' ABDUL SHAKURUL SALMI, J.-Muhammad Mumtaz Ahmad Khan petitioner No, 1 had dakhilkari rights in 317 acres 1 Kanal 18 Marlas of State land situated in village Amin Kot, Tehsil Depalpur, District Sahiwal (now Okara). On 18-2-1971 he applied under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 before the Collector seeking permission to alienate the aforesaid land by way of gift in favour of Muhammad Yousaf Khan, .V/st. Aisha Saddiqa and Mst. Amina Riaz, petitioners Nos. 2 to 4. Permission was granted on 23-2-1971. Consequently, a mutation of gift bearing No, 4 was sanctioned in favour of the donees, petitioners Nos. 2 to 4 on 31-3-1971.
2. Muhammad Mumtaz Ahmad Khan had filed a declaration under Martial Law Regulation No, 115 on 1-1-1967. The aforesaid alienation was accepted by the Land Commissioner, Multan Division, Multan on 19-10-1972. A Member of the Federal Land Commission, in exercise of suo motu revisional jurisdiction under para. 29 the Martial Law Regulation No, 115, vide para. 7 of the order dated 3-11- 1976, held the aforesaid alienation void. This was challenged by the declarant as petitioner No, 1 and the donees, petitioners Nos. 2 to 4. When the petition came up for preliminary hearing on 2-2- 1977, late. Mr. Justice Karam Elahee Chohan as then, passed the following order :- "It is argued that the alienor in this was Mumtaz Ahmed Khan. He held dakheel kari rights in the land in dispute under the Provincial Government. Those rights were transferred to the alienees after obtaining the sanction of the Collector on 23-2-1971. The result of this transaction was that the alienees became the dakheel kars under the Government. The choice of dakheel kars in these circumstances vested in the Collector/Provincial Government and if the Collector/ Provincial Government accepted the alienees as dakheel kars the Federal Land Commission could not interfere with the aforesaid orders especially when it had no jurisdiction to thrust dakheel kars on the Provincial Government to whom the land belonged."
' The petitioner No, 1, the declarant through C. M. No, 2463/84, applied for permission to withdraw from the writ petition. It was objected to by the learned counsel for the other petitioners that the request was mala fide. However, the petitioner No, 1 was allowed to withdraw the petition and it was dismissed as regards him vide order dated 8-10-1984.
2. Learned counsel appearing for the rest of the petitioners, the donees has contended that the donor was only dakhilkar. The land vested in the Provincial Government and to that para. 8 of Martial Law Regulation No, 115 did not apply, He placed reliance on Shamir and 83 others v. The Chief Land Commissioner. Lahore and 3 others (1), as upheld in Talib Din and 101 others v. The Chief Land Commissioner and others (2).
3. Learned counsel appearing for the respondent authorities has submitted that para. 8 of the Martial Law Regulation No, 115, no doubt does not apply to the land owned or possessed by the Provincial Government but it does apply to any person who owns or possesses land more than the prescribed limit even if the title of the land possessed may vest in the Government. He has secondly contended that by operation of law ride para. 7 read with para. 3 of the Martial Law Regulation No, 115, the transaction in question was void and as rightly held by the Federal Land Commission.
(1) PLD 1973 Lah. 264 (2) PLD 1984 SC 453
4. The petitioner No, 1 held dakhilkari rights in the State land in question. He applied to the Collector for transfer thereof in favour of th petitioners Nos. 2 to 4. Permission was granted. Mutation was according) sanctioned in favour of the petitioners Nos. 2 to 4, the alienees. The resul was that in place of petitioner No, 1, petitioners Nos. 2 to 4 came to dakhilkars accepted by the State as its tenants. There was nothing wron as far as that goes. When the Martial Law Regulation No, 115 came into force, it provided that any person owning or possessing land more than the requisite entitlement, shall not have the excess and surrender the same to be resumed by the Land Commission for further disposal. It was also provided that any transfer of interest or right during 1- 3-1967 to 19-12-1971 shall be void. This is para. 7(1)(0. The effect of this was that the alienation by the declarant-petitioner No, 1 in favour of petitioners Nos. 2 to 4 stood annulled and so it has been held by the Land Commission but the story does not end here. By operation of para. 13 of Martial Law Regulation No, 115 the land was to vest in the Government free from any encumbrances and its further disposal was to be effected vide para. 18 of the said Regulation. In the case in hand the declaration that the alienation by the declarant-petitioner No, 1 in favour of the donees, the petitioners Nos. 2 to 4 was void would have the effect of reverting the land to the Provincial Government and in view of the decisions quoted by the learned counsel for the petitioners, the learned counsel for the respondents is also not in a position to dispute that. In no manner the land would be available to the Land Commission for disposal under the Land Reforms Regulation. As far as the Provincial Government is concerned, it may be recapitulated that it had accepted the donees, petitioners Nos. 2 to 4 as the new tenants in place of the old one the petitioner No, 1 when he was permitted to retire. During the course of proceedings in which the impugned order dated 3- 11-1976 has been passed, the Provincial Government had not been impleaded as a party. The land vested in the Provincial Government. It had accepted the new tenants in the form of petitioners Nos. 2 to 4. If it was to be affected in any manner in the choice of its tenants, AB. Is elementary that the Provincial Government had to be made a party to the proceedings. Nor any of the provisions of Martial Law Regulatio No, 115 vested any authority in the Land Commission to oust the tenants adopted by the Provincial Government or to re-instate the old ones. Consequently, the order impugned in this petition so far as it affects the rights of the petitioners Nos. 2 to 4 who had been accepted as new tenants by the Provincial Government is concerned, that is without lawful authority and of no legal effect. A word may be said about the petitioner No, 1, the declarant who after challenging the impugned order and admission of the petition, has gone out of the arena and his petition has been dismissed as withdrawn. The effect of his action besides having been stated to be mala fide by the learned counsel for the petitioners Nos. 2 to 4, can have no consequence in these proceedings because as far as he was concerned, he had applied to the Collector for permission to transfer his rights in favour of petitioners Nos. 2 to 4 and after obtaining the said permission had got a mutation sanctioned in favour of petitioners Nos. 2 to 4. He abided by his acts and conduct and when interference was made by the Federal Land Commission in exercise of suo mow revisional jurisdiction, he came to this Court to challenge its order dated 3-11-1976. Later on, he seems to have changed his mind for that reason one need not fathom but this much is quite clear that he having himself given up his rights in favour office petitioners No, 2 to 4 and the rights having been vested in the latter by accord of the approval by the Collector and Mutation No, 4 sanctioned in their favor by the Assistant Collector, the petitioners Nos. 2 to 4 have obviously a right to maintain the petition notwithstanding the exit of their predecessor, the petitioner No, 1.
5. In view of what has been stated above this petition is accepted and) the impugned order as far as it affects the rights of the petitioners Nos. 2 to 4 are concerned, is declared to be without lawful authority and of no legal effect. In the circumstances, the parties shall bear their own costs.
Petition accepted. PLD 1983 Lahore 181 Before Muhammad Aslam Mian, J Sheikh ABDUS SATTAR-Petitioner versus Malik MUHAMMAD AFZAL AND 9 OTHERS-- Respondents Writ Petition No, 3421 of 1982, decided on 26th November, 1984.
(a) Provisional Constitution Order (1 of 1981)- ----Art. 9-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15-Recording of evidence in one case by Rent Controller and copying same in connected cases with express or implied consent of opposite-party-Objection to such procedure not urged before appellate Court and as such could not be allowed to be raised in writ jurisdiction.-[Evidence]. [p. 184]A Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 and Sh. Muhammad Ashraf and others v. Sh.
Muhammad Almas PLD 1981 Lah. 52 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- -- S. 13-Registration Act (XVI of 1908), Ss. 17 & 49-Application for ejectment-Unregistered lease agreement for 11 months-Agreement came to an end on expiry of its term-Unregistered document, held, did not create any right, or interest and could not be pressed into service for proving such right, title or interest exceeding 11 months' period-After expiry of agreement rights and liabilities of tenant were to be governed by West Pakistan Urban Rent Restriction Ordinance, 1959. [p. 185]B & C Jogesh Chandra v. Maqbul All Ch. And others AIR 1921 Cal. 474 ; Muhammad Azizul Bari v. Maulvi Raziuddin Idris Khan and others AIR 1939 Cal. '423 ; A. P. Bagchi v. Morgan AIR 1937 All. 36 ; Muhammad Yusuf v. Abdullah PLD 1980 SC 298 and Niamat Siddiq v. Farooq Umar and 8 others 1984 CLC 969 ref. Mian Saeedur Rahman Farrukh for Petitioner. Sh. Abdul Nasar for Respondents.
Date of hearing : 9th October, 1984.
' The petitioner through this writ petition seeks a declaration to the effect that the order of the learned Rent Controller, Faisalabad, dated 21-11-1981, evicting the petitioner from a shop and the judgment dated 7-7-1982 of the learned Addl. District Judge, Faisalabad upholding the order of eviction are without lawful authority and of no legal effect.
2. The respondents Nos. 3 to 10, the successors-in-interest of deceased Shahabuddin filed an application for eviction against the petitioner on 10-12-1979 from Shop No, P. 53, Ward No, 1, Street No, 1, Mandar Gali, Rail Bazar, Faisalabad before the learned Rent Controller, Faisalabad, which shop was held by the petitioner on a monthly rent of Rs, 200. The ejectment was sought on the ground of personal need for running some business.
3. The petitioner resisted the application maintaining that the predecessor of respondents Nos. 3 to 10 namely Shahab-ud-Din received Rs, 17,000 from the petitioner as advance/Pagri. A rent note was executed where it was inter alia stipulated that if the petitioner continued to pay the rent regularly the predecessor-in-interest of the respondents would not be entitled to seek the ejectment of the petitioner. The rent was enhanced to Rs, 225 per month but respondents Nos. 3 to 10 wanted the enhancement of rent to Rs, 400 per month which was not agreed by the petitioner. It was denied that the need of the property for business was bona fide.
4. The learned Rent Controller dealt with issues Nos. 1 and 2 that whether the petition was Maintainable and whether the predecessor-in-interest of the respondents Nos. 3 to 10 had waived the right to eject the tenant out of the disputed premises, if so that was to what effect, together and found that since the agreement entered into had the effect of restraining a person from enforcing his right through any Court, therefore, under section 28 of the Contract Act any agreement in restraint of legal proceedings was void. The agreement relied upon was executed for 11 months which time expired in 1972, and the condition, thereafter was no longer binding upon the respondents Nos. 3 to 10. He regarded the clause of the agreement as void and not binding upon the respondents and held that the respondents were not estopped and the application for ejectment was maintainable. As to the personal need the learned Rent Controller gave his finding that the requirement of respondents Nos. 3 to 10 was for running their own business and that was not mala fide ; that was to be a great injustice to respondents Nos. 3 to 10 if they were not given the opportunity of availing their own property. As a result of the above finding the learned Rent Controller ordered the ejectment of the petitioner.
5. Being aggrieved therefrom the petitioner filed an appeal which came to be decided by the learned Addl. District Judge, Faisalabad. The. Learned Addl. District Judge, observed, "It is clear from the evidence on record that the respondents Nos. 2 to 6 are real brothers and their father died 4-5 years back and be has rented out two shops owned by him to appellant Abdul Sattar and one Babu, the respondents are running their business on Rehrees and they have no permanent place for carrying on their business. All the respondents being married halve children and they would like to have a permanent place for carrying on their business and need of respondents in these circumstances is genuine and bona fide."
' As to the agreement the learned Addl. District Judge held that the agreement was executed in 1971, by the deceased and the undertaking was given by the deceased in his personal capacity and any such undertaking would not bind the heirs of the deceased. Any agreement restraining the other party from taking legal proceedings was void and the clause could not be invoked in aid by the petitioner for perpetuating his possession over the property. He upheld the finding of the learned Rent Controller in that behalf, as a result thereof he dismissed the appeal vide his order dated 7-7-1982.
6. The learned counsel for the petitioner has contended that the learned Rent Controller committed an error in law in copying out the evidence of the applicants recorded in the ejectment proceedings as to another shop against Babu Khan, in verbatim which has the effect of vitiating the entire proceedings because the learned Rent Controller lacks such a jurisdiction to proceed on and treat the evidence recorded in one case as evidence in the other. The learned counsel in support of his contention has relied upon Malik Aman v. Hail Muhammad. Tufail (1). In this case it was observed that since the learned Rent Controller recorded evidence in one case and copied in verbatim the same in all other cases without giving an opportunity to all the appellants to examine and cross-examine the witnesses in their cases, therefore, that had resulted in grave prejudice to the case of the appellants. That was also opposed to the principle of natural justice and the orders passed by the Courts in that behalf could not be sustained in law. The cases were remanded for the proceedings afresh.
7. The learned counsel for respondents Nos. 3 to 10 in his reply to this contention has submitted that the mode of recording the .Evidence that way was agreed by the parties. For this he referred to a statement made by the counsel of the parties where the counsel for respondents No 3 to 10 stated that he closed the evidence in affirmative except the evidence of Ghulam Rasool which would be led later on. Munshi, Babu and Muhammad Bashir (applicants) were present whom he wanted to examine but the counsel for the petitioner of his own stated that their evidence in law was not necessary and thereafter he would also not raise any objection as to the absence of the statements of rest of the applicants. Instead that would be regarded as if their statements were recorded. This statement was signed on 28-5-1981 by the counsel for the petitioner namely S. A.
Khan, Advocate and others as well as the learned Rent Controller. The learned counsel for the contesting respondents relies upon Sh. Muhammad Ashraf and others v. Sh. Muhammad Almas (2), in which case the learned Judge has observed that it is no doubt true that in Malik Aman v. Haji >uhammad Tufail (3), also the evidence of both the parties was recorded in one case and copied in verbatim in other six cases. The witness having been subjected to examination and cross- examination in one case only it was held that this was the case where the parties had not been given an opportunity to cross-examine the witnesses in each case separately and the proceedings resulted in grave prejudice to
(1) PLD 1976 Lah. 1446 (2) PLD 1981 Lah. 52
(3) PLD 1976 Lah. 1446 the tenant/appellants. This principle cannot be applied to the facts of the present case in which it appears that there was implied consent of the appellants in the procedure adopted by the learned Rent Controller.
8. The statement of the counsel referred to above by the learned counsel for respondents Nos. 3 to 10 reflects that some sort of arrangement as to the mode of recording the evidence so as to treat a part of the evidence recorded in one case as evidence in the other was come to by the parties.
There is nothing otherwise to indicate that the counsel for the petitioner anywhere during the proceedings before the learned Rent Controller, insisted for recording of the evidence of certain witnesses in the case of the petitioner independently or ever asked the learned Rent Controller for cross-examining the witnesses himself on behalf of the petitioner. However, this point was never urged as it appears before the learned Additional District Judge, Faisalabad, therefore, the petitioner cannot b A allowed to raise it here.
9. The second contention of the learned counsel for the petitioner is that the rent note Exh. R/1 has in fact taken away the right of the respondents/landlords to seek ejectment on any ground other than the default as to the payment of rent. The children step into the shoes of their father and inherit the rights subject to liabilities, the agreement is lawful with consideration within the meaning of section 25 of the Contract Act, the agreement is not hit by section 28 of the Act. The learned counsel in relying upon the agreement has maintained that it is a lease for an indefinite period so it prima facie ensures for grantee's lifetime if he goes on paying the rent regularly. In this behalf he has referred to Jogesh Chandra v. Makbul Ali Ch. And others (1) and Muhammad Azizul Bari v.
Maulvi Raziuddin Idris Khan and others (2), wherein it has been held that the terms of the lease in the case clearly showed an intention to allow the lessee to continue for an indefinite period so long as he paid the rent regularly and performed the other conditions of the lease. The lease, therefore, enured for the lifetime of lessee.
10. The learned counsel for the contesting respondents has submitted in reply that the petitioner cannot make use of the agreement for any term exceeding one year unless it is a registered instrument. The agreement as it stands is operative for eleven months. He has referred to section 107 of the Transfer of Property Act which reads :- "A lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument."
He has referred to A. P. Bagchi v. Mrs. F. Morgan (3), in whidh it has been held that a lease for more than a year and continuing in perpetuity is not effective without registration ; Muhammad Yousuf v.
Abdullah (4), wherein it has been observed that an agreement can only be made by the consent of the parties and if any agreement is for a fixed period it comes to an end on the expiry of the agreed period unless it is renewed by the parties. An agreement of tenancy means an agreement which is in force and not an agreement which has expired and is dead, Niamat Siddiq v. Farooq Umar and 8 others (5), in which it has been held, that
(1) AIR 1921 Cal. 474 (2) AIR 1939 Cal. 423
(3) AIR 1937 All. 36 (4) PLD 1980 SC 298
(5) 1984 CLC 969 under section 17 of the Registration Act in case of a lease for one year or more such documents require compulsory registration. An unregistered document does not create any rights, title or interest and cannot be pressed into service for proving such rights etc. For a period exceeding 11 months by virtue of the mandatory provisions of section 49 of the Registration Act. The document is to be regarded as having expired before the expiry of one year of its execution. After the said expiry the tenancy is to continue by virtue of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 and not on the basis of the expired agreement.
11. Viewed in its true prospective the agreement relied upon by the petitioner came to an end in year 1972 on the expiry of its term according to which it was to enure only for 11 months because there was no further renewal. So after the expiry of the agreement the rights and liabilities of the tenant fell to be governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 which regulate the terms as the ejectment.
12. The last contention of the learned counsel for the petitioner is that the finding regarding personal need recorded by both the Tribunals is based upon gross misreading of the evidence.
13. Nothing of the sort has been shown from the record. The matter stands concluded by a finding of fact concurrently held by both the Tribunals which appears to be justified on the record. No interference can be afforded within the scope of the Constitutional jurisdiction with that.
14. For the foregoing reasons this petition is dismissed with costs.