit filed by the petitioners is decreed with costs.

H.B.T./R-176/L Revision petition allowed.