1. ' MUHAMMAD NAWAZ ABBASI, J.---This direct appeal has been preferred against the judgment dated 18-4-2000 passed by learned Judge in Chambers of Lahore High Court, Multan Bench in Civil Revision No,164 of 1995 through which Atta Muhammad respondent herein challenged the concurrent finding of the two Courts on the question relating to the validity of exchange deed dated 22-5-1982 by virtue of which the parties had entered into a transaction of exchange of land and in pursuance thereof a Mutation No,41 of 9-8-1982 was also sanctioned. Shah Muhammad, appellant herein, through a suit for declaration and permanent injunction filed against the appellant in the Civil Court at Lodhran, sought a decree to the effect that exchange deed being void and ineffective was of no consequence.
2. ' The facts in small compass giving rise to this appeal are that the appellant and respondent (consanguine brothers) entered into a transaction of exchange under which the land measuring 129 Kanals and 2 Marlas owned by the appellant in village Matran, Tehsil and District Lodhran was exchanged with the land measuring 136 Kanals owned by the respondent, through a registered deed and a mutation was accordingly sanctioned. The appellant with a lapse of a period of about seven months, filed the above suit wherein he pleaded that the land owned by him was superior in quality and as per understanding in addition to land in exchange, an amount of Rs,75,000 was also payable by the respondent which was not as such made part of the exchange deed to avoid any complication. It was averred in the plaint that subsequent to the registration of exchange deed the respondent without payment of Rs,75,000 to the appellant got sanctioned the mutation of exchange without the knowledge of appellant and thereby, deprived him from the land of superior quality through fraud and misrepresentation. The suit was contested by the respondent and the learned Civil Judge 2nd Class,Lodhran in the light of the pleadings of the parties and the evidence produced by them, decided the pivotal issue relating to the character of the exchange deed and the validity of mutation of exchanges in favour of the appellant and decreed the suit vide judgment dated 8-6-1992.. The judgment and decree of the trial Court was further confirmed by the learned Additional District Judge by dismissing the appeal preferred by the respondent vide judgment dated 20-11-1994. The respondent assailed the judgment and decree in the suit concurrently passed by the two Courts by invoking the revisional jurisdiction of the Lahore High Court, Multan Bench and a learned Single Judge vide the judgment impugned in the present appeal allowed the revision petition with the following observations:-- "I have gone through certified copies of the record appended with this civil revision with the assistance of the learned counsel as for state of evidence on record. Suffice it to say that both the learned Courts below concurrently held that no particular fraud has been established in the matter of transaction of exchange on the part of the petitioner. Strangely enough the learned trial Court after recording the said findings proceeded to hold that it believes the plaintiff's contentions. A bare reading of para.7 of the impugned judgment of learned trial Court would show that it preferred conjectures in evidence led by the petitioner in the form of favour of Nizam Din. D.W.2 and Muhammad Dad D.W.3 who are the marginal witnesses of the exchange deed and deposed on oath that no term regarding payment of Rs,75,000 was settled between the parties.
(4) So far the law is concerned, both the learned Courts below have placed implicit reliance on the case of Debi Prasad Singh and another v. JaldharChaube and others AIR 1946 Allahabad 125 to propound the proposition that delivery of physical possession was a must for an exchange to be valid. I have no hesitation in holding that both learned Courts below did not even care to go through the said judgment while recording their own respective judgments. Had they cared to do so, they would have found that in the said case what was being termed as evidence of exchange was an unregistered agreement and that too of a sale. It was in the said circumstances that the learned Judges of the Allahabad High Court while delaying with a pre-emption suit said that the transaction is a sale and not an exchange and one of the reasons put forward was that the unregistered document did not evidence exchange and possession has also not been delivered under the same.
(5) Both the learned Courts below also did not care to readsection 118 of the Transfer of Property Act which defines an exchange. The said section may be reproduced here:- 'Exchange' defined.---When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an 'Exchange'.
3. ' A transfer of property is completion of an exchange, can be made only in manner provided for transfer of such property by sale. A plain reading of the said mandatory provision could show that there is no reference to possession and that it is the mutual transfer of ownership of another between the two persons when none of the thing is money only. An exchange is said to have been effected.
(6) The mode of making the transfer in the form of an exchange is prescribed to be the same as provided for transfer of such property by sale. Section 54 of the Transfer of Property Act provides that transfer by sale in case of tangible immovable property of the value of Rs,100 and upwards can be made only by a registered instrument.
(7) It is only in the case of a transfer of tangible immovable property of a value less than Rs,100 only that the delivery of property comes essential in case the transfer is not effected by means of a registered instrument.
(8) The learned lower Courts have misread the evidence and proceeded to decree the suit of the respondent in utter disregard of the law on the subject. In fact, the learned lower Courts appear in completely oblivion of the law applicable to the transaction in question. The learned lower Courts, therefore, have exercised with material irregularity in the exercise of their respective jurisdiction while passing the judgments and decrees impugned in this civil revision. Resultantly, I allow this civil revision, set aside judgment and decree of both the lower Courts and dismiss the suit of the respondent with costs throughout."
4. ' Learned counsel for the appellant has contended that respondentin his statement had made an admission regarding his obligation to pay Rs,75,000 to the appellant as the land of the appellant was of better quality to that of the respondent and the learned Judge in the High Court without attending this aspect of the matter reversed the concurrent findings of fact of the two Courts through misreading and non-reading of the evidence and decreed the suit for irrelevant consideration. The learned counsel, however, has candidly conceded that condition ofpayment of Rs,75,000 to the appellant in addition to the land given in exchange was not incorporated in the exchange deed and instead it was made part of transaction through an oral agreement between the parties. The learned counsel representing the respondent has sought dismissal of this appeal being not maintainable for the following reasons:-
(a) That the appellant has not appended the decree passed by the High Court with the memo. Of appeal in terms of Order 12, rule 4 of the Supreme Court Rules, 1980 read with Order 45, rule 1, C.P.C.
5. And consequently, appeal would be bound to be dismissed as incompetent. In support thereof, the learned counsel has placed reliance on Muhammad Jahangir Khan v. Government of the Punjab 1981 CLC 1474 and InamGul v. Begum 1980 CLC 530 SC (AJ&K).
(b) That the appellant without challenging the decree of the High Court has challenged the judgment of said Court, therefore, the appeal would not be competent and further the decree would attain finality for want of challenge. The learned counsel has placed reliance on Sana Ullah v, GhulamQadir PLD 1958 Peshawar 213.
6. ' The learned counsel for the appellant on the other hand, in the light of law laid down by this Court in Baseer Ahmed Siddiqui v. ShamaAfroz 1988 SCM R 892 and Sherin v. Fazal Muhammad 1995 SCM R 584 contended that the non-filing of the decree of the High Court with the appeal was not fatal as it was not intentional rather it happened due to the prolonged illness of the Advocate-on-Record who could neither inform the appellant nor could take any step to place on record the decree- sheet and that the needful can still be done with the permission of the Court.
7. ' We having considered the question relating to the condonation of requirement of filing of the decree of the High Court in the light of above referred judgments., find that the present case in its features was distinguishable to that of the cases cited as precedent. In the 'case reported as Baseer Ahmed Siddiqui v. ShamaAfroz 1988 SCM R 892 a sufficient explanation was offered for not placing on record the decree-sheet which was under challenge in appeal and similarly in the case reported as Sherin v. Fazal Muhammad 1995 SCM R 584, the non-filing of the decree-sheet with the appeal was condoned on the ground that it was the result of an act of the 'Court. In the present case, the appeal was filed on 15-5-2000 without filing the decree passed by the High Con' t and thereafter, no effort was made on behalf of the appellant for bringing on record the decree sheet till today, 'and further no explanation was offered for not placing on record the decree sheet therefore, the appellant cannot get benefit of law laid down by this Court in the above referred judgments.
8. The learned counsel for the respondents has contended that the suit was not filed in good faith and that the learned trial Judge as well as the Appellate Court without attending the nature of dispute in its true perspective, decreed the suit for irrelevant consideration. We having heard the learned counsel for the parties find that the execution of the exchange deed and. Sanction of mutation on the basis of said deed was not denied by the appellant rather his case in the suit, was that without payment of Rs,75,000 to him by the respondent the exchange deed would be inoperative ad consequently the mutation of exchange was ineffective.
9. The transaction of exchange of land was entered through an attested deed on 22-5-1982, the implementation of which was made through a mutation sanctioned on 9-8-1982. The appellant has neither made any demand of payment of Rs,75,000 at the time of registration of exchange deed before the Registrar nor took any step to inform the Revenue Authorities for not sanctioning the mutation. The learned counsel for the appellant has conceded that the observation made by the learned Judge in the High Court regarding the concurrent findings of the two Courts that no fraud was committed on the appellant and further there was no evidence in support of allegation of fraud, was correct. However, according to the learned counsel the reversal of finding of fact with reference to section 118 of the Transfer of Property Act, 1882 and the conclusion that delivery of possession under registered exchange deed was not essential, was contrary to law. The learned counsel for the respondent on the other hand, submitted that land of both the parties subject- matter of exchange was of equal quality and they exchanged the same without any other consideration except in their convenience and that appellant for some ulterior motives filed the suit to undo the exchange. The learned counsel submitted that the concurrent findings of the two Courts being suffering from misreading and non-reading of evidence was rightly reversed by the High Court in its revisional jurisdiction. The controversy between the parties would confine only to the extent of condition of payment of Rs,75,000 which was not as such incorporated in the registered exchange deed and the existence of transaction of exchange was not in dispute, therefore, the non-payment of amount in question would not undo the transaction rather the appellant could avail proper remedy for the recovery of the said amount as consideration for exchange of land. In any case, it being a pure question of fact, cannot be gone into by this Court through reappraisal of evidence.
10. For the foregoing reasons we do not find any substance in this appeal and while upholding the objection regarding the maintainability of this appeal dismiss the same being not maintainable and also on merits. There will be no order as to costs.