1. ' Land measuring 64 kanals 17 marlas comprised in Khasra Nos. 1825/1698/92-93/1 1698/92-93/1 and 94, and 20 kanals out of 29 kanals, 17 marlas, bearing Khasra No, 1740/95 to 97, situate in Mahal Ziam, Tehsil Charsadda, was resumed under paragraph 16 of the West Pakistan Land Reforms Regulation, 1959, commonly known as Martial Law Regulation 64 (hereinafter referred to as the Regulation). In pursuance of the provision of paragraph 19 of the Regulation and in exercise of all powers enabling it in this behalf, the West Pakistan Land Commission prescribed a Scheme for the sale of land resumed under the Regulation. Para 32(c) of the Scheme provides that 'a purchaser shall not alienate the land by sale, gift, exchange, mortgage or otherwise without the prior permission, in writing, of the Deputy Land Commissioner, provided that the purchaser may mortgage, for the purpose of obtaining a loan, for the development of the purchased land".
2. ' By mutation No, 1984 attested on the 21st of August. 1962, the Provincial Government sold the said land to Mohammad Munir son of Wilayat Khan, of course subject to the conditions laid down in para. 32(c) of the Scheme prescribed by the West Pakistan Land Commission. Sometime after, Mohammad Munir gave the entire land on lease to one Syed Abdul Khaliq for a period of 5 years commencing from Rabi 1963, per Mutation No, 1998 attested on 7th of November, 1962. On August 13, 1963 Abdul Ghafoor claiming himself to be the general attorney of Mohammad Munir executed a sale-deed for the sale of 2 kanals of land out of the land in question in favour of Fazal Haleem, the petitioner. The sale-deed was registered in the office of Sub-Registrar, the same day. For the sale of this 2 kanals of land, the prior permission of the Deputy Land Commissioner was, however, not obtained.
3. ' Muhammad Munir sold the whole of the land measuring 84 kanals 17 marlas to Fazal Haleem for an ostensible sum of Rs, 6,476. The sale was given effect to by Mutation No, 2103 attested on the 23rd of March, 1965. Three persons, namely, Mir Zaman, Fateh Muhammad and Mst. Araba, pre- empted the sale by means of three separate suits which were registered at Nos. 82/1, 83/1 and 84/1 of 1966.
4. ' All the suits were consolidated. The vendee contested all the suits while the rival pre-emptors also resisted their claims inter se. On the pleading of the parties, as many as 10 issues were framed which need not be reproduced here. The parties led evidence in support of their respective contentions. Upon consideration of the evidence produced by the parties, the trial Court, on the 31st of January, 1967, passed a decree in favour of Mst. Araba for possession by pre-emption of Khasra Nos. 1825/1698/92-93/1 measuring 42 kanals 15 marlas on payment of Rs, 3,264.50 directing her to deposit the amount after deducting the amount already deposited by her, before first of March, 1967, failing which her suit was to stand dismissed. The Court also passed a decree in favour of Mir Zaman preemptor in respect of the land comprised in Khasra Nos. 1740/95 to 97, and 94 on payment of Rs, 3,211.50. He was directed to deposit the said sum minus the amount already deposited by him, before first of March, 1967, 'failing which his suit was also to stand dismissed and in the event of dismissal of his suit, Fateh Muhammad pre-emptor was to get 20 kanals of land out of Khasra Nos. 1740/95 to 97 on payment of Rs, 1,525.40.
5. ' Aggrieved by the above decisions, the vendee filed three separate appeals in the Court of District Judge, Peshawar. The appeals were heard by an Additional District Judge, who vide judgment dated 22-12-1967, accepted the appeals, set aside the judgments and decrees appealed against and remanded the case back to the trial Court for a fresh trial with the direction that the appellant should also be afforded an opportunity to put in an amended written statement. Dissatisfied with the order of remand, the pre-emptors filed three applications for revision in the High Court of West Pakistan, Peshawar Bench, Peshawar. The matter was laid before Qaiser Khan, J. As he then was.
6. After hearing the learned counsel for the parties, his Lordship proceeded to pass an order on 8th of October, 1969, the operative part of which reads :- "The learned Civil Judge is directed to frame an issue regarding improvements and should allow the parties to adduce evidence on that issue only. After giving his finding on the aforesaid issue, he should then submit the record to the Additional District Judge, who should thereafter dispose of three appeals as a whole, which are to be considered as pending in his Court. No order as to costs in these revision Petitions."
7. ' The trial Court framed an issue regarding improvements claimed by the vendee in the amended written reply. In order to facilitate the determination of this question. Fida Muhammad Khan, Advocate, was appointed as a Commissioner. He went to the spot and after doing all that was required of him, submitted a report giving all the details in respect of the improvements. The report was, however, objected by all the parties to the litigation but with no success. The trial Judge, accepting the report, recorded his findings against the vendee and submitted the record of the case to the Additional District Judge, Peshawar. It appears that by then, the Additional District Judge who had decided the appeals earlier had been succeeded by Mr. Mohammad Alam Khan Kundi. The latter, by his judgment dated 10-4-1972, dismissed all the three appeals with costs.
8. Against this decision, the vendee has filed three applications for revision in this Court which have been registered as 82/73, 83/73 and 84/73. This judgment will dispose of all the three applications.
9. ' The only practical issues which have survived for decision in the present revisions and which were argued before me by the learned counsel for the parties and on which the fate of the revisions hinges are Issue No, 1 and the additional issue framed under the orders of a learned Judge of this Court. In these revision petitions, therefore, I am called upon to decide two points :-
(1) Whether the plaintiffs-respondents were possessed of superior right of pre-emption as against the vendee petitioner?
(2) Whether any improvements in the suit land were effected by the petitioner, if so, to what extent and was he entitled to compensation therefor ?
10. ' As regards the first point, it appears from the evidence produced at the trial that Mir Zaman pre- emptor was a co-sharer in Khasra Nos. 1740/95 to 97 and was also owner of land contiguous to Khasra No,
94. Mr. Fateh Mohammad plaintiff owned land contiguous to Khasra Nos. 1740/95 to 97 while Mst. Araba's land was adjacent to Khasra Nos. 1698/92-93/1. The findings of the trial Judge with regard to the pre-emptors' right of preemption inter se and as against the vendees are based on these facts and the Lower Appellate Court agreed with him in the conclusion he had arrived at on the point. So far as these facts are concerned, the learned counsel for the petitioner appearing before me frankly conceded that their correctness cannot be doubted. He, however, submitted that what the petitioner claimed was that he himself was a co-sharer in the suit land on account of having purchased 2 /canals of land forming part thereof by virtue of registered sale deed dated 13th August, 1963. He said that no doubt, the trial Court found that the vendee could not derive any title from this sale deed for the reasons that no prior permission, in writing, of the Land Commission had been obtained for the same and that it was also a sham transaction, but these conclusions were not based on the evidence on record. The learned counsel further maintained that the judgment of the Additional District Judge, Mr. Mohammad Alam Khan Kundi, is silent on this point although the point was specifically raised and argued before him. There can be no manner of doubt, that the judgment of Mr. Mohammad Alam Khan Kundi does furnish some ground for this criticism and at one stage of the arguments I was inclined to the view that it might be necessary to order the re-hearing of appeals. On further consideration, however, I have come to the conclusion that no useful purpose would be served by ordering the remand for the reason that there do not appear to be any matters for further investigation. The facts admitted and proved and the legal position on the subject are so clear that it would be a mere waste of time as well as an unnecessary expense to the parties concerned if I directed re-hearing of the appeals. Mr. Fateh Mohammad Khan Advocate on behalf of the petitioner laid great stress upon the point, that the civil Courts have no jurisdiction to decide whether certain alienations offend against the provisions of the Regulation and that in the instant case, the trial Court having decided this point with regard to the sale incorporated in the Registered sale deed dated 13th August, 1963, travelled beyond the scope of its authority. To support his contentions, the learned counsel relied on the following observations made in the case of Naseer Ahmed Khan v. Asmat Jehan Begum (1): "1 agree that the final authority for the determination if a particular alienation offended against Martial Law Regulation No, 64 is the Land Commission itself but any decision given by the Civil and Revenue Court and not disturbed by a contrary decision given by the Land Commission, would be binding so far as these Courts were concerned".
11. Far from supporting the view of the learned counsel for the petitioner, the rule laid down by their Lordships in the said case is diametrically opposed to what has been contended by the learned counsel for the petitioner. In the instant case, the civil Court found the sale of 2 kanals of land in violation of the provisions of para. 32(c) of the Scheme prescribed under the Regulation and such finding was necessary because the Court, in order to decide the question of superior right of pre- emption, had to enquire into' the right of pre-emption claimed by the vendee. Since them was no decision of the Land Commission to the contrary, this finding would be binding on the petitioner and cannot be regarded as being contrary to any law. It will thus be seen that the sale of 2 kanals of land referred to above offended against the mandatory provisions under which Mohammed Munir had purchased the land. As to what would be the effect of such a sale, I need only refer to one case, namely, Hawa v. Muhammad Yousaf (2). In that case, the position was that according to section 8 of the Government Occupants (Sind) Act, 1899, no sale in respect of land or lease beyond a period of 10 years could be executed by the grantee without the previous permission of the Collector. Some transactions having been made without the previous permission of the Collector, a question arose as to whether the Courts could enforce any such contract which was against the Statute. It was held that "the legality of a transaction at once comes into question as soon as it is found that it is against an imperative provision of law. The sanction of the Collector being a prerequisite for all alienations under Act III of 1899, the failure to perform the condition precedent would," render the transaction void". This case, in so far as the legal position bearing on the point is concerned, is on all fours with the present case. I would, therefore, relying on the said authority, hold that the sanction of the Deputy Settlement Commissioner having not been obtained for the sale of 2 kanals of land claimed by the petitioner, the failure to perform the condition precedent would render the transaction void.
12. ' The conclusion arrived at by the trial Court that the sale embodied in the registered sale deed dated 13th August, 1963, was also a sham transaction, appears to be equally well founded. It is pertinent, in this connection, to point out that the petitioner in whose favour the said Registered sale deed was executed, never produced it before the Revenue Authorities so (1) PLD 1967 Pesh.
13. 328 (2) PLD 1969 Kar. 324 that a mutation is entered and attested on its basis. Again, the petitioner on the 9th of March, 1965, submitted an application to the patwari of the circle stating therein that he had purchased the whole of the suit land measuring 84 kanals 17 marlas for Rs, 6,476.25 from Muhammad Munir. What he gave out in the said application was that the sale in his favour was made by one single transaction. Had the sale embodied in the registered sale-deed been a genuine transaction, the petitioner would have certainly excluded 2 kanals of land which he claimed to have purchased in the year 1963. On a review of the entire circumstances of this case, I do not think that the petitioner has been able to prove that the sale incorporated in the Registered sale-deed was a genuine transaction or that the parties intended it to be acted upon. The facts and circumstances brought on the record, on the other hand, lead one to the irresistible conclusion that the transaction was a bogus one and a made-up affair. In this view of the case, I have no difficulty in holding that the view of the matter taken by the trial Court was wholly justified.
14. ' I now arrive at a appoint where it becomes necessary to consider the second point formulated above. The main bulwark of the petitioner's claim, as contended by his learned counsel before me, was the report of the Commissioner dated 14th of July, 1970. This report has reference to two items, namely, the Abadi and trees standing on the suit land. The entire Abadi with the exception of one Kotha and two Kandars, and 64 trees, as shown at page 10 of the report, were more than 10 years old which means that they, were in existence since before the sale of the land by the Provincial Government in favour of Mohammad Munir. That being the case, the petitioner had nothing to do with the same and could not, therefore claim any compensation. One kotha and two Kandars worth 1,170 and 240 respectively, were constructed, and a number of trees including fruit plants worth Rs, 8,285 as detailed in the report were planted, by the petitioner. This seems to have been done by him after the institution of the pre-emption suits out of which the present revisions have arisen. The learned counsel for the petitioner vehemently contended that his client cannot possibly be deprived of the compensation assessed by the Commissioner for these items. I regret my inability to accept this contention for the reasons, firstly that the said improvements seem to have been effected by the petitioner during the pendency of the pre-emption suits and secondly that he must have been conscious of the fact that he had to be dispossessed of the property by the pre- emption who had superior right of pre-emption against him. In such a situation, the petitioner cannot be said to have made the improvements in bona fide manner. The result, therefore, is that he cannot be allowed any compensation for the same. He would, however, be at liberty to remove the aforesaid Abadi and the trees if he so desires.
15. ' The result is that, in my opinion, all the three applications for revision ought not to succeed. They are accordingly dismissed with costs.