' This second appeal is from the decision dated 8-9-1961 of District Judge, Jhelum which reversed the judgment and decree dated 4-1-1961 of Civil Judge, Chakwal and dismissed the suit of the appellant.
2. The appellant instituted the present suit on 2-5-1960. He alleged in his plaint that he was the owner of 7 kanals and 1 marla of land in village Chak Kharak of Tehsil Chakwal.' A year prior to the institution of this suit he entered into an agreement with Qazi Muhammad Ayyub, respondent No, 1, for the exchange of this land with some land located in the same village which had been allotted to Qazi Muhammad Ayyub on a quasi-permanent basis. A mutation with regard to this exchange was recorded by the local Patwari in his relevant register. The permission of the Deputy Custodian, Jhelum for affecting the exchange was also obtained. Subsequently Qazi Muhammad Ayyub resiled from the agreement and had the mutation cancelled. Shortly thereafter he sold away his land to respondents Nos, 2, 3 and 4. On these allegations the appellant sought a declaration that he had become the owner of the land formerly allotted to Qazi Muhammad Ayyub. He also prayed for a consequential relief to the effect that the respondents be made to deliver the possession of the said land to him.
3. The suit was resisted by the respondents who inter alia alleged that the agreement of exchange upon which the appellant relied had been cancelled with the mutual consent of the parties and as such, before it could be given effect to, it had ceased to exist.
4. On the pleadings of the parties the learned trial Court framed the following issues
(1) And as the agreement of ,exchange of land mentioned in the plaintiff had been cancelled.
(2) Relief.
' After considering the evidence of the parties the learned trial Court held that the agreement of exchange had been implemented by the parties and as such the question of its cancellation did not arise. Accordingly, it decreed the suit of the appellant. On appeal by respondents Nos. 2 to 4 the learned District Judge came to the contrary conclusion and dismissed the suit. The appellant has now come in second appeal to this Court.
5. Both parties are agreed that initially the appellant Qazi Muhammad Ayyub had entered into an agreement to exchange their respective lands. At the trial the position taken up by the respondents was that this agreement was cancelled with the mutual consent of the parties before it could be enforced. On the other hand the appellant averred that it was given full effect by the parties. It is to be noticed that the position adopted by the appellant at the trial is different from the one taken by him in his plaint. Thus in para. 4 of the plaint he stated : {{URDU TEXT}} ' It is also to be noticed that one of the reliefs claimed by him related to the possession of the land in dispute. In view of these clear admissions in the plaint it is difficult to accept his contention that the agreement of exchange had been acted upon by the parties prior to the institution of the suit.
6. It is true that in his cross-examination' Qazi Muhammad Ayyub did admit that in pursuance of the agreement of exchange he had taken over the possession of the land of the appellant and delivered the possession of the land in dispute to the appellant but this admission was contrary to what he had said in his written statement which he had submitted jointly with the other respondents. It is also to be noticed that after having sold away the land in dispute to respondents Nos. 2, 3 and 4 before the institution of the suit he had no interest whatsoever left in the land in dispute. In view of these circumstances his admission does not carry conviction. In any case I am not prepared to place any weight upon it in the face of the clear averments of the appellant himself in the plaint.
7. Respondents Nos. 2 to 4 also led evidence to show that the parties had mutually agreed to cancel the agreement of exchange. This evidence consisted of the statements of the local Patwari, Ghulam Muhammad (D. W. I), Muhammad Marghoob Lambardar (D. W. 2), Muhammad Sadiq (D.
W. 3), Khuda Bakhsh (D. W. 4) and Qazi Muhammad Ayyub (D. W. 5). Even if the statements of Muhammad Marghoob, Khuda Bakhsh, Muhammad Sadiq and Qazi Muhammad Ayyub be ignored there is no reason why the testimony of Ghulam Muhammad Patwari who was an independent witness should be discarded. His testimony is supported by the fact that when the mutation came up for attestation neither of the parties to the exchange was present. It was not suggested to Ghulam Muhammad Patwari that he had kept back the information with regard to the date and time of the attestation of the mutation from the parties. I am therefore of the opinion that the agreement was cancelled by the mutual consent of the parties.
8. It is also to be noticed that the appellant bad brought his suit primarily for a declaration of title when according to his own plaint the agreement of exchange had not yet been acted upon. Now under section 42 of the Specific Relief Act a suit for a mere declaration of title does not lie where the plaintiff though in a position to claim a further relief omits to do so. Here if the appellant thought that the agreement of exchange was still in force he could ask for the relief of specific - performance. He did not care to seek it. Consequently the sun as framed by him was no maintainable.
9. During the course of arguments the learned counsel for the appellant made an application for the amendment of the plaint so as tenable him to ask for the relief of the specific performance of the agreement of exchange also. I told him that I was prepared to consider his request provided that he should first file a copy of the proposed amended plaint so that I could examine the amendment he intended to make. The amended plaint which he placed before me omitted a number of admissions which the appellant had made in the original plaint. When this position was pointed out to him be did not press his application for amendment.
10. For the reasons stated above I find no merit in this appeal which is hereby dismissed with costs.