' KH. IMTIAZ AHMAD, J.---This R.S.A. Is directed against the judgment and decree dated 4-7-2005 passed by the learned Additional District Judge, Kehror Pakka whereby he while accepting the appeal set aside the judgment and decree dated 27-11-2004 passed by the learned Civil Judge, Kehror Pakka and dismissed the suit of the plaintiffs.
2. The relevant facts for the disposal of this R.S.A. Are that Ghulam Hussain and legal heirs of Fida Hussain filed a suit for declaration against Khadim Hussain. It may be mentioned here that Ghulam Hussain and Fida Hussain were real brothers and sons of Gaman while Khadim Hussain was their step brother. The claim of the plaintiffs was that they were owner in possession of the property in dispute on the basis of Mutation No,197 attested on 22-2-1993 which was a Tamleeq (gift) and the defendant had no concern with the disputed property and the order dated 24-6-1996 passed by the Additional Commissioner, Multan as well as the order dated 17-7-2002 passed by the Member, Board of Revenue by which the Mutation No,197 was cancelled were illegal, in-effective upon the rights of the plaintiffs and were liable to be cancelled along with the injunction that the defendant be restrained to interfere into the possession of the plaintiffs or to change the revenue record. The detail of the property in dispute is fully mentioned in the head note of the plaint.
3. The case as put up by the plaintiffs was that the land was allotted to their predecessor Gaman son of Sher Muhammad and to make it cultivable the plaintiffs had spent huge amount and even the government dues were also paid by them. The father of the parties also asked the defendant to share the expenses but he refused to pay the expenses on the ground that he has no interest in the property. After the payment of entire government dues, the sale deed dated 12-12-2008 was executed in favour of Gaman, who on 22-2-1993 through Mutation No,196 got entered the said sale deed in the revenue record and thereafter the Gaman made the offer of gift in favour of plaintiffs which was accepted by plaintiff No,1 and Fida Hussain and Mutation No,197 dated 22-2-1993 was attested in his favour. It was further alleged that after the death of father of parties the defendant moved a petition before the Deputy Commissioner, Lodhran for cancellation of Mutation No,197 which was dismissed on 28-6-1994 and the defendant preferred an appeal before the Assistant Commissioner (Revenue) which was also dismissed as withdrawn. Thereafter the defendant preferred an appeal before the Assistant Commissioner Kahror Pakka which was also dismissed on 26-4-1995 and the defendant preferred revision petition before the Additional Commissioner Multan which was accepted on 24-6-1996 and it was ordered that Mutation No,197 be cancelled.
Against this order the plaintiffs preferred the appeal before the Board of Revenue which was also dismissed on 17-2-2002. It was further alleged that both the orders dated 24-6-1996 and 17-2-2002 were liable to be cancelled on the ground that after the execution of sale deed (Bainama Shahi)
Gaman was absolute owner and he had every right to gift away the property. It was also alleged that factum of offer, acceptance and delivery of possession were fully complied with. It was further alleged that no sanction was required for the transfer of property through gift.
4. The suit was resisted by the defendant who tiled the written statement therein it was maintained that the defendant had also borne the expenses for cultivation, though, the plaintiffs never spent a single penny; that no gift was made in favour of the plaintiffs and the revenue authorities had rightly cancelled the mutation nor the possessions was ever transferred to the plaintiffs. It was also maintained that Mutation No,197 was attested in violation of terms and conditions of the "Bainama Shahi" (sale deed).
5. Out of the pleadings of the parties the learned Trial Court framed the following issues:--
(1) Whether the plaintiffs have no cause of action to file this suit? OPD
(2) Whether the suit is time barred? OPD
(3) Whether the suit is bad for non-joinder of necessary parties? OPD
(4) Whether the instant suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
(5) Whether the Mutation No,197 dated 22-2-1993 is illegal, against the facts and liable to be set aside? OPD
(6) Whether this court lacks jurisdiction to try this suit? OPD
(7) Whether the orders dated 24-6-1996 passed by the Additional Commissioner (Revenue) and order dated 17-7-2002 passed by Member Board of Revenue are against law and facts and liable to be set aside? OPD
(8) Relief.
6. The parties produced their evidence and after hearing them, the learned Trial Court while deciding Issue No,7 came to the conclusion that the gift was validly made by Gaman in favour of Ghulam Hussain and Fida Hussain. With regard to the condition which was incorporated in the sale deed that alienation within 5 years without prior sanction of Board of Revenue was not permissible, the learned Trial Court observed that the right of ownership occurred on the date when the dues were paid and condition could only be imposed upon tenant and not on owner. It was further observed that the dues were paid one year before-22-12-1988 i.e, 22-12-1987 while Mutation No, 197 Exh. P-2 was attested on 22-2-1993 so, the mutation was attested after the expiry of 5 years and decided the issue in favour of plaintiffs, resultantly, in the light of said findings decided the other issues in favour of the plaintiffs and decreed the suit. Feeling aggrieved the defendant preferred an appeal which came up for hearing before the learned Additional District Judge Kehror Pakka, who came to the conclusion by placing reliance upon Notification No,3215-79-3973-C-II dated 3-9-1979 that the allottee was not empowered to transfer the land within 5 years, thus, on this basis accepted the appeal and dismissed the suit. However, he had given no finding with regard to factual aspect of the case that whether the gift was infact properly made in favour of the plaintiffs.
It is in this background that the plaintiffs have filed this R.S.A.
7. Learned counsel for the appellant contended that only two points are involved in this appeal, the first is that whether Gaman had validly mad the gift in favour of plaintiffs. He contends that the learned Trial Court has decided this aspect in favour of the plaintiffs while the learned appellate court had not set aside the findings of learned Trial Court on this point nor the respondent had challenged or preferred appeal on this point, so, that aspect stands established. As far as the other point is concerned that whether Gaman was not empowered to alienate the land during 5 years from the date of acquisition of proprietary rights without previous consent in writing from the Board of Revenue, he contended that the learned appellate court had mainly placed reliance upon the notification of 1979 mentioned above on condition No,11. He contended that there is no penal clause so on this basis the mutation could not be cancelled and further contended that no restrictions can be imposed upon the owner for the transfer of the land. He also placed reliance upon a judgment passed by this court in Writ Petition No,1560 of 2006 captioned "Abdul Rashid v. Member Board of Revenue and others".
8. On the other hand learned counsel for the respondent has contended that as far as the fact that whether the valid gift was made in favour of the plaintiffs, the respondent can agitate this point even if it has not been specifically challenged. He contended that it was for the beneficiary to prove the same and in this behalf neither any Patwari nor any, attesting officer was produced and placed reliance upon 2003 SCMR 286, PLD 2003 SC 688, PLD 2009 Lah. 407, PLD 1965 SC 15 and PLD 1986 SC
519. He further contended that the condition imposed in the sale deed read with Para-11 of the notification clearly establishes that the allottee was not competent to transfer the land during 5 years without prior permission of Board of Revenue, so, the said mutation was illegal.
9. Arguments heard. Record perused.
10. First of all I take up the legal question that whether the proprietor was competent to transfer the land within 5 years without permission of Board of Revenue. In this behalf the relevant document available on the file is sale deed itself which is Exh.P-5. Perusal of this document shows that it was registered on 25-3-1989 while the mutation of gift was attested on 22-2-1993 and thus alienation by way of gift was made within 5 years without approval of Board of Revenue. The said sale deed is printed and it was executed and signed on 22-12-1988. In the end after the signatures the condition was typed as under:-- "Alienation of rights:---No grantee shall alienate by sale, mortgage, gift, exchange or otherwise the whole or part of a grant before or during 5 years from the date of acquisition of proprietary rights without previous consent in writing of Board of Revenue."
11. Now this condition in fact is not part of original sale deed, but it was added subsequently through typing and does not bear the signature of any authority. In fact it appears that this condition was incorporated on the basis of Notification No,3215-79-2973-C-II its clause-1 reads as under:-- "(1)" Alienation of rights:---No grantee shall alienate by sale, mortgage, gift, exchange, will or otherwise the whole or part of his grant before or during 5 years from the date of acquisition or proprietary rights without previous consent in writing of the Board of Revenue."
12. Now, it is to be seen that if any party violates this condition then what is the penalty. Clause-12 of this notification provides the penalty clause which is reproduced as under:- "12. Resumption (a) If any grantee fails to perform, or commits breach of any of the terms and conditions of his grant, or permits such breach or non-performance, the Collector may proceed against him in the manner provided under Section 24 of the Act.
(b) Any lessee who has given false information regarding the qualifications to purchase proprietary rights under these conditions shall be deemed to have committed a breach of the conditions.
(c) If, at any time, it is found that a grantee has acquired proprietary rights in any land by means of fraud or misrepresentation or as not eligible to acquire such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such grantee in such land of the terms and conditions of any agreement with or rules issued by the Government and without prejudice to any other liability or penalty to which such grantee may be liable under any law for the time being in force, the Collector may, after giving such grantee a reasonable opportunity of showing cause resume the land in respect of which proprietary rights have been acquired.
13. Now perusal of para-a of clause 12 clearly provides that if any grantee fails to perform or commits breach of any terms or conditions of his grant or permit such breach or non- performance, the Collector may proceed against him in the manner provided under section 24 of the Act. It is appropriate to reproduce section 24 of the Colonization of Government Lands (Punjab)
Act, 1912. This section deals with the power of, imposing penalties which is reproduced as under:-- "24. Power of imposing penalties: ---When the Collector is satisfied that a tenant in possession of land has committed a ' breach of conditions of his tenancy, he may after giving the tenant an opportunity to appear and state his objection;
(a) impose on the tenant a penalty not exceeding five thousand rupees, or
(b) order the resumption of the tenancy: ' Provided that if the breach is capable of rectification the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less then one month, to be staled in the notice, and the tenant has failed to comply with such notice.
14. Now perusal of section 24 of the above said Act clearly provides that Collector has two powers either to impose penalty not exceeding Rs,5,000 or order the resumption of tenancy. There is no other penalty provided for the violation and so the orders of both the revenue authorities are illegal on this ground alone that neither the penalty of imposing the fine was made nor order of resumption of tenancy was made. It was not in the jurisdiction of the revenue authorities to cancel the mutation of gift which was made by the original allottee. This question was also taken into consideration by this court in a case Writ Petition No,1560 of 2006 captioned "Abdul Rashid v.
Member Board of Revenue and others" which was also approved for reporting. In the said case in fact the allotment was cancelled on the ground that the alienation was made during 5 years without permission of Board of Revenue. This court in para-4 while dealing with the condition observed as under:-- "To my mind, the said condition in the said conveyance deed granting proprietary rights to the petitioner in the said land is wholly void being the condition in restraint of alienation. Section 10 of the Transfer of Property Act, 1882 is quite specific on the subject. Section 30(1) of the said Act of 1912, lays down in clear terms that upon grant of proprietary rights the tenant shall seize to be subject to any statement of conditions except the condition set out in the Schedule-II to the said Act. No such restraint of alienation is to be read in the said Schedule-II to the said Act."
15. Now in the present case also as has been mentioned above that there was no penalty provided for the cancellation of mutation and in view of case-law mentioned above, this court had already declared that no such restraint of alienation can be imposed upon the person who have been granted proprietary rights. In this way the findings of learned Additional District Judge, are illegal whereby it was held that proprietor cannot alienate the property within 5 years from the date of acquisition of rights.
16. Now I advert to the next aspect that whether the said Gaman had gifted away the property to Ghulam Hussain and Fida Hussain. In this respect Muhammad Ilyas one of the plaintiffs appeared as P.W.1 who had deposed that after the execution of sale deed in presence of him, Ghulam Hussain, Fida Hussain, Allah Ditta, Jafar Hussain Shah and Riaz, Gaman had made the offer which was accepted by Khadim Hussain and Fida Hussain and thereafter the mutation was entered and attested. Almost same is the statement of Jafar Hussain P.W.2. Now, in this behalf it is very much material to reproduce the statement of Khadim Hussain DW.1 himself. He in the cross-examination admitted that his father in his life time had never challenged the mutation. He also admitted that his father in his life time had never challenged the mutation. He also admitted that his father had informed him that sale deed was prepared by Ghulam Hussain. He also admitted that Gaman used to reside with Ghulam Hussain and Fida Hussain. He categorically admitted in his cross- examination that his father had informed him that mutation has been entered and that the plaintiffs were in possession of the disputed land right from the time when the mutation was attested in their favour. He also admitted that all the expenses were borne by Ghulam Hussain and Fida Hussain and he further stated that it was in the knowledge of God that whether the mutation of gift was correct or wrong.
17. Now this statement of defendant clearly shows that father of parties never challenged the gift in his life time. He had also informed the defendant that mutation had been entered. The plaintiffs were in possession of property in dispute right from the time when the mutation was attested in their favour. It were the plaintiffs who spent the money for making the land cultivable.
18. It is also not out of place to mention that the defendant had preferred the appeal in the court of Assistant Commissioner/Collector, Kehror Pakka District Lodhran against the order dated 22-2- 1993. The grounds of appeal are available as Exh.P-10. In the head note of the appeal it is specifically mentioned that Gaman was not competent to alienate the property during the period of 5 years and even in para-4 of the grounds of appeal it was mentioned that father of appellant had gifted away the property to respondent through Mutation No,197 dated 22-2-1993 in violation of the conditions of the proprietary rights. Now this also shows that mutation No,197 was only challenged on the ground that it was attested in violation of the conditions. It was not challenged on the ground that gift was not made in favour of the plaintiffs.
19. In view of what has been said above, this appeal stands accepted with the result that judgment and decree dated 4-7-2005 passed by the learned Additional District Judge, Kehror Pakka is set aside and judgment and decree dated 27-1--2004 passed by the learned Civil Judge stands restored.