' The dispute in this case relates to agricultural land bearing Survey No, 354 admeasuring 14-18 acres and Survey No, 355 admeasuring 5.13 acres situated in Deh Chhutto Mahisar, Taluka and District Larkana. It is common ground that respondent No, I was enjoying yearly lease of this land from the Barrage Department by way of temporary grant since the year 1954-55. Subsequently, these two survey numbers were granted to the respondent on permanent basis by two separate Ijazatnamas dated 21st October, 1961 and 22nd December, 1962 respectively. The conditions of the grant inter alia provided that the grantee or his heirs may not without the permission in writing of the Revenue Officer, lease, mortgage, sell or otherwise however, encumber the land granted or any portion thereof before all the amounts due on such land on account of occupancy price and interest there on shall have been paid. The controversy between the parties has arisen out of an agreement executed on 6th November, 1956 between the parties whereby the respondent No. 1 agreed to give half share out of the aforeaid land to the appellant - upon the terms and conditions stipulated in the aforesaid agreement which, inter alia, provided that the appellant shall pay half of the expenses incurred by the respondent No. 1 on the development of the land and also that he would pay half of the future expenses incurred on the land revenue etc. The consideration for the aforesaid transaction agreed between the parties was Rs, 500, out of which the appellant paid an amount of Rs, 300 at the time of the aforesaid agreement and the balance was payable subsequently.
2. On 19th November, 1965 respondent No. 1 brought the suit out of which the present appeal arises for declaration of his title and for accounts against the appellant and respondent No, 2 as his haris.
The case of respondent No. 1 was that after the initial payment of Rs, 300 no further payment was made by the appellant and also no improvement or development was made in the land as agreed. It was further admitted by respondent No. 1 that an amount of Rs, 345-2-0 was later paid by the appellant in 1961. The aforesaid agreement was challenged as void and of no legal effect as it was in breach of the conditions of the permanent grant. The respondent No. 1 also claimed accounts of the produce appropriated by the appellant since the year 1962 without giving him his due share as full owner of the same.
3. The appellant contested the suit and pleaded that the agreement was valid and binding on the said respondent. He further alleged that he had improved the land and had spent Rs, 1200 over its development. In addition the appellant contended that he had contributed half of the expenses towards the installments of price for permanent grant of the land from the Barrage Department.
According to the appellant he had paid Rs, 500 to respondent No, I in connection with Survey No, 355 and Rs, 300 in connection with Survey No, 354 as well as half share of the installments for both survey numbeRs, The appellant also denied the allegation that he had misappropriated the entire crop of the land.
4. After considering the evidence adduced by the parties the learned Extra Joint Civil Judge, Larkana decreed the suit of the respondent and ordered the rendition of accounts by the appellant through a Commissioner. The learned Judge in the trial Court held that the agreement between the parties was a valid agreement to sell the land in dispute which was subject to completion of title upon payment of all the instalments provided under the terms of the grant. But he found against the appellant so far as the performance of his part of the contract was concerned and was, therefore, of the opinion that the respondent No. 1 was entitled to rescind the contract.
5. In appeal the learned Additional District Judge, Larkana upheld the decree passed by the trial Court with a slight modification by his impugned judgment dated 10th February, 1968. The learned Additional District Judge has taken the view that the agreement between the parties was in violation of section 73-A of the Sind Land Revenue Code, 1879 as the conditions of the grant prohibited transfer of any right or interest of the grantee until all the instalments were fully paid by respondent No. 1 and, therefore, the agreement was void under section 23 of the Contract Act. In this view of the matter the learned Judge has further held that the respondent No. 1 is bound under the aforesaid agreement which was found, on evidence, to be Rs, 645-2-0. Further the learned Judge found that the grant in favour of respondent No. 1 was still a running grant as all the instalments under the grant had not yet been fully paid and, therefore, the said respondent was not entitled to a declaration of ownership, but of occupancy right until the grant is fully paid. The appellant now seeks to challenge the aforesaid judgment in this second appeal.
6. Mr. Sabir Hussain Rehmani first contended that respondent No. 1 cannot be allowed to take advantage of his own wrong as he was a party to the agreement and, therefore, he is estopped from pleading that the agreement was void or against public policy. He has placed reliance on Manzoor Hussain v. Wali Mohammad (1) in which it was observed that where a person invoking aid of a Court to invalidate a contract on the ground of illegality is himself implicated in the illegality the Court will not, as a rule, assist him. The observation has been taken out of context of the facts of the reported case and invoked in this case. Their Lordships had made this observation in regard to the conduct of the appellants before them who had executed a partnership deed with the respondents which were contended to relate to dealings in violation of Foreign Exchange Regulation Act. The Court had held that the contracts {{FOOT NOTE}}
(I) PLD 1965 SC 425 {{FOOT NOTE}} ' contained in the pertnership deed were not hit by the provisions of section 23 of the Contract Act as violative of the aforesaid Foreign Exchange Regulation Act. The objection as to the validity of the agreement was raised after the arbitration proceedings culminated in an award against the appellants. It was in this context that the aforesaid observation was made. In the present case there are two counterpart agreements executed by either party on 6th November, 1956 long before the land was granted on permanent basis to the respondent No. 1. Additionally respondent No 1 sought the relief from the Court on the allegation that the appellant had failed to perform his part of the A contract. In these circumstances. I am afraid I am unable to accept the contention that the respondent No. 1 was a party to any illegal contract or was taking advantage of his own wrong. The rule of law invoked has, therefore, no application in this case. Similarly the othe case cited by the learned counsel reported as Mohammad Saeed v. Province of West Pakistan (1) is not applicable to the facts of this case as no fraud has been alleged by the appellant against respondent No. 1. I also find no force in the submission of the learned counsel that respondent No. 1 is not entitled to the discretionary relief of declaration in view of his own conduct. It is not the case of the appellant that the respondent No. 1 has in any manner taken undue advantage of the situation against the appellant. On the contrary, the appellant has been in possession of the land and the respondent No. 1 has been found to have been deprived of his share of produce as owner of the land by the appellant.
7. This brings me to the next contention advanced by the learned counsel for the appellant that in reaching their finding against the appellant as to the non-payment of half of the expenses including the instalments and the share of produce, counsel contended that the Courts below have misread the evidence on record. The onus of proof as to the payments made by the appellant either towards the expenses or towards the instalments and development of the land was on him. I have gone through the evidence produced by the appellant in support of his case with the assistance of the learned counsel for rhe appellant. The evidence of payments allegedly made by the appellant on various occasions entirely consists of the oral testimony of the witnesses except the two payments admitted by respondent No. 1. I find no justification for interfering with the finding reached by the Courts below upon assessment of oral evidence on this point. There is, therefore, no force in this contention as well.
8. The respondent No. 1 was admittedly transferred by way of permanent grant on instalment basis the land in dispute by the Government. Admittedly the conditions of grant prohibit the transfer of any interest in the land until the grant was fully paid and the respondent tad acquired full ownership rights therein. Admittedly the agreement between the parties was entered into much before the grant had been fully paid for. Indeed, the written agreement is much prior to the date of the permanent grant. The conditions of grant (Exh. 101) at paragraph 8 clearly provide that the grantee shall not without permission in writing of the Collector, lease, mortgage, sell or otherwise encumber the land granted before all the amounts due on the land on account of occupancy price and interest thereon shall have been paid. The grant was made {{FOOT NOTE}}
(1) PLD 1964 SC 572 {{FOOT NOTE}} ' under the provisions of the Sind Land Revenue Code, 1879 and under section 73- A the Government was competent to restrict the right of the grantee to transfer the land subject to previous sanction of the Collector. In any case it is well established that a Government Grant is governed by its own terms. Accordingly respondent No. 1 cold not transfers or alienates any part of the land granted to him without the sanction of the Collector. Be that as it may, the case of the appellant put at its best would be that there was an agreement for sale of half share of the land to him by the respondent No. 1, although nothing of the sort is spelt out of the documents (Exhs. 95 and 96). Even so such agreement can create no interest in the immovable property of the value of Rs, 100 or more under section 54 of the Transfer of Property Act. The right or title of the respondent No. 1 vesting in him by virtue of grant would, therefore, be unaffected by a mere contract for sale and he would accordingly be entitled to the declaration of his rights. It was for the appellant to have sued for specific performance of any sues agreement for transfer of ritle if he claimed so. But in absence of a decree, obviously respondent No. 1 would be entitled to the declaration of his occupancy right as held by the .First appellate Court.
9. Finally it was contended by Mr. Sabir Hussain Rehmani that in view of the findings reached by the Courts below that- the agreement. Was void, there was no justification for passing a preliminary decree for accounts against the appellant. The argument is that if the agreement between the parties is not given any effect, the appellant would be relegated to his original position as a hari on the land and, therefore, the claim of the respondent for accounts in respect of the . Produce of the land would be a dispute covered by section 28 of the Sind Tenancy Act, 1950 triable exclusively by a Tribunal ,constituted under the said Act. Mr. Jokhio, on the other hand, argued that there is no bar contained in the Sind Tenancy Act, 1950 on the jurisdiction of the Civil Court to entertain a suit for accounts by landlord against his tenant (hari). I agree with the contention of Mr. Rehmani that all disputes arising between the tenant and the landlord from the application of the provisions of the aforesaid Act, are to be referred to the Tribunal constituted under section 27.. Of the Act by virtue .Of the provisions of section 28. Section 29 of the said Act provides for an appeal against an award passed by the T,ribunal and section 30 provides for revision. Section 32 of the Act then lays down that an order made by the Collector under section 31 and an award of the Tribunal or the orders passed in appeal or revision shall be final and shall not be called in question in any Court., On the other hand, such award or orders passed under the Act shall be enforceable as a decree of the Civil Court as provided by section 33 of the Act. The cumulative effect. Of all the aforesaid provisions seems to be that if the dispute between the tenant and the landlord is covered by any provisions of the Act, then such dispute lies within the exclusive domain of the Tenancy Tribunal and the jurisdiction of the civil Court would be barred. Sections 17 and 23(f) of the aforesaid Act clearly provide that it is the duty of the tenant to give the share of the produce to the landlord. The case of the respondent No, I is that the appellant is his tenant (hari) and has failed to give him the due share of the produce for the relevant period - Clearly therefore, the dispute was of the nature contemplated under the Sin Tenancy Act, 1950 and as such was outside the jurisdiction of the civil Court. The Court had, therefore, no jurisdiction to pass a preliminary decree for accounts.
10. In the result, this appeal succeeds partly. The decree passed by the Courts below so far as the relief of declaration is concerned, is maintained, but the preliminary decree for accounts is hereby set aside. In the circumstances of this case, there will, however, be no order as to costs.