JUDGEMENTMUHAMMAD BASHIR KHAN JEHANGIRI, J.~This civil revision calls in question the judgment and the dacree passed on 2-10-1986 by the learned Additional District Judge,Bannu at Lakki,reversing the judgment and the decree of the learned Civil Judge First Class,Lakki dated 14-11- 1985,dismissing a suit for declaration or in the alternation for possession of certain land.
2. The said revision petition arose out of a suit instituted by the petitioner herein,against the respondent No.1 for a declaration to the effect that the petitioner and respondents 2 and 3 are the owners of land measuring 15 Kanals 18 marlas as described in the heading of the plaint and situated in the revenue estate of village Tittar Khel,Tehsil Lakki,and that the consent decree passed on 28-5-1969 in civil suit No.331/1 instituted by respondent No.1 against the petitioner's father and rutation No.16592 sanctioued there under on 26-6-1969, was ultra vires, null, void and noffective against the rights of the petitioner and respondents 2 and 3 on the grounds of fraud, forgery and imperonation. The petitioner had also assailed the validity of the impugned consent decree and the impugned intation on the ground that the same had been respectively passed- sanctioned in violation of the Norht West Frontier Province New Irrigation Project (Control and Preventition of Speculation in land) Act, 1950 (Act XI of 1950), (to be herd after called as the Act). It is alleged in the plaint that Said Akbar Khan, predecessor-in-interest of the petitioner and respondents 2 and 5, was the owner of the suit land and notwithstanding the bar of alienntion under the provisions of the Act, respondent No.1 procured the impugned decree by impercenation and frundulently got the impugned nutation sanctioned in his favour. The suit was resisted by respondent No.1. The plea that the alienation of the disputed and was legally barred and the alleghtien that the impugned decree was tainted with fraud or impersonation were dontroverted. On the legal plan, it was pleaded that the suit was barred by times that the petitioner was estopped to bring the suit and; that the petitioner had matured his title to the suit land by prescription.
The trial Judge the following issues:- 1/. Whether the suit is within time?2/. Whether the plaintiff is estopped from the suit by his conduct?
3/. Whether the impugned decree and impugned matation is the result of fraud, collusion and henco void and ineffective on the rights of the plaintiff and proforma defandants?4/. Whether the impugned decree is hit by the Kurram Gahri Scheme (New Preject scheme) hence void?5/.
Relief.Addlrlssue: Whether the defendent No.1 has prescribed title by adverse possession? OPD.
3. The learned trial Judge took up issues No.3 and 4 toghether and found them in favour of the petitioner.On issue No.2 he held that doctrine of estoppel did not operate against the petitioner.He also found that the suij was within time and the plea of adverse possession raised by respondent No.1 was not available to him and in consequence he decreed the suit.Respondent No 1 went up in appeal to the Court of learned Additional District Judge,Banmi at Lakki.Lt appears that learned counsel for the parties confined their arguments to issue No.2,3 and 4 before the learned Appellate Court.The learned Additional District Judge,however,came to the conclusion that the impugned consent decree was not procured through mis-representation;that the patitioner was estopped to challenge the legality and property of the impugned consent decree and the mutations;that the transaction was neither fraudulent nor without consideration and finally;that it was not hit by the bar against alienation of land under the Act.In consequence the suit brought by the petitioner.Hence this petition.
4. In support of this patition,Mr.Khuda Bakhsh Khan,the learned counsel for the petitioner confined his arguments to the findings of the learned Additional District Judge on issues No.2 and 4 only.Mr.Khuda Bakhsh Khan contended that the petitioner was not estopped under the "rule of constructive liability"because there is no estoppel against a statute.The learned counsel vehemently argued that the learned Additionel District Judge has sconstrued the provisions of section of the Act by holding that the bar against the alienstiop under the Act had been created for a period of fifteen years and that,therefore,it stood removed after the said period.He maintained that the statutery bar under section 4 of the Act remained operative not only for the period of fifteen years from the date of commencement thereof but also on a date to be notified by the Provincial Court;on which water from the river and sub-soil water is made available for the irrigation of the land.In support of his contention,the learned counsel for the petitioner placed on an un-reported judgment of Peshawar High Court, in R.SA.No.302/67 wherein the transaction completed in village Tittar Khel in the year 1967 through consent decrees were hald to be barrod under the provisions of the Act.5. Mr. Zafar Abbas Zaidi,the learned counsel for respondent No.1 on the other hand,precisely raised the following points:-
(i) That the consent decree was an"agreement to selfand does not fall within the ambit of 'alienation'as defined in sub-section(l)of section 2 of the Act and that,therefore,it did not fall within the mdschief of section 4 ibid:
(ii) that respondent No.1 had matured title to the suit land by adverse possession;(iii) that the petitioner was estopped to challenge the transaction which had been only completed by his deceased father,and(iv) that,in any case,the impugned decree passed by the learned trial Judge was operative to the extent of only 2/5th share devolved on the petitioner from his father in that respondents 2 and 3 having failed to file revision,the impugned appellate order had attained finality qua their rights.
6. In support of his first contention that the consent decree amounts to as agreement to sell,Mr.Zaidi Jent support from Habib.Vs.Haii Muhammad (PLD 1970 Karachi 495) and Turab Shah.Vs..Marad Shah fPU 1987 Peshawar 163).In the first precedent,late Ghulam Safdar Shah J.As his Lordship then was,held that it was an established principle of law that a consent decree is just an agreement between the partiew notwithstanding the fact that it has been recorded by and bears the seal of the Court.In the second precedent,Fais Muhammad Khan,J.Observed as under:- "It is settled principle that a consent decree passed in favour of a person does not stand on a higher footing than a contract so far as its legal character is concerned,although it has affixed to it the seal of the Court.
7. Respectfully following the ratio in these two cases,I hold that a concent decree is just an agreement between the parties notwithstanding the fact that it has been recorded by and bears the seal of the Court.In the instant case,therefore,the impugned consent decree would be deemed to be an agreement between the petitioner's father and respondent No.1
8. The learned counsel for respondent No.1 than placed reliance on Abdullah Khan.Vs.Nisar Mohd Khan (PLD 1965 Supreme Court-690) to argue that section 4 of the Act prohibited only alienation of land and not the agreement to sell.The learned counsel for the petitioner,however,pointed out that in Abdullah Khan's case their Lordships of the Supreme Court had clearly held that the attack on the agreement for sale can succeed on the ground of public policy namely,to defest a law and that in the instant case that is precisely what had been resorted to by the parties to the consent decree and again invited my attention to the un-reported judgment of the Peshawar High Court in the case of Akram Khan.Vs.Habibullah Khan and others (R.SA.No.302/67),referred to above.This case is,however,clearly distinguishable from the facts of the present case.In the case in hand the bar under section 4 ibid was lifted when it was deleted by virtue of North West Frontier Province New Trfigation Profects (Control and preservation of Speculation in Land) (Amendment) Act,1969,(Act IV of 1969)with effect from the 19th of March,1969A legal bear against the alienation of land within the contemplation of section 4 ibid was removed and by necessary implication the validity of the impugned mutation attested after coming into force of Act IV of 1969 remained un-affected.
9. There is yet another aspect of the case as well.The alienation under the Act were not in the nature of absolute prohibitions but could be brought about by availing of the concession enacted in the proviso to section 4 ibid since deleted.The question would be whether in consequence of deletion of section 4 ibid the agreement to sell in the nature of the consent decree would not be tantamount to an imperfect title within the contemplation of both the consent decrees and the mutation attested thereunder or at least the mutation,which was attested much after the enforcement of Act IV of 1969 lifting the ban on alienation,would be validated.In this contest,the learned counsel for respondent No.1 invited my attention to Paragraph 32(c) of Martial Law Regulation No.64 and maintained that on the authority of Shammoon. Vs Ahmad (1986 PSC 666),respondent No.1 herein could defend his title to the suit land.To my mind,analogy can be falidly drawn from the dictum of the august Supreme Court in Shammoon's case particularly when the conditional bar evissaged by section 4 ibid stands removed by the coming into force of Act IV of 1969 and respondent No.1 can validly defend his title to the suit land.
10. This brings me to the plea of adverse possion and limitation raised on behalf of respondent No.1.The learned counsel for respondent No.1 on the authority of Raja...Vs...Karam Ali fPLD 1951 Lahore 177_)contensed that even if the transaction offented by virtue of the impugned consent decree was hald to be void,he had prescribed title to the suit land by adverse possession as against the petitioner and respondent 2 and 3 who had succeeded their father Ghulam Akbar Khan.Lt is not denied the respondent No.1 had entered into possession of the suit land from 1-5-1988 when the consent decree was passed.The suit was instituted on 22-10-1978.Consequently neither the plea of adverse possession is available to the answering respondent nor the suit was barred by time.
11. Nonetheless even if it be held that the transaction evidenced by the impugned consent decree was void,the predecessor-in- interest of the petitioner and the answering respondents were in pari delioto in respect of the transaction which is in contravention of section 4 of the Act.Both of them agreed to defeat the said provision law and put their illegal agreement into effect.The petitioner and repondents 2 and 3 who claim to have inherited the suit land from their father would be debarred to seak the assistance of the Court to get possession of the suit, land on the main,in pari detlioto potior est condition possidentis (where each party is equally in suit the law favours him who is actually in possession).In this context,in which the Division Bench comprised of their Lordship S,A.Rehman and M.R.Kayani JJ.Noticed "Oadar Bakhsh..Vs..Hakim (AIR.1932 Lahore-StB) Venkats Subhawa..Vs..Attar Shaikh Master (AIR 1942 Mad.252I.And Sundrabi..Vs..Manoher (AIR.1933 Bom:262) wherein this maxim was held fully attracted and observed as under:-"It seems to me however,that the plaintiffs should have been nonsuited in the present case on another ground .The fact have revealed that both Khuda Bakhsh and Raja Khan were in pari delicto in respect of the transaction,which was in contravention of section 19 of Punjab Act V of 1912.By an agreement between them,they agreed to defeat the provisions of that law,and put their illeged agreement into effect.Raja Khan paid Rs.11,000/- to Khuda Bakhsh and the latter dalivered posssession of one equare of land to the former.Now that the facts have come to light,neither Raja Khan nor Khuda Bakhsh or his successor-in-interest could seek the assistance of the Court in getting back their est canditio possidentis,(where each party is equally in suit the law favours him who is actually in possession) would apply in full forcc.For a discussion of this macrim reference may be made to Broom's Legal macrim page 486 et.Seq.This macrim is established not for the benefit of plaintiffs or defendants but is founded on the principles of public policy,which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract to recover it back.The exception of this maxim are provided by canes where the illegal contract has not yet been executed and docus poenitenties still exists,or where one party is the oppressor and the other oppressed."
Their Lordship were further pleased to clarify the application of this maxim in the following words:-
12. "There is no doubt that the general rule is that no one can set up his own fraud,but the mexim given above forms an exception to that general.No plea,it is true,was raised in the trial Court or in the grounds of appeal in this court,based on the maxim but once the facts are established,it would be the duty of the Court to stay its hand and refuse any relief to a party that comes to the fountain of justics with sullied hands.A transferer possessed."
13. Applyin the maxim in pari delicte potior est condition possidentisCwhere each party is equally in suit the law favours him who is equally in possession)to the case in hand,the plaintiff-patitioner should have,therefore,been non-suited by the trial Court in the present case on this ground as well.
For the foregoing reasons.I would dismiss this petition in revision with costs throughout.