' Mst. Zohran got recorded a rapat bearing No, 32 in the daily diary of the Patwari on 1-10.1964 that she had given an area of 1900 kanals and 6 marlas to her husband Noor Mohammad (petitioner No, 2) and her son Mohammad Iqbat in the form of 471 kanals and 5 marlas to the husband and 1424 kanals and 5 marlas to the son in lieu of 4 squares of land which was to be given by the husband to the wife later. A regular mutation of this transaction, being Mutation No, 2 was duly attested on 11-11-1965.
2. In performance of his obligation the husband Noor Mohammad petitioner No, 2 then got a mutation entered bearing No, 99 (later No, 298) on 1-1-1972 which was attested on 24-1-1972 whereby he gave 4 squares of land to his wife (actual area was 803 kanals 10 marlas). The latter transaction was not accepted by the learned Additional Chief Land Commissioner who held that it was beyond the target date, namely, 20-12-1971 and was, therefore, void under paragraph 7 of M. L.
R. 115/1972. The matter came up in the form of two writ petitions being W. P. No, 315/1974 and W. P.
No, 541/1974 which were decided by a Division Bench of this Court by means of judgment dated 254.1974 and the case was remanded to the learned Additional Chief Land Commissioner for fresh decision in accordance with law. Paragraphs 4 and 5 of that judgment are relevant. They read as follows:- "4. It is argued by the learned counsel for the parties that the learned Chief Land Commissioner has not adverted to the fact that mutation No, 298 was not a new transfer by itself but was simply an implementation of an agreement of exchange which had been entered into in the year 1964 and in connection with which the wife had already transferred her land to the husband and her son by mutation No, 2 attested on 11-11-1965 read with report No, 32 mentioned earlier. Learned counsel submits that had the case been examined from an overall point of view, keeping mutation No, 2 and report No, 32 in the forefront, then mutation No, 298 which was only one limb of the whole transaction could not have been separated from the context. The failure of the learned Chief Land Commissioner to read the whole record renders the order as without lawful authority. We agree and hold accordingly. We have noticed that the learned Additional Chief Land Commissioner has neither considered the overall nature of the two mutations nor has he given any finding of his own in that respect. The point for determination is as to whether transfer by mutation No, 298 was a new transfer or was a recognition of an earlier and antecedent entitlement of the husband created by mutation No, 2 and report No,
32. If mutation No, 298 and mutation No, 2 are inter-connected, then merely striking down mutation No, 298 was no solution of the matter because in that context mutation No, 2 would also undergo serious repurcussions which may result in the land then given to the then alienees (i,e, husband and son) as reverting to the wife and not being liable to be counted in the holding of the husband. By counting the land involved in mutation No, 2 in the holding of the husband it appears that mutation or deal is being accepted. If that is so, then mutation No, 298 also deserves a different treatment from that which has been given to it now.
6. In the circumstances we think that the best course will be to remand the case to the learned Additional Chief Laud Commissioner for fresh decision in accordance a ith law after attending to the entire context and after hearing the parties concerned and giving them an opportunity to defend themselves. The impugned order of the learned Additional Chief Land Commissioner is hereby set aside and case remanded as indicated above. There shall be no order as to costs."
' After remand the same learned Additional Chief Land Commissioner again took up the matter and held the two transactions, namely, of year 1964 and year 1972 as to be independent transactions not dependent upon, and not having any connection, with one another. In that view of the matter, he held that the latter transaction which was after the specified date hereinbefore mentioned was void: The order by the learned Additional Chief Land Commissioner was pasted on 28.6-1974. The petitioners have come up in writ petition against the aforesaid proceedings and orders to this Court.
3. The first paint argued by the learned counsel for the petitioner is that the learned Additional Chief Land Commissioner has misread report No, 32 dated 1-10-1964 which is the basis of bath the above-mentioned transactions. He submitted that according to that report the two transactions are inter-connected and not separate transactions. The plea raised seems to be correct: The report (copy An- ex. A) reads as follows:-{{URDU TEXT}} A perusal of this report shows that both the transactions were connected and the earlier transfer was to be in lieu of or to be in exchange for certain subsequent transfer to be made by the husband. The finding of the learned Additional Chief Land Commissioner to the contrary is thus based on misreading of the relevant evidence and shall have to be quashed which I hereby do.
4. The next point argued by the learned counsel for tie petitioners was that if the husband has not been able to make that transfer due to subsequent intervention of law or the transfer made now having been declared void due to prohibition to make such transfers after 20th December, 1971 under M. L. R, 115/72, its result should be that the wife should be entitled to claim 9 or claim back the land which she had given on the agreement that she would also be given land in lieu of her land.
The contention seems to be well founded and supported by law. Section 118 of the transfer. Of the Property Act IV of 1882 defines "exchange" an 1 states that "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 "exchange". In section 119 it is then written that "if any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, 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". The principle of this section is applicable in Punjab. See Salabat v. Abdul Rahman (1),I Applying the aforesaid principle of law to facts and circumstances of the present case, if the learned Additional Chief Land Commissioner did not accept the latter transfer as valid due to legal incapacity to transfer it. Then its effect would be that Mat, Ghulam Zohrao, petitioner No, 1, shall be entitled to lay claim (or claim back) the land given by her which was
(1) 51 P R 1917 still with her alienees and especially when the terms of agreement o arrangement as contained in report No, 32 did not contain any intention to the contrary, In these circumstances the refusal of the learned Additional Chief Land Commissioner in acceding to the aforesaid request and prayer of Mat. Ghulam Zohran was, therefore, against the law applicable to such transactions and was without lawful authority. The learned Additional Chief Land Commissioner in this respect refused to exercise jurisdiction vested in him by law or exercised a jurisdiction which did not vest in him by law.
5. The result is that this writ petition is accepted and the impugned order of the learned Additional Chief Land Commissioner, whereby he refused to treat the land which was subject-matter of Mutation No, 2 attested on 11-11-1965 as having reverted to Mst. Ghulam Zohran is hereby declared to be without lawful authority and of no legal consequence against her, with the result that the aforesaid land is hereby declared as belonging to or should be treated as belonging to her for the failure of the consideration under which it was taken by her alienees. As a matter of fact even otherwise refusal to accept the transfer of husband automatically meant falling down of the whole agreement/arrangement of report No,
32. The learned Additional Chief Land Commissioner acted without lawful authority in separating the two transactions on a misreading of the record as earlier held. In this view of the matter, learned counsel for the petitioner did not argue regarding the validity and effectiveness of the subsequent transfer which had been ignored by the learned Additional Chief Land Commissioner because the counsel submits that the relief hereby given in the above form will meet the ends of justice. The petitioners will get their costs.