ABDUL SATTAR GORAYA, J. --- By means of this Constitution petition, order dated 23.11.2004 passed by the Member (Judicial-V) Board of Revenue, order dated 23.10.2002 of the Executive District Officer (Revenue), Rahim Yar Khan and that of dated 16.2.2001 of the Collector, Sub-Division Rahim Yar Khan, have been brought under impeachment.
2. Facts in brief are that State land measuring 675 kanlas, 6 marlas comprising Khata No. 63 Khatooni No. 227-228 situated in the revenue estate of Chak No. 84/NP, Tehsil & District Rahim Yar Khan was jointly purchased by respondent No. 2 alongwith other co-sharers in an open auction way back on 15.7.1944, ,before the emergence of Pakistan. The allottees have been depositing instalments regularly and committed no breach of conditions of the sale. An amount of Rs. 18,824/- is shown to have been deposited in the treasury and no part of the price of the land was left to be paid. This is common ground between the two contesting parties. Sadiq Muhammad-respondent No. 2 sold out an area measuring 12 kanals out of his share in the joint holding to the petitioner for consideration of Rs. 90,000/- through the duly constituted attorney namely Rasheed Ahmad son of Khair Muhammad. Mutation No. 54 in this regard was entered and attested on 11.2.1998 in favour of the petitioner. This was necessarily an oral transaction of sale. About 2% years from the date of attestation of Mutation No. 54, respondent No. 2 filed a belated appeal before the Collector Sub-Division, Rahim Yar Khan, fundamentally on the ground that on the basis of Power-of-Attorney, the land in dispute could not have been sold by the attorney without permission under Section 19 of the Colonization of Government Lands (Punjab) Act V of 1912, which fact stands projected from paragraph No. 3 of memorandum of appeal instituted before the Collector, Sub-Division, Rahim Yar Khan. Vide order dated 16.2.2001, Collector Sub- Division R.Y. Khan accepted the time-barred appeal for the obvious. Reasons that the transaction of sale is hit by Section 19 of the Act V of 1912. Appeal brought against the said order also failed before the Executive District Officer (Revenue) on 23.10.2002 and further revision petition, brought by the petitioner, was also dismissed by respondent No. 1 on 23.11.2004.
3.. Learned counsel for the petitioner contends that all the three Courts below acted illegally and without lawful authority in passing the impugned orders inasmuch as the appeal was hopefully barred by time and the learned District Collector for insufficient reasons entertained the appeal and upset the valid transaction of sale. Further argued that whole price of the land has been deposited in the treasury in respect of the sale price of the land in dispute and no part of the same was left behind to be paid, thus, the allottees became complete owner. Therefore, Muhammad Sadiq-respondent No. 2 could lawfully transfer the land by way of sale or through any other mode but the Revenue Officers omitted to take into consideration this aspect of the case.
4. Learned counsel for respondent. No. 2 and the learned Assistant Advocate General came out with the place that since the proprietary rights were not conferred upon the allottees and conveyance deed had yet to be executed, the sale transaction could not have been made without the permission in advance of the Commissioner under Section 19 of the Act V of 1912 or any other Officer who enjoyed the delegated power on his behalf.
5. I have lent ear to the arguments advanced by learned counsel for both the parties and with their able assistance have gone through the available record.
6. Record in originl was produced by the office of the District Collector who on the basis of the entries embodied in the ledger account, confirmed the position till 15.1.1946 that the entire amount was paid and no penny of the Government was left to be charged from the allottees. Original allottees which includes respondent No. 2 had purchased the said land through open auction from the Provincial Government and it was necessarily a transaction of sale and not an allotment made under the statement of conditions or an allotment under any scheme framed by the Board of Revenue with tacit approval of the provincial .Government under Section 10(2) of the Act V of 1912.
7. The pertinent question of law remains to be settled by this Court is that as to whether, after depositing the whole price in the Government treasury in respect of land acquired by the allottees, they become owners or not? The answer is in affirmative. In this case, the entire amount is shown to have been deposited on 15.1.1946. Effective date for passing on title or ownership is the date of payment of whole amount. It is accepted principle of law at all level even in the revenue hierarchy at apex that the ownership right does pass when the payment has been made in full, sufficiently to be effected in relation to or as against the third party. This questionecame up for consideration in I/am Din v. Muhammad Din (PLD 1964 Supreme Court 842) wherein the question was answered :--- "The question whether the estate of Mst. Zainab Bibi in the land here in question devolves under the afore said Section 30-A turns upon whether her acquisition of proprietary rights takes effect from the date upon which the payment, and the order for transfer of the rights to her were made, or on the much later date on which the deed was executed and registered. Some argument was addressed to us upon the requirements of Section 176 of the Government of India Act, 1935 which was' then in force to support the contention that the contract of sale was ineffective, unless duly executed as required .By the aforesaid section. The reply presented with a great deal of force is that ever since 1915, it had, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the property matures in favour of the purchaser when, transfer having been authorized, the proper dues have been deposited. The point was considered in a judgment of a learned single Judge of the Lahore High Court in the case of Devi. Datta Ram v. Girdari Lal (1) decided on the 23rd January, 1945, where reliance was placed upon Mst. Millap Kaur v. Hakim Singh
(2) and certain judgments of the years 1933 and 1936. Learned counsel appearing for Muhammad Din who is the personal law heir of Mst. Zainab Bibi (Ilam Din, the appellant, being the customary law heir of her husband) has been able to show that in later years, 1938, 1958, 1959, 1960 and 1961 published decisions have been given which affirm the same principle. Two of these were delivered by the Board of Revenue, viz. Rehmat Ullah and others v. Muhammad Ismail and others (3) and Muzaffar Hussain v. NurAhmad (4). It is argued that, however, the case might lie as between the Government and the new proprietor, it is accepted on all hands by the Revenue Department as well as by the Mil Courts that proprietary title does pass when the payment has been made in full, sufficiently to be effective in relation to or as against third parties. Accordingly, I would hold without hesitation that the succession here. In question does not fall to be determined under Section 30-A aforesaid."
Again this question came-up for consideration in Abdur. Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another (2006 CLC 543) wherein the controversy has been set at rest. The, ratio of the judgment afore-noted is that the allottee remains a tenant under the Government till the pays the full price of the land purchased from the Government and after payment of the full price, he becomes absolute owner and the statement of conditions ceases to exist: allottee remains no more tenant. The mere fact that conveyance deed has yet to be executed by the Provincial Government or the District Collector in favour of the allottee, it remains a formality only. Ali Muhammad v. Mst. Rabia Bibi and 3 others (PLD 1971 Baghdad-ul-Jadid 38) is also quoted with advantage. The same view has been adopted that the date of payment of price is the date of conferment of proprietary right irrespective of the, fact that conveyance deed has been executed or not, in Nathey Khan v. Mehr Din and another (1994 MLD 1630). This view also found favour with this Court in Faiz Ilahi v. Shamir and others (KLR 1992 Revenue Cases 206). This was a case of occupancy tenant and the rule laid down in the judgment afore-referred is that the moment, allottee pays the price to the Government, his title is not postponed to the acquisition of conveyance deed and he becomes absolute owner without any let or hindrance from any quarter.
Pivotal question involved has been dealt with in paragraph No. 9 of ' the judgment in the following terms:- "It is evident from the finding of the first Appellate Court that it concluded that agreement to sell dated 1.11.1963, was in defiance of Section 19 of Colonization of Government Lands Act (Punjab Act of 1912) (hereinafter referred to as the Act) and was void and un-enforceable agreement. I am afraid this finding is the result of misreading of evidence as well as misapplication of law. DW.4, Colony- clerk appeared in the witness-box and stated that price of land was deposited in 1958. This witness was not subjected to cross-examination. No evidence was brought on record to rebut this testimony. I have, therefore, no hesitation in reaching the conclusion that price of this land was deposited in 1958 and Shamir had become absolute owner of land in the same year. It is well- recognized principle of law that an occupancy tenant under the Act becomes absolute owner of the land the moment he pays the price of it to the Govt. And his title is not postponed to the acquisition of conveyance deed. Reference may be made to Ibrahim v. Raju and others (PLD 1956 Lah. 609), Muhammad Yar v.. The State (PLD 1961 B.J. 39), Mst. Umar Bibi, etc. v. Bashir Ahmed and others (1977 SCMR 154), Ghulam Muhammad alias Ghulamoon v. Maula Dad and others (1980 SCMR 314), Hakim Ali and another v. Atta Mohammad and others (1980 SCMR 993) Said Ali Shah v.
Mohammad Shafi (1989 SCMR 1594)."
The review of the apex Court of the revenue hierarchy is also to the similar affect. In Nabi Bakhsh v.
Ali Bakhsh (PLD 1978 (Rev.) 15), view of Mr. A.K. Khalid, the then Member (Colonies), Board of Revenue is in line with the judicial pronouncements made by the superior Courts. In the judgment afore-noted, it has been held that for depositing the sale price, even permission or prior sanction of the Collector is not required and once the full price paid and other conditions fulfilled, proprietary rights automatically stand transferred irrespective of the fact that the deed has been executed or.
Not. The moment amount is paid, the tenant ceases to govern by any condition and the allottee was fully competent to alienate his share to any one he likes.
8. This point supported by the case-law was -urged before the learned Member Board of Revenue inasmuch as vide paragraph No. 2 of the judgment, the case-law cited at the bar has been noted down but there is no discussion in concluding paragraph No. 6 of the judgment. The judgment rendered by the learned Member Board of Revenue dated 23.11.2004 does not conform with the definition of judgment. The impugned order, on visual look, .Gives the impression in vivid terms that the orders of the Courts below are non-speaking and terse in nature. Rather it is an apology to the well-reasoned order. In Gouranga Mohan Sikandar v. Collector of Import and Export (PLD 1970 Supreme Court 158), the honourable Supreme Court took the view that litigant public always come when the expectation of judicial treatment with their cases by facing incidental hardships and their disputed should not be thrown out of the bounds through arbitrary exercise of power by recording an non-speaking and terse order. The impugned orders passed by the Courts below being arbitrary in nature are against the dictum laid down by the honourable Supreme Court in the judgment mentioned supra. In such a situation, when the case-law has been noted down during the course of arguments and not discussed in the judgment, it has the effect of violation of the judicial discipline and in doing so, in the case in hand, the learned Member Board of Revenue violated Articles 189 & 190 of the Constitution which makes it imperative that the law laid down by the superior Courts, which commonly is known ' as the judgment made law, should imperatively be followed.
9. There is yet another aspect of the matter which will surely steal the eminence that appeal was instituted after 21/2 years and for this period, there is no plausible explanation offered. Respondent No. 2, in fact has been enjoying profound slumber and remained in the state of dormancy. It appears that for some other discoverable reasons, respondent No. 2 became greedy for worldly temptations and the moment he were-up, instituted an appeal before the Collector. This is not a case of the petitioner built-up throughout the proceedings before the revenue hierarchy, right from the Court of Collector Sub-Division Rahim Yar Khan up to the Board of Revenue that the transaction of sale is tainted with fraud. Case of respondent No. 2 fundamentally hinges on a point that the transaction of sale took place in sheer violation of Section 19 of the Act V of 1912 and till such time the proprietary rights were not formally transferred .Through execution of the deed, the oral mutation of sale could not have been entered. Respondent No. 2 is estopped by his on conduct, he exhibited. Even before this Court, the case was not built-up on the plea that respondent No. 2 never received any amount or that the transaction of sate is without consideration. He has been making perfidious attempts to deprive the petitioner of his holding, which he acquired after payment of Rs.
90,000/-. There is no end to the human lust.
10. All the more, it has become necessary to determine that what is the definition of sale. To answer the question in its true perspective, Section 54 of Transfer of Property Act, 1882 is reproduced hereunder:- " 'sale' is a transfer of ownership in exchange for a price paid or promised or part-paid part- promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract of sale. A Contract for the sale of immovable property- is a contract that, a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
1981 SCMR 993), the question came-up for consideration before the apex Court was that where on the basis of agreement of sale after making the payment to the allottee, it was a transaction of sale or merely an agreement of sale the honourable Supreme Court took the view that within the contemplation of Section 54 of the Transfer of Property Act, 1882, on the face of this situation that after accepting the price in part performance of the agreement of sale, the possession has been delivered, it becomes a case of sale. In the judgment referred supra, full price of the land had not been paid and the allottee was not absolute owner, yet he executed the agreement of sale and it was found to be a transaction in violation of Section 19 of the Act V of 1912 but here in the case in hand, full price of the land has been deposited by the allottees way back on 15.1.1946 and the mere fact that the formal conveyance deed had not been executed in favour of respondent No. 2 or the other coallottees, remains a formality only to be done by the District Collector and for the slightest formality, it cannot be safely said that the allottee was still a tenant under the Provincial Government. I have no hesitation on the basis of case-law referred to above in holding that respondent No. 2 was absolute owner of the property, on a day, Mutation No. 54 of oral sale was sanctioned on 11.2.1998 and there was no bar in his way to sell-out the land. Had it been a case of fraud alleged in the memorandum of appeal, or at any stage of the proceedings, in the given situation, the power was resting with the Civil Court and not by the Court of appeal or revising authority.
11. I have noticed with dismay that the property was purchased by the allottees in open auction way back on 15.7.1944 and the entire price was paid in the Government treasury on 15.1.1944, which fact stands projected from the copy of ledger account appended with the Constitution petition.
This is not understandable that for what reasons, decades together passed, yet the Provincial Government has not opted to formally execute the sale-deed in favour of the allottees. Possession is still with them. There appears to be a case of wilful .Omission. District Collector, Rahim Yar Khan shall attend to the issue immediately by slightest formalities, execute conveyance deed in favour of the allottees including the petitioner. The action taken in the matter shall be communicated to the Deputy Registrar of this Court within two months from today. .
12. For what has been stated above, l have come to the irresistible conclusion that the order dated 23.11.2004 passed by the Member (Judicial-V), Board of Revenue, order dated 23.10.2002 of the Executive District Officer (Revenue), Rahim Yar Khan and that of dated 16.2.2001 of the Collector, Sub-Division Rahim Yar Khan are without lawful authority and of no legal affect and the same are declared accordingly. However, in the circumstances of the case, parties are left to bear their on cost.