' MUHAMMAD KHALID MEHMOOD KHAN, J.---. Respondent No,1 filed a suit for specific performance of an agreement dated 6-7-1977 claiming that respondent No,2 agreed to sell agricultural land measuring 120 kanals detail of which is given in the head note of plaint, to him against consideration of Rs,40,000/-, out of the agreed sale price, he received Rs,25,000/- and as per agreement balance amount was payable at the time of registration of sale-deed, subject to grant of proprietary rights in favour of seller. The agreement to sell was registered with Sub-Registrar and possession in pursuance of this agreement was given to respondent No,1. He further asserted that he has developed the land by spending a sum of Rs,5000/-. The petitioner was arrayed as respondent No,2 being subsequent purchaser of land, subject-matter of agreement to sell. The respondent further claimed that respondent No,2 was having "Dakheel Kari" rights in the land, subject-matter of agreement to sell and as such the sale-deed was agreed to be executed after grant of proprietary rights by the T.D.A. Respondent No,1 further asserted that as the proprietary rights have been granted to respondent No,2 on 27-2-1982 and as such he is bound to execute the sale-deed in his favour.
2. The petitioner as well as respondent No,2 filed their respective written statements. Respondent No,2 denied the execution of agreement to sell and raised a specific objection that no permission under section 19 of Colonization of Government Lands Act, 1912 has been given and as such sale is void. He also denied the receipt of any sale consideration. A specific allegation of fraud has been agitated against respondent No,
1. Respondent No,2 took the defence that he is a bona fide purchaser for 'value. He has purchased the property after grant of proprietary rights to respondent No,2. The pendency of litigation was not in his knowledge, hence he is bona fide purchaser for value without notice.
3. Learned trial Court, out of divergent pleadings of the parties, framed the following issues:--- ISSUES:
1. Whether the suit is barred by time? OPD
2. Whether the suit is not maintainable under section 19 of the Colonization of Lands Act? OPD
3. If issue No,3 is replied in the affirmative, whether the plaintiff is entitled to decree for specific performance of the contract dated 6-4-1977 and on what terms and conditions? OPP
4. Whether the defendant had entered into any agreement on 6-4-1977 with the plaintiff? If so, on what terms and conditions? OPP 4-A Whether defendant No,2 is bona fide purchaser of the suit-land of consideration of Rs,60,000/- without notice of previous transaction between plaintiff and defendant No,1 and with what effect? OPD (2)
5. Relief
4. Learned trial Court after recording the evidence of both the parties both verbal as well as documentary, decreed the suit vide judgment and decree dated 22-7-1986. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 19-7-1992.
5. The seller has not assailed the judgment and decree of the learned trial Court. The petitioner who is subsequent purchaser challenged the legality of judgments of two courts below through the present revision petition.
6. Learned counsel for the petitioner submits that as permission under section 19 of the Colonization of Government Lands Act, 1912 was not obtained by respondent No,2 and as such the alleged sale agreement is void and is not enforceable in the eye of law. He further submits that the sale agreement in favour of respondent No,1 is an outcome of fraud. His argument is that both the courts below have failed to appreciate the evidence available .On record and as such the impugned judgment and decree suffers from misreading and non-reading of record. He adds that the suit was hopelessly barred by time as admittedly agreement to sell is dated 6-4-1977 whereas the suit has been filed on 7-10-1982, Half-hearted argument of res judicata has also been advanced by learned counsel for the petitioner.
7. Learned counsel for respondent submits that agreement to sell was enforceable in law as the same was for the sale of corpus of land and for selling the corpus of land there was no need for obtaining permission under section 19 of the Colonization of Government Lands Act, 1912. Further submits that suit was within time and as per agreement between the parties, the sale-deed of the property was to be executed after granting the proprietary rights by. The T.D.A: He adds that petitioner is not the bona fide purchaser for value and entire litigation between the parties was in his knowledge and he purchased the property during pendency of suit and as such principle of lis pendens will apply.
8. Heard. Record perused.
9. The agreement to sell is Exh.P-1. Respondent No,2 while entering into the said agreement, has agreed as under:--- {{URDU TEXT}}
10. The argument of learned counsel for the petitioner is that under section 19 of the Colonization of Government Lands Act, 1912 any agreement without sanction of Government is void and no specific performance of such agreement could be ordered. For better appreciation of section 19 of the Colonization of Government Lands Act, 1912, the same is reproduced as under:-- "Transfer of rights to be void.--- Except as provided in section 17, none of the right or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the [Executive District Officer (Revenue)], or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a 2tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy, any such transfer or charge made without such consenting writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the order of the Collector: ' Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."
' He has relied on Ghulam Rasul and others v. Muhammad Anwar and others (1969 SCMR 254) and Abdul Aziz and others v. Collector/Deputy Commissioner Rahimyar Khan and others (PLD 1981 Lah.
457).
11. Under section 54 of Transfer of Property Act, a contract sale of immovable property does not of itself create any interest in or charge on such property. Meaning thereby agreement to sell would not create any right or title on property. The agreement in hand provides a stipulation that the seller will execute the sale-deed in favour of purchaser on grant of proprietary rights. Section 19 of Colonization of Government Lands (Punjab) Act, 1912 bar the transfer of tenancy rights, exchange, gift, will, mortgage or other private contracts. As agreement in hand, respondent No,2 has agreed to sell the corpus of property which will come into operation after the grant of proprietary rights.
The purchaser has carrying a risk to the effect that in case the proprietary rights were not granted to the seller, he will loose his money. Only condition agreed as per agreement for execution of sale- deed is the grant of proprietary rights and the penalty clause available in the agreement is that in case of failure to execute the sale-deed even after grant of proprietary rights, the purchaser will be bound to pay Rs,25000/- in addition to the earnest money already paid and as such there was no necessity of getting any permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 for entering into the said agreement. This issue came up before Hon'ble Supreme Court of Pakistan in a case titled Sher Muhammad Khan and others v. 11am Din and others (1997 SCMR 470) while interpreting of section 54 of Transfer of Property Act, the agreement to sell is held a factum of delivery of possession and in case of land situated in colony area, it was held that transferor had agreed to sell the corpus of land in question and not his tenancy rights. The judgment referred by the learned counsel for the petitioner, Ghulam Rasul and others v.
Muhammad Anwar and others (1969 SCMR 254) was also considered by the Hon'ble Supreme Court of Pakistan while deciding the above referred case. It was further held in the said judgment that an agreement to sell of corpus of land after getting proprietary rights is a valid agreement and is enforceable after actual proprietary rights have been obtained and the intending purchaser had been refused the same but where the agreement to sell is for the tenancy rights without obtaining permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, such agreement will be void and is not enforceable. On the said issue the judgments titled Hakam Ali and others v. Atta Muhammad and others (1981 SCMR 993) and Kamal Hassan Shah v. Member Board of Revenue (Colony) West Pakistan and 2 others (PLD 1987 SC 212) are referred.
12. The argument of learned counsel for the petitioner that agreement has not been proved, is devoid of any merit. Both the marginal witnesses of agreement to sell appeared as P. W.1 and P.W.2.
Both have categorically deposed that agreement was executed before them and respondent No,2 received Rs,25000/- in their presence. Respondent No,2 who is signatory of agreement to sell appeared as D.W.3. In his written statement, he has taken the defence that he has not received any earnest money and the agreement to sell is an outcome of fraud as he is an illiterate person. While appearing as D.W.3, he deposed as under:--- {{URDU TEXT}}
13. Admittedly the possession of land in dispute is with respondent No,l. D.W.3 has failed to depose even a single word about the possession of respondent No,l. He has deposed that he executed the agreement of tenancy with respondent No,1 but he has not deposed that respondent No,1 is his tenant. However, the petitioner who is subsequent purchaser has not denied the fact of possession of respondent No,2 at the time of execution of sale-deed in his favour which is Exh.D-1. He has not deposed a single word while appearing as D.W.3 that he taken over the possession of property from the seller, respondent No,2. D. W.1 in cross-examination admits as under:-
14. The said statement was recorded on 6-4-1985 meaning thereby respondent No,1 is in possession of land since 1982. Respondent No,2 has failed to produce a single document on record showing that respondent No,1 was his tenant. He has not placed on record any Khasra Girdawary for establishing his ownership and the status of respondent No,2 as tenant. The petitioner himself has not claimed that he is in possession of land in pursuance of sale-deed in his favour, hence, as per admission of D.W.3 that respondent No,1 is in possession of property, is sufficient to establish the notice of sale in favour of petitioner. The petitioner has not deposed a single word in his examination-in-chief that he inquired from the Revenue Record about the status of land nor he has asked respondent No,1 about the status of his possession.
15. Respondent No,2 has failed to establish on record that any fraud was committed with him.
Respondent No,2 agreed to sell the land to respondent No,1 with the condition that he will execute the sale-deed in his favour after the grant of proprietary rights in his favour by the T.D.A. The argument of learned counsel for the petitioner that suit is F barred by time, is not worth considering.
The proprietary rights were granted to respondent No,2 on 27-2-1982, suit was filed by respondent on 7-10-1982 and the petitioner purchased the land on 20-12-1982 and as such the suit was within time. The purchase in favour of petitioner is during pendency of suit and as such principle of lis pendens will apply in the circumstances of present case.
16. The upshot of the above said discussion is that both the learned courts below have rightly passed the decree in favour of respondent No,1 and petitioner has failed to point out any illegality, misreading or non-reading of record which necessitate to interfere in the concurrent findings of fact of two courts below and as such this petition fails and is dismissed.