' The appellants have challenged judgment and decree, dated 13-4-1980 passed by the Civil Judge Ist Class, Toba Tek Singh, as affirmed in appeal by the Additional" District Judge, Toba Tek Singh, on 23-124984 whereby suit for specific performance of agreement to sell land measuring 46 Kanals 8 Merles situated in Chak No,732-G.B, Tehsil and District Toba Tek Singh instituted by respondents Nos.1 to 3 was decreed, by filing the present regular second appeal in this Court.
2. The suit land was acquired by one Hamida deceased under a lease granted by the Provincial Government. On 15-6-1970 he entered into an agreement of sale with respondents Nos.1 to 3 to transfer his rights in the suit land for Rs,30,000 which amount was received by him at the time of execution of the agreement. The possession of the land was also transferred to the respondents.
Requisite permission of the Collector was also obtained by Hamida for the transfer of the suit land to respondents Nos.1 to 3. Before a formal sale-deed could be executed by Hamida, he expired on 3-7-1970. After his death his brother Toga, the predecessor-in-interest of the appellants and respondents Nos.4 and 5, succeeded as his legal heirs. As they refused to execute the sale-deed in respect of the suit land in favour of respondents Nos.1 to 3 they filed a suit for performance of the agreement of sale, dated 15-6-1970 executed by Hamida. The suit was contested by Toga and respondents Nos.4 and 5 inter alia on the grounds that Hamida deceased had not executed any agreement of sale in their favour and that the alleged agreement of sale relied upon by respondents Nos.1 to 3 was a forged document; that the alleged agreement of sale was not legally enforceable as no prior sanction from the Collector for the transfer of the suit land by Hamida deceased had been obtained; and that the suit was hit by Martial Law Regulation No,64. The learned trial Court framed the following issues for the disposal of the suit:-
(1) Whether the Province of Punjab is a necessary party?
(2) Whether the suit is hit by M.L.R. No,64 and section 19 of Colonization of Government Lands Act; 1912?
(3) Whether Hamida deceased executed agreement to sell the suit land to the plaintiffs, dated 15- 6-1970 and received the consideration of Rs,30,000?
(4) If issue No,3 is proved whether the plaintiffs are entitled to decree for specific performance as against the defendants?
(5) Relief.
' The parties led evidence in respect of their contentions. The learned trial Court after considering the evidence of the parties decided issues Nos.1 to 4 in favour of respondents Nos.1 to 3 and decreed their suit on 13-4-1980. Aggrieved by the decision of the learned trial Court Toga deceased and respondents Nos.4 and 5 filed appeal in the District Court. During the pendency of the appeal Toga died whereupon his legal representatives, i.e. The appellants were allowed to pursue the appeal. The learned Additional District Judge, to whom the appeal was entrusted for disposal, heard the parties' counsel and by his judgment, dated 23-12-1984 dismissed the appeal and affirmed the judgment and decree passed by the trial Court.
2.. The appellants challenged the findings of the Courts below on issue No,1 and have contended that Provincial Government was a necessary party in the suit which related to the land owned by the Provincial Government. Reliance has been placed on Muhammad Mumtaz Ahmad Khan v.
Federal Land Commission PLD 1985 Lah. 178 in support of the above contention. This case, however, is distinguishable on facts inasmuch as the land in dispute there was owned by the Provincial Government and the alienor possessed only Dakheelkari rights in the land under the Provincial Government while in the case under consideration there is nothing in the evidence to show that the. Provincia Government still owns the land in question and that proprietary rights have not been conferred on the lessee. The Provincial Governmen was, therefore, not a necessary party in the suit instituted by A respondents Nos.1 to 3 for the specific performance of agreement o sale executed by the lessee in their favour. The finding of the learned trial Court and the learned appellate Court under issue No,1 is legall in order.
3. Learned counsel appearing on behalf of the appellants has submitted that the permission granted by the Collector for the transfer of the disputed land was defective inasmuch as the Assistant Commissioner, who granted the requisite permission was not legally competent to give such permission. There is no force in the abov contention because the copy of sanction filed by the appellants alongwith the Memo. Of appeal shows that permission to transfer the land in disputed was finally given by the Collector on 20-6-1970, the Assistant Commissioner had only made a recommendation for allowing permission to the original lessee. In the report of the Assistant Commissioner it was also stated that the proposed transfer of the land would not be hit by Martial Law Regulation No,64. The appellants' contention that the Collector has failed to give any reason for recording permission t transfer the land in question and that he has given a vague sanction to alienate the disputed land does not merit any consideration because' the requirement of section 19 of the. Colonization of Government Lands (Punjab) Act, 1912 is adequately met by the order of the Collector and it was not necessary for the Courts below to go behind the sanction order to find out whether the instructions issued by the concerned authorities on the subject had been followed or not. The case of Jewna v. Mst. Sahibi PLD 1954 Lah. 253 referred to by the learned counsel for the appellants is not relevant because the main question for determination in that case was whether the sanction given by the Collector after the transfer of the land could validate the transfer from the date it was effected. It was in that context that it was held by the Court that the civil Court was legally competent to examine the validity of the order of sanction made by the Collector under section 19 of the Colonization of Government Lands (Punjab) Act, 1912. It may also be noticed that a contrary view has been expressed in a subsequent case Masood All v. Ali Haibat Khan etc. PLD 1958 (W.P:) Lah.
340.
4. Learned counsel for the appellants has further contended that since Hamida deceased had not obtained prior permission of the Collector to transfer the land in dispute, he was not legally competent to enter into agreement of sale in respect of the said land and consequently no suit for specific performance of the aforementioned agreement of sale was competent.
5. Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, prohibits the transfer of rights of interest vested in a tenant without the consent in writing of the Commissioner or of such officer as he may by written order empower in that behalf. It further provides that any transfer made without such consent in writing sha be void. The agreement of sale in the case under consideration was executed by Hamida deceased on 15-6-1970. Although possession of the land was also given to respondents Nos.1 to 3 by Hamida after receiving C the amount of Rs,30,000 from them, it was agreed that a formal sale-dee would be executed by Hameeda subsequently.
Requisite sanction under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, was obtained on 20-6-1970, i.e. Five days after the execution of the agreement of sale, but as no right and interest in the land held be Hameeda had been transferred by her by mere execution of the agreement of sale, the prohibition contained in section 19, referred to above, did not affect the agreement of sale. The question of legal competence of Hameeda to enter into the agreement of sale also did not arise. At the time of institution of the suit, respondents Nos.1 to 3 were in possession of the requisite sanction under section 19 and so there was no legal bar against the specific performance of the agreement of sale through the Court. The finding of the Courts below under issue No,2 against the appellants, is legally correct in view of the facts noticed above.
For the foregoing reasons, no legal question arises in this appeal which requires determination. The appeal is accordingly dismissed in limine.