This judgment will dispose of R. S. A. No. 860 of 1965 and R. S. A. No. 871 of 1965 as both the appeals raise almost identical questions of fact and law.
R. S. A. No. 860 of 1965
2. This appeal has been filed against the judgment of the learned Additional District Judge, Sahiwal dated 7th April, 1965 by which he affirmed the judgment and decree of the learned Civil Judge, Pakpattan dated 9th October, 1964.
3. Briefly the facts of the case are that Nura the present appellant bad filed a suit for a declaration to the effect that he was the owner of the land measuring 32 kanals 1 marls of lot No. 7, Square No. 16/3 to 6, 26 and 28 of Chak No. 85/D, Tehsil Pakpattan which he had purchased in open auction for Rs. 2,044 along with the respondent as a co-sharer to the extent of 1/2 share. According to the appellant a sum of Rs. 868 has been paid by way of earnest money and all further instalments were also paid by him. The respondent/defendant on 14-1-1960 by an agreement had relinquished all his rights in the aforesaid land. It was on this ground that the appellant had claimed himself to be the exclusive owner and had also prayed for a perpetual injunction restraining the respondent from interfering in his possession. The suit was contested and the respondents denied the execution of the relinquishment and also stated that the same was obtained by fraud. On the pleadings of the parties the following issues were framed;--
(1) Whether the plaintiff has no locus standi to file the suit?
(2) Whether the suit can proceed in the present form?
(3) Whether the plaint has been properly stamped?
(4) Whether the plaintiff has deposited the entire amount on his as well as on behalf of the defendant. If so, its effect?
(5) Whether the agreement dated 14-1-1960 was obtained by fraud. If so, its effect?
(6) Relief.
4. Issue No. 5 was the only contested issue. The learned trial Court after recording the evidence found that the agreement dated 14-1-1960 was not proved. It was further observed that the marginal witnesses had not been produced. This finding of the learned trial Court was affirmed by the learned Additional District Judge. However, both the Courts below had examined the validity of the agreement though not specifically covered under this .Issue. It was held that the agreement being one of relinquishment and at the relevant time the proprietary rights had not been acquired the question of relinquishment without the permission of the Collector was not valid and as such was bit by section 19, Colonization of the Government Lands Act. Issues Nos. 1, 2 and 3 were decided in favour of the appellant. Issue No. 4 wars also decided against the appellant. On issue No. 4 the finding of the Courts below is that the appellant had not proved that the entire amount had been deposited on behalf of the respondent. This finding was also affirmed by the lower Appellate Court.
R. S. A. No. 871 of 1965
5. In this case also Nura the present appellant had filed a suit against the respondent in respect of lot No. 6 comprising of 13 acres 4 kanals of land situate in Chak No. 85/D, Tehsil Pakpattan which was purchased in the names of the appellant and the respondent in open auction for a sum of Rs.
13,960 on 19th March, 1959. In this case the share of the respondent was to the extent of 1/3rd. In this case also an agreement of relinquishment was said to have been executed by respondent on 14-1- 1960 by which he surrendered all his rights. The deed of transfer as well as the mutation were sanctioned both in the names of the appellant as well as the respondent. The case of the appellant in this suit was also that he had become the absolute owner in respect of the land in question and that the respondent be restrained by way of perpetual injunction from interfering in his possession.
The suit was contested and the respondent in this case as well denied the execution of the agreement Exh. P. 1, dated 14-1-1960 and asserted that it had been obtained by fraud. On the pleadings of the parties the following issues were framed :-
(1) Whether the plaintiff has locus standi to file the present suit?
(2) Whether the suit can proceed in the present form.
(3) Whether the plaint has been properly stamped?
(4) Whether the plaintiff has deposited the entire amount on his as well as on behalf of the defendant?
(5) Whether the agreement dated 14-1-1960 was obtained by fraud. If so, its effect?
(6) Relief.
6. In this case also issue No. 5 was mainly contested. The learned trial Court in this case found that the execution of the agreement dated 14-1-1960 has been proved but however found that the agreement (Exh. P. 1) was in violation of the provisions of section 19 of the Colonization of Govern-- ment Lands Act. Issues Nos. 1, 2 and 3 were found in favour of the appellant. On issue No. 4, however, the findings were against the appellant. It was found that the appellant had failed to prove that the entire amount had been deposited on behalf of the respondent as well. The suit was dismissed by judgment and decree of the learned Civil Judge, Pakpattan, dated 9-10-1964 and this finding was affirmed by the learned Additional District Judge, Sahiwal on 7-4-1965. It was observed by the learned Appellate Court that on 14-1-1960 when the agreement (Exh. P. 1) was executed by the respondent a sum of Rs. 3,595 had already been paid. The subject-matter of Exh. P. 1 being of the value of more than Rs. 100 it was compulsorily registrable under section 17 of the Registration Act and for that reason it was found that the document could not have been acted upon.
7. After giving the facts of both the cases the legal contentions of the learned counsel for the appellant can be examined. The learned counsel for the appellant has raised the following contentions :-
(i) That the proprietary rights having been acquired by the appellant the agreement (Exb. P. 1) could be acted upon.
(ii) That both the agreements were not hit by the provisions of section 19 of the Colonization of Government Lands Act as held by the Courts below.
(iii) That there was no issue regarding the validity of the agreements and as such the question could not be examined.
(iv) That it bad not been proved that the agreements had been obtained by fraud.
None of the contentions have any legal force. In R. S. A. No. 860 of 1965 the finding of the learned trial Court is that the agreement (Exh. P. 1) had not been proved. Ilabi Bakbsh P. W. 2 the scribe of the agreement dated 14-1-1960 could not identify the respondent/defendant in that appeal. There were two marginal witnesses .Stated in the agreement Ahmad and Dullah and none of them were produced. The question whether an agreement had been executed or not being purely a question of fact, the findings cannot be challenged in second appeal unless it is shown that they are based on misreading of evidence on the basis of non-consideration of important evidence on record.
Undoubtedly no fraud had been proved. As the execution of the agreement bad not been proved the question of examination whether the agreement (Exh. P. 1) had been obtained by fraud does not arise. It is, correct that no separate issue was framed under section 19 of the Colonization) of Government Lands Act, but this being purely a question of law could be! Examined by the two Courts below. A perusal of agreement (Exh. P 1), dated 14-1-1960 in appeal No. 860 of 1965 shows that the defendant has asserted that he has relinquished all his rights in the land in question and that the remaining instalments shall be paid by the appellant. It is also stated that an application had been made to the Collector for the striking off his name from the allotment and for making it exclusively in the name of the appellant. There is nothing on record as to whether any application was made or that the sanction of the Collector was obtained for the relinquish--ment of the rights by the respondent in favour of the appellant.
8. Similarly in agreement (Exh. P. 1) executed on the same date in R. S. A. No. 871 of 1965 it is stated that the respondent would not pursue his application for the allotment and that he would get his share in the name of the appellant get transferred. No subsequent application is said to have been made and the suits were filed on 4th September, 1963. The finding on issue No. 4 in both the cases that it had not been proved on record that the payments had been made on behalf of the respondent as well being a question of fact cannot be disturbed in the second appeal unless it could b shown that the same had been initiated on account of misreading of evidence on record and the important evidence had not been considered. The learned counsel for the appellant has cited a judgment reported as Ghula Muhammad v. Lakha Singh and another AIR 1935 Lah. 181This judgment does not apply to the facts of the present case. In this case one Ghulani Muhammad had purchased at an auction-sale square No. 70 from Government and deposited the earnest money in the Government treasury but had no means to pay the balance of the purchase price which was to be paid in instalments. Accord--ingly Ghulam Muhammad entered into an agreement with one Diwan Singh to sell square in question to him as soon as the proprietary rights were con--ferred on him. Diwan Singh undertook to pay Ghulam Muhammad the amount which the latter had deposited in the treasury as earnest money and remaining instalments. In pursuance to this agreement Diwan Singh was put in possession of the land. Diwan Singh paid some of the instalments but before the entire amount had been paid he entered into a further agree--ment with Lakha Singh to sell the land to him when ownership was conferred on Ghularn Muhammad. Lakha Singh filed a suit for specific performance of this agreement and the learned trial Court decreed the suit. In an appeal which was ultimately brought to the High Court the validity of this agreement was challenged on account of the violation of section 19 of the Punjab Colonization of Government Lands Act, 1912. It was in this connection observed that section 19 of the Punjab Government Lands Act forbade the transaction of tenancy rights by a Government tenant in favour of a third party without the sanction of the Commissioner or other officer appointed by him. It was further observed in that case that the transfer was not of tenancy rights, but the agreement was to sell the land after the proprietary rights had been conferred on the original transferee Ghulam Muhammad. It was concluded that to such an agree--ment section 19 bad no application. The import of the two documents already given above and it would be abundantly clear that the judgment is not applicable to the facts of the present case. Here the question was of the abandonment of their rights at the time when the proprietary rights had not been conferred and in both the - agreements required the specific performance subject to the permission of the Collector which was admittedly never obtained and the proprietary rights were conferred both on the appellant' as well as on respondents in both the appeals. The learned counsel for the appellant thereafter cited Fateh Muhammad v. Muhammad Shafi (1). The examination of the facts of this case would also reveal that this was also not helpful to the appellant In this case one Fateh Muhammad acquired in the year 1922, 47 -- acres of land in Chak No. 121/7 E. R., from the Govern--ment in tenancy rights on terms called Bara Shariat. On 19th December. 1925 he executed in favour of his brothers Karim Bakhsh and Abdullah and the sons of his third brother Muhammad Bakhsh who had died in the mean--time an agreement which formed the basis of the suit. This agreement acknowledged that all had contributed towards the payment of the price and the expenses and it was agreed that Fateh Muhammad on obtaining the proprietary rights in the land shall get mutation in favour of his brothers and brother's sons land in equal shares. Under those circumstances it was held that such an agreement was not hit by section 19 of the Punjab Coloni--zation of the Government Lands Act on the same reasoning as were followed in Ghulam Muhammad v. Lakha Singh and another. In the case of Fateh Muhammad cited above it was observed that the intention of the parties was to purchase on behalf of the others too. The learned trial Court had found that the agreement had been acted upon and the appeal was also dismissed. As this was not a case of relinquishment of the property at a time when the proprietary rights had been acquired the decision as already indicated above is not applicable to the facts of the case. The learned counsel for the respondent has also relied on a judgment of the Supreme Court reported as Ghulam Rasul v. Muhammad Anwar and others (2).
In this case the petitioners before the Supreme Court claimed that the respondents had executed an agreement in their favour to sell State land and had also received a part consideration. The remaining balance amount was to be paid after the sanction of the Government under section 19 of the Punjab Colonization of the Government Lands Act. The possession of the land was also claimed by the petitioners. The respondents however, instead of applying for sanction started proceeding for ejectment of the petitioners and were ultimately ejected by the Collector. It was under these circumstances that the petitioners after having managed to re-enter the land filed a suit for perpetual injunction which was dismissed. The first and second appeals having also been dismissed, a petition for Special Leave to Appeal was filed and 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 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 equitable 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 posses--sion. 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."
(1) P la. D 1953 Lah, 251(2) 1969 SCMR 254
9. In a recent judgment of this Court reported as Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg PLD 1978 Lah. 421,examining the validity of an agreement made by a guarantee of the Government land entering into an agreement with another person and thereby transferring to him all his rights in the grant land without the consent in writing of the Commissioner or any other officer it was held that such an agreement would fall within the mischief of section 19 and was therefore void.
10. After examining the entire case on the point I am of the considered opinion that the two agreements were hit by the provisions of section 19 o the Colonization of Government Lands Act, 1912 and the findings of both the Courts below on this aspect of the matter was unexceptionable.
The final transfer has been made both in the names of the appellant and the respondents, there being no permission of the Collector, the rights could not be relinquished by the respondents in favour of the appellant on 14-1-1960 when the agreements are said to have been executed.
11. These appeals have no force and are hereby dismissed. However, in the circumstances of the case there will be no order as to costs.