JUDGMENT MAULVI ANWAR-UL-HAQ, J. - Shahoo the predecessor-in- interest of the petitioner and the respondent exchanged 2 acres of land each vide mutation No. 199 attested on 7.6.1935. The consolidation operation was carried in the village about 1 year before the institution of the suit.
During the course whereof it revealed that respondent was owner of only one acre of land out of the land given by him in exchange. The petitioners consequently lost the land which was not owned by the respondent. They filed a suit claiming a sum of Rs. 25,000/- as price of the land. The respondent filed a written statement which can very well be said to be evasive. In any case, the learned Civil Judge framed following issues and the parties went on trial :-
(1) Whether the plaintiffs have no cause of action?
(2) Whether the proper Court has not been paid? If so what is the effect?
(3) Whether the suit is not maintainable in view of objection (Alif) taken in the written statement?
(4) Whether the parties have made exchange of 16 kanals of land with one another and have taken possession of 16 kanals of land on the basis of possession?
(5) Whether the defendants had given the land to the plaintiff in exchange out of the joint khata and on the basis of consolidation proceedings and 8 kanals have been taken away for the possession from the plaintiffs?
(6) Whether the plaintiff is entitled to have the possession of the suit land in view of the land taken away from him and in the alternative Rs. 25,000/- from the defendant?
(7) Whether the suit is false frivolous and vexatious as such the defendants are entitled to special costs u/S. 35-A of CPC.
(7-A) Whether the suit is time-barred?
(8) Relief.
2. The learned Civil Judge found on the basis of evidence recorded by him that the petitioner could get only 7 kanals and 11 marlas of land thereby losing the remaining land which was given by the respondent in exchange and that this was in fact the only holding of the respondent. On the basis of said finding on issues Nos. 1, 4, 5 and 6 he decreed the suit of the petitioners. The respondent filed an appeal which succeeded and was allowed by a learned Additional District Judge, Gujrat.
3. Ch. Rizwan Mushtaq Khan, Advocate, appeared for the petitioner. Ch. Muhammad Shaukat Tarar, Advocate, had filed his power- of-attorney for the respondent. The name of the learned counsel is also published in the cause list for today. I waited for him till 12.30 p.m. But neither the learned counsel nor any one else on behalf of respondent turned up. 1 was left with no option but to proceed with the case with the assistance of the learned counsel for the petitioner.
4. The learned Additional District Judge without touching the merit of the findings proceeded to allow the appeal as he was of the opinion that a suit for Specific Performance should have been brought. I may mention her that the learned Additional District Judge upheld the finding of learned Civil Judge on issue No. 5 which is crucial issue on merits of the case. The learned Additional District Judge has committed an error of law. He himself upheld the finding that respondent's holding was only to the extent of 7 kanals and 11 marlas and thus, the petitioners lost the remaining land.
Perhaps it did not accur to the learned Additional District Judge that a suit for Specific Performance could not have been brought as respondent has been held by him in concurrence with the learned Civil Judge not to be the owner of the land which could have been given to the petitioner through Specific Performance. The suit was, therefore, competent in its present form. The provision of Section 119 of Transfer of Property Act, 1982 though not applicable strict senso to Punjab of the equitable principles Underlying the same do apply. The petitioners having lost land which they were entitled to receive in exchange, the learned Civil Judge competently exercised his jurisdiction and granted, relief to the petitioner to which they were entitled in equity. Even if by some stretch of imagination, it could be held that the land was available with the respondent option lay with the petitioner to claim compensation or to seek the delivery of the land. Mr. Justice Gul Zarin Kiani (as his Lordship then was) quoted with approval of the following excerpts from judgment of High Court of Madras in the case of M.K. Ranganatha/! And other Vs. The Calcutta Tramays Co. Ltd. And others (AIR 1956 Madras 285), while delivering judgment in the case of Muhammad Hussain and others Vs. Muhammad Nawaz and others (PLD 1991, Lahore 262).
"The short point tor determination is whether in such circumstances the only remedy open to the party who had delivered the goods in pursuance of the contract of exchange is to recover compensation or damages or to sue tor specific performance of the contract.
In our opinion, apart from these remedies which he might have, the aggrieved party can also claim the return of the goods delivered by him if they are in the hands of the other party or his legal representative or transferee from him without consideration. An exchange is defined thus by S. 118, T.P. Act:- "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 an exchange". There has been no such completed exchange in this case, because there has been no mutual transfer. One of the parties no doubt has transferred his property to the other but that other has not in his turn transferred his property. Section 119 is a specific provision dealing with a particular contingency.
That section confers a right on a party to an exchange who is by reason of any defect in t title of any party deprived of the thing received by him in excge, to claim compensation tor the loss caused thereby or at option 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."
5. For all that has been stated above, this civil revision is allowed. The judgment and decree passed by the learned Additional District Judge, Gujrat is set aside and that dated IS.3.1986 of learned Trial Court is restored without any order as to costs.
6. Revision.