' NASIR-UL-MULk, J.---The subject matter of these appeals by leave of the Court from the judgment of the Lahore High Court, Bahawalpur Bench is property measuring 59 canals, 14 marls allotted to one Abdul Tawab, through RL-H No,911 on 28-2-1973. Before the allotment he had executed a general power of attorney on 26-2-1973, registered on 27-2-1973 in favors of Ch. Muhammad Rashid son of Ch. Barkat Ali, empowering him to obtain confirmation of the allotment and thereafter to sell, mortgage etc. The property so allotted. On the very next day on 1-3-1973 the attorney entered into an-agreement to sell 36 canals, 17 marls in favors of, Ch. Muhammad Rafique for sale consideration of Rs,72,000, out of which it was stated that Rs,60,000 was received and the remaining Rs,12,000 was to be paid upon the completion of the registered sale deed.. This transaction was entered in the revenue record and mutation thereof attested on 13-3-1973.
2. Another transaction by the same attorney, Ch. Muhammad Rashid, was entered on behalf of Abdul Tawab through an agreement to sell in favors of Mst. Naseem Akhtar wife of Ch. Muhammad Rafique for the remaining 22 canal's, 7 marls. Like the other transaction, the agreement to sell was entered on 11-3-1973 and out of sale consideration of Rs,45,000, Rs,40,000 was paid on the same day to the Attorney through a receipt The balance was also paid on 26-3-1973.
3. Meanwhile, Abdul Tawab himself on 28-2-1973 through an oral agreement sold the entire 59 canal's. 14 marls to Rashid Ahmad son of Wali Muhammad and Bagh Din son of Umar Din, the latter was already in cultivating possession of the property. On 4-4-1974, the sale in favors of these two vendees was registered. Abdul Tawab had on 18-4-1973 revoked the general power of attorney of Ch. Muhammad Rasheed as he had no trust left in him.
4. Three suits were filed regarding the above transactions; one by Ch. Muhammad Rafique on 24- 5-1973 for specific performance of the agreement to sell, impleading besides Abdul Tawab and Ch. Muhammad Rasheed. The vendees Rasheed Ahmed and Bagh Din. A similar suit was instituted by Mst. Naseem Akhtar on 7-3-1976 with the same prayer. The 3rd suit was filed by Bagh Din and Rashid Ahmed on 16-3-1974, praying for permanent injunction against Mst. Naseem Akhtar and Ch. Muhammad Rafique. This last suit was not pursued and. Therefore, dismissed. The other two suits were separately tried and dismissed. Both, Muhammad Rafique and Mst. Naseem Akhtar, filed appeals which met the same fate. Muhammad Rafique passed away in the meanwhile. The revision petitions against the concurrent findings were also dismissed by a common judgment impugned in these appeals.
5. Leave to appeal was granted to the appellants on 6-10-2006 by a detailed order spreading over five pages. The facts mentioned therein w need not be repeated. This Court was persuaded to grant leave primarily to examine three contentions raised on behalf of the appellants and one by the respondents/vendees, Bagh Din and Rashid Ahmad. On behalf of appellants it was contended, firstly, that since the execution of power of attorney by Abdul Tawab in favors of Ch. Muhammad Rashid, through whom the appellants had purchased the property and paid the sale consideration, was not denied by the principal, the appellants had discharged the initial onus and, thus, the burden shifted to the respondents/vendees to substantiate their title to the land in question.
Secondly, that the Courts had erred in declaring the transaction in the appeals under MRL No,115 of 1972 in that the transaction in question was between private parties and the said provisions did not prevent the land owners from selling the property at reasonable price. And, thirdly, that the decisions by the three Courts were arrived at by overlooking the provisions of section 27(b) of the Specific Relief Act and section 204 of the Contract Act.
6. For the respondents, it was argued that the suits of the appellants were not maintainable without seeking cancellation of the registered sale deed and further, there was no justification for this Court to upset the concurrent findings of three Courts on pure question of facts.
7. The learned counsel for the appellants submitted that Abdul Tawab had duly appointed Ch. Muhammad Rashid through a registered general power of attorney through whom the appellants had purchased the property and that this fact was admitted by Abdul Tawab. Reading out contents of the deed of revocation of the power of attorney, the learned counsel pointed out that Abdul Tawab had admitted that the attorney has been selling the property, albeit at ridiculously low price, and further the revocation was expressly prospective and did not affect the transaction already effected by the attorney. In support of this contention, the learned counsel also read out section 204 of the Contract Act that the principal was bound by the act of the agent performed prior to the revocation of the agency. He next argued that the sale in favour of Bagh Din and Rashid Ahmed by Abdul Tawab through registered deed did not affect the appellants' title to the property as the deed was registered on 4-4-1974 after Ch. Muhammad Rafique had filed the suit for specific performance on 24-5-1973. The learned counsel submitted that all the Courts concurrently upheld the transactions in favour of the. Appellants and the receipt of the sale considerations. That it was in this context that the appellate court while declining to grant decree for specific performance to Mst. Naseem Akhtar, granted a decree for recovery of Rs,45,000 against Muhammad Rashid, the General Attorney. On the findings given by the Court on the ban imposed under MLR No,115, the learned counsel submitted that the Civil Court had no jurisdiction to give such declaration, and it were the forums specified in the Regulations that were competent to take cognizance of violation of any provisions of the Regulation.
8. The learned counsel for the respondents contended that the whole arrangement of the execution of general power of attorney by Abdul Tawab in favors of Abdul Rashid was made under pressure from the concerned officer empowered to make the allotment of evacuee property, which is evident from the sequence of the various steps. Elaborating he pointed out that the general power of attorney was given on 26-2-1973 which included the power to obtain confirmation of the allotment. The Power was registered on the following day and the next day i,e, 28-2-1973, the 59 canal's, 14 marls were allotted to Abdul Tawab. On the, very next day, on 1-3-1973 the property was sold by the attorney to Ch. Muhammad Rafique. The learned counsel further submitted, it was on 28-2-1973 that Abdul Tawab had by oral agreement sold the entire property to Bagh Din and Rasheed Ahmed. That by the power of attorney executed in favors of Muhammad Rasheed, the principal did not divest himself of the power to dispose off the property. He next argued that attestation of the mutation did not confer any title on the appellants as the Transfer of Property Act had come into force in the former Bahawalpur State where the land in question is located, way back in the year 1932 and the title in the property could be transferred only through a registered deed. On the question of bar under MLR No,115 the learned counsel referred to para. 24(3)(4) and
(5) of the Regulation and contended that disposal of the property in fragments was in violation of the said provisions which declares such transaction to be void. He, thus, argued that the specific performance of a void agreement cannot be decreed. Referring to the case-law mentioned in the leave granting Order, he submitted that in those cases it was the owner of the property who sought annulments of its sale by invoking the provisions of MLR No,115.
9. The High Court in the impugned judgment affirmed the reasons given by the Trial and the Appellate Court for dismissing the revision petitions filed by the petitioners. We have gone through the judgment of the Trial and the Appellate Court. Three reasons broadly prevailed with the Courts, in declining to grant decree for specific, performance of the agreement to the petitioners/plaintiffs.
That the oral agreement by Abdul Tawab in favors of Muhammad Rashid and Bagh Din of the entire property on 28-2-1973 was duly established, the possession delivered to them and Abdul Tawab had received the entire sale consideration, whereas, the sale considerations allegedly paid to the attorney of Abdul Tawab by the plaintiffs were made on 1-3-1973 regarding the sale to Muhammad Rafique and much later on 11-3-1973 of the agreement to sell in favors of Mst. Naseem Akhtar. Secondly, that Muhammad Rashid and Bagh Din were bona fide purchasers of valuable consideration and there was no evidence that they had notice of the agreement to sell by the attorney of Abdul Tawab. And finally that the separate transaction in favors of Muhammad Rafique and Mst. Naseem Akhtar on different dates were in violation of MLR 115 and thus void.
10. These were factual determinations by the two Courts after detailed examination of the evidence produced by both the parties. We have also gone through the evidence on record and are of the opinion that the conclusions drawn by the two Courts are not unfounded. Notwithstanding the appointment of the attorney to deal with the property, Abdul Tawab remained invested with the power to dispose of the property. The oral agreement in favors of Rashid Ahmad and Bagh Din on 28-2-1973 was duly proved. The attestation of mutation by the attorney in favors of Muhammad Rafique on 13-3-1973 and in favour of Mst. Naseem Akhtar much later would be of no benefit to the plaintiffs in that they were subsequent in time to the agreement in favors of Rashid Ahmad and Bagh Din and since admittedly the Transfer of Property Act was enforced in the former State of Bahawalpur at the relevant time, the attestation of mutation could not transfer the title of the property to the plaintiffs. In view of the above, the arguments of the learned counsel of the appellant that the revocation of the general power of attorney on 18-4-1973 by Abdul Tawab would not affect the transactions already entered into by the attorney would be of no consequence as already held Abdul Tawab still had the power to dispose of the property, B which he did prior in time to the other two transactions effected into by the attorney.
11. The above findings are sufficient for dismissal of these appeals. However, since the leave was also granted on the application of MLR 115 of 1999 to the transactions, we proceed to examine the question. Para 24(3) provides:- "No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area of subsistence holding."
Sub Para 5 further provides that "any alienation made in contravention of the provisions of this paragraph shall be void". It is not disputed by the learned counsel for the appellant that disposal of the land in each of the transactions in favors of Muhammad Rafique and Mst. Naseem, Akhtar is less than the subsistence holding as defined in sub-para 12 of para 2 of the Regulation. The revenue officer attesting the mutation in favors of the said two transferees was conscious of para 24 of MLR No,115 and thus made a note that the transfer was not hit by the restriction imposed by the said provision. Having said that it has been held by all the Courts and not controverted by the learned counsel for the appellant that the fragment transfer of the land was in violation of the above Regulation. The only argument of the learned counsel for the appellant upon this issue was that the provision would not affect private transaction and it was for the forums under the MLR No, '115 which could declare any transaction in violation of the MLR to be void. The two judgments relied upon in this context by the learned counsel for the appellant, one from the Lahore High Court and the other from this Court, have materially distinguishing features. In the case of Mst. Rai Bibi v Additional Chief Land Commissioner, Punjab (PLD 1975 Lahore 408) the petitioner being declarant under para 7 of MLR No,115 had transferred certain land to a relative. The Land Commissioner and the Chief Land Commissioner exercising powers under the said Regulation declared the transaction to be void on the ground that in view of the inadequacy of the consideration, the transaction was not bona fide. The Court held that the private transaction between the parties could not have been declared void for purposes other than that for MLR No,115; the result of declaration by the Chief Land Commissioner was that the land transferred through the invalid transaction was to revert to the holding of the declarant for the purpose of land reforms. It may be pointed out that it was the declarant, Mst. Raj Bibi who had invoked the constitutional jurisdiction of the High Court. In the case of Mst. Aisha Bibi v. Nazir Ahmad (1994 SCM R 1935) this Court held that transaction emanating West Pakistan Land Reforms Regulation (M.L.R. 64) could be probed into by the authorities: nominated under the Regulation and that the jurisdiction of the Civil Court was expressly excluded. In that case after exhausting the remedies before the forums under M.L.R. 64 the petitioner invoked the jurisdiction of the Civil Court. In the matter before us the appellants/plaintiffs have prayed for specific performance of an agreement to sell. If the prayer is granted this Court would be enforcing a transaction which undisputedly was void under a special law. Remedy of specific performance of a contract being equitable in nature cannot be granted to enforce a transaction declared void by a statute.
12. For the foregoing reasons both these appeals are dismissed with no order as to cost.