' This regular second appeal by Muhammad Sharif is directed against the judgment and decree of the Additional District Judge, Lahore at Sheilchupura dated 16th of December, 1968 whereby his appeal from the judgment and decree passed by the Civil Judge, Sheikhupura on 8th of June, 1968 decreeing against him the suit instituted by the respondents was dismissed with costs.
2. The dispute between the parties pertains to agricultural land measuring 27 Ghumaon, 2 Kanals and 19 Marlas comprising Square No,33 situate in Chak No,l67/R.B. Tehsil and District Sheikhupura.
This was State land. It was auctioned on 25th of March, 1955. The bid of the appellant being the highest was accepted. He paid the price of the land by instalments according to the terms of the auction. On 20th of November, 1959, sale-deed of the land Ex.D.1 was granted to the appellant.
3. On 10th of December, 1965, the respondents instituted a suit for a declaration that they were owners in possession of 3/5th share in the land and for a perpetual injunction restraining the appellant from interfering with their possession. Their case was that on 25th of March, 1955 i.e, the date on which the land was auctioned, the parties had by an agreement in writing Ex.P.3 agreed that the appellant would bid for the land but the parties would have the following shares therein with a liability to contribute proportionately to the payment of the sale price:- {{TABLE}}
(1) Mahboob Alam, respondent l/5th
(2) Muhammad Siddiq, Muhammad Rafiq and Muhammad Latif, respondents, l/5th
(3) Mehr Din, respodent and Abdur Rashid l/5th and
(4) Muhammad Sharif, appellant 2/5th {{TABLE}}
4. Abdur Rashid had only l/5th share in the l/5th share of himself and Mehr Din. He did not make any contribution and surrendered his share in favour of Muhammad Siddiq, Muhammad Rafiq and Muhammad Latif, thereby enhancing their share from l/5th to 6/25th and leaving Mehr Din with 4/25th share.
5. In pursuance of the agreement Ex.P3, the parties paid the first and the following instalments of the sale price according to the above shares. They also obtained possession of specific field numbers of the land in accordance with then- shares. Subsequently, the appellant attempted to oust the respondents as a result of which the respondents were constrained to institute the suit.
6. The appellant contested the suit controverting the claim of the respondents. He asserted that the agreement ExJP3 was illegal, without consideration and void and he was full owner of the land.
According to him, he alone paid the whole of the sale price of the land by instalments. He averred that the respondents were in possession of the land as his tenants. He also raised legal objections that the agreement was hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and Martial Law Regulation No,64 and that the suit had not been properly valued for purposes of court-fee and jurisdiction.
7. Issues were framed on 28th of July, 1966 to which more issues were added on 18th of May, 1967.
All the issues were as under:-
(1) Did the plaintiffs and the defendant purchase the suit land from the Government through auction under the provisions of the agreement dated 25-3-1955?
(2) Whether the agreement dated 25-3-1955 is illegal, without consideration, void and not binding on the plaintiffs?
(3) Are the plaintifs owners of land in dispute?
(4) Is the defendant owner of land in dispute?
(5) Do section 19 of the Colonization of Govt. Lands Act of 1912 and Martial Law Regulation No,64 bar the present suit?
(5-A) Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction?
(5-B) Whether the suit is not maintainable in the present form?
8. The respondents examined eight witnesses including Mahboob Alam, one of them. They also adduced documentary evidence. In rebuttal, the appellant produced only two witnesses, one of whom Muhammad Younis D.W.l was a Colony Clerk and the other Bashir Ahmad D.W.2 was a Patwari. He himself however, abstained from entering the witness-box. The trial Court after appraising the evidence found all the issues in favour of the respondents and decreed their suit with costs.
9. Feeling aggrieved, the appellant preferred an appeal which was heard by the Additional District Judge, Lahore, at Sheikhupura who concurred in the findings of the trial Court and dismissed the appeal with costs as being without force. Hence this regular second appeal.
10. The agreement dated 25th of March, 1955 Ex.P3 is the basic document. Its execution was proved by the scribe namely Sh. Meraj Din P.W3, Abdur Rashid P.W.2, who was also a signatory to the agreement and Mahboob Alam, one of the respondents as P.W.8. The receipts Exs.P.l, 4, 5 and 6 showed contribution to the payment of the sale price of the land by the respondents. These receipts were also formally proved by Fazal Din P.W.1, Abdur Rashid P.W.2, Sh. Meraj Din P.W3, Fazal Muhammad P.W.4 and Haji Siraj Din P.W3. Besides, the appellant on 14th of February, 1956 submitted to the Revenue Assistant {{URDU TEXT}} Sheikhupura an application (Ex.P.8) acknowledging the claim put forth by the respondents. This application was proved by Haji Siraj Din P.W3, a petition-writer, recalled and re-examined as P.W.7. No question in cross-examination was put to him to challenge his testimony as regards the application. The evidence produced by the respondents to prove the argeement Ex.P3, the receipts Exs.P.l, 4, 5 and 6 and the application Ex.P.8 remained unrebutted. As pointed out above, the appellant himself did not appear in support of his denial. Both the Courts below evaluated the evidence on record and concurrently found all the issues against the appellant.
11.Learned counsel for the appellant in his arguments has not assailed the concurrent findings of the learned Courts below on facts. The only contention which has been pressed into service by him is that the agreement Ex.P.3 is void being in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He has cited Abdul Aziz and others v. Sadiq Muhammad and others (1970 SCMR 569), Mst. Begum Bibi and others v. Abdul Sattar (1987 SCMR 1), Ghulam Rasul and others v. Muhammad Anwar and others (1969 SCMR 254) and Jiwana v. Mst. Sahbi (PLD 1954 Lah. 253). Learned counsel for the respondents has refuted the above contention. He has relied upon Preman v. Hardit Singh and others (AIR 1930 Lahore 835), Allah Ditta v. Jhanda and others (PLD 1949 Lahore 158) and Allah Ditta v. Jhanda and others (PLD 1951 Lahore 244). The ratio of all these authorities is that section 19 prohibits the Government tenant from transferring his rights or interest to a third person without first obtaining the consent of the Commissioner, or any other officer duly empowered by him in writing. This legal position is, therefore, not in controversy. l2. The only question which falls for determination is as to whether the appellant had become a tenant of the land at the time the agreement Ex.P.3 was entered into between him and the respondents. A person acquires tenancy of State land either by allotment or by purchase. Section 10(4) of the Colonization of Government Lands (Punjab) Act, 1912 deals with a tenant by allotment and section 15 ibid relates to a tenant by purchase. Section 10(4) provides, "No person shall be deemed to be a tenant or to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with permission of the Collector".
According to section 15 "A purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled".
13. A plain reading of the above provisions of law makes it abundantly clear that an allottee or a purchaser of State land attains the status of a tenant only after he has been placed in possession of the land by an order or with the permission of the Collector. This view is supported by Ghulam Hussain v. Fateh Muhammad and others (1987 SCMR 1115). In this case, the appellant led no evidence to prove that before the execution of the agreement Ex.P.3 he had been placed in possesseion of the land much less with the permission or by an order of the Collector. Rather the tenor of the agreement Ex.P.3 indicates that it was executed on the day of the auction even before the first instalment of the price of the land was deposited in the treasury. It, is therefore, manifest that when the parties entered into the agreement Ex.P.3, the appellant had not as yet acquired the status of a tenant and, the therefore, the agreement Ex.P.3 is not hit by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
14. For the foregoing reasons, there exists no ground for interference with the impugned judgment and decree. Accordingly, this appeal is dismissed with costs.