Civil Judge, Bhakkar dated 10-2-1990, decreeing the suit of respondent No, 1 was affirmed.
2. In brief the case of respondent No, 1 who was plaintiff before the trial Court and had filed the suit for specific performance regarding land measuring 234 Kananls situated in village Bhidwal Wala, Tehsil Mankera, District Bhakkar, was that she and her sister Naseera Begum (a pro forma defendant in the suit) respondent No, 8 in this petition, owned land measuring 333 Kanals in Mauza Darya Khan Tehsil and District Bhakkar. It was her case that defendants Nos. 1 and 2 are her brothers whereas defendants Nos. 3 to 7 are the legal heirs of Shaukat Ali Khan (deceased) her third brother. They persuaded and prevailed upon the plaintiff and her sister Mst. Naseera Begum to exchange their land 333 Kanals situated in Darya Khan with the land in Bhidwal Wala Tehsil Mankera, District Bhakkar to which both of them agreed and as a result mutation No, 2177 was effected and possession was handed over to the defendants Nos. 1 to 7. This mutation was sanctioned on 17-8-1965 (Exh.P1). It was the case of the plaintiff/respondent No, 1 that defendants Nos. I to 7 despite repeated demands had been putting of the matter for the mutation of land situated in Mauza Bhidwal Wala on the ground that as and when the proprietary rights of the said land are acquired the same shall be transferred; and that the plaintiff learnt a month before that defendant No,1 had acquired the proprietory rights in Mauza Bhidwal Wala and had transferred 166 Kanals and 4 Marlas of land in the names of defendants Nos. 8 and 9 (sons of defendant No,.1) for which a mutation No,323 was sanctioned on 24-11-1986. The plaintiff also sought annulment of the said mutation and that the same was inoperative against her rights.
3. Defendant No, 1 and his two sons, defendants Nos. 8 and 9 filed a joint written statement. The factum of exchange was admitted as also the handing over of possession by the plaintiff to them, but it was denied that the land to he given in exchange by them was 234 Kanals and 8 Marlas situated in Bhidwal Wala. The defendants Nos. 2 to 7, (the other brother namely Rafaqat Ali Khan and heirs of Shaukat Ali Khan) filed a conceding joint written statement before the trial Court.
Likewise defendant No, 10, Mst. Naseera Begum sister of the plaintiff also filed a conceding written statement. Thus, the contest between the parties was limited and confined between the plaintiff and defendant Nos.1, 8 and 9 only. The learned trial Court on the pleadings of the parties framed the following issues:
(1) Whether the defendants Nos. 1 to 7 had agreed to exchange the property in dispute in favour of the plaintiffs and defendants No, 10 and, thus, are entitled to get the decree.
(2) Whether Mutation No, 323 dated 24-11-1986 was illegal and void? O.P.P.
(3) Whether there was no exchange of the property measuring 234 Kanals amd 8 Marlas while the exchange was only 68 Kanals and 4 Marlas? O. P. D
(4) Relief.
4. Before the learned trial Court the plaintiff produced Ghazi Khan P.W.I and Anwar Ali Khan her husband and attorney as P.W.2. She tendered documentary evidence Exhs.P1 to P6. Whereas defendants Nos. 1, 8 and 9 produced Naseer-ud-Din D.W. I and defendant No,1 himself appeared as D.W.2 Exhs.D1 and 2 were the documents produced by them.
5. Learned trial Court on perusal and appreciation of evidence recorded finding on issue No,1 in favour of the plaintiff and came to the conclusion that exchange transaction was in fact agreed between the parties which was partially implemented so far as the transfer of the land by the plaintiff and her sister defendant No,10 is concerned, in favour of defendants Nos. 1 to 7. On issue No,2 as well the trial Court recorded finding in favour of the plaintiff. Issue No,3 which was to he proved by the defendants Nos. 1, 8 and 9 was decided against them. As a result of findings on the aforesaid issues, the suit was decreed.
6. Defendants Nos.
1., 8 and 9 challenged the judgment of the learned trial Court in appeal which appeal was dismissed by the learned District Judge, Bhakkar, vide judgment dated 28-1-1993. Hence this revision petition.
7. Learned counsel for the petitioner has contended that although the factum of exchange is admitted yet the quantum of land subject-matter of exchange which was to be transferred by defendants Nos. 1 to 7 was not the same as was claimed by plaintiff-respondent No, 1 in the suit. He relies on Exh. P1 mutation dated 17-6-1965 to contend that whatever the ownership of the defendants Nos.1 to 7 was at that time in Bhidwal Wala that only could be the subject-matter of exchange and nothing beyond that. According to him the document Exh. P1 has been mis-read by both the learned Courts below. It is contended by the learned counsel that land measuring 166 Kanals and 4 Marlas which was granted to the petitioner/defendant No, 1 much after the exchange (mutation No,2177, Exh. PI) cannot be the subject-matter of exchange and, thus, error has been committed by the Courts below, in reading and construing the documents on record. He has relied upon PLD 1967 Dacca 591 and PLD 1969 Pesh. 185 .
7. On the other hand the learned counsel for respondent No,
1. Mr. Noor Muhammad Awan, Advocate has contended that land to be exchanged and transferred by defendants Nos. 1 to 7 (who are now petitioner No, 1 and respondents Nos.2 to.7) was the land situated in Mauza Bhidwal Wala without any specification. He contends that the land of 166 Kanals and 4 Marlas which is sought to the excluded from the purview of exchange by petitioner No,1 was in fact the land surrendered by the family by operation of Martial Law Regulation No, 89 as the same was in excess of their entitlement and the proprietary rights of the said excess land were acquired but the deed Exh. D1 was managed by him in his own name. It was submitted that whereas respondent No,1 and her sister Mst. Naseera Begum transferred substantial piece of land i,e, 333 Kanals owned by them on the persuasion and instigation of instead of transferring 234 kanals of land situated in Mauza Bhidwal Wala wants to deprive them of a substantial part of land. He submits that all others i,e, Rafaqat Ali Khan and heirs of other brother Shaukat Ali Khan have accepted not only the factum of exchange but also the quantum of land. It was contended by him that even if at the time of exchange mutation Exh. P1, defendants Nos. 1 to 7 had not acquired full proprietary rights in Mauza Bhidwal Wala yet subsequent maturity of title will entitle the plaintiff to enforce her right in terms of section 43 of The Transfer of Property Act. He has relied upon 1985 SCMR 1428, 1989 CLC 153, 1988 MLD 1787, PLD 1989 Lahore 73, PLD 1991 Lahore 262, to contend that the suit has been rightly decreed by the two courts below. He has supported the judgment of the two Courts below also with reference to the evidence on record and the findings recorded, which are concurrent in nature and that the same cannot be assailed in revision.
8. I have considered the respective arguments of the learned counsel and gone through the record and the impugned judgments of the two Courts.
9. The oral agreement/arrangement of exchange between the parties is admitted as is recorded in mutation Exh. P1. It was sanctioned on 17-6-1965 through which the land owned by the two sisters respondent No, 1, Zaheera Begum and respondent Nos. 8, Naseera Begum was mutated in the names of petitioner No,1 and respondents Nos. 2 to 7. It also records that as against the said land of village Darya Khan which has been transferred by the two sisters in favour of their brothers' land situated in village Bhidwal Wala is being transferred to them. It is the admitted position that the land situated in Bhidwal Wala was the land surrendered in pursuance of Martial Law Regulation Nos. 89 and has been in possession of the petitioner No, 1 and respondents Nos. 2 to 7. The option to purchase the said excess land was exercised by petitioner No, 1 and respondents Nos.2 to 7 but the relevant document Exh. D1 was got prepared in the name of petitioner No,1 alone (statement of P.W.2). It is also an admitted fact that although the two sisters transferred their land in favour of the brothers in the year 1965 yet the land of Mauza Bhidwal Wala could not be transferred in return to the exchange for the reasons that the proprietory rights in the land had not been matured and the transfer remained dependent on the conferment of proprietory rights. The case of respondent No, 1-plaintiff was that when proprietary rights were acquired by the petitioner, he transferred the land of Mauza Bhidwal Wala to his sons by way of gift contrary to the exchange between the parties and to deprive the two sisters of their right in the land.
10. Surprisingly the stand taken by petitioner No,1 who appeared as D.W.2 before the learned trial Court was contrary to the exchange arrangement and the contents of Exh. P1 itself. He came out with the version that the sisters had surrendered their share in their favour and as a return he offered 102 Kanals of land situated in Mauza Bhidwal Wala, (see his statement as D.W.2). But in the revision petition his stand is that he is liable to give only 34 Kanals of land in exchange. It shows the inconsistency in his stand aimed at to retain what was got from the sisters, and to give minimum possible in return. There was nothing on the record to show that the two sisters had intended to surrender their share. This was a self contradictory stand as well, in negation of the Exh. P1 also and amounted to belying the consistent position of all other defendants-respondents who are members of the same family. This stand of petitioner No, 1 clearly demonstrates his intention to deprive the two sisters of their right in the land. It is well settled that a litigant cannot be permitted to assume inconsistent position in Court and this principle is applicable to the successive stages of the same suit. The principle is stated in the principles and digest of the Qanoon-e-Shahadat, by Justice Khalil-ur-Rehman Khan Vol.II at P.
1396.
11. Although Exh. P1 does not specify the exact quantum of land of Mauza Bhidwal Wala to be transferred in the names of the two sisters yet the intention of the parties discernable from the record was, that whereas the sisters were parting with their entire land (333 kanals) situated in Mauza Darya Khan, the brothers would in exchange transfer the entire land situated in Mauza Bhidwal Wala. If the land owned in Bhidwal Wala at the time of mutation Exh. Pl, was only the subject matter of exchange. Then question arises as to why a simultaneous mutation was not effected in the names of the sisters on the same date or around the same period. The only explanation for postponment of the transfer and mutation is that the acquisition of proprietory rights had not yet matured regarding the land of Bhidwal Wala. But when the acquisition of proprietary rights took place, the petitioner instead of transferring the same to the sisters, transferred the same to his sons, by way of gift. This was aimed at to frustrate the exchange agreement and to deprive of the sisters of their rights.
12. The matter can be looked at from an other angle. In case the petitioner No,1 was not willing to abide by the agreement of exchange as was agreed and accepted by the other members of the family, then in all fairness the land of Darya Khan 333 kanals should have been returned to the sisters. Now whereas they were led to transfer their land as far back as in the year 1965, the transfer in lieu has not been effected so far, and their deprivation continues. Section 119 of the Transfer of Property Act, 1882 lays down the principle of return and restitution to be applied in the situation like this.
13. The judgment cited by the learned counsel for the petitioner Mokim Mondal and another v. Ali Mian Pradhan and others (PLD 1967 Dacca 591) and Haji Shaista Gul v. Haji Duranai (PLD 1969 Pesh.
185) proceed on their own peculiar facts. Mokim Mondal's case is not applicable to the facts and circumstances of the case at all, whereas Haji Shaista Gul case supports the case of the plaintiff- respondent No, 1 and lays down principle of adherence to the terms of contract agreed by the parties.
14. Although the findings have been recorded concurrently by the Courts below yet I have gone through the pleadings of the parties and the evidence on record to satisfy myself and have come to the same conclusion. Having taken the transfer of 333 Kanals of land from their sisters, the agreement of exchange and transfer of land situated in Mauza Bhidwal Wala should have been honoured by petitioner No, 1, like respondents Nos. 2 to 7.
15. In this view of the matter I do not find any fault with the conclusions arrived at by the two Courts below. Suit of the respondent No, 1/plaintiff has been rightly decreed which calls for no interference by this Court.
16. As a result the revision petition is dismissed. No orders as to costs.