MAULVI ANWARUL HAQ, J. -- On 30.05.1984 the petitioners filed a suit against the respondents. In the plaint, it) was stated that the parties effected an exchange vide Mutation No:, 772 - attested Oh 13.041968 whereby the petitioneet gave .'100 kanals,. 6 rnarlas of land in Chak No RarGhand,. Tehsil Chiniot and the respondents gave 104 kanals,.1 9,marlas of.land in the same village. The land given by the respondents 'Comprised, inter alias of khasra No. 1'1177/489, the area whereof was recorded in the revenue record as 24 kanals, 12 marlas but, in fact, it measured 14 kanals, 12 marlas- and as such 10 kanals of land less was given. When the consolidation process started, the said Khasra,number was, measured and the petitioners came to know about the said shortfall. With these averments, it was prayed that a decree be passed for possession of 10 kanals and land from Khata No. 72 of the said 'revenue estate. The defendants in their written statement pleaded that the suit is barred by time. It was further contended that the suit was not competent. On merits, it was stated that the petitioners had checked up the revenue records when they entered into the said compromise and that the respondents had handed over the entire said area to the petitioners.
Issues were framed.. Evidence of the parties was recorded. The learned Trial Court decreed the 'suit on 29.10.1988. The respondents filed a review petition which was allowed on 06.05.1990 and after reviewing the said judgment and decree it was reversed and the suit was dismissed. A first appeal filed against this order has been dismissed by a learned Chiniot, on 17.11.1992.
2. Learned counsel for the petitioners contends with reference to the case of Haji Muhammad Shah v. Sher Khan and others (PLD 1984 SC 294) that the suit was competent and the petitioners have the right to collect the land of their choice to make the deficiency in the area given. Nobody has turned up for the respondents.
3. I have gone through the copies of the records, with the assistance of the learned counsel. Now there is no denial that Khasra No. 1177/489 was delivered to the petitioners alongwith other land in the course of exchange effected vide Mutation No. 772 attested on 13.04.1968 (Ex.P.4). This is the area recorded therein. The petitioners have produced the Register Haqdaran Zamin for the year 1964-65 as Ex.P.3 and the area of Khasra117-4891s 24 kanals, 12 marlas. 16 kanals of land is under cultivation being irrigated by a Pump while 8 kanals, 12 marlas is being cultivated from other sources. In Register Haqdaran Zamin for the year 1976-77 (wherein the petitioners are themselves recorded to be the owner), obviously on the basis of the said exchange, the entire land measuring 24 kanals, 12 marlas recorded as Nal Chahi. Ex.P.7 is the copy of Khasra Girdawari from Kharif 1973 to Rabi 1984 and same is the position. Now Ex.D.1 is the copy of RL-II whereby the respondents were transferred the evacuee land against their verified claim and the area of the said Khasra number is the same. Ex.D-2 is the Parchi Taq.seem and again the area is the same.
4. Now I do find-that Fwd. Badar was entered (copy! Ex.P.5) on 20.02.1983 with reference to a Mutation No. 62 of exchange: However, it is an admitted position that this Fard Badar was not incorporated in the revenue records. Now the report of the Patwari noted in Ex.P-5 is that whereas in the register Haqdaran Zamin for the year 198081 the area of khasra No..1177/489 is 24 kanals, 12 marlas whereas according to Mutation No. 62 of exchange it should be 14 kanaIs, 12 marlas. This Mutation No. 62 is not forthcoming on record.
5. Having, thus, examined the records, I do find that there is no evidence on the file that the area of said Khasi-a number was, in fact, less. Needless to state that both the parties are land owners and agriculturalists and it is not at all possible that a shortfall of 10 kanals in a transaction of 100 kanals was ignored or could not be noticed when, admittedly, the possession of the respective lands were delivered. Be that as it may, assuming that there was a shortfall, there is no agreement between the parties of the nature relied upon by the Hon'ble Supreme Court of Pakistan in the said case of Haji Muhammad Shah. It may be noted that Section 119 of the Transfer of Property Act, 1882, takes effect subject to agreement to the contrary. It is not the case here. Thus, assuming that there is a shortfall, the petitioners could have claimed compensation or at their option restoration of their entire land to them i.e. recession of the agreement of exchange. , In the absence of -any agreement, their claim for possession of land, admittedly, belonging to the respondents of their own choice is not warranted under any provision of law. The civil revision accordingly is dismissed.
However, the parties are left to bear their own Costs.