MUHAMMAD AMEER BHATTI, J. --- The disputed land measuring 42 kanals, 16 marlas was originally in the ownership of Noor Muhammad, Noor Alam and Naik Muhammad in the year 1939 in the wake of decree the land was auctioned and same was purchased by the predecessor-in-interest of the respondent Haider Shah for a sum of Rs. 600/-. However, subsequently this land was repurchased by the predecessor-in-interest of the present petitioners Noor Muhammad, Noor Alam and Naik Muhammad for a consideration of Rs. 800/-. It is also averred in the plaint that the possession remained with the predecessor-in-interest of the present petitioners and subsequent sale mutation No. 278 was entered but could not be sanctioned as it was hit by Section 3 of the Punjab Alienation of Land Act, 1900. It is also claimed in the plaint that in the revenue record the petitioner's name has been shown as The' petitioner and his predecessor- in-interest filed a suit for declaration on 27.9.1961 and this suit was dismissed on 26.6.1962. However, the following observation has been made by the learned Civil Judge.
"The result of above discussion is that the plaintiffs suit fails and hereby dismissed. The parties are, however, left to bear their own costs of the suit in view of the particular circumstances of the case.
Following, however the precedent laid down in AIR 1933 Lah. 650 referred to above, a copy of this order shall be send to the Deputy Commissioner, Gujrat under Section 3 of the Alienation of Land Act, 1900 the Deputy Commissioner may give his sanction even after the act of alienation is otherwise completed. There is no period of limitation within which the Deputy Commissioner may be moved in the matter. The distinction between .Agriculturist and non-agriculturists having now been removed, the Deputy Commissioner may take such action as he may like."
2. Meanwhile, the predecessor-in-interest of the respondent filed an ejectment petition before the Revenue Authorities which was decreed on 4.11.1970.
3. On 14.12.1970 the predecessor-in-interest of the present petitioners filed another suit for declaration. The respondents filed the written statement and the learned Trial Court framed only one issue of res-judicata and dismissed the suit on 15.11.1975. Appeal filed by the predecessor- ininterest of the present petitioners was also dismissed on 15.1.1978, both the judgments of the learned Courts below had been challenged in RSA No. 834/1978 which was accepted on 3.5.1993 and case was remanded back to the learned Trial Court with a direction to frame the issues according to the pleadings of the parties and then decide the case after providing the opportunity to lead the evidence in accordance with law. The learned Trial Court dismissed the suit on 13.11.1994 and the appeal preferred against it was also dismissed on 2.6.1999 by the learned Additional District Judge. Both the judgments of the learned Courts below have been challenged through this civil revision.
4. The learned counsel for the petitioners contends that there is no dispute about the sale of the land in favour of the petitioners. However, due to technical objection the sale has not been confirmed by way of sanctioning the mutation by the revenue hierarchy which culminated in these proceedings and since then the petitioners are facing the frivolous litigation. It is added that according to the law the respondents had to apply for the permission of the Deputy Commissioner and since the respondents have avoided to participate in the proceedings for getting the permission from the Deputy Commissioner, the Deputy Commissioner has not passed any speaking order, even he has been produced the copy of the judgment of the learned Civil Court and this aspect of the case has not considered by both the Courts below which has resulted in miscarriage of justice.
5. On the other hand learned counsel for the respondents has contended that there is no evidence on the record to substantiate the claim that the petitioner had purchased the land, therefore, the Courts below have rightly refused to grant decree in favour of the petitioners. Further contends that the petitioners have failed to prove on record the factum ,of sale through any cogent evidence.
Therefore, the judgments of both the Courts below are in line of the evidence of the parties. Lastly, he contended that the concurrent findings of fact have been recorded against the petitioners, hence this Court has no jurisdiction to interfere in the finding of facts unless any illegality or irregularity has been pointed out by the petitioners, which they have failed to bring to the knowledge of this Court by referring any evidence of the parties. Since the judgment of the learned Courts below are in accordance with law and the facts and circumstances of the case, hence the petition in hand may be dismissed.
6. I have heard the learned counsel for the parties and have gone through the record.
7. It-is appropriate to be reproduced the relevant provisions before dilating upon the questions involved in this case:-- "Sections 3 and 4 of the Punjab Alienation of Land Act:
3. Sanction of Deputy Commissioner required to certain permanent alienations. -- (1) A person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where--
(a) The alienor is not a member of an agricultural tribe; or
(b) the alienor is a member of an agricultural tribe and the alienee- is a member of the same tribe or of a tribe in the same group.
(2) Except in the cases provided for in sub-section (1), a permanent alienation of land shall not take effect as such unless and until sanction is given hereto by a Deputy Commissioner: Provided that-
(1) sanction may be given after the act of alienation is otherwise completed, and
(2) sanction shall not be necessary in the case of--
(a) a sale of a right of occupancy by a tenant to his landlord, or
(b) a gift made in good faith for a religious or charitable purpose, whether inter vivos or by will.
(3) The Deputy Commissioner shall inquire into the circumstances of the alienation and shall have discretion to grant or refuse the sanction. Required by sub-section (2).
4. Agricultural tribes. - , The Provincial Government shall, by notification in the official Gazette., determine what bodies of persons in any district or group of districts are to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of this Act.
GENERAL PROVISIONS
14. Effect of permanent alienation made without sanction. - Any permanent alienation which under Section 3 is not to take effect as such until the sanction of a Deputy Commissioner is given thereto shall, until such sanction is given or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by Section 6 for such term not exceeding twenty years and on such conditions as the Deputy Commissioner considers to be reasonable."
On bare reading of Section 3 it has been found that condition of getting the permission/sanction from the Deputy Commissioner has been imposed for transfer of the land. It is not specifically mentioned in this section that the sanction, if it has been obtained after alienation, the same shall have the adverse effect.
8. It is noted that there is no evidence on the record that Provincial Government has passed any notification as required under Section 4 to bring the case of the petitioner within purview of Section
3. Unless it is not proved on record that there is any notification about the land in dispute, the implementation of Section 3 is inapplicable. Moreover, it can be ascertained from the bare reading of this section that the sanction is only necessary irrespective of the fact whether it is obtained before or after the sale. So the sale cannot be declared invalid till its specific refusal from the Deputy Commissioner. However, this condition remained effective for 20 years and after lapse of 20 years the effect of this condition as property will remain as mortgage and the alienator would be in a position to get it redeemed, if the payment is made according to the terms and conditions of the sale. It has been specifically noted by the learned Trial Court in the earlier round of litigation vide judgment dated 26.6.1962 that the condition of agriculturalist and non-agriculturalist having now been removed and the sanction can be obtained from the Deputy Commissioner for the validation of this sale.
9. It is not denied by the defendant in his written statement in response to para 2 of ,the plaint where it has been averred that the predecessor-in-interest of the present petitioners has purchased the land from the predecessor-ininterest of the present respondents. Even otherwise, while deciding the suit between the parties the learned Trial Court vide judgment dated 26.6.1962 on issue No. 1, categorically held that the petitioners have been vendees of the land in dispute in the presence of the admitted facts of the case that the petitioners had repurchased this land as back in the year 1941 and due to some technical impediments on the part of the revenue authorities, the mutation could not be sanctioned. Other than this, according to the rules of the Punjab Alienation of Land Act it was the duty of the Deputy Commissioner to pass specific order on the mutation sanctioned proceedings but there is no orders except one word spelt "file" which cannot be recognized as an order in the eye of law. It is settled law that even in quasi-judicial proceedings, it is incumbent on the authorities to pass the speaking order with reasons and after providing the opportunity of hearing to the parties, hence the order is nullity in the eye of law. As such, the alienation without sanction of the Deputy Commissioner as required by Section 3 is not a nullity and the sale is no matter less a sale merely because it may be unenforceable in consequence of the provisions of the Act and if eventually sanctioned (even ex-post facto) by the Deputy Commissioner it became effective from its original date. From the evidence available on the record and the pleadings of the parties, it is clear that the land has been purchased by the predecessor-in-interest of the present petitioners and sold by the predecessor-ininterest of the respondents. The alienation has been made accordingly but owing to the bar contained in Section 3 of, the Alienation of Land Act, the mutation has not been sanctioned as the Deputy Commissioner has not granted the sanction. It can be safely gathered from the available record that the predecessor-in:interest of the respondents have never applied for the sanction of alienation and in no way appeared before the Deputy Commissioner after receiving the amount from the predecessor-in-interest of the present petitioners. So he made utmost efforts to keep the matter pending one way or the other but it was never a case of the predecessor-in-interest of the present respondents that he had not alienated the land and not received the amount from the predecessor-in-interest of the present petitioners.
Viewed in this peculiar perspective, the petitioners have been unnecessarily irivolved.In the vicious circle of litigation although they are bona fide purchasers of this land. It was the bounden duty of the learned Civil Judge who decided the matter in the year 1962, wherein he declared the petitioners vendees. Had the matter been dealt with in a judicious manner and had this order been passed at the initial appropriate stage, the parties would have not suffered the agony of longstanding litigation spanning over decades.
10. In this view of the above exhaustive discussion, the judgments and decrees of both the Courts below warrant interference and are accordingly set aside. Consequently, the suit of the petitioners stand decreed. However, to ensure effectual adjudication of the matter, the concerned revenue authorities are directed to sanction the mutation in favour of the present petitioners strictly in accordance with law. No order as to costs.
Civil Revision /Suit decreed.