' SARDAR MUHAMMAD RAZA KHAN, J.--- Mrs. Alia Khalid and three others, the legal heirs of M.R.
Khalid of Chak Kauriana, Tehsil and District Jhang, through this petition seek leave to appeal against the judgment, dated 3-4-2001 passed by a learned Judge in Chambers of Lahore High Court, in Civil Revision No,2081 of 1990 filed by the respondents which was accepted and the respondents/plaintiffs were granted the decree prayed for.
2. Ch. Ghulam Murtaza, the father of plaintiffs, and respondents Nos.2 to 10 and Allah Ditta father of M.R. Khalid defendant No,1 purchased State land measuring '78 acres, 15 Marlas through auction in May, 1963, in Chak Kauriana, Tehsil Jhang. Aziz Ahmed son of Ghulam Murtaza and M.R. Khalid defendant No,1, thereafter purchased 207 Kanals, 5 Marlas of State land in Chak No,264, Tehsil Jhang in September, 1963.
3. The plaintiffs Nazir Ahmed etc. On the one hand and defendant No,1 on the other hand effected a private partition whereby the entire land in Chak No,264, jointly purchased, was given to M.R. Khalid defendant No,1 along with 25 acres, 1 Kanal 5-1/2 Marlas in Chak Kauriana; while land measuring 52 acres, 7 Kanals, 9 Marlas fell to the lot of the plaintiffs. The parties took over possession of their respective shares and the matter was entered in daily diary dated 8-6-1968 in Chak Kauriana. The parties continued abiding by the agreement of partition/exchange when subsequently proprietary rights got conferred in the years 1973 and 1975.
4. That the act of parties was also brought on record through Revenue Authorities. Subsequently, consolidation proceedings commenced in the area in which defendant No,1 managed to get half of the land mutated in his name in Chak Kauriana, due to being a senior Revenue Officer. An appeal was filed by the plaintiffs against the conformation of consolidation scheme dated 31-8- 1981 which the Collector dismissed on 30-12-1981 holding that the matter was of civil nature.
Accordingly, with the averments aforesaid Nazir Ahmed etc. Filed a civil suit wherein defendant No,1 admitted the joint purchase of land but denied private partition, on the grounds, inter alia, that the partition so alleged was hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
5. The suit was decreed by the learned trial Court on 25-1-1988 but was dismissed on first appeal by learned Additional District Judge, Jhang vide judgment dated 18-7-1990. In revision before the learned High Court, the decree of the learned trial Court having been restored, the legal heirs of M.R. Khalid have filed this petition.
6. The defendant had taken the stance that though some negotiations towards partition had remained in progress for some time yet the parties having not had arrived at final settlement, the idea was dropped. However, in the witness-box he admitted that parties had been cultivating the land separately, that they had installed separate tube-wells. These independent actions clearly tell of partition having taken place in the year 1969 as a result whereof they had been enjoying the usufruct and incurring the expenditure separately. He admitted an area of 112 Kanals having gone to his lot in consolidation but suppressed the fact as to how much was in possession of the plaintiffs after consolidation. He admitted having made statement (Exh.P.2) before the Tehsildar on 8-1-1968 by admitting his signatures thereon. All these admissions corroborate as well are the corroborated by the entries in Khasra Girdawaries. In addition to Exh.P.2 there is a report of Naib Tehsildar Exh.P.4 and the order Exh.P.5 whereby Naib Tehsildar, Jhang had confirmed the partition as reported by the parties.
7. In view of the evidence aforesaid, the learned High Court came to the conclusion that a valid private partition had taken place between the parties. In this behalf, it concurred with the conclusions drawn by the learned trial Court. With the assistance of the learned counsel on either side, we have also minutely gone through the evidence, documentary as well as oral, on record and have come to the conclusion that the evidence was rightly appreciated by the trial Court as well as the Honourable High Court. We find no reasons to formulate any contrary view.
8. Learned counsel for the petitioner argued that the suit for mere declaration was void. This argument is not sound because the prayer of possession had subsequently, been added. Learned counsel could not satisfy us as to how be it time-barred, if at all.
9. It .Was next asserted that Aziz Ahmed (plaintiff No,2) was also one of the three parties to the partition but he never appeared to support the same. This also does not hold water because Aziz Ahmed himself is a plaintiff and had given his power of attorney to his real brother Nazir Ahmed. He being a co-plaintiff at the first instance and his power of attorney of March, 1980 (Exh.P.7) ratified the whole proceedings conducted on his behalf. Such objections could have been raised by Aziz Ahmed and should not be raised by the defendants.
10. A sound objection was, however, raised to the effect that the private partition so alleged by the plaintiffs/respondents was void being violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which lays down that no alienations of land by any means whatsoever shall be done by an allottee without the permission in writing of the Collector.
11. In principle, it is perfectly correct. In fact, the lands under the said Act are allotted to only those persons who fulfil the requirements laid down in section 10 thereof. Such requirements are minutely taken into consideration by the Collector before making any allotment. It further indicates that which person is entitled to such allotment or to hold the colony land in possession, is the sole prerogative of the Collector to decide. The law further provides that till the payment of final instalment, the allottee in possession shall be deemed to be a tenant without proprietary rights. It is obvious on the principles of the aforesaid special law in particular and the civil and revenue law in general, that no property can be alienated by a tenant or by a person not enjoying proprietary rights without the permission of the real owner which up to the last payment of instalment, remains the Provincial Government, in case of colony land.
12. So far as the question of law is concerned, we perfectly agree with the learned counsel, for, the provisions of section 19 of the Act are capable of no other interpretation to the contrary. But the facts of the present case are quite interesting in nature. We observed that the private partition, legal or illegal, valid or invalid, had taken place between the parties which remained acted upon throughout. Had it been brought to the notice of the Authorities under the Act of 1912, it might have consequented upon the cancellation of either the private partition or even the allotment, as such.
As it did not happen, the parties remained in irregular possession of the property by mutual agreement. Subsequently, the proprietary rights got conferred on the parties in the years 1973 and 1975. Now when the parties had become absolute owners, they still continued to act upon the same partition. From the date of conferment of proprietary rights, the private partition becomes valid, justified and ratified. As the parties admittedly had continued acting upon mutual agreement of private partition even subsequent to the conferment of proprietary rights, the partition/exchange has become valid. M.R. Khalid had himself got an entry to that effect in the daily diary dated 8-7- 1968. He gave statement subsequently, before the Revenue Officer on 1-8-1978 (Exh.P.3). Naib Tehsildar made a report and the Tehsildar passed an order (Exh.P.4, Exh.P.5) on 19-8-1978 which decidedly was much after the conferment of ownership rights in the years 1973-75. We hold, while agreeing with the learned High Court, that the private partition in question having continuously been acted upon, since 1973/75, the settlement is not hit by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. It might have been at some initial stage but not after when the ownership rights got conferred. So far as the factum of partition is concerned, we may recall at the cost of c repetition that besides overwhelming evidence on record, it stood admitted as well by M.R. Khalid.
13. The conclusion having been rightly arrived at by the learned High Court, we visualize no justification to interfere. The petition being devoid of substance, is hereby dismissed and the leave to appeal refused.