' AGHA ALI RYDER, J.-This writ petition has been filed in the following circumstances :
2. It is alleged that, on 26-2-1958, the respondent No, 4 had entered into an agreement of sale with the petitioner No. 1, and Wali Muhammad, the father of the petitioner No, 2 since deceased, for the sale of 152 acres 38 ghun'as of agricultural land situated in Deh Kungo, Taluka Sakrand in the District of Nawabshah, which was already in their possession as lessees till 1957. Thereafter, they are stated to have remained in possession pursuant to the agreement, notwithstanding the fact that the agreement of sale contained a clause that the possession of the land was to be handed over to the purchasers at the time of the registration of the sale deed, Out of the total area of 152 acres 38 ghuntas, the sale deed of 73 acres 32 ghuntas was duly registered on 3-6.1958, but the sale deed in regard to the rest was dr ferred, as two persons by the name of Allah Ditta and Yousuf had filed a suit against the respondent No, 4, the petitioner No. 1 and Wali Muhammad, the father of the petitioner No, 2, claiming a prior contract of sale in their favour in respect of these lands, and a temporary injunction was issued by the civil Courts in Suit No, 14/1958. The suit was ultimately dismissed. But, in the meantime, Martial Law Regulation 64 had been promulgated, and, by Notification dated 26th of March 1959, it was declared that any alienation of land made in any manner other than registered sale deed after the 8th of October 1957 and before the 8th of October 1958 was to be considered valid only if it was so declared by the prescribed authority, which was the Land Commissioner of the Division. The respondent No, 4 filed a declaration as enjoined by Martial Law Regulation 64, and the Deputy Land Commissioner, Nawabshah, after holding an enquiry, recommended to the Land Commissioner, Khairpur, that the transaction be validated, as the possession of the purchasers had been satisfactorily established. However, the respondent No, 2, by his order dated 19-6-1961, held the transaction to be invalid, with the result that the land was to be resumed and vested in the respondent No,
3. The petitioners and the respondent No, 4 made an application for review on 27-6-1961, which came to be rejected on 8-8-1961. Separate applications filed before the Land Commissioner by the petitioners were turned down with the direction that they were to file a revision before the respondent No. 1. Thereafter, the petitioners and the respondent No, 4 preferred a revision application before the Chief Land Commissioner, West Pakistan, Lahore, that is, the respondent No. 1, which was dismissed on 23-2-1962 on the ground that the possession of the petitioners was not as purchasers, but in their capacity as lessees and also because the sale had not been completed. A review application was preferred, which met the same fate on 10-12-1962. In this very context, it might be mentioned that the respondent No, 4 filed a writ petition in the High Court, being Petition No, 919/1963, challenging these orders. In-between, Chhappar Khan bad made an application for being joined as a party, which came to be allowed.
At the time of the final hearing, when the petitioners herein realised certain legal defects, a prayer was made to be allowed to withdraw the petition with the permission to file a fresh one, so that even Wali Muhammad's representatives (Wali Muhammad had died sometimes in-between) may he joined. Permission was accorded, and the petition was dismissed as withdrawn by order dated 12-12-1968. It was thereafter that this writ petition was filed.
3. According to sub-paragraph (2) of Paragraph 7 of Martial Law Regulation, if any question arose whether any transaction of transfer of land was or was not void under sub-paragraph (7), the decision of the Commission constituted under Paragraph 4 was to be final. Then, there was a specific bar of jurisdiction as to be found in Paragraph 27 of the Regulation, which reads as under : "27. Bar of jurisdiction.-(1) No provision of this Regulation or any rules or orders made thereunder shall be called in question in any Court including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
' Then, there were Martial. Law Regulations No, 88, dated 22nd of June 1961, and No, 93, dated 13th October 1961, which read as follows : "No, 88 (Notification No, 569/61, 22nd June 1961, Gazette of Pakistan, Extraordinary, 27th June 1961).
(1) Notwithstanding anything in any law for the time being in force no proceedings, whatsoever, shall lie in any Court in respect of any order made or anything done or to be done or intended, expressed or purported to be done, or to have been done by any Martial Law authority in pursuance of any Martial Law Regulation or Martial Law Order.
(2) For avoidance of doubt it is hereby declared that the expression "order or anything done or to be done or intended, expressed or purported to be done, or to have been done" in paragraph (1) shall include any order made or anything done whether the order or the thing is within the scope of the Regulation or Order or not, or whether the authority making the order or doing a thing had jurisdiction in the matter or not.
(3) This Regulation shall be deemed to have come into force as from the 8th of October 1958."
"No, 93 (Government of Pakistan, Notification No, 990/61, dated 13th October 1961 ; Gazette of Pakistan, Extraordinary, 18th October 1961).
' Martial Law Regulation No, 88 shall be amended as follows :- ' For paragraph 2 the following shall be substituted and shall be deemed always to have been so substituted, namely :- "(2) For avoidance of doubt it is hereby declared that-
(a) the expression "order made or anything done or to be done or intended, expressed or purported to be done, or to have been done" in paragraph 1 shall include any order made or anything done whether the order or the thing is within the scope of the Regulation or Order or not, or whether the authority making the order or doing a thing had jurisdiction in the matter or not ; and
(b) "Martial Law Authority" includes a person or body of persons authorized by or under any Martial Law Regulation or Order to perform any function or exercise any power under such Regulation or Order, and if a question arises whether any person or body is a Martial Law Authority or not the certificate of the Chief Martial Law Administrator or the Zonal Martial Law Administrator that such person or body is Martial Law Authority shall be final.
(3) This Regulation shall be deemed to have come into force as from the 8th of October 1958,"
4. The authorities under these Regulations were held by the Supreme Court in Mst. Bibi Ayesha and another v. The Chief Land Commissioner, West Pakistan and another (1) and R. S. Jhamandas and others v. The Chief Land A Commissioner, West Pakistan and others (2), to be immune to any form of treatment by the Courts, as they were vested with final and exclusive jurisdiction. In the former case, the appellants therein, on the suggestion of the Chief Land Commissioner, had obtained a decree from the civil Court. However, when this decree was presented before the Land Commission, they were told finally that the Chief Land Commissioner declined to accept the decree "for the purpose of land reforms", and the matter should stand as it had already been determined. It was observed : "As to the decree of the civil Court as I have stated in the case of Mst.
Hajiani, the regulation provides an absolute safeguard for the power of final decision being vested in the Commission. This is equally binding on the Commission itself, so that the Commission is powerless to waive or forego its right and duty in this respect. Therefore, the direction granted by the Commission to the ladies to have their rights declared by a civil Court did not carry anything in the nature of an assurance of compliance with the decree". In the latter case, Cornelius, C. J. (as then he was), who had also written the earlier judgment went on to observe that "it will become the judiciary, and it would be in violation of the oath of office of the Judges, that the Courts should strain to enter territory forbidden to them by law". These observations were made, though the order of the Chief Land Commissioner, as pointed out, was based on a mistaken notion of the Hindu Law.
5. However, after promulgation of the Constitution of 1962, Martial Law Regulations No, 88 and No, 93 ceased to have force, and the bar of jurisdiction under Paragraph 27 was limited thereafter to orders, which, in substance and form, were made in compliance with Martial Law Regulation No, 64.
The superior Courts, thereafter, were found to have jurisdiction to see for themselves if the order of the authorities, acting under this Regulation, were in the exercise of their lawful authority. In Nawab Haji Khair Muhammad Khan v. The State (3) and Haji All Bux Khan and others v. The Chief Land Commissioner, West Pakistan, Lahore and others (4), the impugned orders were struck down, as, in substance and form, they went beyond the scope of the Regulation. It might, however, be noted that the impugned order in the former petition had been passed by the Chief Land Commissioner on the 31st of July 1952, and in the latter on the 30th of October 1962 and 23rd September 1963, which will be after the date of the promulgation of the Constitution of 1962.
6. It was, however, contended by Mr. Ghulam Hussain Abbasi, learned counsel for the petitioners, that this Court will have the jurisdiction to scrutinise the impugned orders inasmuch as the orders of the Land Commissioner and the earlier order of the Chief Land Commissioner had merged in the older of the Chief Land Commissioner dated 10.12-1962, dismissing the review application, which falls on a date after the enforcement of the Constitution. In support of this contention, reliance was placed on {{FOOT NOTE}}
(1) PLD 1966 SC 84 (2) PLD 1966 SC 229
(3) PLD 1966 SC 604 (4) 1974 SCMR 98 {{FOOT NOTE}} ' the cases of The Province of East Pakistan v. Muhammad Hossain Mia (1), Sayeedur Rahman v.
Chief Election Commissioner, Dacca and others (2), Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (3) and Garikapati Veeraya v. N. Subbiah Choudhry and others (4).
Reference was also made to Para, 1661 from Halsbury's Laws of England, Third Edition, Volume 22 commencing from page 780, which reads as under : "When judgment has been given in an action, the cause of action, in respect of which judgment is given, is merged in the judgment, transit in rem jurisdiction and its place is taken by the rights created by the judgment. .. ."
7. In the case of The Province of East Pakistan v. Muhammad Hossain Mia, notice bad been issued on the 8th of February 1960 by the Additional Collector, Dacca, to the respondent as to why the premises in question should not be forfeited to the Government under the provisions of section 75 of the East Bengal State Acquisition and Tenancy Act. Cause was shown, but the same was not accepted and order was made forfeiting the properties on the 18th of February 1960. The respondent's efforts to get redress by an appeal to the Commissioner, Dacca Division, and a further appeal before the Member, Board of Revenue having failed, an order was passed by the Additional Deputy Commissioner, Dacca, on the 20th of January 1962, directing him to vacate the said lands.
A writ petition was filed by the respondents, which came to be allowed, and the impugned order was quashed, resulting in an appeal before the Supreme Court. It is true that, in this case, the amendment of section 9(1)(a) of the Act had come into operation only in 1961, after the forfeiture of the land. But the amendments were expressly given retrospective effect when the appeal was still pending before the Member, Board of Revenue. It was observed by the Supreme Court that the forfeiture was clearly illegal, although for reasons different from those given by the High Court. It was also observed that the amendments made to section 9 in 1961 were expressly given retrospective effect, and, that even in 1961, the matter had not been concluded, as the appeal before the Commissioner was decided only on the 15th of December 1971, after the amendments had come into force. Inter alia, it was observed : "On the filing of the appeal, the entire matter became re-opened and sub judice and had to be decided in accordance with the law then prevailing".
8. In the case of Sayeedur Rahman v. Chief Election Commissioner, Dacca and others, the appellant had filed a writ petition against the order by which he was disqualified from his seat in the Provincial Assembly under the Representation of Peoples Act, 1957, to be a member as such. The writ was refused and special leave was granted by the Supreme Court to appeal against the order.
During the pendency of the petition, the Representation of Peoples (Repeal) Act, 1963 was promulgated removing the disqualification under the earlier Act. The appeal was allowed, as it was found that the bar of disqualification having been repealed and no more applicable, the appellant would be entitled to take advantage of the repealing enactment. It is, however, to be noted that the repeal was with effect from the 23rd of March 1962 ; the elections had been held in May 1962, and, according to section 2(2), "no person shall be deemed to have ever been disqualified from {{FOOT NOTE}}
(1) PLD 1965 SC I (2) PLD 1965 SC 157
(3) PLD 1970 SC 1 (4) PLD 1957 SC (Ind.) 448 {{FOOT NOTE}} ' being elected as, or from being a Member of the National Assembly under or by reason of any provision of the said Act, and no election of any person to such Assembly shall be called in question, in or before any Court, Tribunal, or other Authority, on the ground that such person was so disqualified under the said Act, at the time when he was so elected."
9. The case of Hussain Buksh v. Settlement Commissioner, Rawalpindi and others will not be very much relevant, beause it deals essentially with the powers of the High Court under writ jurisdiction, to review its own orders. However, since reference has been made to a particular passage, I might refer to the same, and it is this : "The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Branwell, L. J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1),- "does not exist in the nature of things ; a right to appeal from any decision of any Tribunal must be given by express enactment."
' This is equally true in case of review, because both appeal and review, though they differ in cope, are substantive rights.
9. In the case from Indian Jurisdiction, the controversy was, whether a right of appeal to the Federal Court of India available to a plaintiff at the time of the institution of the suit could be curtailed, as a result of the impairing of that right by subsequent legislation. The reply was in the negative, as it was found that the right of appeal is a vested right and such a right to enter the superior Courts accrues to the litigant and exists as on and from the date the /is commence, and although it may be actually exercised when the adverse judgment is pronoucced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding, and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
10. The learned Advocate-General, on the other hand, referred us to the case of Messrs S. A. Llaroon and another v. The Collector of Customs, Karachi (2). In that case, the Collector of Customs, by his order, had confiscated the gold seized from a partner of the appellant firm, holding that its lawful import into the country had not been proved. In lieu of confiscation, the owners, or, possessors of the geld were given the option of fine. The order was challenged by a writ petition in the High Court and ultimately before the Supreme Court. The order was quashed by the Supreme Court, and direction was given to the Collector of Customs to hold a fresh enquiry in the light of the observations made. The Collector of Customs held a fresh enquiry with almost similar results. From this order, an appeal by special leave was preferred. While this appeal was pending, an appeal from the Collector's order was also submitted to the Central Board of Revenue, and a petition for special leave against this order was submitted to the Supreme Court. An objection was taken there that a direct appeal would not lie to the Supreme Court. It was in this context that it was observed by the Supreme Court that "this Court has been properly seized of the appeal from the Collector's order, and it cannot be said that the Court had become devoid of its jurisdiction to dispose of that appeal from the order passed by the Board on the Departmental appeal. The Board has merely affirmed the findings of the Collector, an if on examination it is found that the Collector's order is not sustainable in law, the whole {{FOOT NOTE}}
(1) (1877) 3 Q B D 1 (2) PLD 1967 SC 458 {{FOOT NOTE}} ' superstructure, including the appellate order of the Board, would fall with it". This citation does not exactly deal with the point. However, the orders of the Land Commissioner are admittedly beyond challenge. The ultimate order of the Chief Land Commissioner was an affirmation of the earlier orders and was not, in any way, in departure from what had been said earlier. The fact also remains that the order in the case of Nawab Haji Khair Muhammad Khan v. The State, and both the orders impugned in Haji All Box Khan and others v. The Chief Land Commissioner, West Pakistan, Lahore and others, as borne out from the report of the case on page 101, were after the promulgation of the Constitution of 1962. To my mind, the bar of jurisdiction, therefore, continues. It is, however, not necessary to dwell on this point further as, otherwise too, the last order of the Chief Land Commissioner is very much within the scope of the Regulation.
12. There are two circumstances in the case which go beyond the pale of any controversy. The first is that the agreement of sale expressly mentions that the possession of the land will be handed over to the purchasers at the time of the registration of the sale deed. The second admitted position is that neither any payment was made beyond what was paid at the time of the execution of the agreement of sale, nor was any act done in furtherance of the contract. It was urged by Mr. Ghulam Husain Abasi, learned counsel for the petitioners, that the clause in the agreement regarding the delivery of possession at the time of the registration of the sale deed was of a routine nature and customarily found a place in agreements executed by Hindu sellers, and no significance was therefore to be attached to the same. The contention rested with that much. In the face of an insertion of a clause of such nature in a formal document, to wriggle out with the situation, just by dropping such a suggestion would be a precious littl attempt indeed. On the showing of the petitioners, there was nothing beyon the agreement of sale. Mr. Ghulam Hussain Abasi, however, took us through the definition of "sale" as to be found in section 54 of the Transfer of Property Act, especially the portion "price paid or promised or part paid and part promised." There is no gainsaying the fact that the payment o price is not necessarily the sine qua non to the completion of sale. If the intention is that the property should pass on registration, the sale I complete as soon as the deed is registered, whether the price has been paid or not, and the purchaser is entitled to sue for possession, though he has not paid the price. But the case before us is a clear case of agreement of sale and understandably had been dealt with all along as such.
13. Section 53-A of the Transfer of Property Act reads as under :- "Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
14. To claim the equity of part performance a transferee, apart from his willingness to perform his part of the contract, has also to establish that, in part performance of the contract, he has taken possession of the property, or any part thereof, or that he being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract. In regard to the question as to what constitutes part performance, reference may be made to Mulla's Transfer of Property Act, Fourth Edition, commencing from page 265. According to him, the following rules are well established in England and also in or subcontinent :
(1) An act of part performance must be an act done in performance of the contract and therefore acts introductory to, and previous to the agreement, cannot be acts of part performance.
(ii) The acts relied on as part performance must be unequivocal and in their nature referable to a contract such as that alleged, that is, they must be unequivocal and referable to no other contract than alleged.
(iii) Acts of part performance must be the acts of the party seeking to avail himself of the equity.
Acts of the party sought to be charged are of no avail.
15. A transferee, as pithily observed in Inayatullah and others v. Shah Muhammad and others (1), can use the part performance of the contract as a shield (its use will not be as a word) ; the object being to defend his title, and not to attack the title of anybody else. A similar view was taken in an Oudh case in 1944 as to be found in the said judgment, in which the observations from Probodh Kumar This v. Dantmara Tea Co. (2), were distinguished.
16. In Sibendrapade Banerjee v. Secretary of State for India-inCouncil (3), which dealt with a case of sale, it was observed : "If on the date of the sale the vendee gets into possession with the assent, express or implied, of the vendor, it may be held that there has been delivery of the property ; but this principle has no application to a case like the present, in which the intended transferee had been in occupation from before the date of the transfer. The language of section 54 is quite clear. It speaks of a transfer by delivery of the property, so that the delivery is the essence of the transaction". In Dakshinamurthi Mudaliar and others v. Dhanakoti Ammal (4), the state of the law on the subject was examined. The following passage may as well be reproduced : "The principle has been stated in Fry on Specific Performance at page 279 (section 584) : To make the acts of part performance {{FOOT NOTE}}
(1) PLD 1961 Lah. 372 (2) AIR 1940 P C 1
(3) I L R 1934 Cal. 207 (4) AIR 1925 Mad. 965 {{FOOT NOTE}} ' effective to take the contract out of the Statute of Frauds, they must be consistent with the contract alleged and also such as cannot be referred to any other title than a contract nor have been done with any other view or design than to perform a contract (Gunter v. Halsey) ; therefore, if a tenant in possession sues for the specific performance of an alleged contract for a new lease the mere fact of his continuance in possession will have no weight as an act of part performance of the contract, being referable to his character as tenant (Per Plumer, M. R. In Marphett v. Jones) and other cases and distinguished by Hodson v. Heuland and Biss v. Hygate which are not cases of renewal of the lesse but of fresh lease. In the present else, the contract of possession can have no weight as an act of part performance of the contract to re-sell there being a tenancy and the continuing of possession is explainable as evidence of a willingness to continue the tenancy."
17. In Ewaz Ali v. Mst. Firdous Jehan and others (I), the possession of the house contracted to be sold had not been given to the transferee pursuant to the contract. It was in the possession of her husband as a tenant. However, a day after the receipt for the part payment was executed, the transferee had issued orders for extensive repairs of the house, and, within a period of three/for days, had also let out certain portions of the house to tenants. On the basis of these facts, it was found that the possession had been taken by the lady, and acts bad been done in pursuance of the contract. In the instant case, it is clearly made out that the possession had not been taken in pursuance of the contract. It continued on with them as lessees, and it will be a case of holding over. On the other hand, the agreement stipulated that it would be handed over at the time of the registration of the sale deed. Nor was anything done in pursuance of the contract. This is what had been observed by the learned Chief Land Commissioner in the order, dismissing the review application, and this was the view, which had prevailed earlier. It cannot, therefore, be said that even the last order was, in substance and form, beyond the scope of Martial Law Regulation No, 64.
Nor was it the case of the respondent No, 4 that his possession of the lands, inclusive of the one in question, was within the limits of individual holdings as to be found in paragraph 8 of Martial Law Regulation No,
64. The exercise of authority, therefore, cannot be said to be unlawful.
18. I will, therefore, dismiss the petition with costs. {{FOOT NOTE}}
(1) AIR 1944 Oudh 212 {{FOOT NOTE}}