' This appeal has arisen out of appellate judgment and decree dated 7-5-1990 passed by the District Judge, Multan whereby judgment and decree dated 10-4-1984 of the learned Civil Judge, Lodhran was set aside and decreed the suit in favour of respondents Nos.2 to 10.
2. Brief facts of the case are that Abdul Ghani etc. Respondents Nos.2 to 10 filed a suit wherein they averred that the suit land measuring 100 Kanals and 11 Marlas as detailed in the headnote of the plaint, was allotted to Lal defendant-respondent No,1 under Islamabad Oustees Scheme. He executed registered agreement to sell Exh.P.7 on 19-12-1974 with Abdul Ghani respondent No,2, Khandu Khan, predecessor-in-interest of Mst. Rehmat Mai respondents Nos.3 to 9 and Saddu Khan respondent No,10. The consideration amount mentioned in the said agreement was Rs,60,000 out of which Rs,20,000 were received by respondent No,1 in November, 1974 and paid the instalments amounting to Rs,18,681 to the Government. On 11-12-1974, he received Rs,25,000 as earnest money and the remaining amount of Rs,10,000 was to be paid before the Registrar at the time of registration of agreement to sell. But prior to the registration of agreement respondent No,1 demanded Rs,2,500 for personal use and agreed to receive Rs,7,500 instead of Rs,10,000 before the Registrar at the time of registration of sale. The balance amount of Rs,7,500 was also received by him. Accordingly, he received total amount of Rs,55,000 and agreed to receive the remaining amount of Rs,5,000 after getting proprietary rights of the disputed land from the Government and its transfer in favour of the plaintiffs. The possession of the land was also delivered to the plaintiffs by respondent No,1. The plaintiffs also paid the remaining full purchase price and the stamp duty amounting to Rs,842 to the Government on 24-2-1975. They demanded respondent No,1 to transfer the suit land to them as the full price of the suit land had been paid including the stamp duty.
Although formal deed of conveyance had not been executed. The plaintiffs were surprised to know that defendant had entered into a void agreement to sell with Akbar Ali and Mst. Halima defendants Nos.2 and 3 and on the basis of the said agreement a consent decree for mandatory injunction had been obtained by defendants Nos.2 and 3 on the basis of statement made by Sakhi Muhammad, the alleged general attorney of defendant No,1 on 25-6-1974 from the Court of Mr. Ghulam Abbas Khan, Civil Judge, Lodhran and in the said decree, the suit land contained in Square No,19, Khasra Nos. 14 to 19 were excluded. In the suit it was alleged that the decree was void and ineffective upon the rights of the plaintiffs and nullity in the eye of law as the alleged agreement to sell in favour of defendants Nos.2 and 3 was executed in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912; that the said decree is not executable could not be passed under the Specific Relief Act; that the suit instituted by defendants Nos.2 and 3 was premature and that before the conceding written statement was filed by Sakhi Muhammad, alleged general attorney of defendant No,1 his general power of attorney had already been cancelled by defendant No,1 and was no more authorised to make statement nor could the decree be passed on the such unauthorised statement.
3. The plaintiffs submitted an amended plaint on 24-7-1983 and impleaded Nazir Ahmad as defendant No,4 with the allegation that during the pendency of the suit defendant No,1 through his general attorney Muhammad Afsar had sold the suit land to defendants Nos.2 to 4 and the said sale is also void, illegal and ineffective upon their rights because the same is hit by the principle of lis pendens and the transaction is mala fide. It is further alleged that the defendants have entered into a new transaction superseding the decree of the Civil Court, Lodhran dated 25-6-1974 and the alleged agreement to sell dated 7-6-1971 in favour of defendants Nos.2 and 3 and in view of that the suit in the original form is liable to be decreed.
4. Defendant No,1 submitted the written statement on 3-9-1978 and conceded the claim of the plaintiffs. However, defendants Nos.2 to 4 resisted the suit. They have alleged that the agreement to sell dated 9-12-1974 is illegal, violative of section 19 of the Colonization of the Government Lands (Punjab) Act, 1912 and is not liable to be specifically performed. Transaction between the plaintiffs and defendant No,1 is of no legal effect because the same is void and defendant No,1 had received Rs,50,000 as earnest money from defendants Nos.2 to 4 in accordance to the agreement dated 7- 6-1971 and the consent decree dated 25-6-1974 was valid as Sakhi Muhammad was informed about the 'Abtal Nama' on 2-7-1974 after passing of the consent decree. They further alleged that they validly purchased the suit land from defendant No, 1 through the agreement dated 7-6-1971.
Some preliminary objections were also raised by them.
5. Keeping in view pleadings of the parties, the learned Civil Judge framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit property is incorrectly described, if so its effect? OPD.
(3) Whether agreement dated 19-12-1974 was executed in collusion between the plaintiffs and defendant No,1 and is void as against the rights of the defendants Nos. 2 to 4? OPD.
(4) Whether the defendants Nos. 2 to 4 are bona fide purchasers for value without notice? OPD.
(5) What is the effect of decree dated 25-6-1974? OPD.
(6) Whether the plaintiffs are entitled to specific performance of the agreement in dispute? If so, on what terms and conditions? OPP.
(7) Relief.
' Learned Civil Judge vide judgment and decree dated 10-4-1984 decided issues Nos. 1 and 3 against the defendants. Issues Nos. 2 and 6 in their favour. Issues Nos. 4 and 5 were decided in accordance with the decision made on issue No,
6. Ultimately, he dismissed the suit against which vide impugned judgment and decreed learned District Judge, Lodhran reversed the judgment of trial Court and decreed the suit in favour of plaintiffs on 7-5-1990 subject to the payment of Rs,5,000 by ?-6-1990 payable to defendant No, 1 failing which the suit shall be deemed to have been dismissed. Defendants except No, 1 have referred this instant appeal against the appellate judgment and decree.
6. Learned counsel for the appellants submits that learned District Judge has erroneously decreed the suit in favour of the respondents Nos. 2 to 10 ignoring the evidence on record. He further submits that Sakhi Muhammad General Attorney of Lal has validly made statement in the Court of learned Civil Judge on 25-6-1974 and the decree passed on the basis of his statement could not be declared void. He also submits that the agreement executed by respondent No,1 in favour of appellants was prior in time, therefore, the suit could not be decreed in favour of respondents and has relied upon A. Hameed v. Ghulam Muhammad and others 1992 CLC 1504.
7. Learned counsel for the respondents conversely submits that an agreement to sell entered into before the grant of proprietary rights is neither invalid nor unlawful even if sanction under section 19 of the Colonization of Government Lands Act, 1912 was not obtained, and the enforcement of agreement was postponed till after the grant of proprietary rights and referred Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510, Muhammad Afzal and others v. Rehmat Ali and others 1991 SCMR 1785, Rajab Ali v. Mst. Aisha and others 1989 SCMR 135, Akhtar Ali and others v. Muhammad Hanif and others 1989 SCMR 604, Muhammad Ramzan and others v. Ghulam and others 1988 SCMR 590, Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 Supreme Court 70 and Faiz Ali, deceased, represented by Mst. Nur Jan, etc. And another v.
Rafia Jan and 2 others PLD 1956 Lah.
94. He further submits that Sakhi Muhammad was not authorised to make statement before the learned Civil Judge, Lodhran on 25-6-1974 as general power of attorney was cancelled on 10-6- 1974 through registered 'Abtal Nama' vide Exh.P.10. Regarding further sale of the suit land he submits that principle of lis pendense was attracted and the learned appellate Court has rightly decreed the suit in favour of respondents Nos.2 to 10.
8. I have heard the learned counsel for the parties at length and gone through the evidence on record with their assistance. The main contest between the parties was on issue No,6. It is an admitted fact that Lal was entitled to 100 Kanals of land under Islamabad Oustees Scheme. He was granted the said land in addition to 11 Marlas. For additional 11 Marlas he was pursuing the case before the Board of Revenue through private negotiations. The said 11 Marlas was finally given to him in the month of February, 1975. The sale made by Lal in favour of Abdul Ghani etc., was for 100 Kanals and 11 Marlas vide registered agreement to sell dated 19-12-1974 Exh.P.7. The claim of plaintiffs/respondents Nos.2 to 10 entirely is based on the registered agreement to sell dated 19-12- 1974 referred above. Through this document Lal defendant No,1 the allottee of the land agreed to sell to Abdul Ghani and others plaintiffs on acquiring the proprietary rights thereof. He submitted consenting statement himself before the trial Court and admitted the agreement and other claim of the plaintiffs. Learned trial Court dismissed the suit treating it in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and referred some reported judgments in this respect. I have considered all the judgments referred in the judgment of the trial Court, appellate Court and at the Bar during the arguments of the case. The latest judgment referred by the learned counsel for the appellants is A.
Hameed v. Ghulam Muhammad and others 1992 CLC 1504 wherein the entire law has been considered. Although earlier superior Courts held that an agreement to sell coupled with possession was void but such view was undergone a change and now the prevalent view is that an agreement coupled with the transfer of possession is a valid one and is not hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912 but by referring the judgment has tried to get support from this judgment for his case when. Two agreements of sale are in the field, the prior in time shall get preference and since agreement of Akbar/appellant is prior in time (7-6-1971 Exh.D/3) than that of Abdul Ghani etc. (19-12-1974 Exh.P/7) hence the suit of Abdul Ghani is liable to be dismissed. Learned counsel has overlooked the important aspect of the aforesaid judgment regarding delivery of possession which does not help the appellant at all as in the referred case under the first agreement the possession was transferred to first proposed vendee and the second agreement was without possession. The second proposed vendee filed suit for possession whereas the first one filed a suit for permanent injunction for protection of his possession. In this view of the matter, the first agreement was held to be having preference over the second one but in the instant case, the first agreement holder (Akbar) vendee was not put in possession whereas second agreement holder (Abdul Ghani etc.) were handed over the possession at the time of execution of agreement on 19-12-1974. In the inr,ant case respondent No,1 handed over the possession executing agreement to sell Exh.P/7 to the vendees and under section 54 of the Transfer of Property Act a mere contract of sale does not convey any right but if it is coupled with the possession then under section 53-A of the said Act, the proposed vendee can defend his title and possession, thus the judgment cited at the Bar by the learned counsel for the appellants, indirectly supports the plea of the respondents Nos.2 to 10.
9. It is further clear from the facts of the case that registered agreement to sell was executed by Lal in favour of Abdul Ghani etc./plaintiffs and the possession was also delivered at the same time. The execution of the sale deed was postponed as the matter for grant of proprietary rights to Lal by Board of Revenue was under consideration of additional 11 Marlas but the entire payment has already been made to Lal by other respondents. Government dues were also cleared except payment of Rs,5,000. The entire consideration has already been paid to him. The agreement to sell was executed and registered. The bar of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 was not attracted in the present case in view of rule laid down in the judgment referred above by the learned counsel for the respondents in support of proposition in hand in this connection reference may be made to Faiz Ali, deceased, represented by Mst. Nur Jan and another v. Rath Jan and 2 others PLD 1956 Lah. 94 which is fully applicable to the facts of present case.
Relevant portion of the same is as under:-- ' We see no reason to differ from this opinion and have no hesitation in holding that Mst. Askaur acquired proprietary rights simultaneously with the deposit of the price of the land, irrespective of the fact that the Collector had passed his order three days after the deposit had been made."
10. Consent decree obtained on the basis of statement of Sakhi Muhammad, General Attorney of Lal is absolutely invalid. He made statement in the Court on 25-6-1974, after 15 days of cancellation of his general power of attorney through registered " Abtal Nama' dated 10-6-1974. The consenting statement of unauthorised Sakhi Muhammad was of no legal consequence.
11. Agreement in favour of appellant Exh.D/3 dated 7-6-1971 is of no help to them Execution of this agreement has been denied by Lal respondent No,1 the original owner of the property. The possession of the land was also not delivered vide Exh.D/3 by Lal to the appellants. Assessment of the evidence by the learned District Judge in coming to the conclusion that respondents Nos.2 to 10 were entitled to the decree for specific performance of contract is fully justified by the evidence on record. The objections of the appellants that the said judgment is in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is without any basis.
12. It is an admitted fact that when Lal defendant No,1 executed agreement to sell in favour of the plaintiffs on 19-12-1974, he had already deposited the whole of the price of the suit land except 11 Marlas with the Government and the said amount was contributed by the plaintiffs which is evident from Exh.P/7 and the receipts Exhs.P/2, P/4 and P/5. Defendant No,1 entered into an agreement to sell in suit with the plaintiffs when he could validly transfer his rights in the property including possession. Only formal execution of sale through intervention of Collector was further requested.
All payment has already been made and only in order to get the entire land the registration of sale-deed was postponed as the proprietary rights of 11 Marlas were still under negotiation with the Board of Revenue and the allottee. Ultimately sale-deed was executed by respondent No,1 in favour of defendants Nos.2 to 4 on 3-3-1976 and delivered the possession to-the vendees.
13. For the reasons stated above the impugned judgment does not call for any interference in the exercise of appellate jurisdiction of this Court and the appeal is consequently dismissed with no order as to costs.