' The petitioner had challenged the Order of A. C./Collector, Khanewal passed on 13-8-1979 as well as the order passed on appeal by the Commissioner, Multan, dated 30-10-1979 as being mala fide, illegal and ultra vires and for the grant of perpetual injunction as consequential relief restraining the defendants from implementing these orders and interfering in his possession in respect of the land in dispute.
2. The petitioner had filed a suit and claimed the land allotted in favour of the respondent No, 2 on the basis of an oral agreement and had also stated that he had made some payments in this behalf. It was, therefore, claimed that the authorities could not cause his eviction under section 32 of the Colonization of Government Lands (Punjab) Act, 1912 which was not attracted in the facts of the present case. Reliance was placed in this behalf on Ata Muhammad and others v. Khurshid Begum (I). It was further contended that an agreement made before the allotment of the land in favour of the respondent No, 2 even though oral was nat hit by the provisions of sections 18 and 19 of the said Act and for this proposition reliance has been placed on Allah Ditta v. Ihauda and others (2).
3. This revision has been contested not only by the allottee but also by the learned Assistant Advocate-General appearing on behalf of the Provincial Government respondent No, I. The respondents have placed on record a copy of the order of the Commissioner, Multan Division, Multan which was passed on appeal filed by the petitioner against the order dated 13-8-1979 by the A. C./Collector Khanewal who had ordered the eviction of the petitioner from the State Land comprising Khasra Nos. 13/14/ 2, 11, 12, 19/2, 23, 24 and 26 of Chak No, 112/10-R, Tehsil Khanewal, Multan under section 32 of the Colonization of the Government Lands (Punjab) Act, 1912. It was contended before the learned Commissioner that the petitioner being in cultivation possession of the aforesaid land he could not be treated as a tresspasser and section 32 of the said Act could not be invoked. The learned Commissioner repelled the contention on the ground that the State land which was leased out for temporary cultivation is also under the direct control of the Government and the authorities are under statutory obligation to deliver the possession to the lessee. The contention of the petitioner that the land was taken in the name of respondent No, 2 with mutual consent was neither accepted nor given effect to. The learned counsel for the petitioner has relied on the following portion of the judgment in Ata Muhammad's case referred to above :- "The language employed in this section clearly shows that the power vested in the Collector is to safeguard the interests of the State and to save State land from illegal occupation by squatters and trespassers. The section {{FOOT NOTE}}
(1) PLD 1964 Lah. 224 (2) PLD 1951 Lah. 244 {{FOOT NOTE}} ' is not intended to be operated for the benefit of one private party contending against another, In other words, any dispute regarding title between two private parties cannot be adjudicated upon under section 32 referred to above. That question is one which can only be dealt with by a civil Court. As authority for this view, one may refer to Ali Muhammad v. Hakim (AIR 1928 Lab. 121) and Jiwana v. Mst. Sahbi (PLD 1954 Lah. 253)."
' The facts of the case in which the above observations were made were the land which was the subject-matter of the suit was granted by the Government on Horse Breeding condition to Ahmad Khan, the grandfather of the plaintiff. On Ahmad Khan's death the tenancy rights were inherited by his son Jalal Din, after his death the tenancy right had been mutated in the names of sons and daughters of Ahmad Khan, the original tenant. Jalal Din's wife had predeceased him and his only child Mst. Khurshid Begum was married at that sime. Her name was not mentioned at all as an heir in the mutation of inheritance and it was under these circumstances that she filed a suit for possession on the ground that she was entitled to inherit the property as the parties were governed by custom. The suit was resisted by the other heirs on the ground that it was barred under section 36 of the Colonization of Government Lands (Punjab) Act, 1912 and that the suit was liable to be dismissed for the reason that other heirs had paid Zar-e-mallakana and had acquired the proprietary right. The learned trial Court had decreed the suit subject to the payment of the share of Zare-i-malkana by the plaintiff. It was under these circumstances that the above observations were made which are not applicable to the facts of the present case, The first contention raised by the learned counsel for the petitioner that section 32 of the said Act was attracted to the facts of the present case has no force and is hereby repelled. The second contention raised by the learned counsel for the petitioner is also equally devoid of any force.
4. The learned Assistant Advocate-General has relied on Allah Ditta v. Jhanda and others (3) in order to repel the contention of the petitioner. According to the respondents any agreement made in respect of temporary lease or a grant without the permission of the authorities concerned cannot be given effect to. The contention of the respondents has much force. As a matter of fact the learned counsel for the petitioner relies on a portion of this reported judgment detached from its entire context. In this case the proprietary rights had been acquired jointly in equal shares and the plaintiff Jhanda who had filed a suit for a declaration and injunction and had remained in cultivating possession as owner of one square land No,
45. Allah Ditta defendant, in the revenue record, was shown as occupacy tenant and then the owner. A suit for ejectment was brought by the defendant which was detected and it was held by the Board of Revenue that the question of title would only be decided by a civil Court. The declaratory suit was filed in these circumstances.
The suit was decreed. The appeal was also dismissed and on second appeal the learned Judge in Chambers modified the decree to the extent that the plaintiffs will be declared to the entitled to remain in possession of the suit land as joint owners and they will have also a perpetual injunction restraining the defendants from interfering their possession. The Letters Patent Appeal filed was dismissed. It was argued before Letters Patent Bench that even if the agreement was proved it was not valid and enforceable as it violated the provisions of statute. It was observed in this connection that it might have been possible for the Government to take any objection to the cultivation or possession of a part of the land under the grant by the plaintiffs. It was further observe that no such objection could be taken after the acquisition of the proprietary rights to the land as it, has been laid down in section 30 that the land after the acquisition it is no longer subject to any statement of condition issued In the above-mentioned Act. Reliance of the learned counsel for the petitioner on this judgment is therefore of no avail. The learned counsel for the petitioner has also relid on Dalip Singh v. Jagat Singh (1) another Division Bench judgment. This judgment has been relied upon in Allah Ditta's case (2) referred to above, but this judgment does not advance the case of the petitioner even according to the facts as noted in the said judgment. In this case entered into a contract with by which to bid at an auction was held by Government for the sale of land. The land if purchased was to be treated as the property of the parties in certain defined shares was successful in binding for the land. Then had his name recorded as the occupancy tenant of that land until full payment of the purchase money and acquisition of interests. A suit was brought by to enforce his title to the land under the agreement which was resisted on the basis of section 19 of the said Act. It was held as under :- "by virtue of the contract entered into between the parties, the title to the property vested in both the persons as soon as the purchase was effected, and became joint tenant with from the very beginning and as B did not acquire any interest in pursuance of any transfer from A, to latter's objection must fail."
' Reliance may also be placed on a judgment ,of the Supreme Court reported as Ghulam Rasul etc. v. Muhammad Anwar and others (3) in which their Lordships of the Supreme Court observed as under :- "It has now consistently been held that a transfer prohibited by section 19 of the Colonization of Government Lands Act, 1912, is void even as between the parties to the transaction. It is, therefore, clear that in the absence of such consent, in writing of the Government, no specific performance of an agreement for sale could have been ordered. The only question was whether the decree for permanent injunction could have been granted by way of an enquitable relief. But this too has been refused in the present case, for on the concurrent findings of both the trial Court and the first appellate Court, it is clear that the petitioners having been lawfully evicted, wrongly entered into possession. An equitable relief could not be granted to a person the foundation of whose claim rested upon an illegality. Equity moves in aid of the law and not to defeat law."
' I have relied upon the above judgment in a case reported as Nura v. Samman, in which a declaratory suit had been filed in somewhat similar circumstances. There the case of the plaintiff was that he had become owner in the suit land alongwith the respondent as a co-sharer to the extent of one-half on account of an agreement relied upon by the plaintiff. No permission of the authorities had been obtained before entering into such an agreement. The contention was repelled in view of the above judgment of the Supreme Court.
5. In the present case only the temporary lease has been granted to the respondents in which question of sharing the property on the acquisition of {{FOOT NOTE}}
(1) AIR.1938 Lab. 721 (2) 1969 SCMR 254
(3) PLD 1981 Lab. 356 {{FOOT NOTE}} ' any rights does not arise. The petitioner even if he held the land as a tenant he is bound to surrender the land to the Government so as the same may be delivered to the new lessee. No such rights as may accrue after the transfer of the property can be enforced in such cases. The suits of the petitioner is no more than a trespasser and is liable to be disposed under section 32 of the Colonization of the Government Lands (Punjab) Act, 1912. In case the contention of the petitioner is accepted it will have the effect of changing the condition on which the respondent No, 2 had been granted temporary lease for which the civil Courts do not have any power. Even otherwise the agreement is oral and the suit is merely for declaration.
6. This revision has no force and is hereby dismissed with costs.
Revision .