1. ' CH. MUHAMMAD ARIF, J.---Leave is claimed against judgment, dated 11-4-1997 whereby the Lahore High Court, Lahore dismissed Civil Revision No.30 of 1986 and upheld the judgment, dated 11-11-1985, in appeal under section 96, C.P.C., of a learned Additional District Judge, Sahiwal who had declined to interfere in the judgment and decree, dated 6-2-1985 of the learned Trial Judge in a litigation between the parties who are brothers inter se in a suit for declaration and permanent injunction brought by respondent No.1 against the petitioner and Asgher Ali, respondent No.2 herein.
2. Respondent/plaintiff Syed Riaz Hussain Shah owned an Ihata No.10942 measuring 5 Kanals 8 Marlas 5 Sarsahies jointly with his brother/respondent No.2 Asghar Ali in equal shares situated at Sahiwal. Respondent No.1 Syed Riaz Hussain Shah was owner of 2 Kanals 13 Marlas and 2-1/2 Sarsahies according to his share out of the said Ihata. On the strength of ar oral agreement between respondent No.1 and the petitioner, for exchange of his abovesaid share with two acres of land belonging to the petitioner situated in village Doula Bala, Tehsil and District Sahiwal, on 10-8- 1967, respondent No.1 got mutation of his share in the suit. Ihata measuring 2 Kanals 13 Marlas and 2-1/2 Sarsahies sanctioned in favour of the petitioner, through Mutation No.4723, Exh.P.1 and in exchange of the above-referred share, petitioner was to transfer 2 acres of his agricultural land situated in village Doula Bala. Ones failure to do so, respondent No.1 filed a suit for declaration, before the, learned Civil Judge on 7-3-1978, title whereof reads thus:-- "Suit for the grant of declaration to the effect that the plaintiff is the owner in possession of one-half of Ihata No.10942 (measuring 5 Kanals 6 Marlas 5 Sarsahies) jointly with his brother Asghar.Ali, comprising of Khewat No.1319, Khatauni No.1822-Min, pertaining to Sakni Jamabandi of Sahiwal for the year 1962-63 and the Mutation No.4723 shown to have been attested of the plaintiff's one-half share thereof in favour of defendant No.1 from the plaintiff dated 30-8-1967 is illegal ultra vires, void, mala fide, without jurisdiction, nullity, non-existent and inoperative and ineffective against the ownership rights of the plaintiff who is jointly owner thereof alongwith his brother to the extent of one-half share:-- or Perpetual Injunction by way of consequential relief restraining the defendants or anybody else acting through or on their behalf from in any manner interfering into the ownership possession of the plaintiff over the aforementioned Ihata, or entering upon the same forcibly and also from in any manner alienating the same to anybody else, and from dealing with the said Ihata in any manner on the basis of the so-called Mutation No.4723 attested on 30-8-1967."
2. ' The parties went on trial on the following issues:--"ISSUES: Whether the suit is not maintainable in its present form? OPP.
3. Whether the suit is not maintainable for the reason that it is brought to set aside mutation.? OPD.
4. Whether the plaintiff has to come with clean hands, if so, its effect? OPD.
5. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPD.
6. Whether the suit is within time? OPP.
7. Whether the plaintiff is owner in possession of one-half of the suit fhata jointly with Asghar Ali defendant No.2? OPP.
8. Whether the Mutation No.4723, dated 30-8-1967 is illegal, ultra vires, void, mala fide, without jurisdiction nullity, non-existent and ineffective against the rights of the plaintiff? OPP.
9. Whether the plaintiff is entitled to the injunction prayed for? OPP.
10. Relief."
11. ' The learned Civil Judge decreed the suit on 6-2-1985 against which the appeal of the petitioner was dismissed by a learned Additional District Judge, Sahiwal, on 11-11-1985. The Appellate forum proceeded with the dismissal of the appeal by upholding the findings of the learned Trial Judge deciding Issues Nos.1, 2, 3 and 4 against the petitioner and Issues Nos. 3 to 8 in favour of respondent .No.1. The objections to the bon-maintainability of the suit in its present form i.e. that mutation cannot be challenged therein; that plaintiff-respondent had not come to the Court with clean hands and that deficient court-fee had been paid, were reflected in Issues Nos.1 to 4 and, as the onus of proof of the said issues was on the petitioner and as he did not lead any evidence thereon, the same were repelled. The observations were that the suit in the form of declaration and injunction was in order; that respondent No.1 is owner of the suit Ihata and Mutation No.4723, dated 30-8-1967 regarding the transfer of suit Ihata is nullity in the eye of law with the result that it has no effeci on the rights of respondent No.1 who was possessed of the requisite right to challenge it as he did. It was also observed that respondent No.1 had transferred his share in the disputed Ihata and it was the petitioner who did not transfer two acres of land in his favour as agreed between the parties and that proper court-fee had been paid by the plaintiff/respondent No.1. Paras. 11 and 12 of the judgment made by the learned Additional District Judge read thus:-- As regards limitation the onus of Issue No.5 was on respondent No. 1 . The agreement of exchange between the parties was held on 30-6-1967 vide Mutation No.4723. It is contended on behalf of respondent No.1 that this mutation is a nullity in the eye of law because it never created any right in favour of the appellant and it can only be read as a piece of evidence in support of the transfer. It was a mutation of exchange and the appellant had to transfer his two acres of land in village Doula Bala, which he did not do till 1974. Therefore, this document is of no utility and the appellant cannot rely upon it as he himself failed to perform his part of the contract, which was necessary for the implementation and validity of this document Exh.P.1. According to appellant the limitation starts in the instant case from 30-8-1967, therefore, the suit is barred by time. It is urged on behalf of respondent No.1 that since the mutation Exh. P.1 does not create any title in favour of the appellant as he failed to give his two acres of land in exchange therefore, it is a useless paper and respondent No.1 stands at the pedestal, where he stood on 30-8-1967 before the sanction of mutation Exh.P.1 and when his title over the su't Ihata is denied by the appellant only then the limitation would start running. In view of what has been discussed above, I am fully convinced that Exh.P.1 was not carried out in letter and spirit, therefore, it did not create any right in favour of the appellant and limitation shall start running from the day when respondent No.1 's right over the suit Ihata is denied by the appellant. In .forming this opinion I am guided by the law laid down in PLD 1969 Lahore 1039, PLD 1968 Peshawar 169, PLD 1984 Peshawar 111 and the instant case the suit is within time. I, therefore, maintain the findings of the reamed trial Court on issue No.5 also.
12. It is hardly denied that there was an exchange agreed between the appellant and respondent No.1, in which the respondent No.1 had to transfer two Kanals 13 Marlas 2-1/2 Sarsahies out of the suit Ihata in favour of the appellant and the appellant in lieu that of had to transfer his two acres of agricultural land situated in village Doula Bala. It is also not denied that in prosecution of the bargain of exchange respondent No.1 got the mutation Exh.P.1 sanctioned in favour of the appellant, it was the incumbent upon the appellant to transfer his two acres of agricultural land in favour of respondent No.1, as settled in Mutation No.4723 Exh.P.1. The documentary evidence on record shows that since 31-12-1973 the appellant remained owner of the land measuring 20 Kanals 18 Marlas, in village Doula Bala and till then he did not transfer 2 acres of the land in favour of the respondent No.1 as he was bound to do on 1-1-1974 the appellant transferred his entire land measuring 20 Kanals 18 Marlas in favour of his son Ijaz Haider, therefore, he did not own any piece of land in village Doula Bala after 1-1-1074. The appellant in his oral evidence has tried to prove that he did transfer 2 acres of land in favour of respondent No.1, which he subsequently sold to him for a consideration of Rs.10,000. This contention of the appellant is not supported from the evidence produced by him. There is not an iota of evidence on the record to show that he ever transferred 2 acres of his land in village Doula Bala in favour of respondent No.1 and so also that respondent No.1 sold the same land to him. The oral evidence regarding the payment of Rs.10,000 is also not worth to be believed because it is meagre, contradictory and full of discrepancies on all the material particulars. Exh.P.1 was only effective had the appellant given 2 acres of his land in village Doula Bala to respondent No.1. As the appellant did not give in exchange 2 acres of land, therefore, Exh.P.1 is a useless paper, having no value for the appellant. It was only effective had the appellant given 2 acres of land to respondent No.1 Exh.P.1 therefore, does not confer any title in favour of the appellant because he in exchange did not transfer the land to respondent No.1. Otherwise mutation is not a document of title as held in PLD 1984 Pesh. 111 and PLD 1968 Pesh.
169. It is fully established on the record that possession of the disputed Ihata is still with respondent No.1 and it is jointly owned by both the respondents."
3. The revision petition of the petitioner was dismissed by approvingthe reliance placed by the learned Additional District Judge on Hussain Baldish and others v. Settlement Commissioner and another (PLD 1969 Lahore 1039), Mst. Bibi Mukhtiar v. Mst. Amrezn and another (PLD 1968 Peshawar 169) and Mst. Karim Jan and 3 others v. Anwar Khan and another (PLD 1984 Peshawar 111). It was further held that: "The suit of respondent No.1 was in time from the date his title was denied by the petitioner/defendant". Similarly, the objection relating to the form of suit was held to be of no substance as the suit of the respondent seeking a declaration was based upon his assertion that he was in possession jointly with Asghar Ali respondent No.2. The observation in para. 12 of the judgment of the learned Additional District Judge was also approved by the High Court with the observation that since respondent No.1 was in possession of the disputed Ihata, the suit for declaration that mutation in dispute was null and void and ineffective against the rights of respondent/ plaintiff, was maintainable. The learned Judge of the High Court has not been shown to have fallen into any error in repelling the contention of the petitioner that sanctioning of the mutation could be impugned before the Revenue Officers concerned. It was specifically observed that the exchange having been given effect to in the said mutation and intricate questions of the law and facts requiring recording of evidence being involved, the civil suit (by respondent No.1) was not barred under any provision of law. As regards the plea of the petitioner that breach of agreement, if any, did not entitle him (the plantiff) to a declaratory decree, it was correctly observed that such a plea is devoid of any force as the agreement was not honoured by the petitioner and plaintiff's suit under section 42 of the Specific Relief Act (No.I of 1877) was in order.
13. Paras. 10 and 11 of the impugned judgment read thus:-- The petitioner has transferred his entire property on 1-1-1974 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.1 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.1 and so also that respondent No.1 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.1 was only effective had the petitioner given 2 acres of land in village Doula Bala to respondent No.1. Petitioner did not transfer abovesaid 2 acres of land, therefore, Exh.P.1 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.
14. 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 abovesaid mutation, therefore, that mutation was invalid and of no consequence. The concurrent findings of facts of the Courts below call for no interference in exercise of revisional jurisdiction of this Court."
4. We have heard the learned counsel for the parties and have also gone through the material with their help. We inclined to agree with the ' learned counsel for the caveator that his client being in possession jointly with the 3rd brother and the exchange being a mutual transaction, the cases reported as Ilam Din and others v. Muhammad Sharif and others (1990 SCMR 1642), Tahir Hussain v.
15. Ghulam Faruque and 7 others (PLD 1978 Karachi 182), Muhammad Shah v. Sher Muhammad and another (PLD 1969 Peshawar 103) go a long way in proving the case of respondent No.1, in line with the concurrent findings of all the Courts.
16. It is not the case of the petitioner that respondent No.1 was not in joint possession with respondent No.2. It was in this view of the matter, which is clearly supported by the material on record, that the suit of the respondent was held to be within time, as it started running from the day when the petitioner denied the right of the plaintiff over the suit Ihata.
17. Moreover, the offer made by the petitioner through his learned counsel before the High Court for the transfer of two acres of land to respondent No.1, was not accepted by the latter on the ground that it was being made at too belated a stage and that too when the value of Ihata in dispute had increased manifold. The observations made by the High Court that: "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 property anymore . The price of the Ihata has appreciated meanwhile and for this reason petitioner is ready to transfer two acres of land . This offer in fact indirectly amounts to acceptance of the claim of the " have not been shown to be advancing the case of the petitioner a wee bit.
18. No other point was argued. .For all that has gone before, the instant petition is dismissed and B leave to appeal is refused.