' This R.S.A. Arises from the judgment and decree dated 14-1-1969 of the learned Addl. District Judge, Lyallpur (as it then was), whereby the respondents-plaintiffs' first appeal was allowed.
2. The respondents' claim in their suit was that the land in question was transferred to them by the respondents' predecessor Ali in exchange dated 19-41950 for their land situate in Chak No,663/4; that they had obtained its possession in part performance; that before a mutation could be attested he died; that later his successors namely defendants Nos.2 to 8 sold it away on 10-3-1961 in favour of the appellant Abdullah despite the fact that they had knowledge of the previous transaction; and that the same was of no effect againt their interest accruing under the, prior exchange.
3. The appellant-defendant denied the exchange. The subsequent vendee Abdullah urged in a separate written statement that he had no knowledge of the prior exchange andthat being a bona fide purchaser for value without notice, the subsequent sale in his favour was legally saved. He added that he had paid Rs,25,000 as consideration amount and further that the respondents' suit in its present form was untenable because they were not in physical possession of the land.
4. Initially the two preliminary issues relating to the maintainability of the suit for want of possession etc. Were framed. They were found against the appellant-defendant on 29-1-1963 holding that the respondents-plaintiffs were in possession of the disputed property and that their suit in its present form was quite maintainable. Further issues arising out of the pleadings were subsequently as well framed. The trial Court dismissed the suit taking a view that there was no exchange between the parties, nor had the plaintiffs taken over possession of the land thereunder. In appeal, however, those findings were reversed and the respondents' suit was decreed. The main reason for reversal of the judgment was that the document ,Exh. P.6 which though apparently was a memorandum in a sort of Bahi maintained by the scribe, had sufficiently established that the appellant-defendant had agreed to make exchange with the respondents-plaintiffs for their respective lands and further that possession thereunder was delivered to the latter. It was noted that the finding in regard to delivery of possession to the respondents, recorded on the preliminary issues by the predecessor Officer, could not have been subsequently upset by the successor Officer while dealing with other issues on merits.
5. In support of the present Second Appeal, learned counsel stressed that the memorandum Exh.
P.6 was not an exchange deed in itself, had not created or extinguished right in praesenti for want of registration, nor did it bear the signatures of the respondents-plaintiffs, nor did it specify the respective lands with reference to their Khasra numbers etc. Leaving room to think that it was ambiguous, and lastly that it was not adequately proved. They assailed the finding of possession recorded in favour of the respondents on the ground that the Khasra Girdawaries Exhs. D.1 to D.3 at best showed the respondent's son Lal in possession of the land only as a tenant rather than an owner. Next, it was argued that in order to make the so-called exchange, the respondents had to show that they delivered possession of their land in Chak No,663/4; and that since they failed to establish this element through evidence, they had no right to insist that they had acquired Title in regard to the land in suit. Reliance was placed upon Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (PLD 1990 Lahore 467) to show that an unregistered exchange did not create title.
6. Mr. Jari Ullah, Khan, Advocate in reply submitted that provisions of the Transfer of Property Act relating to registration of transfer deed were applied to the Punjab on the 30th of December, 1974, and that earlier thereto, transfers of property could be made orally in the Punjab and that the memorandum Exh. P.6 was never intended to create or extinguish title in itself. According to him, its purport was only to indicate that the parties had otherwise orally settled an exchange between themselves and that they would be bound by it. He submitted that it could be proved as a collateral document to reveal that the land was actually transferred to the respondents and that they had entered upon it in their capacity as exchanges. In regard to the absence of the respondents' signatures on this document, his view was that it made little difference in that what was intended to be established by it was that the deceased Ali had signified his intent to transfer his land in question in their favour and that on their part they never backed out of their commitment. He emphasized that Ali himself during his lifetime never challenged its authenticity and that it was after his demise that his heirs-defendants Nos. 2 to 8 thought of disputing its genuineness. Otherwise, his plea was that it had been quite adequately proved by testimony of the attesting witnesses as also of the son of the scribe, and that the appraisal made by the lower Appellate Court in regard to the probity of their statements could not be interfered with simply because those were discarded by the trial Court on the ground of their relationship with the respondents. He cited World Trade Corporation v. Export Promotion Bureau and others (1989 SCMR 1183) wherein it was ruled that there may be no interference on the plea that the opposite view could also be adopted.
7. The crucial question namely whether or not there was an exchange between the parties was essentially one of fact. No doubt the two Courts below differed in their assessment of evidence, but the mere fact that the opposite view could as well have been adopted would not call for interference in the second appeal. Reliance on the World Trade Corporation's case seems to be well placed. The objection that the memorandum Exh.P6 was unregistered, equally does not hold water in that it was nothing more than a memorandum of a transaction otherwise entered into between the parties orally. It did not create rights or interests in itself, but only contained a recital that the parties had verbally agreed to the exchange in question. In those days, sections 54, 59,107 and 123 of the Transfer of Property Act were not applicable in extenso to the province of the Punjab.
These were enforced on the 30th of December, 1974. Accordingly, the exchange could have been made even orally and the recital made thereabout in the memorandum did not call for compulsory reistration. The further finding of fact was that the respondents were occupying the land. They hailed from village Kuhal, where the present land was situate and conversely Ali belonged to Chak No,663/4 where the respondents' land intended to be given by them in exchange, was situated. These were the circumstances which perhaps made the parties to get rid of lands situate at places distant from their abodes. It may be also a reason for delivery of possession to the respondents. The Khasra Girdawaris supported their possession. The argument that a son of a respondent was recorded as tenant was not borne out by Exh.P.3 which gave a detail how his possession Bawaja Tabadla was cryptically styled as Ghair Dakheelkar. The entire entry has to be read as a whole which certainly correlated possession of the respondents with the deal of exchange. Exh.P.4 was a complaint made by the subsequent vendee Abdullah urging that possession had been taken from him by the respondents forcibly and that the same may be restored to him. Obviously he who was a trespasser on the appellants' own showing could not be a tenant. The most crucial piece of evidence was the mutation Exh.P.5 itself attested in favour of Abdullah appellant. The respondents had raised an objection before the attesting officer that they were occupying the land under a prior exchange and that the deceased Ali or for that matter his successors had no authority in law to make its subsequent sale in his favour. In spite of this objection from the respondents, the appellant Abdullah chose to stick to purchase it. It was difficult to say that he was subsequent vendee without notice of the prior transfer of the land made in favour of the respondents.
8. No other point was urged. The appreciation of the evidence made by the lower appellate Court does not appear to be arbitrary so as to call for interference as held in Kanwal Nain and 3 others v.
Fateh Khan and others.
(PLD 1983 SC 53). The R.SA. Is dismissed leaving the parties to bear their own costs.