1. ' The lands in suit are identified by survey numbers to be mentioned hereto. The plaintiff-appellant brought a declaratory suit on basis of an exchange deed dated 20-2-1951, though unregistered, for the land comprising Survey No, 225 measuring 14 kanals and 4 marlas situate in village Sacral Tehsil Bagh and for which it was alleged that it was in exchange of land comprising Survey No, 345/170 measuring 4 kanals and 13 marlas including a house constructed thereon and a pair of bullocks of the value of Rs, 9,180 and it was thus that the possession of the land in suit was obtained by him and otherwise too, the suit land was claimed on basis of adverse possession by way of prescription.
2. ' On the other hand, a suit for possession of Survey No, 225 was brought by the plaintiffs/defendants alleging that it was on basis of an agreement to exchange the lands that the lands in suits were exchanged and as a deed of transfer is an unregistered document, it has no legal value so as to give right of ownership to the plaintiff/appellant. However, in the alternative, it was prayed that if it is found that it was a deed of exchange on strength of which the parties were put into possession of the land in suit and amounts to a total transfer of the lands effected in favour of the parties, then a declaratory decree for the land comprising Survey No, 345/170 measuring 4 kanals and 13 marlas including a house standing thereon be passed in their favour.
3. ' According to both the parties there was no machinery provided by the Government for the registration of the documents on 20-2-1951 when the document pertaining to the lands in suits was brought into being.
4. ' The trial Court after consolidation of the suits, in view of the allegations of the parties, framed the issues as under :--
(1) Whether plaintiff has become the owner of the land in dispute on basis of private exchange deed dated 20-2-51? 0. P. P.
5. Muhammad Nazir.
(2) In case Issue No. 1 is not proved, whether plaintiff's possession for more than 12 years over the land in suit has ripened into ownership ? 0. P. P.
(3) In case of non-proof of issues Nos. 1 and 2 whether plaintiff has constructed a house of the value of Rs, 2,000 and in case of his dispossession, he is entitled to receive this much compensation ? 0. P. P.
(4) In case of non-proof of Issues Nos. 1 and 2 whether Muhammad Afsar and other plaintiffs in the counter suit are entitled to the possession of the land in suit ? 0. P. P.
(5) Whether counter suit is time barred ? 0. P. P. Muhammad Nazir.
(6) In case of non-proof of Issue No, 4, whether plaintiffs in the countersuit are entitled to a declaratory decree of the land comprising Survey No, 345/170 measuring 4 kanals and 13 marlas ?
0. P. P.
(7) Relief.
6. ' The trial Court found Issues Nos. 1, 2 and 3 in favour of Muhammad Nazir, plaintiff and Issue No, 4 was decided against Muhammad Afsar plaintiff and his co-plaintiffs. However, Issue No, 5 was decided in favour of the plaintiff appellant thereby holding that the suit of Muhammad Afsar and others was time barred in relation to possession. But so far a declaratory suit in respect of their alternative claim for the land under Survey No, 345/170 is concerned it was held maintainable and in the result Issue No, 6 was decided in their favour. Accordingly, the suit of Muhammad Nazir plaintiff/appellant was decreed and at the same time the alternative prayer made by the plaintiffs defendants respondents was accepted and a declaratery decree for Survey No, 345/170 measuring 4 kanals and 13 marlas including a house standing thereon was passed in their favour.
7. ' The respondents who were dissatisfied with the decision of the trial Court made an appeal to the District Judge against that decision and the District Judge without determining the issues struck by the trial Court remanded the case on a preliminary objection after framing the additional issues to the following effect :-
(a) Whether land under Survey No, 225 measuring 14 kanals and 4 marlas had fallen to the share of Sher D.I. Khan by way of a private partition ?
(b) Whether Sher D.I. Khan was competent to exchange the land under Survey No, 225 on basis of a private partition 0. P. M. Nazir ?
(c) Whether Mir Zaman brother of Sher D.I. Khan, a co-sharer gave his willingness for exchange of the land ?
8. ' After hearing the learned counsel for the parties I am of the opinion that the remand of the case is not justified in view of the matter before the Court. The contention of the appellant is that it was with consent of Mir Zaman that the deed of exchange of the land in suits was executed by Sher D.I.
9. Khan alone and as the land in suit fell to his exclusive share by way of a private partition, he was within his competence to make an exchange of the land in suit.
10. ' On the other hand, the contention of the respondents is that Mir Zaman resisted the deed of exchange to be made and as such it was against his consent that the possession of the land in suit was delivered to the plaintiff/ appellant and evidently it was done so in the year 1951 when the suit land was taken into possession by the plaintiff appellant in view of the deed of exchange opposed to by Mir Zaman. The claim of Muhammad Nazir, the plaintiff/ appellant regarding adverse possession over the land in suit by way of prescription is also there. Thus in the light of the matter contained in the suit of the respondents, the suit of the plaintiff in relation to issue of adverse possession stands established against Mir Zaman and his legal heirs since February, 1951. The issue of adverse possession was decided in favour of the appellant by the trial Court with reasons.
11. Therefore, it was useless for the Lower Appellate Court to remand the case. Simply the finding of the trial Court on issue of adverse possession is enough to determine the fate of the case in favour of the plaintiff-appellant. The very suit of the respondents lends support to the contention of the plaintiff-appellant in his assertion of adverse possession over the land in suit by way of prescription. Furthermore, the deed on exchange, as it goes, was acted upon by the parties and it is due to it satisfaction by them that the houses were constructed over the lands exchanged. It was thus a deed of exchange complete in all respects. There was no machinery working in 1951 as per stands of both the parties for registration of documents and so also its non-registration does not legally affect adversely the case of the plaintiff-appellant so as to hold that he was not able to acquire the right of ownership over the land in suit for want of registration. In such a situation it was held by a Division Stench of this Court that when the Machinery of the Government for registration of the documents was not working, it would be deemed that any transaction which happened to have taken place during that period, was validly done.
12. ' It was in pursuance of the exchange of the lands that a house of a value of Rs, 2,000 was constructed by the plaintiff on the land in suit obtained by him and on the other hand, Mahboob Khan, one of the respondents, also constructed a house on the land secured by them as such. The exchange was complete in all respects as in order to bring about the equality of exchange, the house already constructed on Survey No, 345)170 was taken into consideration. Thus it all shows that it was in fact a deed of exchange and not an agreement of exchange of the lands. The gist of the deed is a total exchange of the lands in suit. The heirs of Mir Zaman have also demanded in the alternative that a declaratory decree for the land exchanged should also be passed in their favour alongwith the heirs of Sher D.I. Khan, the transferee of the land and it was a joint prayer made by the heirs of both the brothers. In these circumstances of the cases, the trial Court was right in the disposal of the cases as indicated above.
13. ' Therefore, there is no reason to interfere with the judgments and decrees passed by the trial Court and as such this appeal succeeds and judgment passed by the District Judge is set aside and the judgments and decrees of the suits lands passed by the trial Court are restored.