1. ' FAZAL ILAHI KHAN, J.---Leave to appeal is sought for against the judgment and order of Lahore High Court, Lahore, dated 10-5-1992 whereby the petitioner's Revision Petition (No323-D of 1992) was dismissed in limine, and the judgments and the decrees of the Courts below decreeing the plaintiffs'/respondents' suit was maintained.
2. ' Petitioner owned land measuring 91 Kanals 2 Marlas situated in village Roado Sultan, of which 48 Kanals 2 Marlas was under mortgage, entered into an exchange transaction with the plaintiffs/respondents and gave in exchange 45 Kanals of his land free of any incumbrance to the plaintiffs/respondents in lieu of their land measuring 44 Kanals 6 Marlas situated in Mauza Rerh, Tehsil Shore Kot. A registered exchange deed in this regard was executed on 3-9-1964 which was given effect in the Revenue Record and it was acted upon by delivery of possession. It was provided in the deed referred to above that in case of any loss sustained by either of the parties due to some legal or factual defect of title the party sustaining the loss will be compensated.
3. Admittedly in consolidation/partition proceedings petitioner was found entitled to 3 Kanals of land out of 48 Kanals 3 Marlas which he had 'given in exchange to the respondents and in this manner they suffered the loss of 45 Kanals 3 Marlas of land. Respondents instituted legal proceedings before the Consolidation Authorities asserting their entitlement to the land measuring of 48 Kanals 3 Marlas on the basis of the registered exchange deed but with no success. They, therefore, instituted the present suit on 23-7-1985 against the petitioner herein for possession of 45 Kanals 3 Marlas of land in terms of the exchange transaction as the loss sustained on account of defect in the petitioner's title in the land and in the alternative for recovery of Rs,50,000 as compensation.
4. After recording evidence of the parties on the issues framed in the light of the pleadings of the parties the trial Court decreed the plaintiffs' suit for possession of land measuring 45 Kanals 3 Marlas as prayed for detailed in para. 7 of the plaint. The petitioner's appeal and revision against the judgments and decrees were dismissed.
5. ' It was contended that the suit for specific performance/possession of the land in suit is not competent in terms of the exchange deed as respondents had simultaneously prayed for recovery of Rs50,000 as compensation rather the Court should have refused the plaintiffs/respondents' suit for possession of the land on facts and circumstances of the case when it had been specifically provided in exchange deed. Reference in this regard was made to Section 21-A of the Specific Relief Act and further reliance was placed on Ramji Patel v. Rao Kashore Singh (AIR 1929 Privy Council 190). It was further contended that bar of limitation pleaded in the written statement has been ignored on the ground that it was not pressed at the arguments stage though it was the duty of the Courts below to have decided the issue even if not pressed. In support of his contention the learned counsel relied on Pakistan Railways v. Ghulam Sarwar 1989 SCM R 864, Hakim Muhammad Buta sand another v. Habib Ahmad and others PLD 1985 SC 153 and Abdul Rasool v. Ghulam Rasool and 7 others PLD 1978 Lah.
317. It was lastly contended that the trial Court misread the deed wrongly relied on it in the context of the present dispute as there was no defect of title in the land given to the respondents at the relevant time. In fact loss sustained was resulted from consolidation/partition proceedings.
6. ' On going through the record of the case and perusal of the registered exchange deed we find no force in the contentions raised. It would be advantageous for proper understanding of the issue to reproduce the relevant portion from the deed, on which reliance has been placed by the parties, as under:--- {{URDU TEXT}} On plain reading of the above the Courts below have rightly held it as an indemnity clause providing for making up the deficiency or the loss sustained by a party to the transaction due to some defect in the title of the other party to the transaction. The party sustaining the loss has to ask for another land of his choice from the other party or to ask for compensation in cash equivalent to market value of the deficient land. It is not denied by the petitioner that the land which he gave in exchange to the respondents was "Shamilat Deh" and in consolidation/partition proceeding petitioner was found entitled to only 3 Kanals of it in the entire Shamilat land, therefore, respondents were deprived of 45 Kanals 3 Marlas of land and were left with 3 Kanals only which had been given to them. There is, therefore, no substance in the contention of the petitioner that respondents did not sustain the loss because of defective title but because of consolidation/partition proceedings.
7. ' As far as the alternate prayer for compensation is concerned, as already pointed out, the indemnity clause provides for two alternate remedies to the aggrieved party and the choice is with such party either to ask for the land of his choice or to ask for the market value of the land. The plaintiffs' first choice accordingly was for possession of the land of their choice and secondly, in the alternative, for recovery of the compensation amount. There was, therefore, no defect in the form of the suit and the relief granted was not barred under section 21-A on the ground that prayer for compensation has been made in the alternative.
8. ' With regard to limitation it is not disputed that question of limitation is a mixed question of fact and law and even if the plea of limitation is not pressed it is the duty of the Court to determine such issue. However on facts of the present case the final order in the Consolidation proceedings having been passed on 20-8-1984 the present suit instituted on 23-7-1985 has rightly been found well within time.
9. ' For the reasons stated above we find no merit in this petition and dismiss the same.