MIAN SAQIB NISAR, J. --- On 6.11.1989, respondent No. 1, Muhammad Hayat, filed a suit for specific performance against respondent No. 2, seeking the specific enforcement of agreement to sell dated 31.12.1988, whereby respondent No. 2, had agreed to sell 17 Kanals and 16 Marlas, of the land, in favour of the plaintiff/respondent No. 1. The respondent No. 2, Amir appeared on 28.3.1993 before the Court and made a statement that he has no objection, if the suit is decreed and resultantly, the decree was passed on 1.4.1993. However, respondent No..1, being dissatisfied with the decree, thus, moved an application under section 12(2), C.P.C., which was accepted and the decree was accordingly 'set aside. However, some further agreement Mark "A/A" was entered into between the respondent No. 1 and Amir, whereby same other parcel of the land, was included in the sale, because in the previous agreement, there were certain kila's which belongs to the respondent No. 1 and his brother jointly; thus, in order to bring the agreement in conformity with his entitlement, certain numbers Were added; the sale price was also enhanced to Rs. 1,18,000/- out of which Rs.
88,000/- were paid before the Court. Amir again made a statement conceding the decree, but before the it could be passed, the .Appellant moved an application under Order I, Rule 10, C.P.C., for his impleadment as a defendant, on the ground that prior to the above, Amir, through an agreement dated 10.1.1989 had agreed to exchange with him certain land,- such as Square No. 80, Killas Nos. 2, 9, 12, 19, 20 and 21; this application was accepted and the appellant contested the mater as the defendant; issues were framed, the parties were.Put to trial and the learned Civil Judge, while returning his findings on Issues Nos. 1-A 2 and 3, dismissed the suit for specific performance, however, allowed the decree to the plaintiff to the extent of the return of the money plus 16%. Mark-up. Aggrieved of this, respondent No. 1, preferred an, appeal, which has been accepted by the learned Additional District Judge and the findings on Issues Nos. 1-A, 2 and 3, have been reversed, and the decree for the specific performance of the suit-land has been passed. Hence this second appeal.
2. Learned counsel for the appellant, states that there was a valid exchange agreement, dated 10.1.1989, between the appellant and Amir and therefore, such agreement should have.Been given due effect by the learned Appellate Court, resultantly, the specific performance to the extent of those numbers, which Amir had agreed to exchange with the land of the appellant, should have been refused.
3. When questioned, it has been stated that the mutation on the basis of the agreement, has not been sanctioned so far, rather for the first time, it was registered in the relevant record on 19.6.1993.
4. I have heard,learned counsel for the parties. The agreement of an exchange, is an unregistered document; the said document -also does not envisage a complete exchange of the two properties, belonging to the Oappellant and Amir; no mutation on the basis thereof was immediately sanctioned in the year 1989; rather for the first time, it got entered about four years after. According to the settled law, an agreement of exchange, which is akin to an agreement to sell, does not create or purport to create any right in the immovable property, and the only right a person may have, is to seek the specific enforcement of such agreement, but till date the appellant has not sought the specific enforcement of the alleged agreement of exchange, resultantly, when Amir yet being the owner of the property, had entered into an agreement with the respondent No. 1 and also confessed the judgment by making , a statement before the Court. Obviously, the respondent No. 1 in the circumstances, was entitled to the decree of the specific performance, which was erroneously refused to him and has been rightly passed in his favour by the Appellate Court. This appeal thus, has no merit and the same is hereby dismissed.