2. Brief facts of the case are that the petitioner and respondents are real brothers. Later owned a joint Khata bearing No. 10942 measuring. 5 Kanals, 6 Marlas and 5 sarsahies in equal share situated at Sahiwal. Respondent No. l was owner of 2 Kanals, 13 Marlas and 2-1/2 sarashies according to his share out of the said Khata. There was oral agreement of exchange by respondent No. l with the petitioner for exchange of above said share with two acres of land belonging to the petitioner situated in village Doula Bala, Tehsil and District Sahiwal. On 30-8-1967 respondent No. l Syed Riaz Hussain Shah got mutation of his share in the suit Khata measuring 8 Kanals, 13 Marlas and 2-I /2 sarashies sanctioned. I favour of the petitioner, through mutation No. 4723 Exh.P.I and in exchange for the abovereferred share petitioner was to transfer 2 acres of the agricultural land situated in village Doula Bala, Tehsil and District Sahiwal. He did not transfer this two acres of land although requests were repeatedly made to him. The petitioner failed to perform his part of the contract by not transferring two acres of land mentioned in mutation No.4723. Respondent No. l then filed a suit for declaration in the Court of learned Civil-Judge on 7-3-1978. Learned Civil Judge after recording evidence of the parties and hearing the arguments of their learned counsel, decreed the suit on 6- 2-1985 against which appeal of the petitioner was dismissed vide the impugned judgment and decree dated 11-11-1985 by the learned Additional District Judge, Sahiwal against which present revision has been preferred by petitioner/defendant.
3.Learned counsel for the petitioner at the very outset submitted that the petitioner is prepared to give two acres of land in village Doula Bala to the respondent in lieu of the land mutated in his favour in accordance to the claim of the respondent averred in the plaint. He further submits that suit was barred by time as mutation was sanctioned on 30-8-1967 and the suit was filed on 7-3- 1978. Suit for specific performance of contract was competent and not. Suit for declaration that respondent could file an appeal against the mutation in dispute before the higher revenue authorities and lastly submitted that the suit for damages at the most for non-performance of his part of contract could be filed against the petitioner.
4.Learned counsel for the respondent on the other hand submitted that the word 'Exchange' as defined in section 118 of the Transfer of Property Act is not complete as petitioner has not transferred the promised land to the respondent, therefore, sanction of mutation of the share of respondent No. l in favour of the petitioner was illegal and the trial Court has correctly appreciated the evidence on the record in coming to the conclusion that the petitioner has not transferred his property to the respondent, therefore, the mutation was invalid. He further submits that it is evident from mutation itself that it was of exchange. He further adds that the concurrent findings of the Courts below are supported by cogent evidence on the record which are not liable to be disturbed in exercise of revisional jurisdiction of this Court. Respondent No. l has refused to accept offer of petitioner for transfer of 2 acres of land in lieu of his share in Khata at this belated stage: 5.I have heard the learned counsel for the parties at.Length, gone through evidence on record, the judgments of the Courts below and the citations referred by the learned counsel for the parties. The offer of the petitioner now made during hearing of the case for transfer of two acres of land referred in the plaint by the respondent has not been accepted by him on the ground that after about 20 years of litigation the claim of the respondent has been conceded and had this been done at a very outset of the litigation he would have accepted the same but after such a long period the value of Khata in dispute hasas compared to that of two acres of the agricultural land offered to the respondent by the petitioner. It is also established on the record that the entire land in village Doula Bala has been transferred by the petitioner to his son Ijaz Haider and he is not the owner of the said property anymore. The abovereferred two acres of land is ,part of the 'property transferred by him to his son Ijaz. Petitioner is not owner of the said two acres of land at this stage and as such he cannot make any commitment for its transfer to respondent No. 1. The refusal of respondent to accept the offer of the petitioner at this belated stage is understandable. The price of the Khata has appreciated meanwhile and for this reason petitioner is ready to transfer two acres of land to the respondents which in fact he has already transferred to his son. Respondent No:1 cannot be forced to accept the offer of the petitioner. Since respondent No. l has refused to accede to the offer of the petitioner, therefore, Court cannot force him for this purpose. This offer in fact indirectly amounts to acceptance of the claim of the petitioner raised in the plaint. In view of the fact that respondent No. l is not willing to accept the offer of the petitioner, I am left with no option but to decide the case on its own merits.
6.As tar as the objection with regard to the bar of limitation is concerned suffice it to observe that limitation in the instant case started running from the day the right of respondent No. l from the suit Khata was denied by the petitioner. Learned Additional District Judge correctly relied upon the citations referred hereunder namely Hussain Bakhsh and others v: Settlement Commissioner and another PLD 1969 Lahore 1039, Mst. Bibi Mukhtiar v. Mst. Amrezan and another PLD 1969 Peshawar 169 and Mst. Karim Jan and 3 others' v. Anwar Khan and another PLD 1984 Peshawar 111. The suit of respondent No. l was in time from the date his title was denied by the petitioner/defendant. The concurrent findings of both the Courts below after appreciation of evidence on record that the suit was not barred by time call for -no interference.
7. The objection relating to the form of suit is also of no substance. Respondent No. l filed a suit for declaration claiming to be in possession jointly with Asghar A.I respondent No.2. Since, respondents 1 and 2 are real brothers, and the Khata was jointly possessed and owned by them the suit for mere B declaration without seeking relief of possession is maintainable. Learned Additional District Judge has observed in para. 12 that it is established on the record that possession of the disputed Khata is still with respondents. Since respondent No. l was in possession of the disputed Khata the suit for declaration that mutation in dispute was null and void and ineffective against the rights of respondent/plaintiff was maintainable.
8. The submission of the learned counsel for the petitioner that respondent No. l could file an appeal before the higher Revenue Officer against the sanction of mutation is also of no avail to him. The rights of the parties were determined through the mutation EXh.P.I. The mutation related to the transaction .Of exchange entered into between the petitioner and respondent No. 1. The exchange was given effect in the said mutation and intricate questions of law and facts requiring recording of evidence were involved which could only be determined through a civil suit. The suit of the respondent to challenge such a mutation is not barred under any provision of law.
9.Last submission of the learned counsel for the petitioner that breach of agreement if any did not entitle the respondent to a declaratory decree and against the petitioner is also devoid of any force. The agreement of exchange D was not honoured by petitioner and respondent No. l has rightly sought the declaration in the instant suit. Suit for damages in the circumstances of present case was not competent. '
10. The petitioner has transferred his entire property on I-1-1974 measuring 20 Kanals, 18 Marlas in favour of his son Ijaz Haider without leaving any piece of land in village Doula Bala with him, in other words after 1-1-1974 petitioner was no more owner of those two acres of land also which he was to transfer to respondent No. 1. Petitioner has also tried through his oral evidence to prove that he did transfer 2 acres of land in favour of respondent No. l which he subsequently sold to him for a consideration of Rs.10,000. There is not an iota of evidence on the record to show that he ever transferred 2 acres of land in village Doula Bala in favour of respondent No. l and so also that respondent No. l sold the same land to him. The oral evidence regarding the payment of Rs.10,000 is unbelievable. It is meagre, contradictory and full of discrepancies on all the material particulars.
'Exh. P. I was only effective had the petitioner given 2 acres of land in village Doula Bala to respondent No. 1. Petitioner did not transfer above said 2 acres of land, therefore, Exh.P.I is of no use to him. It could only be effective if the petitioner had honoured his undertaking of giving 2 acres of land to respondent No. 1.
11. The mutation dated 30-8-1967 was based on an exchange. It is a question of fact whether it was a sale or exchange. The Courts below have rightly held that it was an exchange. The petitioner failed to transfer the land in exchange to the land transferred to him through the above said mutation, therefore, that mutation was invalid and of no consequence. The concurrent E findings of facts of the Courts below call for no interference in exercise of revisional jurisdiction of this Court.
12. For the reasons stated above, this petition is dismissed with no order as to costs