1. ' GHULAM MUSTAFA MUGHAL, J.--- The above captioned appeal is directed against the judgment and decree recorded by the learned District Judge, Poonch on 17-8-2008, whereby judgment and decree passed by the Senior Civil Judge, Rawalakot dated 28-6-2005, has been reversed.
2. '. Facts necessary for the purpose of decision are that the plaintiffs/appellants, herein, brought a suit for declaration and possession in the Court of Senior Civil Judge, Rawalakot, against the defendants in respect of the land comprising Khasra No.734/450. It was claimed that the said land was in the ownership of the plaintiffs and the same was exchanged with Khasra No.194 owned by Mehtab Ahmed Khan for the convenience of cultivation as a result of family settlement. It was further claimed that the second exchange deed executed by Mehtab Ahmed Khan and Abdul Rehman on 26-10-1986, is illegal, void and inoperative as against the rights of the plaintiffs/appellants, herein. Mehtab Ahmad Khan, also filed a counter suit for declaration and perpetual injunction against Muhammad Ameer Khan and others, appellants, herein, on the ground that he is owner of the land comprising Khasra No.734/450, renumbered as Khasra No.836 measuring 2 Kanals 4 Marlas on the basis of exchange. It was averred by him that the afore-said land was exchanged on 3rd May, 1997 B.K. With Khasra No.194 and mutation No.303 on the basis of the said exchange was also entered in the Revenue Record. After necessary proceedings the learned Senior Civil Judge Rawalakot vide his judgment dated 28-6-2005 dismissed both the suits for want of proof . Both the parties felt aggrieved from the judgment of the learned Senior Civil Judge Poonch, and challenged the same through cross appeals. After hearing the parties the learned District Judge, Poonch, accepted the appeal No.54 filed on behalf of Mehtab Ahmed Khan and dismissed the counter appeal filed by the appellants, herein. The proprietary and legality of this judgment has been challenged by the present appellants through the instant appeal. .
3. ' Sardar Suleman Khan, the learned Advocate for the appellants made following submissions on behalf of the appellants:---
(1) That the so called mutation and exchange entered on 3rd May, 1999 B.K. Was an oral transaction having been executed in violation of the provisions of the Registration Act, hence, confer no title on the respondents and findings of the learned District Judge are erroneous, illegal and violative of the law. Reliance was placed on sections 54 and 118 of the Transfer of Proper Act and AIR 1928 All.
4. 641.
(2) That mutation even otherwise does not create any title, hence, on the basis of mutation nobody could be declared owner of the land, hence, subsequent exchange is also illegal. Reliance was placed on PLD 2007 SC 287.
(3) That no suit for declaration on the basis of an oral agreement can be filed and it was enjoined upon the learned District Judge to dismiss the suit of the respondents as has been ruled in 2007 YLR 2228.
(4) That the judgment of the learned District Judge is telegraphic, does not contain material facts and has been handed down in violation of Order XLI, rule 31 of C.P.C.
5. ' Sardar Ejaz Ahmad Khan, the learned counsel for the respondents, controverted the arguments advanced on behalf of the appellants and submitted that execution of exchange is an admitted fact and in pursuance thereof the parties are also in possession of the exchanged land. He added that on the basis of this document, record-ofright has been prepared from time to time and the appellants have not challenged the same at any stage and even in the instant suit, hence, they were not entitled to file a suit for a bare declaration without claiming consequential relief i.e. Correction of record-of-rights. He further argued that subsequent gift-deed has also been executed with legal authority and cannot be questioned on any grounds whatsoever. He also contended that the order of mutation would be read as a whole and mere words "for the convenience of cultivation" do not, in any manner, destroy the intention of the parties, regarding transfer of title of the exchanged property. He referred to and relied upon 2008 PCr.LJ 633.
6. ' I have taken into consideration the respective arguments of the learned Advocates for, the parties and perused the record of the case.
7. '. So far as the first contention of Sardar Muhammad Suleman Khan, the learned Advocate for the appellants that exchange is an oral transaction and Mutation No.303 does not confer any title is concerned that is devoid of any force. It is correct that the property worth more than Rs.90 cannot be transferred except through a registered document but fact remains that in Dogra Regime particularly in Poonch State even transfers through registered documents were not valid until the same were not countersigned by the Maharaja. In the instant case it appears that the parties have entered into an oral exchange in order to avoid the above complexity. In my estimation the defect, if any, was stood cured on the promulgation of the Transfer of Land Validation Act, 2003 (B.K.)/1946 A.D. (Act XIV of 2003). This Act was enforced in order to validate the transfers made through unregistered transactions or mutations attested on the oral request of the parties to such transaction. . As such transfers were violative of subsection (1) of section 138 of the Transfer of Property Act, 1977 as was enforced at that time in the State hence, the law was promulgated to validate these transfers. I would like to reproduce the said Act which is as under:- "The Transfer of Land Validation Act, 2003 (BIK)/1946, A.D. (Act XIV of 2003).
8. ' [Received the assent of His Highness the Maharaja Bahadur on 14th October, 1946, and published in Government Gazette dated 16th Katik, 2003/1st November, 1946].
9. ' An Act to validate certain transfers of land made by oral agreements or unregistered deeds.
10. ' WHEREAS according to subsection (1) of section 138 of the Transfer of Property Act, 1977, transfers of land except in cases governed by any special law to the contrary, are not valid unless and until the instruments by which they are effected are in writing and registered; ' AND WHEREAS on the authority of some provisions of the Revenue Department Standing Order No.23-A issued with the sanction of His Highness of Maharaja Bahadur, there has been general assumption in certain quarters that transfers of land by oral agreements or unregistered deeds when mutations thereof is sanctioned, are also valid; ' AND WHEREAS under such assumption a very large number of transfers of land by oral agreements or unregistered deeds have been made and mutations thereof have been duly sanctioned; ' AND WHEREAS doubts have recently arisen as to the correctness of such assumption; ' AND WHEREAS such transfers of land by oral agreements or unregistered deeds have been called into question; ' AND WHEREAS parties to such transfers believed in good faith that transfers made by them by oral agreements or unregistered deeds were valid; ' AND WHEREAS it is expedient that such transfers be validated to avoid the hard consequences which are otherwise likely to follow; it is hereby enacted as follows:--
(1) Short title, extent and commencement.-(i) This Act may be called the Transfer of Land Validation Act, 2003.
(ii) It shall extend to the whole of the Jammu and Kashmir State.
(iii) It shall come into force at once.
(2) Definition-."Land" in this Act has the meaning assigned to it in the Alienation of Land Act, 1995.
(3) Validation of ,Transfer of Land --- Notwithstanding anything contained in subsection (1) of section 138 of the Transfer of Property Act, 1977, all transfers of land made before this Act comes into force by oral agreements or if in writing by-unregistered deeds, mutations whereof have been duly sanctioned and not subsequently set aside by any competent authority shall be deemed to have the same effect as if they were in writing and registered in accordance with the provisions of the Registration Act, 1917.
(4) Saving. Nothing contained in this Act shall affect the decision of a Court of competent jurisdiction which has become final before the commencement of this Act." (Underling is mine).
11. '. Section 3 of the Act reproduced above fully covers Mutation No.303 because the same was admittedly executed in 1999 BK prior to the enforcement of the above mentioned law, thus, it can safely be concluded that the appellants, herein, are lawful owners of the land by operation of law. .
12. ' In view of above conclusion, I am of the view that decision on the other points argued by the learned Advocates for the parties would be academic. The authorities referred to and relied upon by them also need not to be discussed.
13. ' . The contention of the learned Advocate for the appellants that the judgment under challenge has not properly been handed down by the learned first appellate Court is partly correct but a perusal of the same as a whole reveals that substantial compliance of Order XLI, rule 31 of C.P.C.
14. Has been made and remand is not desirable because the parties have already consumed sufficient time in litigation.
15. ' In view of above, this appeal found to have no substance which is hereby dismissed. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.