PLJ 2011 SC (AJ&K) 17
[Review Jurisdiction]
[Review Jurisdiction]
Present:
Syed Manzoor Hussain Gilani, A.C.J. and Ch. Muhammad Ibrahim Zia, JJ.
Haji
NAZEER AHMED--Petitioner
versus
Raja
MUHAMMAD SAEED KHAN and 11 others--Respondents
Civil
Review Petition No. 4 of 2007, decided on 1.2.2007.
(In
the matter of review from the judgment of this Court dated 9.1.2007 in Civil
Appeal No. 92 of 2005)
Supreme
Court (Power of Review) Act, 1980--
----S.
2--AJ&K Interim Constitution Act, 1974--Scope of
review--Jurisdiction--Supreme Court (Power of Review) Act, empowers the Supreme
Court to review its judgment within the scope prescribed by rules. [P. 21] A
Civil
Procedure Code, 1908 (V of 1908)--
----O.
XLVII, R. 1--Supreme Court (Power of Review) Act, 1980, S. 2--Scope of
review--In criminal cases review can only be made if an error is apparent on
the face of record, but in cases the scope of review is broader--A judgment can
be reviewed in civil proceedings on the grounds similar to those mentioned in
Order XLVII, Rule 1 of CPC. [P. 21] B
Review--
----Scope
of review--Civil cases--For enunciation of principle of law--Review is
justified--In civil case the scope of review is justified--In civil case the
scope of review is wider than the criminal cases--In a civil case if a mistake
or error apparent on the face of record or any other sufficient reason is
discovered which calls for review, then review jurisdiction may be exercised
for avoiding injustice, but such depends upon the facts and circumstances of
each case. [P. 21 & 22] C
Power
of Attorney--
----Not
co-owners or co-sharers in property--Validity--Although he was attorney of
these co-owners, but an attorney cannot become owner of the property on the
basis of power of attorney. [P. 22] D
Transfer
of Property Act, 1882 (IV of 1882)--
----S.
118--Gift-deed--Ownership of the plot was not transferred to co-owner of
land--Execution of exchange-deed on or before filing of suit--Exchange-deed
properties were never exchanged--No exchange was effected--Validity--To make a
transaction exchange, the mandatory legal requirement is to mutually transfer
ownership of one thing for ownership of another thing and if it is proved that
the ownership of a thing is not transferred to other person, then it cannot be
called exchange. [P. 23] E
Words
and Phrases--
----Apparent--For
appreciation of term apparent on the face of record, it will be useful to
reproduce definition of words "apparent and appear on face" as given
in Blacks Law Dictionary, Sixth Edition. [P.
23] F
Appreciation
of Documentary Evidence--
----Cogent
documentary evidence was not discussed in the judgment--Rather the judgment was
totally silent in this regard which clearly proves that this cogent evidence
remained unattended by the Court. [P. 24]
G
Exchange-deed--
----Appreciation
of documentary evidence--Properties mentioned in alleged exchange-deed were not
exchanged between the parties, therefore, the alleged
exchange-deed was not exchanged according to law. [P. 25] H
Quantum
of proof in civil cases--
----Principle
of law--Question of--Whether cumulative effect of such material creates
preponderance of probability--Validity--Quantum of proof in civil cases is
different as compared to criminal cases--Held: In civil cases only
preponderance of probability is to be seen to record findings in favour of
parties as compared to criminal cases where offence is to be established beyond
reasonable doubt--In a civil case the Courts have to see cumulative effect of
all the material placed on record and if such material creates preponderance of
probability in favour of party that party must win the case. [P. 25] I & J
PLJ 1982 SC (AJK) 116, fol.
Transfer
of Property Act, 1882 (IV of 1882)--
----S.
119--Valid exchange must be mutual transfer of "ownership" of
property by two persons--Where a deed shows transfer of property by one of the
parties only and not by the other, the transaction cannot be regarded as
exchange--Requirements for valid exchange as per S. 119 of Transfer of Property
Act, are registration of document and transfer of the possession. [P. 27] K
Exchange-deed--
----Failed
to prove of delivery of possession--Document was executed with mala-fide
design--Direct evidence was neither available nor was
possible--Validity--Supreme Court had no hesitation in concluding that exchange
deed executed was not bona fide and the same was in fact a sale, therefore,
findings were hereby reversed and it was declared that exchange deed was sale
deed. [P. 28] L
Preferential
Right--
----Findings
recorded by First Appellate Court were correct, therefore, it was held that
appellant had preferential right of prior purchase. [P. 28] M
Petitioner in person.
Mr.
M. Tabassum Aftab Alvi, Advocate for Respondent No.1.
Date
of hearing: 20.4.2010.
Order
Ch. Muhammad Ibrahim Zia,
J.--This review petition is filed against the judgment of this Court dated
9.1.2007.
2. The brief facts, which led to the filing of
present review petition, are that proforma-Respondents No. 2 to 12 (hereinafter
to be referred as Party No. 1) were owners of land comprising Khewat No. 25,
Khasra Nos. 24 and 27, measuring 4 Kanals, 2 Marlas, situate in village Arja,
Tehsil Dhirkot, District Bagh. Raja Muhammad Saeed Khan, Respondent No. 1
(hereinafter to be referred as Party No. 2), was owner of land comprising
Khasra No. 754, measuring 7 marlas, situate in village Ratta-Amral, Tehsil and
District Rawalpindi. Both Parties No. 1 and 2 through alleged exchange-deed
registered on 25.6.1999 exchanged with each other the above mentioned
properties. The present petitioner filed a suit for declaration against the respondents
in the Court of Sub-Judge Dhirkot on 23.10.1999, stating therein that the
exchange-deed executed between Parties No. 1 and 2 is not exchange rather it is
a sale and he is entitled to a decree for possession on the basis of right of
prior purchase. The suit ultimately failed and the first appeal before the
District Judge also met the same fate. However, the petitioner succeeded in
second appeal before the High Court. Respondent No. 1 with the leave of the
Court filed an appeal which was ultimately decided in his favour, thus the
judgment and decree of the trial Court was upheld vide judgment under review
dated 9.1.2007, which is the subject-matter of instant review petition.
3. The petitioner appeared before the Court in
person and stated that his counsel, Mr. Mujahid Hussain Naqvi, is avoiding to argue the case, whereas this review petition is pending
before this Court since February 2007. It is regrettable that an advocate of
Supreme Court is not adhering to the canons of profession after being engaged
as counsel for a party. It is also very unbecoming on the part of advocate
Supreme Court to avoid arguing of case which amounts to professional
misconduct. As this review petition is pending since 2007, so any further delay
is not justified because justice delayed is justice denied. Therefore we
ourselves undertook to make minute perusal of record and make deep appreciation
of all the points so that the party should not suffer for the negligence of his
counsel.
4. Mr. M. Tabassum Aftab Alvi, the learned
counsel for Respondent No. 1, forcefully argued that the instant review
petition is not maintainable because all the points raised in this review
petition have been resolved by this Court in the judgment under review. He
further argued that the petitioner has failed to make out any case for review
because the scope of review is very limited. According to him review can only
be accepted when there is some error apparent on the face of record, otherwise
review petition is not maintainable. He vehemently argued that in the present
case no such error apparent on the face of record is pointed out, therefore,
this review petition is liable to be dismissed. He placed reliance on the cases
reported as Zafar Iqbal vs. Allotment Committee of Municipal Committee Mirpur
and others [1994 SCR 157], Rashida Awan vs. District Education Officer and 8
others [2007 SCR 406] and Abdul Qadir and 2 others vs. Abdur Rehman and 5
others [1999 SCR 323].
5. In the light of averments of the petition as
well as the arguments of learned counsel for Respondent No. 1, first of all we
would like to consider, appreciate and resolve the scope of review. This Court
has got review jurisdiction under Section 42-D of the AJ&K Interim
Constitution Act, 1974, which speaks as under:
"Review
of judgment or order by the Supreme Court.--The Supreme Court shall have power,
subject to the provisions of an Act of the Assembly or the Council and of any
rules made by the Supreme Court, to review any judgment pronounced or any order
made by it."
In
furtherance of this constitutional provision, The Supreme Court (Power of
Review) Act, 1980 was made by the Assembly and Section 2 of the said Act speaks
as under:
"The
Supreme Court of AJ&K shall have power, subject to provisions of any law
and of any rules made by the Supreme Court, to review any judgment pronounced
or any order made by it."
This
Act empowers the Supreme Court to review its judgment within the scope
prescribed by rules. The Supreme Court of Azad Jammu and Kashmir framed rules called the
Supreme Court Rules, 1978. Rule 1 of Order XLVI of Supreme Court Rules, 1978
lays down as under:
"Subject
to the law and the practice of the Court, the Court may review its judgment or
order in a civil proceeding on grounds similar to those mentioned in Order XLVII,
Rule 1 of the Code, and in a criminal proceeding on the ground of an error
apparent on the face of the record."
The
aforesaid rule clearly speaks that in criminal cases review can only be made if
an error is apparent on the face of record, but in civil cases the scope of
review is broader. The Supreme Court Rules clearly lay down that a judgment can
be reviewed in civil proceedings on the grounds similar to those mentioned in
Order XLVII, Rule 1 of C.P.C., which is as follows:--
"Application
for review of judgment.--(1) Any person considering
himself aggrieved--
(a) xxx xxx xxx xxx
xxx xxx xxx
(b) xxx xxx xxx xxx
xxx xxx xxx
(c) by a decision on a reference from a
Court of Small Causes and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the
face of the record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may apply for a review
of judgment to the Court which passed the decree or made the order.
(2)
xxx xxx xxx xxx xxx xxx xxx xxx."
The
aforesaid provision of law empowers the Court to review its judgment if there
is some mistake or error apparent on the face of record or for any other
sufficient reason. The words "any other sufficient reason" empower
the Court to review its judgment without any hesitation if the Court is
satisfied that the conclusion drawn in the judgment or order under review was
not legal or just one and the same may cause injustice to the legal rights of
any party. In such a case, for doing complete justice and being the apex Court,
for enunciation of principle of law to be followed by other Courts, review is
justified. Therefore we hold that in civil cases the scope of review is wider
than the criminal cases.
In a civil case if a mistake or error apparent on
the face of record or any other sufficient reason is discovered which calls for
review, then review jurisdiction may be exercised for avoiding injustice, but
this depends upon the facts and circumstances of each case. We find support
from a case titled Ghulam Akram and 5 others vs. Syed Shabbir Hussain Shah and
10 others [PLD 1986 SC(AJK) 56] wherein it was held as
under:
"The
second part of Rule 1 of Order XLVII of the Code of Civil Procedure
contemplates the existence of a mistake or error apparent on the face of the
record. Review, however, under this provision, can also be granted on any other
sufficient ground."
6. In the case in hand an
exchange-deed, Ex."PA" was registered by Sub-Registrar Dhirkot on
25.6.1999 and the gift-deed, Ex. "DA" was registered by Sub-Registrar
Rawalpindi on 18.5.2001. According to exchange-deed the co-owners of the
property, comprising Khewat No. 25, Survey Nos. 24 and 27, total measuring 4
Kanals, 2 Marlas, situate in village Arja, Tehsil Dhirkot, are Sardar Khani
Zaman, Muhammad Riaz Khan, Ghulam Sarwar Khan, Muhammad Nawaz Khan, Razia
Begum, Khurshid Khan, Ejaz Khan, Arshad Mehmood Khan, Mst. Rehana Bilqees,
Farzana Bilqees and Rukhsana Bilqees, whereas Basharat Abbasi and his son,
Kashif Abbasi (the doner and the donee as mentioned in Ex."DA"), are not
co-owners or co-sharers in this property. Although Basharat Abbasi is attorney
of these co-owners, but an attorney cannot become owner of the property on the
basis of power-of-attorney. According to the contents of exchange-deed the
alleged exchange took place between the parties on 25.6.1999. The above named
11 co-owners allegedly exchanged their 4 Kanals, 2 Marlas of land, situate in
village Arja, with 7 Marlas of land in the sole ownership of Raja Muhammad
Saeed s/o Raja Muhammad Akbar Khan, situated in Ratta-Amral, Rawalpindi. The exchange was
challenged by the petitioner/plaintiff in a suit filed on 23.10.1999. The
important question to be resolved is whether before the filing of suit the
ownership of properties allegedly exchanged has been transferred among the
parties or not. There is some oral evidence produced by the parties, but
according to celebrated principle of law the documentary evidence excludes oral
evidence. The documentary evidence in the shape of registered deeds, Ex."PA" and "DA", has been brought on
record by the parties. These documents are not only relevant, but are also
cogent evidence on the subject-matter of the case.
7. The gift-deed,
Ex."DA" discloses that it was executed on 18.5.2001 and till that
time the ownership/title of alleged exchanged property, 7 Marlas plot, remained
with Raja Muhammad Saeed Khan s/o Raja Muhammad Akbar Khan, the second party of
exchange-deed, which proves that the ownership of this plot was not transferred
to co-owners of land (the first party in exchange-deed), situate in Arja, on
the date of execution of exchange-deed or even on or before the filing of suit.
The other reality unfolded by aforesaid document is that through this document
the alleged exchanged plot was not transferred to co-owners (Party No. 1) or to
any one of them, rather this plot is gifted by Basharat Iqbal Abbasi (attorney
of Party No. 2), to his son, Kashif Basharat and that also not as exchange, but
for consideration of love and affection for his real son. This deed also has
determined the price of plot Rs. 2,80,000/- Both Basharat Iqbal Abbasi or
Kashif Abbasi are not legally co-owners or co-sharers of the alleged exchanged
property situated in village Arja, therefore, it is abundantly clear that
through the alleged exchange-deed properties were never exchanged, therefore,
no exchange was practically effected. Exchange is defined under Section 118 of
the Transfer of Property Act in the following words:
"When
two persons mutually transfer the ownership of one thing for ownership of
another, neither thing or both things being money only, the transaction is
called an `exchange'.
A
transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale."
This
statutory provision clearly lays down that to make a transaction exchange, the
mandatory legal requirement is to mutually transfer ownership of one thing for
ownership of another thing and if it is proved that the ownership of a thing is
not transferred to other person, then it cannot be called exchange.
8. The important aspect of this case is whether
according to alleged exchange-deed the properties mentioned have practically
and legally been exchanged or not? This moot point of the case escaped the
attention of the Court and is not properly appreciated in the judgment under
review which resulted into drawing of a conclusion contrary to the evidence. The combined reading and appreciation of documentary evidence,
Ex."PA" and "DA", reveals that the mistake in the
judgment under review is apparent on the face of the record. For appreciation
of term "apparent on the face of the record" it will be useful to
reproduce definition of words "apparent" and "appear on
face", as given in Blacks Law Dictionary, Sixth Edition, which is as
under:--
"Apparent.
That which is obvious, evident, or manifest; what appears, or
has been made manifest. That which appears to the eye
or mind; open to view; plain; patent. In respect to
facts, involved in an appeal or writ, of error, that which is stated in the
record. See also Appear on face.
Appear
on face. That which is clear and apparent from a reading of
the document. A defect in process or venue which can
be gleaned from examining the pleadings and which does not require going
outside the record."
9. It is amazing that the appreciation of
important cogent documentary evidence is not discussed in the judgment under
review; rather the judgment is totally silent in this regard which clearly
proves that this cogent evidence remained unattended by the Court. It depicts
that the material evidence was not considered and appreciated while delivering
the judgment under review, therefore, we are of the
opinion that this is another sufficient reason for acceptance of instant review
petition. We are fortified by the following case law.
In
Managing Director Sui Soutern Gas Company Ltd. Karachi vs. Ghulam Abbas and
others [PLD 2003 SC 724] it was observed as under:
"Accordingly
it is held that due to non-consideration of the documents referred to
hereinabove, a case for the review of the judgment to the extent of
petitioners' case has been made out. We are fortified in this behalf by the
judgment in the case of Suba through legal heirs v. Fatima Bibi through legal
heirs [1996 SCMR 158], wherein it has been held that "review petition
would also be competent if something which is obvious in the judgment had been
overlooked and that if it would have been considered by the Court, the final
result of the case would have been otherwise."
In
M/s. M. Y. Malik & Co. and 2 others vs. M/s. Spendlours International [1995
SCMR 922] the apex Court of Pakistan has held as under:--
"The
above assertions appear to be correct and this Court in agreeing with the High
Court to disallow the claim for Rs. 2,00,000 has done
so by overlooking the some important pieces of evidence which were present on
the record. The finding in this respect too, therefore, requires review.
Accordingly
we would review our judgment dated 12.1.1991. to the extent that the amount of
Rs.50,000 paid by the petitioners to Mrs. Azra Shaikh and the amount of Rs.
2,00,000 paid by them to Azam Qureshi are upheld with the result that the
decree passed by the High Court in favour of the respondents to the extent of
Rs. 9,97,672.30 is reduced to Rs. 7,47,672.30."
In
Commerce and Industries Corporation Pakistan (Private) Limited vs.
China National Machinery and Equipment Import and Export Corporation (Beijing) [2000 CLC 962] it was
held as under:
"It
follows from the above that there has been misreading and non-consideration of
material evidence and the judgment under review suffers from errors floating on
the surface of the record."
10. Now we would like to advert to the
authorities cited by the learned counsel for the respondents which are not
helpful for him due to peculiar legal and factual points involved in them.
In
Zafar Iqbal vs. Allotment Committee of Municipal Committee Mirpur and others
[1994 SCR 157] it was held that finding of Court given in the appeal after
considering the relevant material cannot be reviewed. The above referred case
is not applicable to the case in hand because in this case the material
evidence was not considered.
In
Rashida Awan vs. District Education Officer and 8 others [2007 SCR 406] it was
observed that the Court is open to consider the point in a review in the light
of law or rule which has been ignored or not followed. This case is also
distinguished from the case in hand.
In
Abdul Qadir and 2 others vs. Abdur Rehman and 5 others [1999 SCR 323] having
peculiar facts and law points, is also not applicable to the case in hand.
11. As we have discussed the documentary evidence
in detail and the deliberation and appreciation of a documentary evidence
clearly proves that the properties mentioned in alleged exchange-deed were not
exchanged between the parties, therefore, the alleged exchange-deed is not
exchange according to law.
12. The other important question is whether
cumulative effect of this material creates preponderance of probability in
favour of petitioner/plaintiff to win the case or what is the
required standard of proof in civil cases. The quantum of proof in civil
cases is different as compared to criminal cases. It is celebrated principle of
law that in civil cases only preponderance of probability is to be seen to
record findings in favour of parties as compared to criminal cases where
offence is to be established beyond reasonable doubt. It therefore follows that
in a civil case the Courts have to see cumulative effect of all the material
placed on record and if such material creates preponderance of probability in
favour of party, that party must win the case. Our this
view is fortified from the following cases.
In
Aksar Ali and 2 others vs. Fazal Karim and 11 others [PLJ 1982 SC (AJ&K)
116] it was observed as under:
"The
ordinary classical requirement of adverse possession is that it must be
adequate in continuity and in extent to show that it is a possession adverse to
the competitors. A wrong notion, it appears, is entertained by the subordinate
Courts that the quantum of proof in the civil cases is as much
strict as is required in criminal cases. In fact it is not so. In civil
cases only preponderance of probability is sufficient to record a finding in
favour of the parties, while in criminal cases the offence must be established
beyond reasonable doubts. It, therefore, follows that in civil cases the Courts
have to see cumulative effect of all the material placed on record and if such
material creates the preponderance of probability in favour of a party, that
party must win the case." (Underlining is our)
In
Ghulam Muhammad and another vs. Muhammad Ashraf and 2 others [PLD 1981 SC (AJK)
118] it was observed as under:--
"In
the first instance it seems proper to know the standard of proof in criminal
and civil cases. The rules of evidence for civil and criminal cases are, in
general, identical, but some provisions in the Evidence Act are peculiar to
criminal cases and others peculiar to civil cases. Thus, whereas in a civil
case a mere preponderance of probability is a sufficient basis of decision, in
a criminal case persuasion of guilt must amount to "such a moral certainty
as convinces the minds of the Tribunal beyond all reasonable doubts". In a
criminal case before a person can be convicted the Court has to satisfy itself
that there is no possibility of his innocence. Where, therefore, there is no
such moral certainty, and there is reasonable doubt as to the guilt of the
accused, the benefit of doubt is to go to the accused. This means that the
greatest possible care should be taken by the Court in convicting an accused.
Unlike criminal cases, in a civil case all that is necessary to insist upon, is
that the proof adduced in support of a fact is such that should make a prudent
man to act upon the supposition that it exists and it
cannot be said that the benefit to every reasonable doubt must necessarily be
given to the defendant."
13. When the above stated principle is applied to
facts of the case in hand, consequently we reach the conclusion that the
cumulative effect of the evidence produced by parties particularly the alleged
exchange-deed registered on 25.6.1999 and the gift-deed registered on 18.5.2001
creates preponderance of probability in favour of plaintiff/ petitioner's
assertion. The learned Judge of the High Court has exhaustively dealt with the
matter in hand and rightly passed a decree in favour of petitioner. The
observations of the learned Judge of the High Court are recorded on strong
footings and are well reasoned. It will be useful to reproduce the same which
read as under:--
"I
have considered the arguments of the learned Advocates representing the parties
and have given my anxious thought to the record of the case as well as the case
law referred to and relied upon by them in support of their respective stand.
Before
adverting to the evidence brought on the record and the arguments advanced on
behalf of the parties, it is necessary to refer Section 118 of the Transfer of
Property Act, which defines and deals with the "exchange" in the
following words:--
`118. Exchange defined.--When two persons mutually transfer the
ownership of one thing for ownership of another, neither thing or both things
being money only, the transaction is called an `exchange'.
A
transfer of property in completion of an exchange, can
be made only in manner provided for the transfer of such property by sale.'
A
perusal of the above reproduced section reveals that for a valid exchange there
must be mutual transfer of "ownership" of property by two persons.
Where a deed shows transfer of property by one of the parties only and not by
the other, the transaction cannot be regarded as "exchange". The
other requirements for valid exchange, as per Section 119 of the Transfer of
Property Act, are registration of the document and transfer of the possession.
Judging
the present controversy in light of the afore-reproduced provision of law and
conditions, I am of the view that the conclusion reached by the Courts below is
not sustainable. It is an admitted position that an exchange was executed
between Respondent No. 1 and other respondents on 25.6.1999. The transfer of
possession of the plot situated in Rata-Amral could not be proved by the
respondents as the onus of proof was on them to prove that a valid exchange
deed has been executed. The plot which was given in exchange to respondents No.
2 to 12 was gifted to Kashif Basharat by Basharat Iqbal who was attorney of
Respondents No. 2 to 12, by gift-deed, executed and registered on 18.5.2001, by
the Sub-Registrar Rawalpindi, thus it is proved that the property given in
exchange was never transferred to Respondents No. 2 to 12 rather the same was
gifted to Kashif Basharat after the execution of the exchange-deed. The
plaintiff has repeatedly applied to the Court on 2.4.2001 and 15.1.2001 to
direct the respondents to produce any mutation on the basis of exchange deed or
any other proof of delivery of possession but they failed, thus, it was amply
proved that the document was executed with mala-fide design. The direct
evidence in such cases is neither available nor is possible. A reference can be
made to Mst. Miraj Bibi's case [1997 SCMR 1892] and Syed Shehbaz Hussain's case
[1977 SCMR 197].
In
view of the guidelines and law declared in the dictum of the apex Court of
Pakistan in the cases referred to hereinabove, I have no hesitation in
concluding that the exchange deed executed on 25.6.1999 is not bona fide and
the same is in fact a sale, therefore, findings on Issue No. 1 are, hereby
reversed and it is declared that the exchange deed executed on 25.6.1999 is a
sale-deed. After deciding Issue No. 1,
in
favour of the appellant the next important issue is with regard to the
preferential right of the appellant. This issue has been decided in favour of
the appellant by the First Appellate Court and there is no cross appeal. The
learned Advocate for the respondents even has not made oral submission for
reversal of the findings. A perusal of the record reveals that findings on this
issue recorded by the first appellate Court are correct, therefore, it is held
that the appellant has preferential right of prior purchase. Now the question
emerges what would be the sale price of the land. A perusal of the file reveals
that the plaintiff claims that the land has been sold in consideration of Rs.
2,00,000/- and the same is the market value of the land. The other side has not
admitted this fact, however, in the gift-deed the value of the land situated in
Rata-Amral has been entered as Rs. 2,80,000/-. A perusal of the issues reveals
that there is no specific issue for determination of the sale price but the
second part of Issue No. 2 is as to whether the land was sold for Rs.
2,00,000/-. The parties were alive on this issue. Therefore, framing of
separate issue in this regard is not essential and remand for this purpose in
my estimation would be wastage of time, specially so
when the parties have already consumed a lot of time in litigation. The value
of the plot given in the exchange deed has been entered as Rs. 2,80,000/-. This is very significant and it is therefore,
concluded that the land has been sold for Rs. 2,80,000/-."
14. For the reasons stated above we are
constrained to review the judgment and decree passed by this Court on 9.1.2007.
Consequently the appeal filed by the respondent before this Court is dismissed
and judgment and decree of the High Court dated 23.5.2005 passed in Civil
Appeal No. 26/2004 are restored without any order as to costs.
(R.A.) Appeal
dismissed.
