1. ZAFFAR HUSSAIN MIRZA, J.-The respondents in this Letters Patent appeal are the legal representatives of one Begum Zulf Ara Faruque who had constructed a building on her two plots of land Bearing Nos. 251 and 1252, Garden West Quarters, Karachi. A portion of adjoining plot comprising 1213 sq. Yds in Survey No. 244. Garden West was at that time, in possession of the appellant who claimed to have acquired tenancy rights from one Hira Lal S. Sharma. The latter property subsequently became evacuee property. The appellant obtained from the Custodian of Evacuee Property Sind and Federal Capital, Karachi, an order dated 10-3-1950 declaring that the rights of the appellant as Iowa of the plot in question were not evacuee property and were not available for allotment. The said Begum Zulf Ara Faruque (hereinafter referred to as the respondent) having felt the need for some more land for the purposes of outhouses to be annexed to her building negotiated with the appellant for the relinquishment of his tenancy rights in her favour. The appellant agreed to the proposal and made a statement by way of an application to the Deputy Rehabilitation Commissioner, Karachi, dated 4-3-19552 to the effect that he is ready and willing to relinquish in favour of the respondent his louse-hold rights and consented to the said plot being allotted to her. On 5-3-1952 the latter made an application to the Collector and D. R. C., Karachi for allotment of Plot No. 244 on the basis of the appellant's statement agreeing to relinquish his rights in her favour. However, the Assistant Rehabilitation Commissioner, Karachi, informed the lady that under the existing policy of the Government tile plot could not be allotted to her and advised her that she may obtain the transfer of rights from the appellant. After some further correspondence with the Central Government in the Ministry of Refugee and Rehabilitation, the Central Government accorded the approval for the sale of the plot in question to the respondent at markets price, in exercise of powers conferred by section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957. Pursuant to this the plot eras transferred to the lady for a price of Rs. 10,917.
2. It seems that under the agreed arrangement the appellant made over the possession of Plot No. 244 to the respondent and in lieu thereof the respondent put him in possession of a vacant portion of her plot bearing Survey No. 443/3. The appellant then set up some buildings thereon and is in occupation thereof until the present controversy arose. The dispute arose between the parties when the respondent by her advocate's letter dated 15-1-1960 called upon the appellant to vacate the plot by the end of February, 1960. By this letter the respondent also claimed rent at the rate of Rs. 100 per month. The appellant did not heed to the notice and declined to comply.
3. The respondent thereupon filed Suit No. 23/61 on the original side of this Court (out of which the present Lottery Patent Appeal has arisen) for possession of the plot in dispute. The case of the respondent in the plaint was that the plot in dispute was put in occupation of the appellant as a tenant in lieu of relinquishment of his rights as a tenant in Plot No. 244. The respondent prayed for a decree for possession, removal of structures and other materials existing on the plot, payment of arrears of rent and mesne profits until the date of the suit, and further mesne profits at the rate of Rs. 100 per month from the date of suit till vacant possession is handed over.
4. The learned Single Judge before hearing the main case disposed of the above-said objection to maintainability by his order dated 31-8-1986, on the statement of respondent's counsel that the respondent did not wish to proceed with the suit for ejectment of appellant as a tenant and hold the suit to be one for ejectment of tenant and. In the alternative, for possession of property on the strength of title. Therefore, obviously even if the suit was barred if the relationship between the patties was that of landlord and tenant, it could proceed on the alternative plea as suit for possession based on title.
5. After considering the evidence adduced by the parties and hearing the counsel for the parties, by the impugned judgment the learned Judge on the original side decreed the suit of the respondent for possession and mesne profit as prayed from the date of suit lentil delivery of possession and allowed the appellant to remove his structures and other materials from the plot in question.
6. Aggrieved by this judgment, the appellant has brought this Letters Patent Appeal.
7. Mr. Nasim Farooqui learned counsel appearing for the appellant first challenged the two orders whereby, the learned Single Judge allowed the respondent to amend the plaint. He pointed oft that cute appellant had previously challenged these orders by L. P. A. No. 25 of 1967 which was dismissed by order dated 2-3-1967 but the appellant was permitted to challenge -the orders in air appeal against the final judgment if any. Counsel, accordingly, contended that the respondent was not entitled to amend the plaint in the manner allowed, the amendment had the effect of changing the character, of the suit from one for ejectment against tenant into a suit for posses-ion against a trespasser of title. We are, however not impressed by this contention. As rightly observed by the learned Single Judge in his order dated 31-1-1966, the suit as originally framed sought the relief of possession on the alternative pleas to the effect that the appellant was put in occupation of the plot as a tenant or if the appellant denied tenancy then the respondent was entitled to restoration of possession on the strength of title. By the amendments the respondent inserted two new paragraphs which merely incorporated in the plant the stand taken by the appellant that he .Had acquired title to the land by exchange and the consequent plea that in view of the denial of tenancy of the part of appellant, the respondent is entitled to claim possession on the basis of his ownership. In these circumstances we are of the view that no exception can be taken to amend-- ments allowed to be made in tae plaint. The respondent was entitled, in law to take alternative pleas and in any case, the plea of tenancy was categorically dropped and the suit, therefore, proceeded on the basis of wrongful possession of the appellant.
8. Mr. Farooqui next contended that the learned Single Judge misconceived the nature of the transaction between the parties whereby the appellant was put In occupation of the plot and missed the element of exchange which formed the foundation thereof. He urged that the appellant was in possession of the evacuee Plot No 244 by virtue of tenancy rights recognised by the Custodian and consequently in due course of time would have acquired title by transfer under the Settlement Laws. In exchange of relinquishment of his rights, therefore, the respondent agreed to transfer her title in plot No. 443/3/1. Counsel invited us to various documents on the record wherein the respondent herself admitted that the appellant was given the plot in dispute in exchange for surrendering hi rights in Plot No. 244. In this regard particular reference was made by the counsel first to document Exh. 14/30 which is a letter written by the husband of the respondent to Mr. W, M.
9. Abbasi, Secretary to Government of Pakistan, Ministry of Refugee and Rehabilitation, Karachi, wherein he stated : "I would be prepared to comply with any conditions that might be laid down and I might also be able to make mutual arrangement with Mr. Qureshi (appellant) for him to move somewhere else." He then referred to the next Exh. No. La/31 which is a reply to the aforesaid letter by Mr. W. M. Abbasi who stated therein that : "There is, therefore, no alternative except to make private negotiations with Mr. Tahir Hussain. If he is willing to relinquish his allotment of the whole or part of the plot. I could perhaps plead for permis--sion being giver. For this transfer although technically it is not permissible." The next document refused to was Exh 14/ i3 which is the application of the respondent to the Deputy Rehabilitation, Karachi wherein she stated z "In view of the above circumstances. I entered into an arrangement with the said Tahir Hussain, under which I obtained the said Plot No 244. Garden West, in exchange for my plot of land out of Survey No. 443/3/1. Sheet G R W, Martin Road (Tinhatti) Garden West, Karachi". Counsel then referred to Exh.
10. 14/3 which is a letter written of the respondent to Mr. Khalil, Secretary to Government of Pakistan, Ministry of Refugee and Rehabilitation. Karachi, wherein she stated that , "the exchange of Plot No. 244-GW measuring 1231 sq. Yds was negotiated with Mr. Tahir Hussain for a plot purchased by me at Tinhatti". Finally, the counsel referred to Exh. 14/40 which is also a letter to the Secretary Ministry of Refugees and Rehabilitation, Karachi by the respondent wherein she reiterated the fact that he entered into an agreement with Tahir Hussain under which she obtained plot of land in exchange for her plot of land it Tinhatti. Karachi. On the basis of these documents learned counsel strenuously contended that the record of evidence in this case abundantly establishes the true nature of the transaction between the parties to be an exchange. Learned counsel urged that the absence of a registered instrument of transfer in favor: of the appellant did not materially alter his position, as he could defend his possession by virtue of section 53-A of the Transfer of Property Act.
11. Now "exchange" has been defined in section 118 of the Transfer of Property Act in the following terms "'When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being mentioned only, the transaction is called exchange.
12. The transfer of property in completion of an exchange can be only in the manner provided for the transfer of such property by sale."
13. The bare reading of the cited provisions makes it clever that the essential character of a transaction of exchange is a mutual transfer of the 'ownership' of property by two persons. Thus, where there is a transfer of ownership by one of the parties only, and not by the other the transaction is not an exchange, as there 1s no mutual transfer of ownership. In Waliul Bassan v.
14. Gopal Saroon 6 C W N 905, where a lessee surrendered his leasehold interest to his landlord in consideration of another lease given by the latter of other property, it was held that the transaction was not an exchange.
15. The facts of the instant case are that the appellant exchanged, at best. His tenancy rights and possession allegedly with the ownership in the disputed plot. There is, therefore, no mutual exchange of ownership between the parries. The transaction, therefore does not satisfy the essential ingredients of 'exchange' a9 provided under section 118 of the Transfer of Property Act.
16. Apart from this the only evidence of the transaction has come, as referred to by the learned counsel for the appellant, from the documents consisting of correspondence. Made b-v the respondent with the government apartment. The wordings of these documents do not clearly stipulate whether it was agreed that if a title in the disputed plot would be transferred or the transferee was merely to hold possession. There is no other document evidencing the transaction from which the true nature and the terms of the transaction could be ascertained. The learned Single Judge., after carefully considering the evidence on record rejected the plea of the appellant oat he had acquired the title to the land in dispute by exchange and in this regard made a reference to document Exh. 6/5 which is an application dated 4-3-1952 by the appellant himself to the Deputy Rehabilitation Commissioner, Karachi, wherein he stated that : "I am ready and willing to relinquish in favour of Begum Zulf Ara Faruque. I have no objection if the said plot is allotted to her".
17. It was on this basis that the respondent applied on the next day (Exh. 6/6) for allotment of Plot No. 244 and stated therein that the appellant seas willing to relinquish his rights in her favour. On this evidence the learned Single .Fudge accepted the explanation of the respondent that the appellant was put in possession of the disputed plot as an alternative arrange--ment till he could find out another suitable plot for himself. We are unable to find fault with the conclusions drawn by the learned Single Judge and entirely agree with his findings on this issue.
18. The contention founded upon section 53-A, Transfer of Property Act has also no merit. Firstly, this plea was not urged in the written statement or before tie trial Court and has been urged for the first time before u s.1 Be that as it may, the essential requirement for the application of the provisions of section 53-A is that theta ought to be a writing signed by the. Transferor or ran hi:; behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
19. In the present case the writings relied upon besides being vague in nature, as observed earlier, were not addressed to the appellant who claims to be the other contracting party. In Shraran Jaayaram v. Garbad Okha AIR 1943 Bom. 406, it was observed that a contract in writing or a written agreement is sine qua non under section 53-A, that is to say. The writing relied upon must itself be the contract. In this behalf Loker. J. Further observed that a distinction must be drawn between a writing which is a reduction into writing of a previous oral agreement, which would fall within the provisions of section 53-A and a writing in which there is a mere reference to a previous oral agreement Accordingly he held that an application by the plaintiff to have defendant's name entered in the mutation register in respect of certain land on the ground that it had been sold by him to the defendant orally and setting out the terms of the sale is not sufficient to satisfy the requirements of section 53-A because it contains only a rental of a past event and is not in itself a contract or agreement of sale. In another case from the Indian jurisdiction reported as 'A.
20. Gangadhara Rao v. G. Ganga Rao A 1 R 1968 A P 291, Ekhote, J. Observed the distinction referred to above in the Bombay case in the following words : "A distinction has to be drawn between an agreement which has reference merely to previous oral agreement and a document which not only refers to the previous oral agreement but brings out all the terms of the oral agreement and incorporates them in the document. While the former may not be of any assistance in so far at the question of part performance is concerned, but certainly the second one can be used for the purpose of section 53-A. "
21. The learned counsel for the appellant finally half heartedly urged that in the facts of this case, the appellant was at least the licensee of the plot and. Therefore, in view of the fact that he put up permanent structures on the land his licence is irrevocable under section 60 of the Easements Act.
22. In the first place no issue was framed on this question by the trial Court and the only issue which had any reference to the structures put up by the appellant :vas incorporated in Issue No. 4 which is in the following terms "is the plaintiff entitled to claim possession of the plot without making payment for the construction and improvements made by the defendant ?"
23. It, therefore, appears that the plea of licence seems to have been given up by the appellant and the only Question in issue between the parties was whether the respondent was liable to pay compensation for the constructions and improvements made by the appellant on the plot. This being a question of fact cannot, therefore, be allowed to be urged to appeal. Be that as it may, counsel did not point out anything in the evidence to indicate the character of the structures raised on the plot, to determine the nature thereof. 1n any cam the learned Single Judge has permitted the appellant to remove his structures and other materials from the plot, if he so desired. This contention also, therefore, fails.
24. For the foregoing reasons we find no merit in this appeal and accordingly dismiss the same with no order as to costs.
25. I. MAHMUD, J.-I agree.