CH. MUSHTAQ AHMAD KHAN, J.- This judgment will dispose of two connected Civil Revisions No. 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 No. 1 to 9 by Thai Development Authority in Abadkari Scheme. Before he had paid instalments and acquired proprietary rights in (he 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 Ex. PI, reproduced as under:- ((Urdu Taxts Paragraphs))
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 instalments shall he 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 inspite of execution of the above said deed, proprietary rights in the land in question were granted to respondents No.1 to 9, successors-in- interest of Phool Din allottee in April 1978 after his death. Thereafter, the petitioners approached the respondents No. 1 to 9 for execution and registration of the sale deed in their favour in terms of the agreement Ex. PI. They refused, hence the petitioners filed a suit for Specific Performance of Contract in the Civil Court of Bhukkar on 23.4.1978. An application for grant of temporary injunction was also moved alongwith the suit. However, the land in question was sold by the defendants in favour of respondents No.10 and 11 vide registered sale deed dated 27.5.1979 inspite 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 & 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 lime 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 No. 5 to 7 were not pressed by the respondents during the course of arguments, whereas issues No.1 to 4 were decided in favour of the plaintiff-petitioners, and lienee the suit was decreed. Two appeals were fil. d 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 No. 10 & 11, the subsequent vendees pendent lile. 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 Ex.PI having been executed without obtaining of prior sanction from the competent authority, is void as per provisions of para-30 of the Scheme Ex. 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 Ex. PI 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 proprietory rights have admitted been acquired by respondents No. 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 Vs. Rehmat Ali and others. (1991 SCMR 1785).
2. Ghulam Muhammad alias Ghulamoon Vs. Maula Dad and 6 others. (1980 SCMR 314),
3. Rajab Ali Vs. Mst. Aisha and others (1989 SCMR 135).
4. Akhtar Ali and others Vs. Muhammad Hanif and others (1989 SCMR 604).
5. Said Ali Shah Vs. Muhammad Shaft (1989 SCMR 1594).
6. Mst. Doltan Mai and 5 others Vs. Mst. Sardaran Bibi and 5 others (1989 SCMR 1807).
7. Aziz Hussain and 2 others Vs. Rashid Ahmad and 3 others (1992 SCMR 1018).
8. Mst. Rehmat Bibi and others Vs. Mst. Jhando Bibi and others (1992 SCMR 1510).
7. Mr. S.M. Almas Ali, Advocate, learned counsel for the respondents has argued that a perusal of the document Ex. PI 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 TDA/Colony Authorities, hence is void as per para- 30 of the Scheme Ex. 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 Shaft and 14 others Vs. Hayat Khan and 5 others (PLD 1978 Lahore 1228),
2. Ghulam Muhammad Vs. Lakha Singh. (AIR 1935 Lahore 181),
3. Mirza Muhammad Ahmad Begu Vs. Mirza Muhammad Arshad Begu (PLJ 1978 Lahore 135),
4. Ghulam Rasul and others Vs. Muhammad Anwar and others (1969 S.C.M.R.254), 5 Hakim Ali and another Vs. Atta Muhammad and others (1981 S.C.M.R. 993),
6. Khizar Hayat and 2 others Vs. Shah Nawaz, (1981 C.L.C. 139),
7. Masood Ali Vs. Ali Haibat Khan and two others (PLD 1958 Lahore 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 Vs. Ilam Din and others(1994 S.C.M.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 Ex. P3 and other evidence relating to the transfer of the land in dispute in favour of respondent No.1. He submitted if the said is document read as a whole, it would prove that Jiwan had divested himself completely of all the rights in the land had only bound himself for executing a sale deed/sanction mutation, after obtaining proprietary rights, which was a mere formality. The payment of the whole-sale consideration and delivery of possession, of land has fully established that document Ex. 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 Ex. DI and Ex. 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 SCMR 254); Ghulam Muhammad alias Ghulamoo V. Maula Dad and 6 others (1980 SCMR 314) Hakim Ali and another V. Atta Muhammad and others (1981 SCMR 993) and Riaz Hussain Shah V. Member Board of Revenue (Colony), West Pakistan and 2 others (PLD-1987 S.C. 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 Ex. DI executed by Jiwan in favour of Mst. Nasim Akhtar was a fake one and that document Ex. P3 was a perfect valid document and that through this document i.e. Ex. 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 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 Muhammad Iqbal and others. V. Mirza Muhammad Hussain and others (PLD 1986 S.C. 70); Muhammad Ramzan and others. V. Ghulam and others (1988 SCMR 500) and Rajab Ali. V. Mst.
Aisha and others (1989 SCMR 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 No.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 above said 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 Ex. PI and copy of khasra P4. The entry is Jiwan Abadkar through Muhammad, son of Khota, ghair dakhilkar 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 upto 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 Ex. 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 Ex. 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 terms 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 Ex. 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 wherein para l2 it was held:- "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 at 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 S.C.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 delivery of possession of the suit land was not made to the appellants on the strength of document Ex. DI. And further that after agreeing to sell the suit land at the hands of respondent same land in favour of the appellants on a far lesser amount.
12. So far as the delivery of possession of the suit land is concerned all the three delivered to respondent No.1 under the deed of agreement to sell. This finding is based on correct appraisal of evidence brought on record. A certain entry in the khasra girdawari with the different ink or person would by itself not create any doubt on the other evidence with regard to delivery of possession of the suit land".
Similarly the proposition in question was also examined in the following cases:-
1. Wajid Ali and 2 others. Vs. Board of Revenue Punjab and 2 others (PLD 1982 Lahore 716),
2. Nura Vs. Samand (PLD 1982 Lahore 647).
In case of "Wajid Ali and 2 others" referred to supra, a Single Bench of this Court has held that a transfer prohibited by Section 19 is void even between the parties to the transaction if prior to execution of a sale deed consent in writing of the Government is not obtained. In case of "Nura" referred to supra, it has been held that in case of abandonment of rights before conferment of proprietary rights, without permission of the Collector, the agreement shall be void and not enforceable through Court of law. in case of Mirza Muhammad Ahmad Beg. Vs. Mirza Muhammad Arshad Beg (PLJ 1978 Lahore 135) relied upon by the learned counsel for the respondents where the dispute related to the transfer of rights in land allotted by Thai Development Authority. At pages- 139-140 of the report it has been held as under: - "It is not disputed that the parties did not obtain the consent in writing of the Commissioner, Collector or for that matter any Officer to the agreement of 15.12.1946 prima facie, therefore, the said agreement fell within the mischief of section 19 and was on that account void.
19. The learned counsel for the appellant has contended that the agreement was divisible in two parts. The first part related to the transfer of the tenancy rights and the second part referred to the transfer of the proprietary rights after they had been acquired by the respondent. He conceded that the first part which dealt with the transfer of the tenancy rights was hit by the provision of section 19 and was for that reason void, but, he argued, that the second part which required the respondent to transfer the proprietary rights after acquisition to the appellant was perfectly legal as did not offend against any provision of the law. He also submitted that both these parts were severable from each other and constituted independent obligations of the respondent. Thus, even though the first part was void the second part of the agreement could be enforced. In the course of his address he referred to Ghulam Muhammad. V. Lakha Singh (AIR 1935 Lahore 181) wherein it was held that section 19 had no application to agreements to sell which were to take effect only after the acquisition of the proprietary rights.
20. The law with regard to the enforcibility of agreements which are partly void is well established although its application not infrequently presents some difficulty. Section 23 of the Contract Act lays down that every agreement of which the object of consideration is unlawful is void. However, an agreement may contain several covenants all which may not be unlawful. In respect of such agreements, as observed by Willes J in Pickering V. Ilfracomble Railway Company (1868 L.R. 3 C.P.
235) the general rule is that, when you cannot sever the illegal from the legal part of a covenant, the contract is altogether void, but when you can sever them, whether the illegality be created by statute or common law, you may reject the bad part and retain the good. Sections 57 and 28 of the Contract Act furnish instances of the application of this general rule. It may, however, be mentioned that there are some limitations on the application of this rule and the most important of these is that in severing the bad part from the good the Court should not alter the basic nature of the agreement. For example, where in reality there is only one covenant the Court will not rewrite it to make it into two covenants. Thus in Attwood V. Lamont (1920, 3 K.B. 571) Younger L.J. Observed:- "The doctrine of severance has not, I think gone further than to make it permissible in a case when the covenant is not really a single covenant but is in effect a combination of several distinct covenants.
In that case and when the severance can be carried out without the addition or alteration of a word, it is permissible. But in that case only".
21. On reading the deed (Ex. P7 as a whole I do not think that the agreement can be split up in the manner suggested by the learned counsel for the appellant, for, in my view there was only one agreement between the parties whereunder the respondent transferred in presenti to the appellant by way of sale all rights which the respondent had obtained or was likely to obtain under the grant".
9. I have considered the arguments addressed by the learned counsel for both the parties, have gone through the record and the case law referred to above. A consolidated ratio-decidendi whereof 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 enforceable through a Court of law and in case the deed reflects merely an agreement 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 agreement/deed in question has not been challenged before me by learned counsel for the respondents. His sole argument is that the deed Ex. PI is a complete sale deed and being not merely an agreement 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 Ex. PI leave no doubt in mind that the same is neither an agreement 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 Taxts paragraphs))
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 held that the document Ex. PI although described as an agreement is a complete deed of surrender of rights in land in presentie 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.