MIAN ALLAH NAWAZ, J.~This regular second appeal by Faiz-'Elahi defendant calls in question the Judgment and decree passed by the learned AddL.District Judge, Sahiwal, dated 2.12.1979, by-with the appeal filed by Shamir plaintiff was accepted and suit or declaration filed by him was decreed.
2. The controlling facts of the case are: that agricultural colony land measuring 182-Kanals, 4- Marlas in Chak No.62/5-L, Tehsil and District Montgomery (now-Sahiwal) was granted to Shamir, Amir, Waryam, Khan and Pehlwan (real brothers) in equal shares under Abad-kari Scheme. Shamir applied to the Collector for permission under section 19 of the Colonization of Government Land Act 1912 to transfer his 1/6 share in favour of Faiz Elahi. This application was rejected by Collector vide an Order dated 29.9.1963. Thereafter Faiz Elahi brought a suit for specific performance of the agreement to sell dated 1.11.1963. It was avered therein that Shamir agreed to sell the land in dispute in favour of Faiz Elahi in consideration of Rs.10,000/-; that Shamir received Rs.5,000/- as earnest money and executed the afore-noted agreement to sell and under took to transfer the proprietory rights in favour of Faiz Elahi after getting conveyance deed. The suit was decided on the basis of compromise. The statement of parties were recorded on 21.6.1965 and the learned trial court decreed the suit. Faiz Elahi was directed to deposit the balance amount of price in Court and get the sale deed executed. In pursuance of this decree, Faiz Elahi deposited the balance of price on which the sale deed was registered through the Civil Nazir of Senior Civil Judge, Montgomery on 25.2.1966. As a result, the necessary mutation was incorporated in the revenue record.
2. The controlling facts of the case are: that agricultural colony land measuring 182-Kanals, 4- Marlas in Chak No.62/5-L, Tehsil and District Montgomery (now-Sahiwal) was granted to Shamir, Amir, Waryam, Khan and Pehlwan (real brothers) in equal shares under Abad-kari Scheme. Shamir applied to the Collector for permission under section 19 of the Colonization of Government Land Act 1912 to transfer his 1/6 share in favour of Faiz Elahi. This application was rejected by Collector vide an Order dated 29.9.1963. Thereafter Faiz Elahi brought a suit for specific performance of the agreement to sell dated 1.11.1963. It was avered therein that Shamir agreed to sell the land in dispute in favour of Faiz Elahi in consideration of Rs.10,000/-; that Shamir received Rs.5,000/- as earnest money and executed the afore-noted agreement to sell and under took to transfer the proprietory rights in favour of Faiz Elahi after getting conveyance deed. The suit was decided on the basis of compromise. The statement of parties were recorded on 21.6.1965 and the learned trial court decreed the suit. Faiz Elahi was directed to deposit the balance amount of price in Court and get the sale deed executed. In pursuance of this decree, Faiz Elahi deposited the balance of price on which the sale deed was registered through the Civil Nazir of Senior Civil Judge, Montgomery on 25.2.1966. As a result, the necessary mutation was incorporated in the revenue record.
3. This was not end of the matter; it was on 29.10.1966, when Shamir instituted a suit for the declaration to the effect that Judgment and decree passed by learned Senior Civil Judge, dated 21.6.1965, was fraudulant, collusive, and was obtained through exercise of undue influence on him. It was pleaded therein that the plaintiff was enunch and had a bad health; that taking the benefit of bad health Faiz Elahi maneavoured to obtain impugned decree. It was alleged that no consideration was paid to him at all.
4. The suit was contested. Faiz Elahi-defendant took up the plea that the land in dispute was a colony land; that Shamir had paid the full price of the land on 1.7.1958; that agreement to sell was lawful and binding between the parties. That the decree passed by the Senior Civil Judge, Montgomery dated 21.6.1965, was based upon compromise; that the statements of both' parties were recorded; that Shamir had received the remaining price to the extent of Rs.5,000/- deposited in Court by defendant. As such Shamir had no right to challenge the decree noted above.
5. Upon the pleadings of the parties learned trial court framed as many as 7 issues which are as follows:-
1. Whether the suit is properly valued for the purposes of court fee and jurisdiction, If not what is the correct value action.
2. Whether the suit does not lie in the present form?
3. Whether the land in suit has been properly described?
4. Whether the Provincial Government is a necessary party?
5. Whether the disputed decree dated 21.6.1965, is illegal, void and fraudulent?
6. Whether the disputed agreement to sell was illegal, void and without jurisdiction. If so to what effect?
7. Relief.
6. Both the parties led evidence oral as well as documentary in support of their respective pleas.
Upon the consideration of evidence of parties, the learned trial court concluded that the agreement to sell and impugned decree were valid and binding between the parties and so dismissed the suit. Feeling dissatisfied, with this decision, the respondent preferred an appeal which was accepted by learned Addl. District Judge by impugned decision by holding that agreement to sell dated 1.11.1963, rs null and void on account of being in contravention of section 19 of Colonization of Government Lands (Punjab) Act, 1912 and at decree impugned was also illegal.
7. The learned counsel for the appellant impeached the finding of the First Appellate Court on issues No.5 and 6 on the following grounds: Firstly, that Shamir had paid the price of the land on 1.7.1958; the agreement to sell was executed on 1.11.1963, while the consent decree was passed on 21.6.1965. It was argued that neither the agreement to sell nor the decree were hit by bar contained in Section 19 of the Act. Reliance was placed on Ibrahim V.' Mst Rajji and others (PLD 1956 L-ah. 609) and Ali Muhammad Vs. Mst. Rabia Bibi etc. (PLD 1971 B.J. 38).
Secondly, that the judgment and decree dated 21.6.1965 was passed in consonance with the compromise arrived at between the parties. The plaintiff was directed to pay Rs.5,000/- to the defendant or to deposit in Court within one month of this order. On the strength of these facts it was stated that Shamir had no right to institute the suit.
8, I have heard the learned counsel for the parties at length and gone through the record with the assistance of learned counsel for the parties. Before I proceed to examine the contention of parties it would be appropriate to take notice of finding of first appellate court as well as the trial court on issues No.5 & 6, which have been debated before this Court only. The finding of original court is as follows:- ' As I have discussed under issues No.5 its has not been established before this Court that the defendant had this agreement executed by the plaintiff through mis-.Representation that he had already obtained the sanction from Collector and, if it be so, then the plaintiff who was a party to this transaction and who made the defendant to believe that he could alienate his rights even in the absence of the sanction under section 19 (and defendant be believing this representation had entered into the alleged agreement for sale and subsequently obtained a decree for specific performance in his favour, he cannot row turn back and say that the absence of this permission from the Collector vitiates the impugned decree. The relief claimed by the plaintiff is an equitable relief and cannot be given to a person who does not come with clean hands to the court. It was for the plaintiff to obtain this sanction from the Collector and if he committed any illegality by entering into the transaction in question then he cannot be allowed to take benefit of his own fraud, because it was for him to see that he could not alienate his rights in the land in suit without the prior permission of the Collector in this regard. In this view of the matter I find no justification for pronouncement that the decree in question is illegal, void and fraudulent."
The finding of first appellate court i as follows: - "It is clear from the evidence on record that the appellant was occupying the disputed land as occupancy tenant and he was not competent to sell the same without permission of the Collector.
The appellant applied to the Collector for permission to sell and this permission was refused, on 29.9.1963, vide Order (Ex.Pl). It is clear that the property could not be disposed of without the permission of Collector and subsequent agreement dated 1,11.1963, which was subject matter of the previous suit was illegal and void being against law. An illegal agreement can not be enforced by the Court. Only lawful agreements are enforced by the courts. Since the agreement to sell was illegal, so the learned Senior Civil Judge under the law was not empowered to pass a consent decree on the basis of an agreement which was void. Section 36 of the Colonisation of Government Lands (Punjab) Act, 1912 bears the jurisdiction of Civil Court to grant such a decree. It was only Collector who was competent to grant permission to sell the property or to legalize the agreement.
The agreement being in violation of the provisions of section 19 of the Colonization of Government Lands (Punjab) Act 1912 was, therefore, void and it could not have been executed through the machinery of Court. The findings of the learned Civil Judge on issues No.5 & 6 are erroneous and are set aside and it is held on issue No.6 that the disputed agreement sell was illegal and void. On issue No.5, it is held that the decree dated.21.6.1965, is illegal, void and without jurisdiction."
9. It is evidence from the finding of the, first appellate court that it concluded that agreement to sell dated 1.11.1963, was in defiance of section 19 of Colonization of Government Lands Act (Punjab Act V of 1912) (hereinafter referred to as the Act) and was void and un-enforceable agreement. I am afraid this finding is the result of misreading of evidence as well as misapplication of law. DW.4, Colony-clerk appeared in the witness box and stated that the price of land was deposited in 1958, This witness was not subjected to cross-examination. No evidence was brought on record to rebut this testimony. I have, therefore, no hesitation in reaching the conclusion that price of this land was deposited in 1958 and Shamir had become absolute owner of land in the same year. It is well recognised principle of law that an occupancy tenant under the Act becomes absolute owner of the land the moment he pays the price of it to the Govt, and his title is not postponed to the acquisition of conveyance deed. Reference may be made to Ibrahim Vs. Raji and others (PLD 1956 Lah. 609), Muhammad Yar Vs. The State (PLD 1961 B.J. 39) Mst. Umar Bibi etc Vs. Bashir Ahmad and others (1977 SCMR 154), Ghulam Muhammad alias Ghulamoon Vs. Maula Dad and others (1980 SCMR 314), Hakim Ali and another Vs. Atta Mohammad and others (1980 SCMR 993) Said Ali Shah Vs. Mohammad Shaft (1989 SCMR 1594).
10. Applying the principles laid down in the aforenoted authorities to the facts of the case; it is clear to me that Shamir had paid the price of land in 1958 and had thus become the absolute owner of the land the said year. He executed the agreement to sell in 1963 and impugned decree was passed in 1965 in consonance with the compromise of Shamir and Faiz Elahi. From this critical analysis it is quite clear that the agreement to sell did not require the consent of Collector under Section 19 of the Act. The section is applicable only when the title rests in a Government of Punjab and he wants to make the transfer of tenancy rights. This was not the case over here because Shamir bad acquired ownership rights in 1958. The finding of first appellate Court is, therefore, contrary to law and cannot be sustained.
11. There is yet another aspect of the case that Shamir did not appear in the Court and so he was not available for cross examination. In his place P.W3 Ghulam s/o Akbar, entered appearance as his special attorney. He did not utter a single word about the execution of disputed agreement to sell, the' factum of compromise and passing of the impugned decree on the basis of compromise and receipt of Rs. 5,000/- deposited in the Court. Against this Faiz Elahi proved the execution of agreement to sell as well as the passing of impugned decree. From the examination of aforenoted circumstances, it is established that at the time of execution of agreement to sell, Shamir was absolute owner of land in dispute and was competent to transfer it and that prohibition of transfer embodied in Section 19 was not applicable. The impugned decree was passed on the basis of settlement and that Shamir had received the remaining consideration paid in Court.
12. The upshot of whatever has been stated above, I have no difficulty in coming to the conclusion that judgment and decree of learned Addl. District Judge is contrary to the express provisions of law and cannot be maintained. In result this regular second appeal succeeds. The judgment and decree of learned Addl. District Judge, Sahiwal dated 2.12.1979, is set aside and decision of the trial Court is restored. The respondent shall bear the costs of proceedings throughout.