JUDGMENT

Mir Ahmad, J - Amiruddin and Fazal Din gave land in exchange to Mhd. Ghufran (he has been wrongly referred to as Ufran in some places), Mohd. Zaki and Mukarram brothers. Mutations were duly attested.

2. The three brothers tried to buy some land later on, and it was held by the revenue authorities that they could, not buy it, because they did not belong to an agricultural tribe in the Peshawar District. They brought a suit against the Provincial Government for a declaration that they were agriculturists. The suit went against them.

Amiruddin and Fazal Din have brought this suit for possession of land, which they had given in exchange to the three brothers. They stated in the plaint that the defendants were declared to be non-agriculturists, that the exchange was, therefore, invalid according to the Punjab Alienation of Land Act (to be hereinafter referred to as the Punjab Act), and that, consequently, they had a right to get the transaction cancelled. They offered to return the land, which they had taken in exchange from the defendants.

3. The defendants pleaded that they were agriculturists, that it was a mistake that they were treated as non-agriculturists, that they subsequently managed to get a pronouncement of the Collector to that effect, and that they were entitled to keep the property which they had taken in exchange.

The only issue which was framed by the trial Judge was:

Are defendants entitled to retain the possession of the suit land?

No evidence was produced at the trial. It appears that at the argument counsel for. the defendants raised the legal point that Section 3, Punjab Act, was abrogated by Section 298(1), Government of India Act of 1935 (to be hereinafter referred to as the Act), and that consequently, the alienation in favour of his clients could not be cancelled.

4. The trial Judge observed that in the presence of the decision of the civil Courts that the defendants were not agriculturists, he could not take notice of anything which may have been done by the revenue authorities later on, and that the defendants must, therefore, be treated as non-agriculturists.

5. He, however, agreed with the legal proposition put forward by counsel for the defendants that Section 298(1) of the Act took away the effect of Section 3, Punjab Act, so far as an exchange was concerned. He referred to a judgment of the Lahore High Court reported in Madho Singh v. James Skinner A.I.R. 1942 Lah. 243, in support of this conclusion. The suit was thus dismissed by him with costs.

The plaintiffs went up on appeal to the District Court. The District Judge agreed with the trial Judge, and dismissed the appeal with costs. The plaintiffs have come up on revision to this Court. As a question of importance was involved the matter was referred to the Bench.

6. We may clear the ground by stating that as the matter stands at present, the defendants must be looked upon as non-agriculturists, because they have been held to be so by a civil Court. It was faintly urged by their counsel that subsequent to the decree of the civil Court, a Revenue Officer had declared the defendants to be agriculturists, and that this declaration annulled the effect of the civil litigation. We agree with the Courts below that the suit of the defendants for a declaration that they were agriculturists, having been dismissed, they cannot now say that they are agriculturists.

7. The only question which now arises for decision is whether the transaction of exchange entered into by the plaintiffs, who are admittedly agriculturists with the defendants, who are not, can be avoided under Section 3, Punjab Act, or whether Section 298(1) of the Act, saves it from the operation of that law.

We would like first to reproduce below the relevant sections of the Punjab Act, which apply to the North-West Frontier Province:

Section 2(3):

The expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purpo