' FAZAL-E-MIRAN CHAUHAN, J.--- On 20-3-1989, Muhammad Akram predecessor-in-interest of the petitioners filed a suit for possession of land measuring 10 Marlas, falling in Khasra No,565, according to the Register Haqdaran-e-Zamin for the year 1986-87, situated in Mouza Budhal, Tehsil and District Sialkot. This was owned by the respondent. He exchanged this plot with a house/Ahata owned by Muhammad Akram (deceased), situated within Abadi Deh. Accordingly the respondent got attested Mutation No,218, dated 26-5-1987 and transferred his plot in the name of Muhammad Akram (deceased). According to the respondent, Muhammad Akram (deceased) did not perform his part of exchange and failed to give him house Ahata in exchange as it was agreed, therefore, respondent filed a suit for recovery of possession of his plot after the removal of construction.
' The suit was contested by the respondent raising preliminary objections regarding locus standi, cause of action etc.
2. To resolve the controversy between the parties, the learned trial Court framed. The following formal issues:- Issues (1) <./u> Whether the plaintiff has no locus standi to file this suit? OPD
(2) Whether the suit is liable to dismissal under Order VII, rule 11, C.P.C.? OPD,
(3) Whether the plaintiff has not come to the Court with clean , hands, if so its effect? OPD
(4) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(5) Whether the suit is false and frivolous and hence the defendant is entitled to special costs under section 35-A, C.P.C.? OPD
(6) Whether it was agreed upon between the parties that the plaintiff would transfer his 10 Marlas of land from Khasra No,565 in the name of defendant and in exchange the defendant would give to the plaintiff equal 'area of his land from the village and in consequence of this agreement the plaintiff got mutated 10 Marlas of land in the name of the defendant vide Mutation No,218 dated 26- 5-1987 but the defendant refused to give any land to the plaintiff in exchange thereof? OP Parties
(7) Whether the defendant has no land in his name in the village to be given to the plaintiff in exchange and as such the defendant is not in a position to give any land to the plaintiff? OPP
(8) Whether the plaintiff is entitled to decree as prayed for? OPP
(9) Relief.
3. After framing issues, both the parties were directed to adduce their evidence in support of their respective claims.
' Inayat, respondent/plaintiff, appeared as P.W.1 and produced copy of Mutation No,218 (Exh.P.1), copy of Register Haqdaran-e-Zamin for the year 1986-87 (Exh.P.2), as documentary evidence.
' As against Muhammad Akram (deceased) defendant/appellant examined Ch: Liaqat Hussain as D.W.1, Muhammad Shall as D.W.2, Dhoondha Masih as D.W.3, Abdul Ghani as D.W.4 and defendant appeared himself as D.W.S. He also produced only one document (Exh.D.I) in his documentary evidence.
' After recording evidence and hearing both the parties, the learned trial Court decreed the suit of the respondent/plaintiff vide judgment and decree dated 11-12-1993.
' Being dissatisfied, Muhammad Akram (deceased) defendant/ appellant, filed appeal, which was also dismissed by the learned Additional District Judge, Sialkot vide judgment and decree dated 8- 10-1997.
4. Learned counsel for the petitioners states that, the judgments and decrees of both the Courts below are not tenable on legal and factual plane, as the same are based on misreading and non- reading of the record. On 11-3-1994, the learned trial Court recorded statements of the parties, where it was requested that Muhammad Sadiq son of Sultan be appointed as Arbitrator and they undertook that decision of the Arbitrator shall be acceptable to them; resultantly, the matter was referred to the Arbitrator on 16-3-1993, copy of which was placed on the Court file on 29-3-1993. It was observed by the Arbitrator that the respondent/plaintiff was put in possession of a hoe by the petitioners, who at the first instance took possession but, he subsequently vacated the same on the pretext that the same is not suitable for his residence, as there is a school on the one side and hospital on the other side of the house, which is a source of continuous, nuisance and the premises are not worth-living. He demanded return of his land but subsequently, accepted and received Rs,22,000, paid by the petitioners as sale consideration of the said house. Further submits, that this decision of the Arbitrator, which was placed on the record, but was not considered while deciding the suit by the trial Court as well as the learned lower Appellate Court. Thus, the findings of the trial Court as well as learned lower Appellate Court to the effect that the respondent was not given any property in exchange by the petitioners was against the law and facts on the record. Thus, the finding that the respondent is not entitled to the return of the plot given in exchange to the petitioners Exh.D.1 and Exh.D.1/1 was not considered and the rejection of the same by the trial Court as well as learned lower Appellate Court is unwarranted under the law. At the time of exhibition, the documents were not objected to and it is settled principle of law that once a document has been admitted in evidence without objection, its admissibility cannot be subsequently challenged.
Reliance is placed on Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516.
5. Conversely, learned counsel for the respondent supported the impugned judgment and decrees contending that, the trial Court as well as learned lower Appellate Court has rightly passed the same after discussing the facts as well as documentary evidence on record. The fact of exchange between the respondent and the petitioners is not denied. The petitioners agreed to exchange his agricultural land measuring 10 Marlas situated in village Budhal, Tehsil and District Sialkot with a plot of 10 Marlas in Ahata, owned by the Abadi Deh. Further states that, the respondent mutated land measuring 10 Marlas, vide Mutation No,218, dated 26-5-1987 in the name of petitioners, whereas Muhammad Akram (deceased) failed to live up to his promise, and Ahata was transferred in name of the respondent. The alleged document/decision of the Arbitrator was not made rule of Court and is not binding between the parties. It is admitted by the respondent himself in his statement as P.W.1, that the respondent did not agree to receive the land in exchange being not suitable for his residence, as the same is surrounded on dither side by school and hospital, which is a cause of continuous nuisance, thus, he paid Rs,22,000 to the respondent as a cost of the land mutated in his name by the respondent. It is also argued that the petitioners/respondents mutually agreed to exchange the land owned by them and as per section 118 of the Transfer of Property Act, 1882, the exchange as defined therein is a mutual transfer of ownership of one thing for ownership of another by two persons and neither of the thing or both things being money. Thus, the contention that the petitioners paid Rs,22,000 in lieu of exchange made completed the transaction is against law and in such eventuality it would become a sale, whereas, there was no such contract or agreement.
6. I have heard learned counsel for the parties and perused the record. The word "exchange" as defined in section 118 of the Transfer of Property Act, 1882, reads as follows:-- Section 118. "Exchange" defined.--- When two persons mutually transfer the ownership of one thing for ownership of another thing, neither thing or both things being money only, the transaction is called an "exchange".
As per this definition, in any case, neither thing or both things can be money for exchange means that the essential character of transaction of exchange is mutually transfer of (ownership) of property by two persons. Thus, where there is a transfer of ownership by one of the,parties only and not by the other, the transfer is not as an exchange as there is no B ' mutual transfer of ownership.
There can be no exchange between the property and the money, it will amount to sale, which has been defined by section 54 (ibid) as "transfer of ownership in exchange for a price" paid or promised, and part paid or part-promised, whereas, as per section 119 (ibid) each party to the exchange has the rights and subject to liabilities of a seller in respect of property, which he gives and that of a buyer, which he takes. The right is conferred on the parties by section 120 (ibid) which refers back to section 52, which enumerates the rights and liabilities of buyer and seller. Section 55(6) (ibid) creates charge in favour of a buyer to the acceptance of seller interest in the property for the money paid in anticipation of delivery.
7. Hence in the instant case, admittedly, an exchange was agreed and as a result of that, respondent exchanged his agricultural land with Ahata of the petitioners. It was held in Mst.
Ghulam Zohran and another v. The Additional Chief Land Commissioner (Punjab), Lahore PLD 1977 Lah. 1038, where exchange transaction was entered between two parties i,e, husband and wife and the husband was not in a position to transfer the agreed land due to subsequent event/intervention of law, the wife was held entitled to claim back the property given by her in exchange to the husband. Applying the same principle in the instant case, respondent/ plaintiff, who mutated 10 Marlas of his agricultural land in the name of the petitioners, but the petitioners were unable to transfer the agreed Ahata in the name of the respondent. The respondent was rightly held to be entitled to receive back his land by the-trial Court as well as by the learned lower Appellate Court. In this respect, reliance can placed on Mst. Marriyam Bibi v. Khan Muhammad through Legal Heirs and others 2004 YLR 288 (Lahore). The petitioners, who alleged that certain amount was paid as consideration for the exchange of land can avail proper remedy for the recovery of the same, but is not entitled under the law to retain the possession of the property given to him in exchange by the respondent. The agreement between the two parties to exchange the property' will be considered a contract and any breach of the condition will be considered a breach of contract and would consequently follow.
8. In this view of the matter, this civil revision has no merit, hence, the same is hereby dismissed, with no order as to costs.