1. ' The facts giving rise to this civil revision petition briefly stated are as follows:- Khadim Hussain was occupancy tenant under Section 6 of Punjab Tenancy Act, 1887, in the land measuring 54 Kanals, 1 Marla, situate in revenue estate Ghakhar of tehsil Wazirabad, district Gujranwala. By deed registered on 14-1-1943, he gave his occupancy tenancy on lease to Syed Sakhawat Hussain Shah for a term of 99 years, with effect from crop-Kharif year 1943 till crop-Rabi year 2043, for a total premium of Rs,5,200. Out of the agreed premium, Rs,5,100 were received at the time of registration of the lease-deed, and Rs,100 were adjusted towards the expenses on lease-deed. Annual rent of leased occupancy rights was Rs,52.60 and the total lease-money for 99 years came to Rs,5,200.
2. Initially, possession of the leasehold rights was not delivered to the lessee on the spot. The lessee brought a civil suit to recover possession of occupancy-tenancy from the lessor. Suit was decreed in his favour on 28-2-1949, by a Civil Judge of Wazirabad. In execution of the decree passed by the Civil Court, possession was taken by the lessee. Decree of the Civil Court in the suit for possession was not further challenged and it attained finality under the law.
3. ' In or about the year 1960, Asghar Ali alias Zulfiqar All son of the lessor brought a civil suit for annulment of lease-deed under Custom, on account of want of legal necessity and consideration for it. On 30-9-1961 Mr.Khalid Paul, learned Civil Judge (now an Hon'ble Judge of this Court) decreed the suit in favour of the plaintiff and found that the alienation was without legal necessity and was ineffective upon his reversionary rights, at the death of the alienor. Relief for possession of the land comprised in occupancy-tenancy was not allowed, the same being premature. It shall be profitable to observe that though the suit was filed for protection of reversionary interest, yet, the learned trial Court on its finding on issue No,8 observed, "Lastly, the alienor being the occupancy- tenant could not alienate the occupancy-tenancy by way of lease for a period of more than seven years under Punjab Tenancy Act and any such lease for a period of more than seven years was illegal and void (underlining is mine). This fact should also be borne in mind and given due consideration". On appeal, decree by the trial Court was maintained by learned District Judge, Gujranwala on 23-7-1962. In R.S.F.No,618 of 1962, High Court on 25-6-1974, affirmed the decrees passed in the lower Courts. Thereupon, on the application of Khadim Hussain, the lessor of the occupancy rights, Assistant Collector, Wazirabad redeemed the lease in his favour by Mutation No,5223 sanctioned on 15-4-1970. Assistant Commissioner/Collector upset the mutation, but his order was reversed in further appeal by Additional Commissioner (Revenue), Lahore Division, Lahore, on 2-8-1971. A revision taken to Board of Revenue by Sakhawat Hussain failed on 15-2-1972, mainly on the ground that Civil Court had held the lease-deed to be ab initio, void and "there is no stay order from the High Court". Pursuant to the mutation-order, entries in the Revenue Record were changed. Sakhawat Hussain and his son Iftikhar Haider were shown in possession of the land as tenants of Khadim Hussain subject to payment of rent at the rate of Rs,350 per acre. Both of them brought a suit against Khadim Hussain for correction of Revenue Record and applied for a stay order. Suit was instituted on 21-6-1972. On a miscellaneous application, trial Court gave the stay order, on 17-7-1972, to the extent of restraining the other side from disturbing their possession on the land in dispute. The relief for stopping recovery of rent, however, was not allowed. In appeal, on 20-11-1972, learned District Judge modified the above order and issued temporary injunction prayed for in the application of the plaintiffs. In Civil Revision No,106 of 1973, the High Court maintained the order of District Judge on 25-6-1974. It may be of benefit to observe that entry in the Ithasra Girdawari was changed by the order of Collector passed on 18-12-1976. Meanwhile, another development by change in Tenancy Laws took place, in that, the occupancy rights were extinguished and converted in the ownership rights in favour of Khadim Hussain. Also, Khadim Hussain instituted a suit for rent arrears and ejectment from the land-in-dispute against Iftikhar Haider son of Sakhawat Hussain in the Revenue Court. It was decreed in his favour on 31-10-1977, for ejectment and arrears of rent in the sum of Rs,2,362. However, execution of ejectment decree was subjected to a final decision of the civil suit by Senior Civil Judge, Gujranwala. Suit instituted by Sakhawat Hussain and his son Iftikhar Haider was dismissed on merits by the trial Court on 13-7- 1979 and appeal preferred from the decree failed on 28-4-1984 before learned Additional District Judge, Gujranwala. Both the learned Judges below found that lease of occupancy tenancy rights beyond a term of seven years was void under Section 58 of the Punjab Tenancy Act, 1887. These judgments were sought to be now revised by this Court by filing revision-petition before it.
4. ' Sole point taken at the hearing was that under Section 58 of the Punjab Tenancy Act, 1887, lease of occupancy tenancy for a term exceeding seven years was merely voidable at the instance of the landlord, and, not void altogether as was held in the lower Courts. Learned counsel referred to Section 60 of the Punjab Tenancy Act, which says that, "Any transfer made of a right of occupancy in contravention of the foregoing provisions of this Chapter shall be voidable at the instance of the landlord". Above Chapter--Chapter V is headed "Alienation of, and Succession to, Right of Occupancy". It comprises of Section 52-A to Section 60. Section 53 to section 55 dealt with transfers i,e,sale, gift or mortgage of occupancy rights by a tenant holding occupancy tenancy under Section 5 of the Punjab Tenancy Act. Section 54 dealt with foreclosure by mortgagee of occupancy-tenancy and Section 55 with sale of occupancy tenancy under Section 5 in execution of decree or order of a Court. As Khadim Hussain held occupancy-tenancy under Section 6 of the Tenancy Act, aforesaid Sections of the Act shall not apply to him. Section 56 of the Act prohibited attachment or sale of occupancy rights under any section other than section 5 in execution of a decree or order of any Court and forbade its transfer without the previous consent in writing of the landlord. Section 57 concerned itself with rights and liabilities of transferee of the right of occupancy and, therefore, shall not be in point. Relevant Sections which shall govern the facts of the present case were Sections 58 and 60. Section 58 runs as: "(1) A tenant having a right of occupancy in land may, subject to the provisions of this Act and to the conditions of any written contract between him and his landlord, sublet the land or any part thereof for any term not exceeding seven yeaRs, (2) A person to whom land is sublet by a tenant having a right of occupancy therein shall, in respect of that land, and so far as regards the landlord be jointly with the tenant, subject to all the liabilities of the tenant under this Act". Section 60 reads, "Irregular Transfers:- Any transfer made of a right of occupancy in contravention of the foregoing provisions of this Chapter shall be voidable at the instance of the landlord". Indisputably, there was neither any previous consent in writing of the landlord nor any written contract for permitting sublease of occupancy tenancy beyond the term of seven yeaRs, The question was whether the transaction was void or voidable. In a Full Bench decision in Labh Singh v. Hassu and others AIR 1940 Lahore 364, their Lordships were dealing with the case of transfer of occupancy-tenancy by a widow under Section 59(3) of the Punjab Tenancy Act but the observations made in their judgment may equally apply to a sub-lease by a male occupancy tenant under section 58(1) of the Act for its voidity. At page 366 of the report, Bhide, J. Dealing with the effect of section 60 of the Act observed: "But apart from this fact, I am unable to see how the language of S.60 can be said to be conclusive on the question whether a transfer by a widow falling within the scope of S.59(3) is void or voidable. S.60 merely says "any transfer made in constravention of the preceding Sections shall be voidable at the instance of the landlord." In other words, it only gives the right to the landlord to intervene, and avoid transactions which are effected in contravention of the preceding Sections. The question whether a transaction falling within the purview of subsection (3) of section 59 is void or voidable, must, I think be decided on the language used in that subsection. The language used in that subsection is imperative and forbids absolutely any sale, gift, mortgage or even a lease for more than a year, by the widow. According to the plain meaning of the words used, such an alienation would seem to be null and void and this was the view taken in 39 P.R. 1898 and in the subsequent rulings in which that case was followed. The mere fact that according to the provisions of S.60 of the Act, a transfer of occupancy rights by a widow falling within the ambit of S.59(3) would be 'voidable' , at the instance of the landlord, would not show that the transaction would remain valid- until-it is so avoided. As stated above, S.60 appears to be intended merely to give a locus standi to the landlord to avoid irregular transfers made in contravention of the preceding Sections. If transfers falling within the scope of S.59(3) were not covered by S.60, there might have been room for doubt as to whether the landlord would have any locus standi to challenge such transfers, even if they were void. For, it might have been argued that the landlord's interests were not affected as long as he was being paid the rent and the conditions of the tenancy were being otherwise fulfilled.
5. It may have therefore been considered advisable to include such transfers also within the scope of S.60, to make the position clear". As said above, Section 58 covered the subject of subletting of a right of occupancy by a tenant holding it. Its plain reading made it applicable to all types of tenants having a right of occupancy. It appeared to be a special provision dealing with sub-lease of occupancy right by a tenant. Subject to the provisions in the Act, and conditions of any written contract between the landlord and the occupancy tenant, it imperatively prohibited the sub-lease for a term exceeding seven yeaRs, The language of the statute was both clear and binding. Khadim Hussain, therefore, was incompetent to create a sub-lease of his occupancy tenancy under Section 6 of the Punjab Tenancy Act for a term beyond seven yeaRs, Lease deed executed by him was in contravention of Section 58(1) of the Act. Upon parity of reasoning given in the Full Bench case of Labh Singh (supra), I would hold that the sub-lease beyond seven years was void.
6. Additionally, there was a clear finding to that effect in the judgment of the Civil Court dated 30-9- 1961, and, I have already extracted a portion of it to show that the transaction of sub-lease was found null and void. There was no observation to the contrary on this point in the judgments given in first appeal or second appeal. A void transaction could not become valid on account of lack of objection to it. It remained void, even if the parties failed to object to it. Observations in case of Jamadar Sultan v. Khushia and another AIR 1937 Lahore 664, supported the above proposition. I would accordingly dismiss the civil revision by leaving the parties to bear their own costs in this Court. Records be returned.