' This judgment will dispose of R.S. A . No. 140 of 1969 and R R.S.A. No. 406 of 1969, being directed against the same impugned judgment and decree of the learned Additional District Judge, Sargodha whereby he set aside judgment and decree, dated 19-10-1968 of the learned Civil Judge, Sargodha and dismissed appellants' suit for possession of the disputed property.
2. The dispute in this case relates to agricultural land measuring 4551 Kanals situated in village Bhoji Kot, Tehsil Bhalwal, District Sargodha. It was owned by one Nawab Muhammad Jamshed Ali Khan, The appellants are his heirs. On 18-8-1966 they instituted a suit for possession of the disputed land, against the respondents and pleaded therein that Nawab Jamshed Ali Khan, their predecessor-in- interest, 5/6 years prior to the institution of the suit had given on lease the land in dispute to the respondents. On the expiry of the lease the respondents in collusion with the revenue staff got entered their names in the revenue record as "{{URDUTEXT}} although neither Muhammad Jamshed All Khan nor the plaintiffs had alienated the land to them.
' The defendants contested the suit and asserted in the written statement that the suit land was sold to them by Nawab Jamshed Ali Khan for a sum of Rs.53,000 and eversince, they were owners in possession of the same. It was further averred that mutation for sale of the disputed land could not be sanction being against the provisions of Martial Law Regulation No.
64. It was alleged that Nawab Jamshed Ali Khan had received Rs.53,000 for the sale of land in dispute whereas Dilawar Ali Khan, one of his sons acting as his attorney and of other heirs received Rs.37,000 on different occasions offering assurance to them that he would get removed the objection raised under Martial Law Regulation No. 64 to the sanctioned of mutation. In that way they had already paid Rs.90,000 as total price of the land. Reference was made to different mutations entered and agreements executed between the parties witnessing the alienation of the suit land.
' Before striking the issues the learned trial Court recorded statements of the learned counsel for the parties wherein plaintiff's counsel admitted the execution of agreement, dated 6-11-1965 (Exh.
D/1) and receipt of Rs.29,500 as mentioned in agreement, dated 30-9-1961 (Exh. P/1). It was also admitted that Dilawar Ali Khan being attorney of his father had the authority to alienate the property on behalf of his father and his heirs. The counsel appearing on behalf of the defendants admitted the execution of agreement, dated 30-9-1961. The learned trial Court thereafter framed following issues arising out of the pleadings of the parties:-
(1) Whether the plaintiffs are the owners of the property in dispute? O.P.P.
(2) Whether the property in dispute was ever leased out by the plaintiffs or Nawab Jamshed Ali deceased to the defendants? 0.P.P.
Whether the defendants are the owners in possession of the disputed property by virtue of mutations of sale No. 250, dated 9-12-1961 and No. 259 entered on 1-10-1962? 0.P.D.
Whether the impugned sales in favour of defendants are for consideration, if so, what was the amount? 0.P.D.
(5) Whether the defendants are estopped to claim ownership of the disputed property? O.P.P.
(6) Whether the mutations mentioned in issue No. 3 above were illegally rejected, if so, with what effect? O.P.D.
(7) What is the effect of the pre-emption suit and its dismissal instituted by Sikandar Ali plaintiff?
O.P.D.
(8) Whether Dilawar Ali Khan had ever received Rs.25,000 from defendants by coercing them?
0.P.D.
(9) Whether the condition in agreement, dated 6-11-1965 (Exh. D/I) that the plaintiffs would get back the possession of the suit land on payment of Rs.65,000 as sale price and Rs.25,000 as expense was fictitious and not intended to be acted upon? If so, with what effect? O.P.D.
(10) Whether the plaintiffs have fictitiously entered into an agreement, dated 23-3-1964 with one Muhammad Iqbal son of Jalal Din concerning to the property in dispute and the litigation in respect of that is also pending in the Court of Senior Civil Judge, Sargodha . If so, with what effect?
O.P.D.
(11) Whether the plaintiffs are estopped to institute the present suit by their own conduct and that of Jamshed Ali deceased? O.P.D.
(12) Whether the plaintiffs are not bound by the stipulation regarding the amount of Rs.90,000 and its payment as mentioned in agreement, dated 6-11-1965 (Exh. D/1) in case their suit stands decreed? 0.P.P.
(13) Relief.
' The learned trial Judge thereafter proceeded to record evidence led by the parties in support of their cases and vide his judgment, dated 19-10-1968 decreed the plaintiffs' suit for possession subject to their deposit of Rs.29,500 within two months from the date of his judgment failing which their suit stood dismissed.
' The respondent feeling aggrieved by the aforesaid judgment and decree preferred appeal. The learned Additional District Judge vide the impugned judgment and decree dismissed appellants' suit and rejected their cross-objections against the judgment and decree of the learned trial Court.
' The learned trial Judge in his judgment held that the alienation of the land in dispute being hit by the provisions of Martial Law Regulation No. 64 was void and further that it was not proved on the record that Nawab Jamshed Ali Khan effected sale of the entire land owned by him in the estate.
He decreed the suit for possession of the land subject to payment of Rs.29,500. The learned lower appellate Court on the contrary dismissed the suit and held that the plaintiffs did not approach the Court with clean hands. They did not mention in the plaint about the sale of the suit land but later on they had to admit the sale of the disputed land.
3. Learned counsel for the appellants/plaintiffs contended that the appellants did mention in the plaint that the land in dispute was never sold to the respondents. The learned lower appellate Court did not determine the vital question regarding the validity or otherwise of the sale of the suit land. It was further contended that the agreement (Exh. P/1) executed by Dilawar Ali Khan on behalf of his father pertained only to 44 Acres of land and not the entire land as such it was void transaction. Mutation No. 250 in respect thereof once sanctioned was rightly reviewed and set aside by the competent authority being contrary to the provisions of Martial Law Regulation No.
64. Similarly mutation No. 259 later on entered was only regarding 104 Kanals of land and not for the whole land. Obviously the transactions were void being hit by the provisions of Martial Law Regulation No. 64 and created no right of ownership in the land. It was also submitted that there is nothing on the record except statement of Asghar All (D.W.5) to show that the bargain between the parties was struck for the whole land. It was also submitted that the amount of Rs.90,000 being claimed to have been paid was not proved because of the absence of any receipt placed on the record in lieu thereof. It was submitted that the mention of that amount in agreement (Exh. D/1) did not conclusively prove that such an amount was actually paid to the plaintiffs.
4. Learned counsel for the respondents, on the other hand, contended that the plaintiffs failed to prove that they were owners of the disputed property. They did not approach the Court with clean hands in omitting to mention about the mutations entered in respect of the suit land and agreements executed between the parties. It was also stated that the respondents were delivered possession of the disputed land. It was next submitted that if the sale of the suit land contravened any provision of law then both the parties being pari delicto, law would help the party in possession.
5. The contentions raised by learned counsel for the parties have been considered in the light of evidence on record which has been perused with their assistance.
The main question which requires settlement in this case is, as to whether, the plaintiffs succeeded in proving that there was no legal sale of the suit land made in favour of the respondents. They are undoubtedly heirs of Nawab Jamshed Ali Khan who was owner of the suit land. In case they succeed in proving that no valid sale of the disputed land had taken place in favour of the respondents, they being his successors-in-interest would inherit the same on his demise.
' It is not denied by the parties that Nawab Jamshed All Khan through his son and general attorney Dilawar Khan had the authority to alienate the land in dispute. He executed agreement (Exh. D/1) regarding 44 Acres of land and also got mutated the same vide mutation No. 250 in favour of the vendees. It is not established on record if the respondents even objected to the sanction of mutation No. 250 on the ground that it was not in accordance with the terms of the deal. The remaining land was siniultaneously attempted to be mutated in favour of Mst. Aman Begum, wife of Nawab Jamshed All Khan but that was not sanctioned. The subsequent mutation No. 259 entered on 1-10-1962 also pertained to 104 Kanals of land and not of the entire land. From the aforementioned transactions it becomes clear that there was no bargain for the sale of the entire land. The document Exh. D/1 is an agreement executed by Dilawar All Khan on behalf of some of the heirs of Nawab Jamshed Ali Khan after latter's death. This document also does not show that the deal was about the entire land. It only shows that the transaction of sale made in favour of the respondents being hit by the provisions of Martial Law Regulation No. 64 could not be finalised and in fact an admission on the part of the respondents regarding the nature of transaction and undertaking to restore possession of the land provided plaintiffs paid Rs.90,000 to them. The learned Additional District Judge did not take into consideration the fact that the transactions of sale made through Mutations Nos. 250 and 259 individually, were not about the whole land, therefore, void. It is true that the appellants did not disclose in the plaint the details of transac tions and documents executed in respect of the suit land but that alone is not sufficient to dub them with the allegation that they did not approach the Court with clean hands particularly when they did assert that the owners made no sale in favour of the respondents.
'The maxim of pari delicto is not a rule of law and like most of other maxims, is founded on consideration of justice and equity. These considerations can hardly override the express provisions of statute. Paragraph 3 of Martial Law Regulation No. 64 provides:-- "The provision of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document."
' It is, therefore, clear that in view of the mandatory provisions of the aforesaid Regulation no blessings can be accorded to a transaction which is void ab initio.
' The next question which arises in this case is as to whether the respondents are entitled to receive Rs.29,500 as admitted by the appellants or Rs.90,000 as alleged by them. Since it is held that the sale of suit land was void transaction and created no right, the vendees can claim no charge upon the property for the purchase money paid by them. Since the plaintiffs themselves had admitted the receipt of Rs.29,500 and have prayed for restoration of the judgment and decree of the trial Court. I have no option but to accept these appeals, set aside the impugned judgment and decree of the lower appellate Court and restore that of the trial Court. It is, however, observed subject, of course, to all just and legal exceptions, that respondents are at liberty to recover from the appellants any amount paid in excess of Rs.29,500 to them.
' There shall be no order as to costs.