' MUHAMMAD AKHTAR SHABBIR, J.--- This regular second appeal is directed against the judgment and decree, dated 23-7-1995 passed by the first lower Appellate Court, whereby the judgment and decree, dated 7-4-1994 passed by the learned trial Court dismissing the suit of the plaintiffs/appellants herein was upheld.
2. The brief resume of the case is that the predecessor-in-interest of the plaintiffs/appellants herein Muhammad Bukhsh had made an exchange of his land measuring 473 Kanals, 5 Marlas situated in Mauza Gogran, Tehsil and District Lodhran, with Abdul Shakoor defendant/respondent for his land measuring 227 Kanals, 18 Marlas situated in Mauza Sahanwala, Tehsil and District Rajanpur, who transferred his land in favour of the defendant/respondent Abdul Shakoor through Mutation No,564, dated 26-9-1973. The defendant/respondent did not transfer his land in favour of Muhammad Bukhsh and sold the same to Messrs Muhammad Ashiq and Ghulam Rasool for a consideration of Rs,1,00,000 (Rupees one lac only) through registered sale-deed No,472, dated 18- 6-1981, which was implemented in the Revenue Record vide Mutation No,315, dated 11-2-1982. The plaintiffs/appellants filed a suit for declaration and possession challenging the Mutation of inheritance No,564, dated 26-9-1973 and the entries made in the Revenue Record under the said mutation. The suit was contested by the defendant/respondent, who filed his written statement raising some preliminary objections taking a specific plea to the effect that he has delivered the possession of his land to the representatives of Muhammad Bukhsh deceased and also handed over Rs,90,000 as security till the sanctioning of the mutation in favour of Muhammad Bukhsh.
Muhammad Bukhsh has been beating about the bush, thereafter, with his consent he had sold out the land and after deducting Rs,90,000 from the sale price made payment of Rs,10,000 to him. From the factual controversy appearing on the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the suit is within time? OPP
(2) Whether the plaintiffs are estopped by their words and conduct to file the instant suit? OPD
(3) Whether the suit has not properly valued for the purposes of court-fee and jurisdiction? If so, its correct valuation? OPD
(4) Whether the suit has been filed with mala fide intention and the defendant is entitled to special costs under section 35-A of C . P. C . ? OPD
(5) Whether the instant suit is result of plaintiff's collusion with the tenants Ghous Bakhsh? OPD
(6) Whether Rs,1,00,000 were paid by the defendant to plaintiff's predecessor-in-interest, Muhammad Bakhsh as a price of land owned by the defendant and agreed to be given to the plaintiff's predecessor-in-interest in exchange of suit-land? OPD
(7) Whether the Mutation No,564, dated 26-9-1973 subsequent entries in the Revenue Record in favour of the defendant are illegal, void and ineffective upon plaintiffs' right and that the plaintiffs are entitled to possession of the suit-land? OPP
(8) Relief.
' After recording, appreciating the evidence of the parties, pro and contra the learned trial Court vide judgment and decree, dated 7-4-1994 dismissed the suit. Feeling aggrieved the plaintiffs/appellants referred an appeal which came up for hearing before the learned District Judge, Lodhran, who vide impugned judgment and decree, dated 23-7-1995 dismissed the same.
3. The learned counsel for the appellants contended that the suit has been competently filed by the plaintiffs/appellants within period of limitation and Article 120 of the Limitation Act is attracted to the present case. He further contended that the plaintiffs/appellants are entitled for the possession of the property where the parties have failed to get the possession of the land in exchange under section 119 of the Transfer of Property Act, 1882. In this context he placed his reliance on the case of M.K. Ranganathan and another v. The Calcutta Tramways Co. Ltd. And others AIR 1956 Mad. 285; Jaharaddi Mandal v. Debnath Nath Chaudhry AIR 1916 Cal.
325.
4. On the other hand, learned counsel for the defendant/respondent vehemently opposed the arguments of the learned counsel for the appellants contending that the principle underlying section 119 of the Transfer of Property Act, 1882 is not attracted to the present case. He further contended that there is no evidence on the record to establish the fact that the defendant/respondent had transferred the property without the consent of Muhammad Bukhsh predecessor-in-interest of the appellants, that regular second appeal is not competent when there is concurrent finding of facts against the appellants. He placed his reliance on the case of Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCM R 1729, Mussarat Sultana v.
Muhammad Saeed 1997 SCM R 1866 and Fazal Rahman v. Amir Haider and another 1986 SCM R 1814.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. The plaintiffs/appellants had challenged Mutation No,564 attested on 26-9-1973 and subsequent entries in the Revenue Record made in favour of the defendant/respondent. This Muhammad Bukhsh died in the year 1987 and in his lifetime he has not challenged the entries of Mutation No,564. Mutation No,564 had been challenged through a suit for pre-emption, possession, which was contested by Muhammad Bukhsh and Abdul Shakoor both by filing written statement. It was held by the Court that the transaction of the property through mutation of sale was an exchange not a sale and the suit as well as the appeal was dismissed by the Courts below. This matter went upto the Honourable Supreme Court and the leave to appeal was dismissed on 29-11- 1989 and before that decision Muhammad Bukhsh had died. He did not challenge Mutation No,564 nor made any claim in return of this property from the defendant/respondent, who has obtained the possession of the same.
7. Abdul Shakoor has transferred his property measuring 227 Kanals, 18 Marlas through registered sale-deed dated 18-6-1981 in favour of Muhammad Ashiq and Ghulam Rasool and at that time too the predecessor-in-interest of the appellant did not made any protest. The present suit has been filed by the appellants in the year 1987 on the basis of the fraud played by the defendant/respondent after the death of their predecessor-in-interest. The cause of action had accrued to the appellants on 26-9-1973 and the suit could be filed within six years from the said date under Article 120 of the Limitation Act. The appellants also did not file the suit just after the death of Muhammad Bukhsh deceased. The time for filing the suit under Article 120 of the Limitation Act is six years while the instant suit has been filed after the period of about 14 years of sanctioning of the mutation in dispute, therefore, the suit was filed much after the period of limitation, therefore, both the Courts below have rightly passed the findings on Issue No,1 of limitation against the appellants.
8. As to the arguments of the learned counsel for the appellants that the case is covered within the provisions of section 119 of the Transfer of Property Act, 1882 and the appellants are entitled for the recovery of the possession of their land transferred in exchange to the respondent. The provision of section 119 of the Transfer of Property Act is reproduced as under:-- "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 opposition 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."
9. From plain reading of the above provision of law it means that a person can claim benefit under the said section if there is any defect in the title of the other party deprived of the thing or part of the thing received by him in exchange. In the case in hand the plaintiffs/appellants have not pointed out any defect in the exchanged property of the defendant/respondent or in the property of Muhammad Bukhsh which he has transferred in exchange to the defendant/respondent, therefore, the provision of section 119 of the Transfer of Property Act is not attracted to the present case. The principle of section 119 can be applied only uptill 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. The property of the defendant/respondent has been transferred in favour of a third person with the consent of the predecessor-in-interest of the appellants. D.W.1 in his statement has very categorically stated that when Mutation No,564 was sanctioned in his favour, it was settled between the parties that till the sanctioning of the mutation in favour of Muhammad Bukhsh as security the defendant/respondent Abdul Shakoor will make payment of Rs,90,000 to Muhammad Bukhsh, who will retain the same till the attestation of the mutation and thereafter the property was sold with his consent to a third person for a consideration of Rs,1,00,000 and after deduction of Rs,90,000 Muhammad Bukhsh received the remaining price of the sold land Rs,10,000. This statement of the defendant/respondent has not been controverted by the plaintiffs/ appellants by any sufficient and cogent evidence. The plaintiffs/ appellants have not produced sufficient evidence to establish their claim/ assertion. There is no evidence on the record to establish fraud, collusion and mala fide on the part of the defendant/respondent.
10. There is concurrent finding of fact against the plaintiffs/ appellants by both the Courts below.
Learned counsel for the appellants has not been able to point out any misreading or non-reading of evidence by both the learned lower Courts and it has been established that concurrent findings of facts recorded by the two Courts below ordinarily would not be disturbed by the High Court in second appeal, it can be disturbed and reversed on the ground that decision of the Courts below was based on misreading of evidence or that it was a result of perverse application of evidence or that conclusion was drawn after ignoring material piece of evidence on the record. Reliance in this context can be made to the cases of Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCM R 903; Fazal Rahman v. Amir Haider and another 1986 SCM R 1814 and Mussarat Sultana v.
Muhammad Saeed 1997 SCM R 1866.
11. The reappraisal of evidence on record by second appellate Court is not permissible under section 100 of C.P.C. And the concurrent findings cannot be interfered with by the High Court while exercising jurisdiction under section 100 of C.P.C. How so erroneous that finding may be unless such finding has been arrived at by the Courts below either by misreading of evidence on record or by ignoring material piece of evidence on record or through perverse appreciation of evidence as laid down in the case of Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCM R 1729.
12. For the foregoing reasons, the impugned judgments and decrees passed both the Courts below call for no interference through this regular second appeal, which being devoid of force is dismissed.