1. Second civil appeal by the plaintiffs arose from a suit brought by them for a declaration to the effect that they were owners in possession of land measuring 35 Kanals, 11 Marlas purchased by them from one Nishat Ahmad. Suit was partially decreed in their favour by the trial Court, on 13-9- 1971. Plaintiffs did not prefer an appeal from the decree of the trial Court. Defendants Nos. 2 to 10 questioned the judgment of the trial Court in appeal. It was allowed on 1-2-1974 and in consequence, suit instituted by the plaintiffs now appellants was dismissed in its entirety.
2. Nishat Ahmad was owner of 142 Kanals, 8 Marlas of agricultural land situate in Chak No. 119/R.B., Mauza .Bhalair in Tehsil and District Sheikhupura. By a deed registered on 9-4-1964, he sold 35 Kanals, 11 Marlas out of it to the appellant for the sale price of Rs.4,000. Registered sale-deed was implemented in revenue records by attestation of the Sale Mutation No.264 on 30-11-1966.
3. Nishat Ahmad applied to the Collector, Sheikhupura for review of the sale mutation on account of its contravention of para. 25 of Land Reforms Regulation No. 64 of 1959. After usual inquiries and reports at the lower level, the Collector gave permission for review of the mutation. On 19-8-1968, the sale mutation was finally reviewed by Assistant Collector Second Grade who rejected it on account of its being violative of para. 25 of Land Reforms Regulation No. 64 of 1959. Order passed on review by the Revenue Officer was not agitated further in the revenue hierarchy. As a result of review, land in dispute reverted to Nishat Ahmad in revenue records. Possession of the land, however, was with the appellants. Taking advantage of it, he sold his entire holding in the revenue estate measuring 142 Kanals 8 Marlas to defendants Nos. 2 to 10 on 31-8-1968 for the sale price of Rs.90,000. Sale was effected through a registered deed. It was Exh.D.l on the file of the trial Court. It included the piece of land previously purchased by the appellants through the registered deed.
4. On 6-5-1969, appellants instituted a civil suit for declaration against Nishat Ahmad--defendant No. 1 and vendees from him--defendants Nos. 2 to 10 to have it found that they were owners in possession of 35 Kanals, 11 Marlas of land comprised in Killa Nos. 11, 12, 15, 24 of Square No. 51/1 and for a relief of perpetual injunction for prohibiting the defendants from causing interference with their possession or dispossessing them from it forcibly. Necessary averments regarding the previous sale in favour of plaintiffs and their possession on the land in dispute were made in the plaint of the suit for declaration.
5. Defendants Nos. 2 to 10 contested the suit. They submitted a joint written statement. It was pleaded by them that the sale of the land in favour of the plaintiffs by Nishat Ahmad was violative of Land Reforms Regulation and it was void altogether. Therefore, its subsequent sale in favour of contesting defendants was not invalid. They objected to the jurisdiction of the Civil Court to entertain and try the suit.
6. On 5-1-1970, the trial Court framed . following issues for determination:--
(1) Whether the Civil Court has no jurisdiction to try the suit?
(2) Whether the sale of the suit land made by defendant No. 1 in favour of the plaintiffs was hit by Martial Law Regulation No. 64 and was void ab initio?
(3) Whether the defendants Nod. 2 to 10 are bona ride purchasers for value and without notice of the sale of the suit land?
(4) Relief.
7. After settlement of issues, the suit was adjourned for defendants' evidence. Since they were first to open the case, they gave oral and documentary evidence. Upon its conclusion and before entering upon their defence, plaintiffs-appellants submitted an application for amendment to the plaint for falling on alternative claim that in the event of the sale of the land in their favour being held invalid on account of contravention of Land Reforms, they were entitled to return of the sale price paid by them and were further entitled to have lien on possession of the land. On 3-12-1970, trial Court gave necessary permission for the proposed amendment. Amended plaint was. filed in Court.
8. Contesting defendants also gave additional written statement. It gave rise to an additional issue No. 3-A which is given below:-- (3-A) Whether the plaintiffs have the charge of Rs.4,000 over the suit land as vendees' lien?
9. Thereafter; Chawa, one of the plaintiffs, recorded his statement .on oath in support of the plaint case and closed his evidence. No more evidence was adduced by either party. Upon scrutiny of judicial record, trial Court gave decree to the appellants merely for injunction restraining the defendants from dispossessing them from the suit land, except through suit for possession filed in Court. On clear concession by the defendants, the trial Court found that Civil Court had jurisdiction to entertain and try the suit. Plaintiffs conceded that the sale in their favour contravened the provisions of Martial Law Regulation 64 and was void. It was held that defendants Nos. 2 to 10 were not bona fide purchaser for value and finally plaintiffs being in peaceful possession of the land in dispute were entitled to maintain their possession until disturbed through a civil suit for possession filed by defendants Nos. 2 to 10. As said above, plaintiffs did not appeal from the decree of the trial Court. Only defendants Nos. 2 to 10 challenged the decree of the trial Court in appeal before learned District Judge, Sheikhupura, who allowed it with the result noticed above. Thereupon, the plaintiffs preferred this second appeal. It was admitted on 20-8-1974.
10. Mr. S.M. Masud, Advocate represented the appellants. Syed Muhammad Zain-ul-Abidin, Advocate appeared for respondents No. 1 and 2. Syed Najam-ul-Hassan Kazmi, Advocate appeared on behalf of respondents Nos. 2 to 9.
11. On behalf of the appellants, it was urged by Mr. S.M. Masud, Advocate, that Nishat Ahmad owned land in the revenue estate above the level of subsistence holding and below the economic holding.
12. In terms of para. 25(3) of Land Reforms Regulation, 1959, he was allowed to alienate his land to the extent that it did not reduce his subsistence holding. It was submitted that subsistence holding in the District of Sheikhupura was 111 Kanals 5 Marlas. By sale of 35 Kanals, 11 Marlas, the holding was reduced below the subsistence holding only by 4 Kanals 8 Marlas. Contention of the learned counsel was that the sale to the extent of 4 Kanals, 8 Marlas was invalid and the rest covering an area of 31 Kanals,
3. Marlas was valid and could not have been struck ddwn. He referred to the cases in Ghulam Mehr v. Chief Land Commissioner, Punjab, Lahore and 2 others PLD 1974 Lahore 520, Chief Land Commissioner, Punjab, Lahore and others v. Ghulam Mehr and others 1986 SCMR
286. The judgment of the Supreme Court approved the view of the Lahore High Court expressed in case of Ghulam Mehr (supra). Upon this premise, learned counsel argued that review of sale mutation for striking down the sale transaction en bloc was an illegal act.
13. Syed Muhammad Zain-ul-Abidin, Advocate learned counsel for respondents Nos. 1 and 2 and Syed Najam-ul-Hassan Kazmi, Advocate, learned counsel for other respondents argued that since the appellants had abandoned the first part of the relief for a declaratory decree and had confined their claim to the return of the sale price and to maintain possession till its payment, it was not open to them to fall back for a declaratory decree for upholding of the sale transaction in their favour to the extent of 31 Kanals, 3 Marlas. It was also argued that the appeal was barred by limitation and the Civil Court was bereft of jurisdiction to decide the dispute pertaining to the violation of Land Reforms Regulation. In this behalf, section 27 of Land Reforms Regulation, 1959 was pressed in aid. Both the learned counsel for respondents laid much emphasis on the point that a plea once abandoned could not be re-urged and in support of it some case-law was also relied upon by them.
14. As regards, the severability of the sale transaction for judging its voidity qua para. 25(3) of Land Reforms Regulation, 1959, learned counsel for respondents did not join issue with the rule laid down in the cited cases. They accepted the rule. Therefore, it was clear that the entire sale of 35 Kanals 11 Marlas of land by Nishat Ahmad in favour of the appellants could not be voided in its entirety. Only that portion of the sale of land which pro rata reduced the level of subsistence holding was invalid and the rest was a live and valid transaction wholly beyond the reach of the prohibitive provisions of Land Reforms Regulation. Even reports of lower revenue staff submitted for seeking review of the sale-mutation showed that the subsistence holding was reduced by only 4 Kanals, 8 Marlas.
15. However, on a wrong construction of para. 25(3) of Land Reforms Regulation, 1959, it was held in the revenue department that the sale transaction in its entirety was voided. This was an incorrect view of law by them. Further, sale mutation was reviewed without notice to the appellants. They were not associated with the inquiry culminating in review of the sale mutation earlier .sanctioned in their favour. This was contrary to an express provision in the Punjab Land Revenue Act which prohibited review without a notice to the affected party. Appellants challenged the review not only on the ground that in it a wholly incorrect view of para. 25(3) of Land Reforms Regulation, 1959 was taken but they were condemned unheard also. As for the contravention of para. 25(3) of Land Reforms Regulation, 1959, suffice. it to say that on the basis of a clear rule laid down by this Court and approved by the Supreme Court, transaction of sale in toto could not be struck down as void.
16. Exclusion of 4 Kanals, 8 Marlas from the sale would raise the holding of Nishat Ahmad to the level of subsistence holding. On no principle of law or equity, the appellants could be stripped off 31 Kanals 3 Marlas of land purchased by them from Nishat Ahmad for valuable consideration paid to him. It was not denied that Nishat Ahmad had sold the above land to the appellants and had received its price from them. Appellants were being hit by the restrictive provisions of Land Reforms, of which they may not be even aware of at the time of entering into a deal with Nishat Ahmad. In my view, on the clear authority of law laid down by this Court and approved by the Supreme Court, the sale transaction to the extent of 31 Kanals, 3 Marlas in favour of the appellants could not be held invalid.
17. To that extent, the order passed on review by the Revenue Officer was illegal. Undisputedly, the appellants were in possession of the land in dispute under purchase of it from Nishat Ahmad.
18. Therefore, there was no hitch for giving them a declaration that they were owners in possession of 31 Kanals, 3 Marlas of land purchased by them from Nishat Ahmad and, to that extent, the subsequent sale of the land in favour of defendants Nos. 2 to 10 was in-operative upon their pre- existing rights. It may usefully be observed that the-plea of bona fide purchasers for value was not agitated at the hearing. It was submitted that in the event of sale being held invalid to a small extent of 4 Kanals, 8 Marlas only, subsequent purchasers could not legitimately be held to be the bona fide purchasers of the land measuring 31 Kanals 3 Marlas which was totally free from the defect of violation of Land Reforms. Even otherwise, there was no evidence to hold that respondents Nos. 2 to 10 were bona fide purchasers for value of the disputed land. Appellants were in its possession eversince their purchase of it. Respondents Nos. 2 to 10 were not shown to have made any inquiry from the appellants regarding nature of their possession on the land in dispute.
19. Therefore, it was a far cry for them to plead bona fide purchase of the land by them.
20. As regards -bar of limitation, the appeal was filed in this Court on 4-5-1974. Deducting the time requisite for obtaining necessary copies, the period for filing of the appeal expired on the day, the appeal was filed. Office raised certain objections to the appeal. These were; that proper court-fee was not paid on the memorandum of appeal; memo. of parties was not drawn up correctly and judicial papers were not used. Consequently, the papers were returned to the learned counsel for the appellants on 4-5-1974. Deputy Registrar (Judk) noted in the objection memo. that the papers may be refried after removal of the noted objections within limitation days (underlining is mine).
21. Appeal was refiled (date not given by office). Deputy Registrar (Judk) again noted on 12-6-1974 that "the appeal has been refiled without meeting with the objections overleaf. Returned." On 8-7- 1974, the appeal was refiled. Deputy Registrar (Judi.) noted that "the appeal has been refiled very late with the result that it has become barred by 66 days. An application under Limitation Act for condonation of delay may also be filed". Court-fee was paid 'by the appellants and a petition under section 5 of the Limitation Act, 19118 for extension of time was also filed. It gave explanation for the delay caused in this behalf. Application under section 5 of the Limitation Act was supported by the affidavit of Chawa, one of the appellants. Respondents gave a reply to the application filed by the appellants under section 5 of Limitation Act for condonation of delay. It was also supported by an affidavit of one of them. In any opinion, the appeal was not barred by limitation prescribed for it in the Limitation Act, 1908. Admittedly, appeal was presented to the proper officer in time.
22. Memorandum of appeal was accompanied by the required documents. Office noted certain objections on the appeal. These have already been referred to. Appellants took some time for their removal and also gave explanation for the delay caused in this behalf. Further, Deputy Registrar (Judi.) had not specified the time for removal of the objections noted on the appeal. He had merely said that the objections shall be removed and papers refried within "limitation days." Upon this view, the appeal could neither be held barred by limitation nor by laches.
23. As regards the plea that the plaintiffs-appellants had abandoned their primary relief and had totally fallen back on the alternative claim for return of sale price, record gave no support. Not only in the application for amendment submitted after close of defendants' evidence but in the amended plaint also, the plea taken was strictly in the alternative for a second relief in case, the first relief was not allowable. Therefore, upon the existing record, it could not be successfully said that appellants had either abandoned or relinquished their claim to the land in dispute. It was true that against the decree of the trial Court, they fled no appeal and in the appeal preferred by the other side did not prefer cross-objections also. Nonetheless, this conduct of the appellants could not disentitle them to an appropriate relief found for them on the facts either admitted or proved.
24. Lastly comes the question of jurisdiction of the Civil Court to entertain, try and decide the suit.
25. Defendants did raise an objection to the jurisdiction of the Civil Court and an issue was also raised on their plea. Nonetheless, they conceded it before the trial Court and their concession was recorded under issue No. 1. In appeal, this objection was not agitated. It found no mention in the memorandum of appeal nor in the judgment of learned District Judge, Sheikhupura. Therefore, it was not open to the respondents to `--urge it at the time of final hearing of the second appeal. It shall not be equitable to permit its taking up for reversing the whole process hereto undergone. So far no order was made by the Land Commissioner on the validity or otherwise of the sale transaction in favour of the appellants. In fairness, it may be noticed for learned counsel for the respondents that on the point of want of jurisdiction in the Civil Court relating to validity or otherwise of the transaction qua the Land Reforms Regulation, cases reported in 1968 SCMR 667, 1982 SCMR 1018, 1984 CLC 737(Karachi),1985 SCMR 1591,1989 CLC 1705 (Lahore), PLD 1992 Lahore 158 were relied upon. Rule laid in them was that final decision to determine the-validity or otherwise of a transaction on the touchstone of Land Reforms rested with the Land Commission. Since the point was conceded on behalf of the respondents in the lower Courts, it was not expedient to allow it to be urged in the third Court.
26. Having regard to the aforesaid, impugned judgments and decrees of the Courts below are set aside and the suit is decreed in favour of the plaintiffs to the effect that they were owners in possession of the land measuring 31 Kanals, 3 Marlas only on the basis of registered sale-deed dated 9-4-1964 and as regards 4 Kanals, 8 Marlas, their suit is dismissed. Revenue Officer of the circle shall appropriately correct the revenue records and amend the sale mutation. Costs to be borne as incurred.
27. Records be returned