MIAN BURHANUDDIN KHAN, J.--Leave was granted by this Court vide order dated 2-11-1976 on the ground that the petitioners had approached the Collector for the grant of permission to sell the suit land which was refused by him vide order dated 9-4-1962. Judgment in the case of Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254 was relied upon by the learned counsel for the petitioners which contains an observation purporting to show that in the absence of the permission of the Collector under section 19 of the Colonization of Government Lands (Punjab)
Act, 1912 the agreement to sell would be void and to that extent the High Court's judgment is in conflict with the aforesaid authority.
2. Facts necessary for the decision of this appeal are that respondent Abdul Sattar son of Muhammad Ishaq instituted a Civil Suit No.226 on 18-7-64 in the Court of the Senior Civil Judge, Rahim Yar Khan for a decree of specific performance of agreement to sell dated 19-12-61 in respect of agricultural land measuring 100 Kanals. In the plaint it was averred that the petitioners, now appellants, had executed the agreement to sell on 19-12-61 by virtue of which Muhammad Hussain son of Muhammad Abdullah, attorney of the petitioners agreed to sell the land in dispute for consideration of Rs 6,328. It was further stated in the plaint that the attorney of the plaintiff- appellants received Rs.500 and it was agreed that the balance shall be paid at the time of attestation of mutation. It was also stated in the plaint that the suit land was Colony land and the conveyance had been obtained one month prior to the institution of the suit. The suit was resisted by the respondent giving rise to the following issues:
(1) Did defendants No.1 to 6 enter into an agreement of sale with Imam Din the plaintiff's grandfather?
(2) Was the contract in dispute agreed to be executed subject to the permission of the Collector?
(3) Is the plaintiff in possession of the property in dispute in the capacity of a lessee?
(4) Can the agreement in dispute be specifically enforced?
3.The learned trial Court dismissed the suit vide judgment and decree dated 5-7-1965 deciding issue No. 1 in favour of the petitioner. Finding was recorded to the effect that Imam Din was the person in whose favour the agreement to sell was executed and the plaintiff was the general attorney of his grandfather Imam Din and Imam Din himself could have sought the enforcement of the agreement to sell. Plaintiff Muhammad Hussain had no locus standing to institute the suit.
Under issue No.2 the learned trial Court held that the title deed was not obtained by the defendant when the deed of agreement to sell Exh.DW.5 was executed and according to law, permission of the Collector should have been obtained under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and the mere fact that Muhammad Hussain had applied for obtaining the permission of the Collector would simply show that it was agreed by the parties that the permission of the Collector was a sine qua non of the agreement. This issue was, therefore, also decided in favour of the defendant the present appellants.
4. Aggrieved of the aforesaid judgment and decree of the learned trial Court the respondent filed Civil Appeal in the Court of the learned District Judge which met the same fate. Still not satisfied with this the respondent filed Regular Second Appeal in the Lahore High Court, Baghdad-ul-Jadid and a learned Judge by his impugned judgment dated 23-5-1975 accepted the appeal and decided issues Nos. 1, 2 and 3 against the petitioners /appellants and decreed the suit.
5. Main grounds of the learned counsel for the appellants are that concurrent finding of fact on issue No.1 was reversed by the learned High Court Judge solely on the statement of Muhammad Hussain Mukhtar of appellants Nos.1 to 6 that the learned Single Judge also committed error of law by misinterpreting Order XV, Rules 1 and 2 of the C .P . C . ; that the learned Judge, in the impugned judgment, omitted to consider the statements of D.Ws. 1, 2, 3, 4 and 5; the statement of the attorney and also the order of the Collector, and, therefore, the finding of the learned Judge on issue No.1 is totally untenable and ineffective on account of non-reading and misreading of the material documentary as well oral evidence; that the findings in the impugned order regarding issue Nd.2 are also contrary to the authority i.e Abdul Aziz and 2 others v. Sadiq Muhammad and 9 others 1970 SCMR 569.
6. We have examined the points raised by the parties before us and would like to refer to the judgment of the learned High Court Judge wherein, after reproducing the statement of Muhammad Hussain the general attorney, it was observed: "Despite the admission of the claim of the appellant by respondents Nos.2 to 6 the learned trial Court failed to pass a decree against respondents Nos.1 to 6 under Order XV, rule 2, P.P.C. The contention of the learned counsel is supported by the record and the legal provision referred to by him. The learned counsel for the respondent could not satisfactorily controvert this aspect of the case ..."
"------. According to him it is proved on record that respondents Nos. 1 to 6 had already paid the price and, therefore, had become its owners. Reliance was placed on Jagat Singh and others v. Mst.
R.I Devi and others AIR 1938 Lah. 554 to say that they had a right to sell the property after its payment had been made. The Supreme Court held in Ilam Din v. Muhammad Din PLD 1954 SC 842 that the title passes after payment of the price in Colony lands. It was held in Hussain Bakhsh v.
Muhammad Aslam PLD 1960 Lah. 869 that an agreement entered into before acquiring proprietary rights, could be enforced after such acquisition .. . . "
As regards the right of respondent No.7 as a subsequent vendee the learned Judge observed that respondent No.7 is a real brother of respondents Nos. 2 to 6 and son of respondent No.1 and he knew about the agreement in question, and, therefore, this purchase was subject to the right of the appellants.
7. In support of the appellants' case judgment in Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254 was cited wherein it was held: "A transfer prohibited by section 19 of the Colonization of Government Lands (Punjab) 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 be ordered.
The petitioners in this case claimed that on 10-2-1969 the respondent executed an agreement in their favour to sell certain State lands, held by them, for the consideration of Rs. 20,000 and in part performance of this agreement, received Rs.1,500. The balance of Rs. 18,500 was to be paid after the respondents had obtained the sanction of the Government for the transfer of the State land under section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
8. Next decision cited in support of the appellants' case is Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg PLD 1978 Lah. 421 wherein it was held: "Grantee of Government land entering into agreement with another person transferring to him all his rights in grand land--Consent, in writing, of Commissioner, Collector or any other Officer to such agreement not obtained--Such agreement, held, fell within mischief of section 19 and was, therefore, void--Agreements partly void--Enforceability of--Cannot alter basic nature of agreement in severing bad part from good--Grantee of State land entering into agreement with another person stipulating to transfer his h`~ tenancy rights in State land to him and also to transfer proprietary rights after acquisition of same--Stipulation with regard to transfer of proprietary rights not separately enforceable--Such agreement as a whole, held, bad being in violation of section 19 of Colonization of. Government Lands (Punjab) Act, 1912."
9. Decision in Mst. Khurshid Begum and 7 others v. Inam Rabbani and another 1979 CLC 570 was also cited in support of the appellants' case wherein it was held:"
"Property although granted by Government, yet remaining vested in it--Agreement to sell or any sale in respect of such property, held, void and ineffective."
Reference was made to Abdul Shakoor etc. v. A.S. Tasneem etc. 1974 SCMR 463 and Ghulam Rasool and others v. Muhammad Anwar 1969 SCMR 254.
It was further observed in this case by the learned Judge; "Land once vested in grantee after compliance with condition of grant even though sale-deed not executed bar of section 19, held, removed and agreement to sell executed during period when property vested in Government becomes effective after vesting of property in grantee."
Reference was made to PLD 1966 SC 612; PLD 1965 SC 690 and PLD 1953 Lah. 251.
10. In the present appeal, respondent's case is that in the Agreement Exh. D.5 it is stipulated that 56 Kanals and 5 Marlas of land for consideration of Rs. 6,328 is to be sold. Out of the sale price Rs.500 has been received in advance. In this document it is also mentioned that mutation of inheritance in favour of Mst. Begum Bibi, widow of Muhammad Bakhsh, Mst. Saleh Bibi, Mst. Sharifan Bibi, Mst.
Haneefan Bibi and Mst. Hameedan Bibi, daughters of Muhammad Bakhsh in 10 equal shares and 35 shares respectively, had been attested on 22-12-1959, and, therefore, this Agreement is valid in view of the fact that the proprietary rights had already been vested in the appellants and they could sell despite the prohibition contained in section 19 of the Colonization of Government Lands (Punjab)
Act, 1912 (hereinafter referred to as the Act).
11. Learned counsel for the respondent cited Hiji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 wherein it was contended:- "Whenever sale of land is prohibited, an agreement for sale without sanction should also be regarded as prohibited on ground of public policy." and it was held: "There is little force in this contention. Section 4 of the Kabul River Project (Control and Prevention of Speculation in Land) Act, 1948 prohibits only alienation of land. If there is some condition precedent to the validity of a transfer, it is open to the parties to enter into an agreement subject to compliance with the condition precedent. The attack on the agreement for sale on the ground of public policy can only succeed if it is shown that the intention of the agreement was to defeat a law. If the parties that enter into an agreement for sale, contemplate only a sale with the requisite sanction, they are not making any effort to defeat the law."
12. Next case cited by the learned counsel for the' respondent is Maula Dad etc. v. Ghulam Muhammad and another PLD 1978 BJ 71 wherein as regards the tenant acquiring proprietary rights, it was held that bar contained in section 19 was not applicable.
1969 SCMR 254 cited earlier, and distinguished it on the ground that the tenancy rights in that case had not matured into ownership rights and the specific performance of the agreement of sale, in respect of tenancy rights was being sought.
13. Learned counsel for the respondent also cited Hakim A.I and another v. Ata Muhammad and others 1981 SCMR 993 wherein it was held that; "Section 19--Agreement to sell anticipated grant of land--Grantees of Government lands executing an agreement to sell land--Sale--deed to be executed after grantees vendors acquired proprietary rights in land and not before--Out of price fixed, a portion already realized by vendors, some portion to be realised at time of registration, and balance to be paid to Government towards dues for acquisition of proprietary rights in favour of vendors- Documents not reciting delivery of possession nor raising such implication--Delivery of possession not seeming to be taken following such contract or a' part of agreement to sell--No express promise and reservation made in deed and such being quite consistent with rest of recital in document viz. Proprietors shall transfer land after proprietary rights acquired--Sale itself and performance of agreement to sell delayed to time when grantees acquired proprietary rights and deed did not in praesenti transfer or have effect of charging or encumbering rights or interests of tenants as such--Document in question, held, did not in terms, violate express words of section 19 of Act V of 1912."
14. The other case cited was Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70 wherein it was held: "The present appeal came up for hearing before this Court on 3-7-1985 and both the learned counsel addressed that Court on the effect of section 19 of the Act in question on the enforceability of a contract made before proprietary rights had been conferred on the vendor ------.It was held: ---On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantees had acquired the proprietary rights..."'
15. Mr. M. Nawaz Akhtar son of Pir Muhammad was present in person. After hearing the learned counsel for the respondent, he was directed by this Court to submit written arguments which were submitted by him, a resume of which has already been given in the earlier part of this judgment as arguments in support of the appellants' case. In the written arguments, he also cited Abdul Aziz and 2 others v. Sadiq Muhammad and 9 others 1970 SCMR 569. In this case one Muhammad Hayat acquired the allotment of disputed land which was later resumed by the Government for non-payment of the installments. Earlier to this Muhammad Hayat had entered into an agreement to sell with Sultan, for a consideration of Rs. 562 out of which Rs.100 were paid and the balance was to be paid on the restoration of the land to Muhammad Hayat. The land was ultimately restored to Hayat who applied in April, 1945 for its alienation in favour of Sultan under section 19 of the Act. This permission was granted in November, 1945, and, consequently, Sultan deposited the entire sale price thereafter in the Government treasury. Hayat, however, went back on his agreement with Sultan and transferred the same land to one Attaullah after obtaining the sanction of the Collector in this behalf under section 19 of the Act. Sultan moved the Colonization authorities for cancellation of the transfer made in favour of Ataullah and subsequently in favour of respondents 1 to 5 on the basis of the earlier alienation in his own favour and succeeded ultimately in getting an order from the Commissioner. This order was contested by the subsequent vendees, and the learned Judges observed in this behalf.
"It is clear from the circumstances mentioned above that when Muhammad Hayat had allegedly entered into an oral agreement with Sultan, the land had already been resumed from him and he had no title left to confer it on Sultan, nor had he obtained the sanction of the relevant authorities for the transfer in favour of Sultan without which no valid title could have passed to the transferee.
It may also be observed that no effort was made during the suit to prove this oral agreement..."
On going through this short judgment we find that it is distinguishable from the facts of the present appeal for two outstanding reasons, firstly, at the time when Hayat entered into an agreement to sell, the land had already been resumed by the Government, and, therefore, there was no right vested in Muhammad Hayat to enter into an agreement to sell, and, secondly, no efforts were made by Sultan to prove the oral agreement.
16.To sum up the case of the parties, we would hold that the agreement to sell Exh. D/5 opened in the following manner: "Muhammad Hussain son of Abdullah was General Attorney of appellants namely Mst. Begum Bibi widow of Muhammad Bakhsh, Mst. Saleh Bibi, Mst. Latifan Bibi, Mst. Sharifan Bibi, Mst. Hanifan Bibi and Mst. Hameedan Bibi daughters of Muhammad Bakhsh, vide Deed, dated 13-6-1960 registered with the Sub Registrar, Lyallpur, vide No. 218 Part 4 Volume 43 pages 31, 32 on 8-7-1960; and by mutation of inheritance the land has been mutated in the names of aforementioned Mst.Begum Bibi widow of Muhammad Bakhsh and others; and that he was empowered to alienate the said land, and therefore, he entered into an agreement with Abdul Sattar son of Muhammad Ishaq to sell the said land for Rs.6,328 of which Rs.500 were received in advance..."
It is nowhere mentioned in the above agreement that Abdul Sattar had entered into-this Agreement on behalf of Imam Din, and, therefore, the power of attorney in favour of Abdul Sattar by Imam Din, is of no legal consequence. Hence, we find no substance in this appeal which is, consequently, dismissed. Parties to bear their own costs.