JUDGMENT M. JAVED BUTTAR, J.- This revision petition is directed against the judgment and decree dated 19.12.1993 passed by Additional District Judge, Sialkot whereby appeal of respondent No. 2 Muhammad Amjad Khan was accepted, the judgment and decree dated 3.6.1990 of the Senior Civil Judge, Sialkot was set aside and the^petitioners/plaintiffs' suit was dismissed.
2. The relevant facts are that the petitioners were previously owners of land in village Ganjianwali, Tehsil and District Sialkot and the respondent/defendant Muhammad Amjad Khan was owner of land in village Bhinder, Tehsil Sialkot. The parties entered into an oral agreement of exchange of their lands with each other. The mutation No. 602 (Ex.P, 12) showing the exchange of respondent/defendant's land and of transferring of the same to the petitioner situated in Mauza Bhinder was attested on 25.1.1963 and similarly mutation No. 1343 (Ex.PI) of exchange of land situated in Mauza Ganjianwali and of its transfer to respondent/defendant was attested on 13.4.1964. The land situated in Mauza Ganjianwali previously belonging to the petitioner was evacuee in character and was purchased by the petitioners from the allottee through registered sale deed, registered on 30.6.1962. On 31.5.1964, a note was given on the relevant RL-II that the said land stood cancelled from the name of the allottee, the predecessor of the petitioners, due to the cancellation of his allotment. On this basis, the Revenue Officer sought review of exchange mutation No. 1343. The Revenue Officer after obtaining sanction for review, vide his order dated 13.1.1965 (Ex. P2) cancelled exchange mutation No. 1343 pertaining to village Ganjiani on the ground that the original allotment in favour of the petitioner's predecessor had been cancelled and on the same basis other mutation of exchange No. 602 pertaining to Mauza Bhinder was cancelled on 30.9.1966. The petitioners' appeal against the order dated 30.9.1966 was accepted by the Collector an 27.3.1967 and mutation No. 602 whereby the respondent's land situated in Mauza Bhinder, given to the petitioners, was restored. The respondents' revision petition was accepted by the Additional Commissioner (Revenue), Gujranwala Division, Gujranwala on 14.11.1967 and the order of Collector dated 27.3.1967 was set aside. The petitioners' revision against the same was dismissed by Member Board of Revenue on 25.5.1970 but the petitioners' review petition was accepted by the Board of Revenue, Punjab, Lahore on 22.3.1972 and the case of both the above said mutations was remanded to AC-II, Sialkot for fresh inquiry and for fresh decision. Thereafter, AC-II Sialkot vide his order dated 6.9.1972 maintained/restored mutation No. 1343, whereby the petitioners land was given to respondents and similarly vide his order dated 27.9.1972 restored mutation No. 602 pertaining to Mauza Bhinder in original whereby respondents' land was given to the petitioners.
Being aggrieved thereby, the respondents filed an appeal against the restoration of mutation No. 602 and against the transfer of his land in Muza Bhinder, to the petitioners on the ground that the agreement between the parties was that in addition to the land evidenced in exchange, the petitioners were also to pay him Rs. 800/- per acre and the said consideration was never paid, therefore, the exchange was vitiated. The Collector, Sialkot vide his order dated 23.11.1974 accepted the respondents' appeal. The order of restoration of mutation No. 602 was set aside, mutation No. 602 thus stood cancelled and the respondents original ownership stood restored to him. The Additional Commissioner, Gujranwala Division, Gujranwala vide his order dated 11.1.1975 dismissed the petitioner's appeal and the Member (Revenue), Board of Revenue, Punjab, Lahore vide his order dated 14.3.1983 while dismissing the petitioners' revision petition against the orders dated 23.11.1974 and 11.1.1975 of the Collector, Sialkot and of Additional Commissioner, Gujranwala Division, Gujranwala, observed that the matter can be best settled through Civil Court. The petitioner's writ petition No. 1417/83 was dismissed by this Court in limine on 4.9.1983 and the findings of the Board of Revenue that such a dispute required to be decided by the Civil Court, was upheld. Thereafter, the petitioners/plaintiffs, on 8.5.1983, instituted the present suit for declaration to the effect that they were owners in possession of the property situated in Mauza Bhinder, Tehsil and District Sialkot on the basis of exchange between the parties. The suit was resisted by respondent No. 2/defendant through written statement. He maintained in his written statement that the respondents had purchased specific khasra number in village Ganjiani from the original allottee which were cancelled from the names of the original allottees and, therefore, he continued to be the owner of his land in village Bhinder. He further maintained that possession of land in village Ganjiani was never delivered to him and thus the exchange was never completed.
3. Learned Trial Court framed following issues, out of the pleadings of the parties:- "(1) Whether the Civil Court has no jurisdiction to try the suit? OPD.
(2) Whether the plaintiffs have not come to the Court with clean hands, if so, its effect? O PD
(3) Whether the plaintiffs have no cause of action? OPD
(4) Whether the orders mentioned in para No. 14 of the plaint are illegal, void and without jurisdiction for the reasons given in the plaint? OPP
(5) Whether the defendant. No. 2 is estopped from withdrawing from oral exchange? OPP
(6) Whether the plaintiffs are owners of the suit land by means of adverse possession? OPP.
(7) Relief."
4. Learned Trial Court after recording the evidence of the parties, heard the arguments of the learned counsel tor the parties and vide its judgment and decree dated 3.6.1990, decreed the petitioners' suit and as mentioned above, learned Additional District Judge, Sialkot vide his judgment ad decree dated 19,12.1993 accepted the respondents' appeal, set aside the judgment and decree of the Trial Court and dismissed the petitioners' suit leaving the parties to bear their on costs.
5. I have heard the learned counsel for the parties and have also seen the record.
6. It is contended by the learned counsel for the petitioners/plaintiffs that in the present suit, the petitioners have challenged all the orders of the revenue authority, referred to above, and have claimed their ownership over the land the dispute situated in Mauza Bhinder on the basis of exchange and that the officers on the revenue side had no jurisdiction to cancel mutation of exchange merely on the basis of some note existing on the alleged RL-1I which has never been produced in evidence; it is also argued that as far as the exchange between the parties is concerned, the same is an admitted position between them and the defendant himself as DW-1 in his examination in chief has admitted this fact. It is further submitted that the execution of mutation No. 602 by the defendant in favour of the petitioners is also an admitted fact. Reference in this regard is made to the statement of the defendant as DW-1. Learned counsel also argued that the possession of the land in dispute situated in Mauza Bhinder was delivered in exchange by the respondents/defendants to the petitioners, which is an acknowledgement of exchange and proves the existence of exchange and that no fraud is alleged against the petitioners/plaintiffs. It is also argued that the respondent/defendant has taken an incorrect plea in the written statement that he never entered into an exchange agreement with the Petitioner/plaintiff whereas his case before the revenue authorities throughout was that as the agreement was not only for the giving of the land by the petitioners owned by them in Mauza Ganjianwali but also Rs. 800 per acre for the land being transferred by the respondents to the petitioners and the exchange, according to the respondent-defendant, stood nullified because of the non-payment of the additional consideration money.
7. On the other had, learned counsel for the respondents/defendants while vehemently opposing this revision petition has submitted that the exchange between the parties was never completed; the petitioners/plaintiffs never delivered the possession of the land in exchange to the defendants and finding of fact to this effect has been recorded by the appellate Court in para 7 of its judgment; the judgment of the appellate Court does not suffer from misreading or non-reading of evidence to warrant interference of this Court in the exercise of its constitutional jurisdiction under section 115 CPC; that the petitioners/plaintiffs were never owners of the land intended to be conveyed to the respondents/defendants in exchange; that the respondent never admitted any- where the agreement of exchange between the parties and he has throughout denied the existence of exchange, so much so that even before the revenue authorities, his case has been that no contract of exchange look place between the parties and in view of this dear cut denial by the respondent/defendant, onus lay heavily on the plaintiffs to prove the existence of agreement of exchange between the parties. In the alternative, it is argued that even if it is held that the parties entered into an agreement of exchange, but the same was never completed as agreed between the parties and the same is not binding on the respondents.
8. The perusal of judgment of the appellate Court shows that the appeal of respondent No. 2 Muhammad Amjad Khan has been accepted on the following grounds:-
(i) The possession of the petitioners' land situated in Mauza Ganjianwali was not delivered to respondent No. 2, under the exchange.
(ii) The land owned by the petitioners situated in Mauza Ganjianwali, given in exchange to respondent No. 2, which was previously purchased by them through registered sale deed dated 30.6.1962 from the original allottee was not in existence because the allotment of the evacuee land in favour of the original allottee stood cancelled, and (i.e) The orders of the revenue authorities are against the petitioners and are in favour of respondent No. 2.
9. All the facts and circumstances, including the evidence produced by the parties shows that the parties entered into an agreement of exchange of their ownership with each other. This is the underlying presumption in the impugned judgment as well. The appellate Court. Has not held that the parties did not enter into any agreement of exchange with each other these circumstances, the absence of transfer of possession is not relevant and a valid exchange cannot be cancelled, set aside or declared to be illegal merely on the ground that the party seeking setting aside of the exchange was not delivered the possession of the land given to it under the exchange. In Ch. Allah Bakhsh vs. Karam Ellahi and 4 others (PLD 1988 Lahore 419), a learned Single Judge of this Court while, very correctly, repelling such a plea/argument held that "Argument .Of the learned counsel that the possession of the property did not change even if it was proved was not in itself a weighty circumstance to tell on the genuineness of the transaction of the exchange. "Exchange" is defined in Section 118 of Transfer of Property Act, 1882. It is transfer of ownership of one thing for the ownership another, neither thing or both things being money only. Absence of transfer of possession would not prevent an exchange from being an exchange." It i^| thus manifestly clear that mere the absence of delivery of possession cannot form the basis for holding the transaction of exchange as illegal. In the present case, there is no material to suggest that it was not a genuine transaction and suffered from the vice of collusion. It is thus held that the parties entered into a valid transaction of exchange with each other. The learned appellate Court has incorrectly held that the allotment of original allottee, the predecessor of petitioners, stood cancelled. Had this beer factually correct, it would have been a valid reason for setting aside the transaction of exchange because in such a situation' there would have beer ho property/ownership to exchange with. There is nothing on the record showing the cancellation of petitioners' land from the name of their predecessor from whom the petitioners purchased the same in Mauzi Ganjianwali through registered sale deed dated 30.6.1962. In fact th' revenue record produced by the parties, pertaining to Mauza Ganjianwali Tehsil and District Sialkot shows otherwise. It shows the existence o petitioners' ownership of land in the village which was transferred tc respondent No. 2, in exchange, through mutation No. 1343 dated 13.4.1964. Thus the allotment in favour of the original allottee remainer intact and a valid exchange took place. The appellate Court has accepted the respondents' appeal, amongst others, on the ground that the orders o revenue authorities are in favour of respondent No. 2. The appellate Cour did not bother to took into the final order dated 14.3.1983, of Member (Revenue) Board of Revenue, Punjab, Lahore which was upheld by this Court on 9.4.1983 in Writ Petition No.1417/83. The perusal of the orders show that the petitioners' revision petition was dismissed by th Board of Revenue merely on the ground that such a question required to b settled by the Civil Court and no decision was given by the Board o Revenue in regard to- the merit of exchange of their ownership by th parties. Even otherwise, any such decision by the Board of Revenue would< have been subject to the scrutiny by the Civil Court which is a Court c ultimate jurisdiction. In this regard, the judgment of the appellate Court suffers from non-exercise of jurisdiction^vested in it under the law.
10. In view of the above mentioned, the revision petition is accepted and the judgment and decree dated 19. 12.1993 of Additional District Judge, Sialkot is set aside and the judgment and decree dated 3.6.1990 passed by Senior Civil Judge, Sialkot is restored. The parties are, however, left to bear their on costs.