' Khizar Hayat and others filed a suit for specific performance of a contract against the respondent in the Court of Civil Judge. 1st Class, Khanewal, District Multan. Alongwith the plaint, an application for issuance of temporary injunction under Order XXX1X, rules 1 and 2, C. P. C. Was also filed with the following averments :- {{URDU TEXT}}
2. Learned Civil Judge after considering the material placed on the file came to the conclusion that the suit land still vests in the Provincial Government, governed and regulated by the provisions of the Colonization of Government Lands (Punjab) Act, 1912 and therefore the appellants have not been able to make out a good prima facie case. )f-le therefore dismissed their application vide order dated 4-11-1979.
3. The appellants have challenged the dismissal of their application in this first appeal on the following grounds :- "(a) That the appellants had good prima facie case and the trial Court should not have gone deep into the legality of the agreement to sell.
(b) That the defendant in the alleged agreement had shown themselves as the full owners of the suit land, therefore, they were barred from approbating and reprobating.
(c) That the suit land is an erstwhile evacuee property which had permanently settled upon the respondent under the Settlement Laws as refugee claimant and as such the same vested absolutely in the respondent free from any prohibition contained in section 19 of the Colonization of Government Lands (Punjab) Act, 1912."
4. In support of his aforesaid contentions,. He placed reliance on certain decisions published in P L 1) 1976 Lah. 923, NLR 1978 Lab. 513 and PLD 1975 Lab.
429. On the other hand the learned counsel for the respondent vehemently submitted as under :- "(i) That admittedly the suit land is a State-owned land governed by Act No, V of 1912.
(ii) That no requisite sanction as envisaged by section 19 of Act No, V of 1912 was ever obtained by the respondent, therefore, no injunction can be granted to defeat the object of law.
(iii) That the appellants have no prima facie effuse because the alleged agreement which was the basis of their suit is void itself and no injunction can be granted on the ground of such void transaction.
(iv) That the doctrine of estoppel cannot be involved against the defendant-respondent to legalise void agreement.
5. In support of the above contentions, the learned counsel for the respondent made reliance on certain decisions published in PLJ 1977 Lah. 782, 1974 SCMR 463, PLD 1978 Lah. 421, 1969 SCMR 254 and PLD 1969 Rev. I.
6. I have heard the learned counsel for the parties at length and perused the entire material placed on the record. Precisely the case of the appellants as borne out from the averments made in their plaint is that the present respondent agreed to sell his agricultural land measuring 48 kanals situated in Chak No, 70/10-P, Tehsil Khanewal for a consideration of Rs, 1,50,000 vide alleged agreement dated 13-8.1978 after receiving Rs, 36,000 as earnest money. The alleged agreement was to be performed by 15-1-1979 on the receipt of remaining consideration from the appellants.
They further averred in paragraph 3 of their plaint that pursuant to that agreement, the respondent delivered the vacant possession of the suit land to the: appellants. The respondent alleged that no agreement to sell was ever executed by him and that in any event the transaction was void under section 19 of the above-mentioned Act.
7. The only question which calls for decision in this case is whether an agreement to sell coupled with a delivery of possession pertaining; to land owned by the Provincial Government, regulated and governed by Act No, V of 1912, in pursuance of such agreement is hit by the prohibition contained in section 19 of Act V of 1912.
8. A copy of register of record-of-rights for the year 1976-1977 pertaining to the suit land shows that Provincial Government has been recorded as owner of the suit land in Column No, 3 while the respondent alongwith his brother Noor Hassan is mentioned as tenant under Act No, V of 1912 in the column of cultivation. It is also conceded by the learned counsel for the appellants that no sanction as required by section 19 of the Act was ever obtained by the respondent when he handed over the vacant possession of the suit land in pursuance of alleged agreement to sell. The contentions raised by the learned counsel for the appellants have been rightly controverted by the learned counsel for the respondent. It is manifest from the averments contained in the plaint and the material placed on the record that no serious question was to be tried in the suit and the trial Court cannot be excluded from examining the- prima facie legal nature of the claim on n; which the appellants/plaintiffs' suit is founded. The entries of the revenue record which bear a presumption of truth prima facie show that the. Respondent is holding the suit land as a tenant under the Colonization of Government Lands (Punjab) Act, 1912 (Act No, V of 1912) and therefore every alienation of the suit land will be strictly governed by the provisions of Act No, V of 1912. The contention that the respondent was permanently settled on the suit land and hence had become full owner thereof has no substance. The .Respondent preferred to be permanently settled on evacuee tenancy rights in the suit land and therefore according to law he was permanently settled to the extent of such tenancy rights abandoned by the evacuee. In the State v. Ghulam Muhammad etc. (1), the same intricate point of law was referred for determination to a Full Board of West Pakistan Board of Revenue and after making a luminous discussion, the members of the Full Board concluded as follows :- "(i) That the land allotted to the respondents is not owned by them, and they are not at liberty to transfer their rights without obtaining; {{FOOT NOTE}}
(1) PLD 1969 Rev, 1 {{FOOT NOTE}} ' the permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 ;
(ii) That the land shall remain in the ownership of the Provincial Government and the allottees shall be required to obtain permission under section 19 of the Act."
9. The above decision made in a reference is a complete answer to the objection raised above by the learned counsel for the appellants. In view of this matter, section 19 of the Colonization of Government Lands (Punjab) Act, 1912 being clearly applicable to the matter in dispute, the respondent was within his right in pointing out that the contract on which the appellants were basing their claim was void under the law. Reliance has rightly been placed upon the decision of the Supreme Court given in Abdul Shakoor and 2 others v. A. S. Tasneem and 2 others (I). The decision given in Muhammad Aslam and 3 others v. Muhammad Shaft (2), relied upon by the learned counsel for the appellants does not help the case of the appellants. In that case no right in the suit land had been created in violation of section 19 of the Act, but the deed had merely recited existing joistless in expenses and usufruct. In PLD 1975 Lah. 429 the question under discussion was never agitated and decided but the idea of withholding the temporary injunction on the ground of applicability of doctrine of lis pendens was discarded. This authority also does not support the cause of the appellants at all.
I perfectly agree with the arguments of the learned counsel for the respondent that granting of injunction prayed for in the instant case would tantamount to defeating the provisions of law. In Province of Punjab v. Kohistan Travel Service (3), relying upon PLD 1965 SC 690 it was held as under :- "No temporary injunction can be granted where if granted it will defeat the object and provisions of a statute. (In this case section 80, rules 248, 249 and rule 253, subsection (4) of the Rules). From that point of view also it is evident that it was not a fit case for the grant of a temporary injunction and the learned Courts below acted with material illegality and irregularity in the exercise of their jurisdiction in that respect.
' In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (4), at page 696 it was again held as follows :- "It may be pointed out that it is the duty of the Court itself to apply the law. A. Party is not bound, to engage a ,counsel. Whatever law becomes applicable on the admitted and proved facts, law has to be given effect to whether or not it has been relied upon by a party."
' In a recent decision given in Mirza Muhammad Ahmad Baig v. Mina Amjad Baig (5), while dealing with the same question it was re-affirmed that entering into agreement with another person by a grantee of State land and transferring to him all his rights in question in pursuance of such agreement without obtaining the prior permission in writing of the, Commissioner, Collector or any other Officer clearly fall within the mischief of section 19 of the Colonization of Government Lands (Punjab) Act, 19'12 and was therefore void. {{FOOT NOTE}}
(1) 1974 SCMR 463 (2) PLD 1976 Lah. 923
(3) PLJ 1977 Lab, 782 (4) PLD 1965 SC 690
(5) PLD 1978 Lab. 421 {{FOOT NOTE}}
10. As far as the allegation of approbation and reprobation concerned, the doctrine of estoppel cannot be invoked in aid to legalise such agreement which law expressly declares to be void. It is now well settled proposition of law that no estoppel can be claimed against law. The Supreme Court of Pakistan in a decision given in Ghulam Rasool and others v. Muhammad Anwar and others (1), laid down that in the absence of any written consent under section 19 of Act No, V of 1912, no specific performance of an agreement for sale could be ordered. In that case the petitioner's claim was that the respondent executed an agreement to sell in their favour pertaining to the suit land held by them for consideration of Rs, 20,000 and in part performance thereof obtained Rs, 1,500 as earnest money. They further claimed that they also obtained possession of the land in pursuance of that agreement. The learned Judges were of the opinion that the prayer for permanent injunction was rightly disallowed while making following observations :- "It has now consistently been held that a transfer prohibited by section 19 of the Colonization of Government Lands (Punjab) Act, 1912, is void even as between the parties to the transaction. It is, therefore, clear that in the absence of such consent, in writing of the Government, no specific performance of an agreement for sale could have been ordered. The only question was whether the decree for permanent injunction could have been granted by way of an equitable relief. But this too has been refused in the present case, for on the concurrent findings of both the trial Court and the first appellate Court, it is clear that the petitioner. Having been lawfully evicted, wrongfully entered into possession. An equitable relief could not be granted to a person the foundation of whose claim rested upon an illegality. Equity moves in aid of the law and not to defeat law."
' All the contentions raised by the learned counsel for the appellants have no substance and the same are repelled accordingly.
11. The upshot of the above discussion is that the order passed by he learned trial Court is absolutely in accordance with law on the subject Ind does not suffer from any patent illegality or material irregularity. As it is based upon correct appraisal of law and fact established on the record, I find no justification to make any interference therein. The appeal has no force and the same is dismissed with costs. {{FOOT NOTE}}
(1) 1969 SCMR 254 {{FOOT NOTE}}