1. ' This is an appeal against the appellate judgment of learned Additional District Judge of Mianwali dated 15-5-1967 in first appeal, confirming the judgment and decree of the learned trial Court passed in the suit for possession of the land in dispute filed by Muhammad Nawaz plaintiff, now respondent No,1 in the appeal before this Court. Suit was decreed by the trial Court on 29th June, 1966, and appeal filed against the decree of the trial Court was dismissed on the date indicated above. Second appeal brought by Muhammad Hussain and Gulsher defendants 3, 4 in the suit was admitted to hearing on 16-10-1967. Facts leading to the litigation briefly put are: 40 kanals, 1 marla of land situate in mauza Khanpur, Tehsil Bhakkar, belonged to Muhammad Nawaz. He agreed to exchange his above land with Muhammad Bakhsh Khan, Imam Bakhsh Khan sons of Ghulam Muhammad Khan and Sarang Khan, the predecessor-in-interest of defendants 3 to 10, in return for their land measuring 50 kanals, 18 marlas, at mauza Chandah in Tehsil Bhakkar. Plaintiff fulfilled his part of the agreement, and, got mutated his land to Muhammad Bakhsh Khan etc., by Mutation No,14, sanctioned on 30-5-1957. Copy of said mutation is Exht. P-3. However, the other side did not abide by the agreement, and, exchange Mutation No,798, entered on 1-10-1958, on their behalf, in respect of 5 kanals, 18 marlas of land was rejected on 27-1-1960. Copy of rejected mutation is Exht.
2. P-4. As the plaintiff did not receive anything in return for his land transferred in mutation Exht. P-3, on 18-5-1964, he instituted a civil suit against Muhammad Bakhsh Khan, Imam Bakhsh Khan and successors-in-interest of Sarang Khan for return of his land and its khas possession from them.
3. Co-owners in the joint khata were also impleaded as defendants to the suit but no relief was claimed against them. Contesting defendants resisted the suit and repudiated the averments in the plaint. It was stated that the land in dispute was purchased by them for a consideration of Rs,2,002.50, bui the sale was given colour of an exchange, merely to avoid pre-emption from certain quarters. Further, it was asserted that upon allegations, suit for possession for return of the land in dispute did not lie. Instead, the plaintiff was obliged to sue for specific performance of contract of exchange. The trial Court settled as many as six issues including that of relief on 10-11- 1964, but later on, on 16-7-1964 substituted them by a new set of issues. Thereafter, it took evidence from the' parties and decreed the suit for possession in favour of the plaintiff, on 20-2-1965.
4. However, instead of substituted issues, the trial Court proceeded to record its findings on the issues as initially settled by it. In appeal filed by Muhammad Bakhsh Khan and others, learned District Judge set aside the judgment and decree of the trial Court and remanded the suit to it for re- writing of the judgment on the issues framed on 10-11-1964, on the basis of material already placed on record. Again on 29-6-1966, the trial Court gave the decree for possession in respect of the land in dispute to the plaintiff. An appeal filed against this decree failed with costs, in the Court below.
5. Only material point involved for decision in the appeal was, whether the land in dispute was sold or given in exchange for the land which the plaintiff did not receive. Plaintiff's case was that he had parted with his land in favour of Muhammad Bakhsh Khan and others, in exchange for the land measuring 50 kanals, 18 marlas belonging to them. As far plaintiff, he transferred his land and got mutation sanctioned in the names of Muhammad Bakhsh Khan etc. Latter, however, did not abide by the agreement and failed to transfer their land to the plaintiff. A mutation of exchange in respect of only 5 kanals, 18 marlas entered was rejected as was clear from Exh.P-4. Defendants had taken the defence that the land in dispute was sold to them and they had paid price for it. This version of events was supported by the statement of Muhammad Bakhsh Khan DW-1 and Hassu DW-2. The Courts below did not rely upon this defence evidence to hold the sale of land proved. On record, it was found to be a case of failing exchange, where one party had performed his part and the other did not. Neither sale of land nor payment of consideration was supported by anything in black and white. Mere oral self-serving statement of one of the defendants and a chance witness was insufficient to prove that the land in dispute was sold for a stated consideration. In my opinion, on the existing records, the Courts below rightly took it to be a case of mutual exchange of lands, and, as one of them had failed to perform his part under the contract of exchange, the other was found entitled to return of his land. The question is, whether the plaintiff was rightly granted this relief by the Courts below. Though, section 119 of the Transfer of Property Act was inapplicable, yet its principles have been applied to the cases arising in the Province of Punjab. In M.K. Ranganathan and another v. The Calcutta Tramways Co. Ltd. And others AIR 1956 Madras 285, principle of section 119 was applied to a case where one of the parties had transferred his property to the other party but that other party had failed to perform his part of the contract by delivering his property. In those circumstances, the Court had to consider the remedy open to the party who had delivered his property without a return from the other. Examining the issue, learned Judges of the Court observed:-- "The short point for determination is whether in such circumstances the only remedy open to the party who had delivered the goods in pursuance of the contract of exchange is to recover compensation or damages or to sue for specific performance of the contract.
6. ' In our opinion, apart from these remedies which, he might have, the aggrieved party can also claim the return of the goods delivered by him if they are in the hands of the other party or his legal representative or transferee from him without consideration. An exchange is defined thus by S.118, T.P. Act:- "When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things, being money only, the transaction is called an exchange". There has been no such completed exchange in this case, because there has been no mutual transfer. One of the parties no doubt has transferred his property to the other but that other has not in his turn transferred his property. Section 119 is a specific provision dealing with a particular contingency.
7. That section confers a right on a party to an exchange who is by reason of any defect in the title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option 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.
8. ' It appears to us to follow impliedly from this section, that if a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled to the same reliefs, in the alternative. To illustrate the position: If A agrees to transfer property X to B and B in return promises to transfer property Y to A, and in pursuance of this contract, A transfers his property X to B but B is unable to transfer his property Y to A then A can either claim compensation for the loss caused by the failure of B to transfer property Y to him or in the alternative claim the return of his property, which he had transferred to B.
9. ' No doubt S.119 in terms provides for a slightly different case, namely, where B also delivers his property Y to A but by reason of defect in the title of B to the said property A is deprived of property Y. But the principle underlying 5.119, T.P. Act, should also apply to the case where instead of a subsequent deprivation of transfer, there is no transfer at all. There is one decision of the Calcutta High Court which supports the view we are taking."
10. ' In Ch. Seetaramaswa my v. Narasingha Panda and others AIR 1975 Orissa 73, after quoting section 119 of the Transfer of Property Act, the Court observed similarly; "Although the section, in terms, contemplates a case of one of the parties to the exchange being, by reason of any defect in title of other party, deprived of the thing received by him in exchange, the principle underlying the section should also apply to the case where instead of a subsequent deprivation of the property transferred, there is no transfer at all. It would impliedly follow from section 119 that when a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled at his option for the return of the property transferred by him, if this property is still in possession of the other party or his legal representative or a transferee from him without consideration."
11. 'Applying the tests laid down in the above two cases with which I express cordial assent, the Courts below were right in decreeing possession of the land in dispute to the plMntiff. Not only their approach to the record was correct and legal, but their conclusions were perfectly sound. Having due regard to the record, there is no room to hold differently. Second appeal having no substance is liable to be dismissed. Before parting with the case, I must take note of another important question and that is whether the plaintiff-decree-holder could legitimately claim mesne profits for a post-decree period. In my opinion, it is just the type of a case, where such a relief ought in law be allowed to the plaintiff-decree-holder respondent No,1. He claimed khas possession of his land and filed a suit for that relief on 8-5-1964. The trial Court decreed the suit in his favour on 29-6-1966.
12. Appeal filed against the decree of the trial Court failed on 15-5-1967. A further appeal filed in this Court was admitted to hearing on 16-10-1967. On the same day, the Bench admitting the appeal ordered maintenance of "status quo meanwhile", subject to notice for an early date. Status quo was confirmed on 6-8-1968, but the order was not subjected to any terms to safeguard the interests of the plaintiff-decree-holder in the land in dispute. "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case".
13. See Jai Berham and others v. Kedar Nath Marwari and others AIR 1922 Privy Council 269. Eversince, the attestation of mutation Exh.P-3, Muhammad Bakhsh Khan and others were in possession of the land in dispute and appropriated its usufructs without sharing them with the plaintiff who was adjudged to be true owner of the land and found entitled to restoration of its possession. For quarter of a century, plaintiff was deprived of the user of his land. There is no doubt that the Court has both jurisdiction and competence to undo the wrong and remedy the injustice caused by making good the loss suffered in the interregnum. On powers of the Court to award mesne profits; Das, J., in Raghu Mahton v. Bulak Mahton and others AIR 1953 Patna 289, observed:-- "It is true that in empowering Courts to award future mesne profits, 0.20, R.12, Civil P.C., makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit; the object is to avoid multiplicity of litigation, as it would be clearly inconvenient and unfair that the person unlawfully kept out of possession of his lands should be obliged to file suits every three years for mesne profits accruing after the institution of his suit in ejectment. But the plaintiff in such a suit cannot claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit, though 0.2, R.4, permits the joinder of a claim for mesne profits in a suit for recovery of immovable property; therefore, it has been held that the power of the Court to award mesne profits subsequent to the suit is discretionary, and a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. It may even be open to the Court to grant future mesne profits as part of a general relief to which a plaintiff is entitled; but it is not correct to say that the Court is obliged to award future mesne profits when no claim for mesne profits is made or that, when a claim for mesne profits is made, either specifically or as part of a general relief, the Court must grant it."
14. ' The view that in a suit for possession, the Court can award mesne profits under the head of general relief was further affirmed in Munshi Banesh Prasad and others v. Jalpa Shankar Varma and others AIR 1960 Patna 260. Therefore, while dismissing the appeal of the appellant with costs, I would, in exercise of discretionary powers of the Court, modify the judgments and decrees of the Courts below to include a relief for mesne profits accrued on the land in dispute from the date of its decree, till actual delivery of khas possession of the land to the decree-holder-respondent No,1 takes place. Amount of mesne profits shall be ascertained by the trial Court and made part of its judgment and decree. Contemplated inquiry into the mesne profits shall not arrest execution of the decree in so far as it related to relief for possession of the land. At the end, I must observe that I was not much assisted by the learned counsel for the parties. Syed Zulfiqar Ali Bokhari, Advocate did not appear. On his behalf, Syed Ali Raza, Advocate entered appearance and requested for an adjournment. As it was an old appeal awaiting decision since 1967, I was reluctant to grant adjournment. Similarly, Syed Nazir Hussain, learned counsel representing respondent No,1 failed to appear when the appeal was called on for hearing. On his behalf, Mr. Raza Khokhar, Advocate entered appearance. In this state of default, I had to look through the record, myself for deciding of the appeal. Representation by proxy was not helpful.