' MUHAMMAD AKHTAR SHABBIR, J.---This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore dated 6-2-2002 passed in Regular Second Appeal No.85 of 1998.
2. The facts giving rise to the filing of the present petition are to the effect hat the plaintiffs/petitioners herein had instituted a suit for "specific performance" with regard to the property situated in Mauza Nekokara, Tehsil Shorkot, District Jhang, in the court of Civil Judge 1st Class, Shorkot, asserting therein that the grandfather of the plaintiffs/petitioners and father of defendant/respondent No,1 died 8 years back, the parties inherited their share of inheritance and the plaintiffs/petitioners entered into an oral agreement to sell with their paternal aunt Mst. Noor Bibi/respondent No,1 in respect of land measuring 44 kanals, 10 marlas for a consideration of Rs,25,000. She subsequently resiled from the oral agreement to sell and entered into an exchange transaction qua 19 kanals, 9 marlas out of the sold land, with Manzoor Hussain defendant/respondent No,2. Being dissatisfied with this exchange, the plaintiffs/petitioners filed a suit for specific performance of the contract and cancellation of the exchange deed, against the respondents. Mst. Noor Bibi/respondent No,1 contested the suit, denied the alleged agreement to sell with the plaintiffs/petitioners and deposed that she has transferred 19 kanals, 9 marlas of land as exchange to Manzoor Hussain respondent No,2. Respondent No,2 has also filed his written statement. From the divergent pleadings of the parties the learned trial Court framed various issues. After recording, appreciating the evidence, pro and contra, the trial Court dismissed the suit of the petitioners on 21-5-1991. Feeling aggrieved the plaintiffs/petitioners filed an appeal before the learned Addl. District Judge who accepted the same and remanded the case, framing an additional issue as under:-- "3.A. Whether the respondent No,2 got the suit land in exchange bona fidely and it was with notice?
OPD-2".
' After the remand, Mst. Noor Bibi appeared in the Court and admitted the agreement to sell with the plaintiffs and in view of her admission the learned trial Court partly decreed the suit of the plaintiffs/petitioners vide, the judgment and decree dated 21-7-1997 excluding the land measuring 19 kanals, 9 marlas transferred to respondent No,2 through the exchange deed. The judgment and decree of the trial Court had been assailed by the petitioners through an appeal before the Addl.
District Judge, who vide his judgment and decree dated 3-10-1998 dismissed the same, maintaining the findings of the trial Court. Both these judgments and decrees were assailed by the petitioners through Regular Second Appeal No,85/1998 which met the same fate, vide the impugned judgment.
3. Learned counsel for the petitioners contended that under the `exchange' possession of the property had been delivered by respondent - No,1 to respondent No,2 which is requirement of section 118 of the Transfer of Property Act, 1882 (hereinafter to be referred as the Act); that the exchange can be made in accordance with the requisites of sale, which requires consideration and as per provisions of section 54 of the Act price is an essential ingredient of sale; that the exchange is admitted by Manzoor Hussain respondent No,2, so the fact that it was a registered document or unregistered one would not affect the rights of the petitioners; that as the possession of the property under the exchange had not been delivered to respondent No,2, therefore, the exchange transaction is not complete; that the petitioners have filed the suit for `specific performance' and were in possession of the suit land, and neither the land of Mst. Noor Bibi respondent No,1 nor that of Manzoor Hussain respondent No,2 had been delivered to each other, and as Mst. Noor Bibi has sold his property to the petitioners, therefore, she was precluded to make the exchange of a portion of her land in favour of respondent No,2 and that at the time of 'exchange' she had already divested herself from the ownership of the said land , and was not competent to transfer any portion of the said property in exchange personally or through attorney. While, on the other hand, learned counsel for respondent No.2 opposed the arguments advanced by the learned counsel for the petitioners and supported the impugned judgment.
4. We have heard the arguments of the learned counsel for the parties, perused the record with their kind assistance. The question that boils down for consideration by this Court is whether the transaction of `exchange' has validly been made and both the parties agreed or consented to the same. The word 'exchange' has been defined in section 118 of the Act, which reads as under:-- "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".
' A transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale."
' Section 54 of the Act has contemplated the definition of 'sale' which emerges as under:-- "Sale defined" "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised and such transfer, in case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other, intangible thing can be made only by a registered instrument."
The 'exchange' is a legally recognized method of transfer of property between two persons. The distinguishable character of a transaction of `exchange' is mutual transfer of ownership of one thing by one person, for the ownership of some other thing of another person and neither thing or both things being money, and where there is a transfer by one of the parties only, and not by the other, the transaction is not an `exchange' as there is no mutual transfer of ownership by the two.
Reference in this context can be made to Tahir Hussain v. Ghulam Faruque PLD 1978 Karachi 182.
The distinction between an alienation by way of 'sale' and a transfer by way of 'exchange' is, that where there is a consideration in money for the property transferred, it is a sale, and if transfer of ownership of property with the transfer of ownership of another, it is an 'exchange', though it is manifested from the definition that, an exchange, as defined in section 118 of the Act, is similar to a sale in so far as it is mutual transfer of ownership of one thing for the ownership of another but it differs from a sale in that neither of the things transferred is the price of the other, so the distinction between the two is the nature of the consideration for such transfer viz. If it is price of the property in cash, it is a sale, if not, it is an exchange. In this context, reference can be made to Muhammad Zaman v. Aslam PLD 1984 Pesh. 166, Muhammad Irshad v. Sardar Khan 1981 CLC 124 and Shah Wali v. Allah Rakha PLD 1982 SC 17. Each party to an exchange has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of the buyer as to which he takes. If the delivery of possession of the property by one person or two is not made, the transaction would not be invalid and the affected party can acquire possession through process of law.
5. In the instant case the transaction had been effect by Mst. Noor Bibi respondent No,1 but it was effected through the registered deed. The recital of this document Exh.P-2 evidences that the parties to the 'exchange' have accepted the 'exchange' and delivery of possession thereunder.
There is no denial to the fact that Mst. Noor Bibi had denied the sale agreement with the petitioners and contested the suit, but after the remand of the case by the first appellate Court. She appeared before the trial Court and admitted the sale in favour of the petitioners. She herself challenged the exchange in favour of respondent No,2 made through her general attorney through a civil suit, which was dismissed and she also lost her appeal. The 'exchange' was not further challenged by respondent No,1, therefore, it has attained finality. Though the petitioners were not a party in the suit filed by Mst. Noor Bibi, respondent No,1 but at the time of filing thereof, they were not the transferees of the property and had only the agreement to sell in their favour, which conferred no right or title on them. They have stepped into the shoes of the original owner of the property Mst. Noor Bibi and the judgments arid decrees passed by the Courts below against Mst. Noor Bibi are binding upon them. The 'exchange' transaction having been adjudicated upon by a Court of competent jurisdiction and validly been declared as such, cannot be disputed in these proceedings initiated by the petitioners. The Courts below i,e, the trial Court, the first appellate Court and the High Court have passed concurrent findings of fact determining the question in issue against the petitioners which cannot be interfered with by this Court even if it can take a different view as laid down in cases of Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Faiz Muhammad and others v. Mukhtar Ali 2005 SCMR 1077. In the circumstances of the case, we find no illegality, infirmity in the impugned judgment calling for interference by this Court.
6. For the foregoing reasons, this petition being devoid of any substance is dismissed and leave to appeal refused.