QADEERUDDIN AHMED, J.-This second appeal is directed against the judgment of an Additional District Judge, Sukkur, dated the 10th of December 1963, by which he accepted the first appeal of the respondent and setting aside the judgment and decree of the trial Court directed that survey No. 489 be entered in the record-of-rights in the name of Wahid Bux respondent to the extent of annas 0-8-0 as well as restrained the present appellants from interfering with the possession of the respondent.
2. The facts, which form the background of the case, have been stated by counsel for the parties to be that half of a plot of land measuring 1 acre 3 ghuntas situated in Deb. Odherwali, Taluka, Ghotki, District Sukkur was transferred by Ghulam Hussain in favour of Wahid Bux by a sale-deed for a consideration of Rs. 1,500 but there was a condition that the seller could repay the price within a year and get the plot of land back. The transaction was made by a registered document on the l1th of March 1954. According to the above-mentioned provision of the document the price was to be repaid by him in March 1955, and it alleged that the transferor repaid it in time, but this denied by the other side. In 1957, he died, therefore, Wahid Bux applied to the Revenue Officer concerned for the mutation of his name on the implicit ground that owing to the alleged failure of the mortgagor to repay the mortgage money the transaction was complete sale. The successors-in-interest of the transferor took the plea that repayment was made; therefore, there was no subsis--ting mortgage. The Revenue Officer took the view that the name of the mortgagee could not be mutated in the Revenue Records because the transaction was a subsisting mortgage. The mortgagee went in appeal which was dismissed on the 29th of February 1960. Then he went in revision to the Board of Revenue, which dismissed the revision application on the 3rd of January 1961. The Member who decided the revision application has observed as follows :- ---It was a sort of conditional sale to the effect that in case the sale money was repaid within a period of one year the sale would be set aside and the land would revert to Ghulam Hussain------ ------..The Collector and the learned Commissioner both declined to interfere and directed the petitioner to have recourse to a competent Civil Court. In my opinion their order is correct as the original transaction was not an outright sale and possession bad continued with the vendor or his heirs.---
3. In view of the above decision the respondent filed a civil suit bearing No. 21/61, in which he pleaded that he was the owner of half of the plot of land bearing survey No. 489 together with two annas share in the well which was situated in survey No. 491 and asked for a declaration that he was entitled to the entry suit his name in the Revenue Records as its owner. The suit was resisted by the successor-in-interest of the transferor and eight issues were framed on the pleadings of the parties as follows :- "(1) Whether the defendants are agriculturist and the Sind Agricultural Relief Act is applicable in this case?
(2) Whether the property in suit belongs to the plaintiff?
(3) Whether the property in suit is in possession of the plaintiff?
(4) Whether Ghulam Hussain deceased mortgaged by conditional sale the land in Suit and paid the amount back within the stipulated period?
(5) Whether the transaction being an outright sale was null and void by virtue of sections 3, 4 and 7 of the Sind Rural Credit and Land Transfer Act, 1947?
(6) Whether the jurisdiction of this Court is barred by provisions of section 23 (1) and (2) of the Sind Rural Credit Act, 1947?
(7) What should the decree be?
(8) What order as to costs."
4. The trial Court came to the conclusion that the mortgage money was not repaid and that the transaction was a sale but came to the conclusion that it was invalid in view of section 3 of the Sind Rural Credit and Land Transfer Act, 1947 and dismissed the suit. Section 3 is as follows "3-(1) Where the holding of a landholder does not exceed the minimum area, he shall not make a permanent alienation of the whole or any part of his holding.
(2) Where the holding of a landholder exceeds the minimum area, he shall not make a permanent alienation which has the effect of reducing his holding to an area less than the minimum area."
The plaintiff went in appeal which has been accepted. The first appellate Court has found that the transaction was sale and was not invalid because (1) it could be validated by a subsequent sanction given under subsection (2) of section 5 of the said Act, and (2) the Sind Rural Credit and Land Transfer (West Pakistan Amend--ment) Act, 1963, which came into force on the 17th of April 1963, has amended section 3 as well as omitted sections 4 to 7 of the Act.
The amended section 3 is as follows :- "3. Ban on alienation in favour of creditors in satisfaction of debts and `Benami' transaction.-(1)
Except with the sanction of the Collector, no person shall make permanent alienation of the whole or any part of his holding to another person, who being a creditor, has advanced to such person any loan, until such loan has been repaid or settled in full by the debtor and a period of three years has elapsed since repayment or settlement.
(2) Where the effect of an alienation is to pass the beneficial interest to a person other than the person in whose favour such alienation has been made in contravention of the provision of this section, the transaction shall be void for all purposes and the alienor shall be entitled to possession of the land so alienated, notwithstanding the fact that he may himself have intended to evade the provisions of this section.
(3) If the Collector, either of his own motion or on the application of the alienor, is satisfied, after making such enquiries as may be prescribed or considered necessary, that an alienation is void under the provisions of this section;, he shall, by order in writing, after recording his reasons, eject any person in occupation of the land under such alienation and place the alienor in-possession.
(4) For the purposes of enforcing an order under subsection (3), the Collector may exercise all the powers of a Civil Court conferred by Rules 97 and 98 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908.
(5) Any alina petition made in consequence of a transaction rendered void b y this section shall be deemed to be void for all purposes.
(6) When a Collector sanctions a permanent alienation of land, his order shall not be taken to decide or affect any question of title, or any question relating to any reversionary right or right of pre-emption."
6. The defendants, who were the respondents in the first appeal, have preferred this second appeal. They have not questioned the decision of the first appellate Court that the transaction was sale, but their counsel has argued that it was a bad transaction because it was hit by section 3 and sections 5 (1) and 7 (1) of the Sind Rural Credit and Land Transfer Act, 1947. We have reproduced section 3 above. Sections 5 (1) and 5 (2) and section 7 (1) are as follows :- "5. (1) A permanent alienation of land which is prohibited under section 3 read with section 4 shall not take effect as such to the extent to which it is so prohibited, unless and until sanction is given hereto by the Collector.
(2) Such sanction may be given after the act of alienation is otherwise completed.
7. (1) The provisions of this. Section shall have effect as respects permanent alienations of land, prohibited under section 3 read with section 4, to which the Collector has not given or has refused his sanction."
6. On the basis of the above provisions of law their counsel contended that in this case the landholder, who transferred the land, namely Ghulam Hussain, did not hold the minimum area required for purposes of subsection (1) of section 3; therefore he could not permanently alienate any part of the land which was held by him. There is an exception to this general prohibition which is contained in subsection (1) of section 3 of the Act in the following words "Unless and until sanction is given hereto by the Collector."
Emphasis was laid by counsel on the invalidity of those transactions to which "the Collector has not given or has refused his sanction". Counsel tried to get over the effect of subsection (2) of section 5 by saying that although sanction can be given to a transaction after the Act of alienation is otherwise completed, yet it remains invalid and void so long as such sanction is not granted. On this reasoning he concluded that in this case the transaction was bad ab initio. In support of this - view he has relied on Mst. Hawa v. Muhammad Yousuf and others (1).
7. We feel that the difficulty in the way of counsel is that in this case the transaction was a mortgage according to the (1) PLD 1969 Kar. 324 document and not a permanent alienation. This was the view which the Revenue authorities rightly took. The transferor claimed that even the mortgage had ceased to exist because the mortgage money was allegedly repaid, yet the Revenue authorities have held the transaction to be a mortgage. The view taken by the Revenue authorities compelled the present respondent to file a suit for declaration that he was the owner of the land and entitled for the entry of his name in the Record-of---Rights as the owner. The present appellant specifically pleaded in the second paragraph of their written statement that their predecessor-in-interest Ghulam Hussain had executed a mortgage deed, by which he had created a mortgage by conditional sale and that the mortgage money was repaid by him within the stipulated period. They have now accepted the decision of the first appellate Court that the transaction was an out and out sale, and their counsel has argued that in view of this acceptance there is no question of the transaction being a mortgage. But their present acceptance of the character of this transaction does not warrant the conclusion that sanction was imperative under subsection (1) of section 3 of the Sind Rural Credit and Land Transfer Act, 1947, when the transaction was made. That provision applies only to permanent alienation, which a mortgage' is not.
8. The contention of counsel does not appear to be sound for the additional reason that the decision of the first appellate Court could only be said to be final if an appeal was not preferred from it. To this counsel replied that he has not questioned the decision of the first appellate Court with respect to the nature of the transaction; therefore, that part of the decision is not open to question in this appeal and must. Be accepted by the respondent as a foregone conclusion. This reply again is not convincing, because the argument that the decision about the character of the transaction became final at the conclusion of the first appeal owing to the omission of the appellants to question that part of it, is not such as to have saddled the respondent with a responsibility to move the Revenue authorities at the time of the transaction for obtaining sanction on its basis.
9. The above situation becomes legally more delicate for the appellants when we realise that section 3 was amended during the pendency of the first appeal and sections 4, 5, 6 and 7 were altogether omitted. The effect of the amended section 3 is that there is no general prohibition against permanent alienations but only a restricted prohibition against permanent alienations in favour of those creditors who have advanced money to the transferors and have not fully received it back. To this, Mr. Hafeez Pirzada replied that the amendment, which was made during the pendency of the appeal, did not govern the rights and obligations of the parties to this appeal because they were still governed by the law as it stood at the time of the institution of the suit. In support of this contention he has referred to :-
(1) In re : Joseph Sucha & Co. Ltd. (1876) 1 Ch. D 48,.
(2) Hutchinson v. Jauncey (1950) 1 K B 574,
(3) Jonas v. Rosenberg (1950) 2 K B 52, and
(4) Maxwell's Interpretation of Statutes, 11 Edn. Of 1962 at pages 212 and 213.
The conclusion which counsel drew from the above judicial precedents and the observations of the author was that vested rights of parties are governed by the law which prevails at the time of institution of a suit. This contention raises the question :- What was the right which vested in the parties at the time of the institution of the suit?
Let us recall that the stand of the present of the appellants was that the transaction was a mortgage which was extinguished owing to the repayment of the mortgage money. There was a dispute between the parties on this point and is the subject of this appeal. In these circumstances, the dispute cannot be said to have been finally settled by the decision of the first appeal. It is therefore, not feasible to say that the right of ownership could be treated by the respondent as vested in him at the time of the institution of the suit. Sanction could not be granted to him on the presumption that the transaction was a sale. In fact, the Revenue authorities have held to the contrary. Moreover, subsection (2) of section 3 of the said Act does not appear to us to lay down "substantive" law. It relates to the time within which a permanent alienation can be sanctioned; therefore, we do not think that it is right to say that the present respondent could apply to the Revenue authorities after the amendment though the amendment was made during the pendency of the appeal.
10. Apart from the above technicalities we are impressed in particular by the fact that when the respondent moved the Revenue Officer to enter his name in the Revenue Records is the owner, the predecessor-in-interest of the present appellants apparently took the stand that the transactionth was a mortgage which was extinguished by repayment. They repeated that stand when the civil suit was filed and pressed it in first appeal. After that they have chosen to accept the decision of the first appellate Court that the transaction was a sale and have tried to use their new stand to raise the objection that if the sanction of the transaction was not necessary ab initio it became necessary after the first appeal. They have not played fair and their present stand in not sound.
11. The conclusion of the above discussions is that the appeal is dismissed with no order as to costs.