This case has been heard in compliance with the orders of the Lahore High Court, Multan Bench, Multan passed on 11th March, 1984 in Constitutional Petition No, 284 of 1983.
2. The brief history of the case is that the petitioners who owned land in village Chaudhry exchanged it with the land of deceased Muhammad Ibrahim in an adjoining mauza of Tehsil Kot Adu District Muzaffargarh by a registered exchange deed, dated 22nd March, 1977. It is stated that in accordance with the terms or the exchange deed, mutations were sanctioned on the 11th April, 1977 and the possession of the lands was exchanged between the parties. Muhammad Ibrahim predecessor-in interest of the respondents died on 22nd February, 1982. The respondents moved a petition before the Deputy Land Commissioner, Muzaffargarb, which was decided by the Deputy Land, Commissioner, Dera Ghazi Khan, whereby the, exchange transaction was held illegal, being violative of para. 24 of Land Reforms Regulation, 1972, and the registered deed was ordered to be cancelled alongwith the mutation entered in the revenue record. The petitioners moved appeal before the Land Commissioner and revision before the Additional Chief Land Commissioner, which were rejected.
3. I have heard the parties and seen the record. The learned counsel for the petitioners has claimed that the entire holding of the petitioners, which was 61 kanals, 10 mar/as was exchanged with the entire holding of the respondents measuring 45 kanals and 4 marlas. As the value of the respondent's land, which was situated within the municipal limits Kot Adu was higher than 'that of the petitioners, they had compensated the former, by allowing them a tube-well including a diesel engine, a flour mill, a cotton combining machine, alongwith a building containing all this, and a residential house. After the death of Muhammad Ibrahim, father of the respondents, when the value of Kot Adu land enhanced due to the improvements effected upon it by the petitioners and also because of the general rise in the value of the urban properties, the respondents applied to the Deputy Land Commissioner, for the cancellation of the exchange after five years, on the ground that small piece of land measuring 3 kanals 4 mar/as bad been left out of the exchange, resulting in the violation of para. 24 of the Regulation. The learned counsel asserts that this belated application after five years of the exchange was made with a mala fide intention to upset the exchange transaction on a purely technical ground, for reasons of greed.
4. It is stated by the counsel for the petitioners that this entire land was exchanged with the entire land of the - respondents and the exchange did not invoke any violation of para. 24 of the Land Reforms Regulation, 1972. This contention of the petitioner is proved valid by the deed of exchange itself, which has a clearly mentioned that the lands have been exchanged in tow and no piece of land is left out in violation of para. 24 of the Regulation. The Patwari of the area was present and showed me the revenue record to prove that the entire holding of the respondents in Kot Adu was handed over to the petitioners, who are still enjoying its possession. However, .The record revealed that the area of Survey No, 729 was shown on 22 kanals 12 mailers, whereas actual fact it is 31 kanals 13 marlas. This mistake appears to have happened because the entry in respect of Survey No, 729 is spread over two pages and the revenue officials did not add up the remaining area of the Survey No, (?) due to inadvertence. An area of 2 kanals and 11 marlas had been acquired by WAPDA earlier and could not be given to the petitioners. The learned counsel challenged the competence of the Deputy Land Commissioner to reopen the case after a lapse of five years at the initiative of the respondents.
5. The learned counsel for the respondents has raised two points. Firstly he had challenged the jurisdiction of this tribunal to hear the case because the petitioners failed to file a revision petition within 60 days of the passing of the orders by the provincial land reforms authorities. And secondly, he has reiterated that the exchange transaction was ab initio void as it resulted in a violation of para. 24 of the Regulation.
6. Both the above contentions of the learned counsel have been considered and found devoid of any force. The case has been heard in pursuance of the judgment of the learned High Court. As far as violation of para. 24 is concerned, the respondents have not been able to prove any such breach of the Land Reforms Regulation to warrant cancellation of the deed of exchange. The parties exchanged their entire holdings in the two dehs and the possession of the land is also with them since long. Even if by oversight a few kanals was not handed over to the petitioners, though there is no evidence to show that it would not render the exchange void. The logical course to follow in such an eventuality would be to hand over these few kanals to the petitioners in accordance with the letter and the spirit of the deed of exchange.
7. Judgment has been announced in the presence of the parties, this day the 24th May, 1984 at Lahore.