' ATTAULLAH KHAN, J.--- Mst. Mureed Batool, petitioner-defendant, has filed this revision petition under section 115, C.P.C. Against the concurrent judgments and decrees of the learned two Courts below dated 27-10-2001 and. 8-7-2005 respectively, whereby declaratory suit of Usman and Ghulam Hussain, plaintiffs-respondents, was decreed.
2. According to the averments made in the plaint, Usman and his brother Ghulam Hussain plaintiffs had sought declaration to the effect that they are owners-in-possession in equal shares of the suit-land fully detailed in the plaint on the basis of a registered deed No,33, Bahi No,1, Jild No,489 attested on 16-2-1972 by the defendant Mst. Mureed Batol in their favour and that the entries in the relevant register for the year 1977-78 and subsequent entries in favour of the .Said defendant are wrong, fictitious and inoperative upon their rights.
3. The defendants contested the suit and filed written statement. The divergent pleadings of the parties gave rise to the framing of the following issues:---
(1) Whether the plaintiffs have got a cause of action and locus standi?
(2) Whether the suit is competent?
(3) Whether the possession of the suit property along with the ownership'was transferred in favour of plaintiffs?
(4) Whether the transaction was cancelled with the consent of both the parties?
(5) Whether the plaintiffs are estopped to sue?
(6) Whether the suit is mala fide?
(7) Whether the suit is within time?
(8) Relief
4. The learned trial Judge on evaluating the materials brought on record and hearing pro and contra arguments of learned counsel for the parties, decreed the suit of the plaintiffs whereagainst appeal of the defendants was also dismissed vide judgments and decrees mentioned above.
Hence, this revision petition.
5. Learned counsel for the petitioner submitted that both the Courts below have wrongly interpreted the relevant law and thus the impugned judgments and decrees are against law and facts. His second .Submission is that both the Courts below have misread the evidence. He further submitted that the Courts below have relied upon the deed which was against the relevant law and also that the petitioner who is a lady is not party to it nor it is proved. His third submission is that the Courts below have wrongly held the suit as within time because the cause of action accrued from the date of refusal of attestation of mutation and not record of rights.
6. On the other hand, learned counsel for the respondents stated that the deed on the basis of which this suit was filed has sufficiently been proved and, therefore, the Revenue Officials were bound to enter and attest the mutation in favour of the plaintiffs- respondents.
7. I have carefully gone through the record and anxiously considered the arguments of the learned counsel for the parties.
8. The first argument of the learned counsel for the petitioner is regarding the appreciation of law.
He is of the opinion that the law on the subject is N.-W.F.P. Chashma Right Bank Canal Project (Control and Prevention of Speculation in Land) Ordinance, 1971, which prohibits the alienation of landed property.
9. I have perused the said Ordinance. The alienation is defined in section 2(a) which includes sale, mortgage, lease, gift, exchange but shall not include alienation of land in lieu of dower. This provision means that all kinds of alienation is barred except alienation in lieu of dower. Section 4 of the Ordinance ibid is reproduced below:--
4. Bar on alienation of project land--- No person shall alienate the project land from the commencement of this Ordinance until the expiry of fifteen years after such date as may be notified by Government as the date on which water from the Chashma Right Bank Canal Project is made available for the irrigation of the land: ' Provided that the Commissioner may on application if satisfied that there are sufficient grounds for doing so, permit the land to he alienated, before the expiry of the above said period, on such payment to Government and subject to such conditions as the Commissioner may deem fit to impose."
10. The above provision shows that in the project land, no alienation of land can be made by any person from the date of commencement of this Ordinance unless the expiry of fifteen yeaRs, However, a proviso is given which permits the alienation provided permission is granted by the Commissioner.
11. Now, we have to see whether the sale-deed disputed in this case comes within the ambit of the above mentioned provision or not. To resolve this issue, I would first refer to the deed through which the property in dispute has been allegedly sold by the defendant-petitioner to the plaintiffs- respondents. The deed is Exh.P.W.1/1 which was executed between the parties on 16-2-1972. This deed is No,33. Through this deed, the disputed land measuring 111 Kanals 14, Marlas was sold to the plaintiffs by the defendant for a consideration of Rs,.6000. It appears from the contents of the deed that an amount of Rs,2525 was paid which was due. This fact is admitted by the parties. As stated above, the deed was executed between the parties on 16-2-1972. Now I would refer to N.-W.F.P.
Chashma Right Bank Canal Project (Control and Prevention of Speculation in Land) Ordinance, 1971.
This Ordinance was issued on 6-10-1971 and according to section 1(3), it shall come into force at once, so, the said Ordinance was in field from 6-10-1971. As stated above, the alleged sale-deed was executed between the parties on 16-2-1972 and therefore, the execution is after the commencement of the Ordinance. According to section 4 of the Ordinance, the alienation of land is banned from the commencement of the said Ordinance and shall continue till the expiry of fifteen yeaRs, It means that the Ordinance shall remain in force till 6-10-1986. In these circumstances, keeping in view the provisions of the above mentioned law, any transaction made in contravention of the Ordinance shall be null and void. This is provided in section 12 of the Ordinance which is reproduced below:-- "12. Alienations made in contravention of the ordinance to be null and void--- Any alienation of project land made by a person against the provisions of this Ordinance shall be null and void and shall not confer any right or remedies on the parties to such alienation or any person claiming under them."
' So, under the above mentioned section, the sale transaction between the parties which is disputed in this suit, is a void transaction because it was executed during the period during which sale was banned. I may also refer to PLD 1980 Peshawar 165 wherein it is held that:-- "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 Statue. 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; old 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."
The circumstances of the present case are similar to the case reported and reproduced above. No permission was obtained from the Commissioner as provided in section 4 (ibid). Another reported case Which I like to mention is 1969 SCM R 254 the relevant portion whereof is reproduced as below:- "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."
So, in my opinion, keeping in view the above discussion and principles laid down by the superior Court, the transaction in dispute is void because it was made during the enforcement of the Ordinance and no sanction of the Commissioner was required as envisaged in the proviso of section 4 of the ibid Ordinance.
12. Moreover, according to the stand of the defendant, the transaction between the parties has been cancelled and the amount received by the defendant was returned to the plaintiff. It is also one of the contentions of the defendant that even otherwise, the sale-deed is not legal because the vendor in that case is a lady and she was Pardanashin. It appears from the sale-deed that at the time of execution and thumb impressing the document, none of her relative accompanied her which is against the settled law laid down by the superior Courts which provides that if a lady is Pardanashin, she must be accompanied and identified by her relative. This also makes the deed doubtful.
13. The next question to be determined is whether the suit is within time or not. Both the Courts have held the suit to be in time keeping in view the entries in the revenue record i.e. Fard Jamabandi. The contention of learned counsel for the plaintiffs- respondents is that every fresh entry in the record of rights gives fresh cause of action and the last entry made was in June, 1994, therefore, the suit is within time. The main case of the plaintiff-respondents is based on the sale-deed which was executed between the parties on 16-2-1972. This sale-deed has not been acted upon by the parties.
The cause of action arises to a person on the basis of entries in the record of rights when he is owner or in possession. In this case, the plaintiffs-respondents are neither owners nor in possession of the suit property, therefore, cause of action would not accrue to them from the date of fresh entry in the record of rights. They claim their right on the basis of sale-deed. In my opinion, the cause of action would be available to them from the date of execution of sale-deed which is 16-2- 1972. In this case, as reflected from the plaint that the suit is for declaration which shall be covered under Article 120 of the Limitation Act which provides a period of six yeaRs, If we take the date as 16- 2-1972 as starting date, the plaintiffs-respondents should have filed the suit on or before 16-2-1978.
If we consider the date as 6-10-1971 which is calculated on the basis of expiry of fifteen years as provided under section 4, the plaintiffs-respondents were required to file the suit on or before 6-12- 1992. It appears from the record that the suit was filed on 27-9-1995, therefore, the suit is hopelessly time barred. Reference may be given to 2003 CLC 1521 and 2002 CLC 264. In this case, the plaintiffs were well aware of the date of sale-deed and also the date of expiry of enforcement period of the Ordinance but they remained silent over their 'right and have chosen their own time convenient to them which is not allowed.
14. Moreover, it seems that the plaintiffs-respondents have impleaded the official defendants just to bring the suit within time. The official defendants had refused, as per plaintiffs-respondent, the attestation of mutation on the basis of sale-deed. But after the expiry of Ordinance i.e in 1992, the plaintiffs-respondents did not try to approach Revenue officials for attestation of mutation. This conduct of the plaintiffs-respondents creates doubt about the existence of sale-deed.
15. The upshot of my above discussion is that the sale in dispute relied upon by the plaintiffs- respondents is void under section 12 of the N.-W.F.P. Chashma Right Bank Canal Project (Control and Prevention of Speculation in Land) Ordinance, 1971, the sale-deed has not been acted upon by the parties and the suit is hopelessly time-barred, therefore, the appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit of the plaintiffs-respondents is hereby dismissed, leaving the parties to bear their own costs.