#TBS Vol. LXIII #TBE ' MIAN SAQIB NISAR, J.---The suit filed by the respondent (Khushi Muhammad) against the appellants challenging the alleged exchange of his land measuring 24 kanals 2 marlas with the appellants' land measuring around 8 kanals, effected through Mutation No,166 dated 24-4-1995 as a result of being fraud etc., was allowed and thus decreed. The first appeal of the appellants, as also their revision petition before the High Court has failed. Some facts relevant for understanding the controversy are, Khushi Muhammad was the owner of the land measuring 24 kanals 2 marlas, situated in village Kotli Bahawarian, Tehsil Daska, District Sialkot. Allegedly, vide noted mutation he exchanged this land with that of the appellants measuring 8 kanals. It is also alleged that vide mutation No,167 dated 7-5-1995 Khushi Muhammad gifted the aforesaid 8 kanals in favour of his nephew Ansar Mehmood (respondent No,3); Ansar Mehmood; according to the appellants, further exchanged land measuring 12 kanals 1 marla with them vide mutation No,170 dated 6-6-1995 and thereafter, transferred land measuring 11 kanals 18 marlas (i.e. 8 kanals obtained from Khushi Muhammad and 3 kanals 18 marlas from the appellants) in favour of Tufail Muhammad son of Muhammad Hussain through registered sale-deed dated 3-12-1995. Be that as it may, on 1-12-1997, Khushi Muhammad through a civil suit challenged the Mutation No,166 as being the result of fraud etc., the result whereof is stated above. It is the categorical finding of the courts that a fraud has been practiced upon Khushi Muhammad and Ansar Mehmood is a party along with the appellants thereto. Leave to appeal has been granted, in this case, to consider:-- "The learned counsel submitted, inter alia, that conclusions drawn by the High Court as well as the courts below suffered from misreading and non-reading of evidence particularly when they were not in conformity with the pleadings. Reliance was placed on the case of Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCM R 1696. Leave to appeal is granted to consider the above and other submissions of the learned counsel."
2. Learned counsel for the appellants has stated that, in fact, it is Khushi Muhammad, who in collusion with Ansar Mehmood, his real nephew has played fraud upon the appellants, who were trapped into the matter and in this manner have been deprived of their valuable property. It has been vehemently argued that in the circumstances of the case, Khushi Muhammad is bound to restore the land measuring 8 kanals, received from the appellants, in exchange as per the provisions of section 119 of the Transfer of Property Act, 1882. In this regard, he has placed reliance on the cases reported as Muhammad Shah v. Sher Muhammad and another PLD 1969 Pesh. 103 and Muhammad Hussain and others v. Muhammad Nawaz and others PLD 1991 Lah.
262.
3. We have heard the learned counsel for the parties and find no substance in the plea that the factual findings of the courts below are founded upon any misreading or non-reading of the evidence, rather the decisions are based on appreciation of the evidence by the two courts of fact, which has been duly endorsed by the revisional court and no specific error in reading the evidence has been established/pointed out. It is settled law that the judgment and decrees of the subordinate courts cannot be interfered in the instant jurisdiction only on the ground that another conclusion on the basis of appreciation of evidence can possibly be reached. However, we are not even convinced if this is the position in the matter and that the courts below have drawn erroneous factual conclusions, in as much as that Ansar Mehmood was a party to the fraud orchestered upon Khushi Muhammad along with the appellants.
4. In order to appreciate the other plea of the appellants founded upon the provisions of section 119, it seems expedient to reproduce the section:-- "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 option 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."
' According to the plain reading and interpretation of the section, which is based upon principles of equity, it has two parts. The first part which may be described as substantive is the governing portion of the section and the later part being remedial in nature is regulated and controlled by the first. The substantive part clearly prescribes that if one of the exchangers, including person claiming through or under him, is deprived of the property received in exchange from the other person because of the defect in the title of the latter, only in that eventuality the section would be attracted. This means that the deprivation must be on account of the defect in the title alone and not otherwise. If an exchanger is deprived of the property for some other reason, the first part of the section shall have no application. The second part only provides for the remedies; however, subject to the proof of such a defect and it gives two options to the party at loss, either to enforce for the loss occasioned on account of such deprivation, not restricted to the pecuniary compensation but also from some other property of the delinquent exchanger as well OR to seek the return of that very property from which the exchanger has been deprived. This second option is again circumscribed by the clear expression of the section i.e. "if still in possession of such other party" meaning thereby that possession could only be sought if that is being retained by the exchanger, having a defective title and not otherwise.
' In any case the said provision being founded on the principles of equity shall not be attracted for the benefit of a person, who is a privy to the fraud and has been so adjudged by the courts of competent jurisdiction. It is not established on the record if there was any defect in the title of Khushi Muhammad qua the land measuring 24 kanals due to which the appellants had to give up that property and, thus, were entitled to the restoration of their land measuring 8 kanals. Therefore, as the important and essential ingredient regarding defect in the title being not an issues of lis, would not attract section 119(ibid). It may be pertinent to mention here that the principles of equity are meant to promote justice, fairness and fairplay and cannot be allowed to give premium to the party, who has played fraud and foul and yet may seek invocation of equitable rules to his advantage which shall be a mockery thereof.
5. Notwithstanding the above, as regard the exercise of option envisaged by the remedial part of the section seeking restoration of property from which a person is deprived, as is being presently asked by the appellants. Leaving apart if this option can be enforced through defence or such deprived party has to bring independent legal action, suffice it to say that according to the clear wording of the section, restoration can only be made if the property is still with the other side and the deprived party has set out a case in this behalf. From the contents of the written statement of the appellants, their memo of appeal, the revision petition before the High Court, this is not spelt out. Rather from the contents of the written statement, it is propounded by the appellants themselves that their exchanged land has been sold by Ansar Mehmood in favour of a third party.
This takes the case out of the preview of section and the possession cannot be returned to the appellants. Beside in defence, they emphatically have defended of having validly exchanged their property with the suit property of Khushid Muhammad which, as mentioned earlier, has been adjudged by the three courts to be a fraudulent transaction, the vice practiced by the appellants in collusion with Ansar Mehmood; how is it possible now that they may assert a stance of defective title. It is settled law no one can be allowed to plead and seek relief from the Courts on a plea not founded and embedded in his pleadings. This case is an apt example of the above rule. We are not convinced as has been argued by their counsel that the proposition is purely of law and that the apex Court should grant relief to the appellants in terms of the section at this stage.
6. For what has been stated above, we find no merit in this appeal which is hereby dismissed. No order as to costs.