' This judgment will dispose of two connected Civil Revisions Nos.479/82 and 599/82 as they arise out of the same suit and same judgment and decree.
2. Facts of the case out of which these petitions have arisen, are that the land measuring 122 Kanals and 1 Marla comprising of Lot No,61/72 situate in Chak No,61/D.B., Tehsil Bhakkar, District Mianwali, was allotted to Phool Din, predecessor-in-interest of respondents Nos.1 to 9 by Thal Development Authority in Abadkari Scheme. Before he had paid instalments and acquired proprietary rights in the land referred to above the allottee sold and surrendered his allocated rights in favour of M/s. Sultan Ahmad and three other petitioners vide agreement deed dated 20-3-1972 Exh.P1, reproduced as under:--- {{URDU TEXT}}
3. In pursuance of the said deed Phool Din deceased had acknowledged receipt of dues deposited with the Government as well as expenditures regarding development of the land in question. The possession was handed over to the respondents and it was agreed that further installments shall be paid by the purchasers, who were held entitled to approach the competent Court to get a decree in their favour in case of need. It appears that in spite of execution of the above said deed, proprietary rights in the land in question were granted to respondents Nos.1 to 9, successors-in- interest of Phool Din allottee in April 1978 after his death. Thereafter, the petitioners approached the respondents Nos.1 to 9 for execution and registration of the sale-deed in their favour in terms of the agreement Exh.P1. They refused, hence the petitioners filed a suit for Specific Performance of Contract in the Civil Court of Bhakkar on 23-4-1978. An application for grant of temporary injunction was also moved along with the suit. However, the land in question was sold by the defendants in favour of respondents Nos.10 and 11 vide registered sale-deed dated 27-5-1979 in spite of stay order issued in the suit, who hence were also impleaded as defendants in the suit. All the defendants contested the suit. On the basis of the pleadings of the parties, learned trial Court settled the following issues:---
(1) Whether the predecessor-in-interest of defendants Nos.1 to 9 executed the agreement of sale- deed, dated 20-3-1972 in favour of the plaintiffs and as such the said defendants are bound by the said agreement?
(2) Whether the predecessor-in-interest of the defendants Nos.1 to 9 received the consideration amount of Rs,25,000?
(3) Whether the predecessor-in-interest of the defendants Nos.1 to 9 was not legally competent to sell away the suit land to the plaintiffs. If so, its effect?
(4) Whether the defendants Nos.10 and 11 are bona fide purchasers for value without notice and their rights are protected under section 41 of the Transfer of Property Act?
(5) Whether the suit is time-barred?
(6) Whether the suit has not been correctly valued for the purposes of court-fees?
(7) Whether the suit is not maintainable in its present form?
(8) Relief.
4. After recording of evidence vide judgment and decree, dated 4-1-1981, the suit was decreed by the learned trial Court. Issues Nos.5 to 7 were not pressed by the respondents during the course of arguments, whereas issues Nos.1 to 4 were decided in favour of the plaintiff-petitioners, and hence the suit was decreed. Two appeals were filed against the aforementioned judgment and decree: one by respondents Nos. 1 to 9, who are successors-in-interest of the allottee and the other by respondents Nos.10 and 11 the subsequent vendees pendent lite. Learned District Judge, Mianwali heard both the appeals together and vide consolidated judgment and decree, dated 20-3-1982 dismissed the suit holding that the agreement to sell Exh.P1 having been executed without obtaining of prior sanction from the competent authority, is void as per provisions of para. 30 of the Scheme Exh.D7 and section 19 of the Colonization of Government Lands (Punjab) Act, 1912, therefore, decree in favour of the plaintiffs on the basis whereof could not have been passed. These two civil revisions have been filed against the aforementioned judgment and decree passed in appeal by M/s. Sultan Ahmad and others, the plaintiffs.
5. Mr. Shahzad Shaukat, Advocate has appeared on behalf of the petitioners in both the cases whereas Mr. S.M. Almas Ali, Advocate has appeared on behalf of the respondents.
6. Learned counsel for the petitioners has argued that the document Exh.P1 is an agreement for sale and, therefore, it was not necessary to have obtained a prior sanction for execution thereof, and, as such, the same being valid, decree for Specific Performance of Contract on the basis thereof could have been passed in a suit filed after proprietary rights have admittedly been acquired by respondents Nos. 1 to 9, hence, the impugned judgment and decree rendered by the learned First Appellate Court is not lawful. In support of his contention learned counsel has placed reliance on the following cases:---
(1) Muhammad Afzal and another v. Rehmat All and others 1991 SCM R 1785.
(2) Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCM R 314.
(3) Rajab Ali v. Mst. Aisha and others 1989 SCM R 135.
(4) Akhtar Ali and others v. Muhammad Hanif and others 1989 SCM R 604.
(5) Said Ali Shah v. Muhammad Shafi 1989 SCM R 1594.
(6) Mst. Doltan Mai and 5 others v. Mst. Sardaran Bibi and 5 others 1989 SCM R 1807.
(7) Aziz Hussain and 2 others v. Rashid Ahmad and 3 others 1992 SCM R 1018.
(8) Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCM R 1510.
7. Mr. S.M. Almas Ali, Advocate, learned counsel for the respondents has argued that a perusal of the document Exh.P1 clearly shows that it is in fact a sale deed and not an agreement to sell, which has been executed without prior sanction of the T.DA./Colony Authorities, hence is void as per para. 30 of the Scheme Exh.D7 read with section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and no decree could have been passed on the basis thereof, as such the impugned judgment and decree rendered by the learned Lower Appellate Court is lawful, hence both the civil revisions are liable to be dismissed. In support of his contention learned counsel has placed reliance on the following cases:---
(1) Muhammad Shafi and 14 others v. Hayat Khan and 5 others PLD 1978 Lah.
1228.
(2) Ghulam Muhammad v. Lakha Singh AIR 1935 Lah.
181.
(3) Mirza Muhammad Ahmad Begu v. Mirza Amjad Begu PLD 1978 Lah.
421.
(4) Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCM R 254.
(5) Hakim Ali and another v. Atta Muhammad and others 1981 SCM R 993.
(6) Khizar Hayat and 2 others v. Shah Nawaz 1981 CLC 139.
(7) Masood Ali v. Ali Haibat Khan and 2 others PLD 1958 Lah.
340.
8. The proposition canvassed by both the learned counsel for the parties has also been examined in a recently decided case of Sher Muhammad Khan and others v. Ilam Din and others 1994 SCM R 470, wherein at pages 472 to 475 of the report it has been observed and held as under:--- "The learned counsel for the parties for and against the appeal have been heard. The learned counsel for the appellants submitted that the High Court and the two lower Courts have misread the document Exh.P3 and other evidence relating to the transfer of the land in dispute in favour of respondent No,1. He submitted if the said document is read as a whole, it would prove that Jiwan had divested himself completely of all the rights in the land and had only bound himself for executing a sale-deed/sanction mutation, after obtaining proprietary rights, which was a mere formality. The payment of the wholesale consideration and delivery of possession of land has fully established that document Exh.P3 was for all intents and purposes a sale-deed and as such in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He further submitted that all the three Courts have misread the evidence relating to execution and proof of Exh.D1 and Exh.P3 and so was the case with regard to delivery of possession of the suit land. In support of the above reliance was placed by him in the case of Ghulam Rasul and others v.
Muhammad Anwar and others 1969 SCM R 254, Ghulam Muhammad alias Ghulamoo v. Maula Dad and 6 others 1980 SCM R 314; Hakim Ali and another v. Atta Muhammad and others 1981 SCM R 993 and Riaz Hussain Shah v. Member, Board of Revenue (Colony), West Pakistan and 2 others PLD 1987 SC 292.
(7) As against the above the learned counsel for respondent No,1 supported the findings of the three Courts and submitted that all the Courts after thoroughly examining the evidence on record came to the concurrent finding of fact that document Exh.D1 executed by Jiwan in favour of Mst.
Nasim Akhtar was a fake one and that document Exh.P3 was a perfect valid document and that through this document i,e, Exh.P3 only corpus and not the tenancy rights were transferred in favour of respondent No,1 and thus not in violation of section 19 of the Act of 1912 that there was ample evidence on the record to prove that respondent No,1 was delivered the possession of the suit land under the agreement to sell and that he is in possession of the same from the date of deed of agreement to sell executed in his favour. Reliance in support of above was placed by them in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70, Muhammad Ramzan and others v. Ghulam and others 1988 SCM R 500 and Rajab Ali v. Mst. Aisha and others 1989 SCM R 135.
(8) The points raised by the learned counsel for the parties were the subject-matter of consideration before all the three Courts. The learned Judge in his Chamber after agreeing with the findings of the two Courts below on the question as to the agreement to sell executed by predecessor-in-interest of respondents Nos.2 and 3 in favour of respondent No,1 was not violative of the provisions of section 19 of Act of 1912 observed:--- "It is thus clear that an agreement to sell the corpus of the land after getting proprietary rights have been obtained and the intending purchaser had been refused the same, but where the agreement is to sell the tenancy rights without making permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 such an agreement being void is not enforceable and thus on its strength decree for specific performance cannot be granted. Since in the present case, the agreement was to sell the corpus of the land after obtaining proprietary rights, there was no necessity of getting permission under section 19 of the abovesaid Act and since after obtaining the proprietary rights, Niwan had sold the property to Mst. Nasim Akhtar wife of the appellant, the respondent rightly brought the suit on the basis of the agreement, for specific performance and the same was rightly decreed."
' Similarly on the question of delivery of possession of the suit land under the agreement to sell, the learned Judge agreed with the findings of the Courts below and while rebutting the arguments of the learned counsel for the appellants held:--- `I have carefully perused copy of Khasra Exh.P1 and copy of Khasra P4. The entry is Jiwan Abadkar through Muhammad, son of Khota, Ghair Dakhil Kar matchat Ilam Din. There appears to be no addition in different ink. Rather the whole writing appears to be with the same pen and ink from the very beginning ** and further according to the statement of Patwari P.W.1 father of the respondents remained in occupation as lessee up. To 2-11-1967. May it be so but it will not make any difference. Since thereafter the possession Was delivered to the respondent under the agreement to sell, therefore, in future entries not the father of the respondent but the respondent himself was mentioned as in occupation.'
(9) After hearing the learned counsel for the parties in the light of the above conclusion, we hardly find any merit in this appeal. The two-fold question to be considered in this case is whether the deed Exh.P3 in favour of respondent No,1 was in fact a sale-deed and thus violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and that whether respondent No,1 was put in possession of the suit land on the strength of alleged sale-deed.
(10) Section 54 of the Transfer of Property Act defines both a sale and contract for the transfer of immovable property. According to this section sale of immovable property means:--- "Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised."
' Contract for sale of immovable property is defined:- "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
' It does not, of itself create any interest in or charge on such property."
' Now if the document Exh.P3 is read in the light of the above definition coupled with the express words of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, by no stretch of imagination it can be termed as a sale-deed. Its very recital starts with the words (Iqrarnama) and concludes with (Iqrarnama). Though Jiwan had received the full sale consideration in respect of the suit land and its possession delivered to respondent No,1 but still its contents do not give an inkling that the document Exh.P3 is a sale deed. Through the said document Jiwan did not transfer his tenancy rights but had only agreed to sell the corpus at the hands of respondent No,1. Therefore, the said transfer was not in violation of section 19 of Act of 1912. A similar question came for consideration before the Full Bench of this Court in Civil Appeal No,216 of 1978 decided on 16-6-1981 where in para. 12 it was ' On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantee- had acquired proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition and recognition of its legal effect and effort on the part of contracting parties to keep this sale within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provision of section 19 of the Act or of the public policy behind such a statutory provision .
' This view has been followed in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70 relied upon by the learned counsel for the respondents and we respectfully follow the same view. The authorities cited by the learned counsel for the appellants are clearly distinguishable and thus not relied upon.
(11) As for the document D2 both the lower Courts have expressed doubts about its genuineness, and we think rightly so, because the above. A consolidated ratio decidendi where of is that in case the deed in question reflects a complete sale of allotted/ granted rights in the land in dispute and the deed has been executed without obtaining of a prior permission/sanction from the competent authority, the same shall be void and not enforcible through a Court of law and in case the deed reflects merely an aragement to sell in pursuance whereof sale is to be completed in future after obtaining of proprietary rights in the land in question or the document reflect, only a sale of corpus and not the allotted/ granted rights, the same is valid in law and on the basis thereof a suit for specific performance of contract is competent and a decree therein can be passed in favour of the plaintiff after the conditions mentioned in the document and the law for execution of complete sale-deed are satisfied. Facts of the case in hand are almost admitted. Execution of the arreement/deed in question has not been challenged before me by learned counsel for the respondents. His sole arrgment is that the deed Exh.P1 is a complete sale-deed and being not merely an arreement of sale, having admittedly been executed without obtaining of prior sanction/permission as per paragraph 30 of the Scheme and section 19 of the Colonization of Government Lands (Punjab) Act, 1912, is void ab initio hence the decree as prayed for could not have been granted on the basis thereof, and, as such, the petitioners have rightly been non-suited by the learned Appellate Court. Contents of the deed Exh.P1 leave no doubt in mind that the same is neither an arreement for sale nor a deed of sale of corpus only but is a deed which reflects complete alienation of allotted/ granted rights as is clear from the following reproduced portion thereof:- {{URDU TEXT}} It is hence clear that it is a deed of complete surrender of rights on receipt of already paid dues and development charges. There is nothing left to be done by the allottee to complete the sale as defined in the Transfer of Property Act. The document has all the incidence of a sale-deed and has no similarity to a deed of agreement to sell. It is hence hold that the document Exh.P1 although described as an agreement is a complete deed of surrender of rights in land in praesenti as such, is void, hence suit on the basis thereof has rightly been dismissed. Findings of the learned Appellate Court in this behalf as such are upheld.
In view of the above, both the civil revisions have no force, hence, are dismissed with costs throughout.