RAJA MUHAMMAD SABIR, J. - This revision petition under Section 115 of the Civil Procedure Code is directed against the judgment and decree of learned Additional District Judge, Jhang dated 9.11.1989 dismissing the appeal of the petitioner against the judgment of the learned Civil Judge, Jhang dated 31.3.1988.
2. The brief facts of the case are that agricultural land measuring 100 kanals situated in Chak No. 11 Tehsil and District Jhang was allotted to Muhammad Sabir predecessor-in-interest of respondents Nos. 1 to 6 an Islamabad oustee. He entered into an agreement to sell in favour of respondents Nos.
7 to 9 on 25.1.1973. The allottee received the total price of Rs.5000/- against receipt Ex.P-2 of the same date It was agreed between the parties through agreement to sell Ex.P-1 that the sale-deed will be executed after the grantee had acquired the proprietary rights in the land. Sabir deceased appointed one Allah Ditta his general attorney through Ex.P-3 for the land in dispute for executing registered sale-deed in favour of respondents Nos. 7 to 9 on acquiring proprietary rights of the said land.
3. On 1.9.1983 proprietary rights were conferred on him vide mutation No. 1164 and thereafter he sold the suit land in favour of the petitioners for consideration of Rs.50.000/- through registered sale- deed dated 3.9.1983 Ex.P-4. Respondents Nos. 7 to 9 tiled suit for specific performance of the contract dated 25.1.1973 impleading Sabir allottee and his general attorney as defendants.
Subsequently name of Allah Ditta attorney was deleted from the plaint on 13.3.1985. During pendency of the suit Muhammad Sabir allottee died and his legal heirs were impleaded as respondents Nos. 1 to 6 when the suit was under trial sale in favour of the petitioners was disclosed and, as such, they were impleaded as party to the suit. The petitioners contested the suit but legal heirs of allottee respondents Nos. 1 to 6 tiled a consenting written statement. The petitioners controverted the contention of the plaintiffs and on divergent pleadings of the parties following issues were framed:-
(1) Whether this suit is time-barred? OPDs Nos. 8 to 11.
(2) Whether this suit is tiled mala fidely, therefore, is liable to be dismissed ? OPDs Nos. 8 to 11.
(3) Whether this suit is not maintainable in its present form due to preliminary objection No. 3 of written statement? OPDs Nos. 8 to 11.
(4) Whether the defendants Nos. 8 to. 11 are bona fide purchasers, therefore, this suit does not lie against them? OPDs Nos. 8 to 11
(5) Whether the defendants Nos. 8 to 11 have spent Rs.20,000/- on improvement of the suit property, if so, is effect? OPDs Nos. 8 to 11.
(6) Whether the plaintiffs are entitled to the decree, as prayed for? OPP
(7) Relief.
Learned Civil Judge after recording evidence and hearing the counsel for the parties decreed the suit of respondents Nos. 7 to 9 on 31.3.1988 against which the appeal of the petitioners was dismissed by the learned Additional District Judge through impugned judgment and decree.
4. Learned counsel for the petitioners contends that the agreement to sell executed by Sabir in favour of respondents Nos. 7 to 9 was violative of Section 19' of the Colonization of Government Lands (Punjab) Act, 1912, therefore, the aforesaid agreement was in-effective against the sale made in favour of the petitioners through Ex.P-4. He further submits that the petitioners were purchasers for consideration without notice and under Section 27-A of/the Specific Relief Act the sale executed in their favour stands protected. Both the Courts below misread the evidence on record in decreeing the suit in favour of respondents Nos. 7 to 9.
5. Learned counsel for the respondents, on the other hand, submits that concurrent findings of Courts below are supported by evidence on record. The agreement to sell was not violative of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and relied upon Mst. Rehmat Bibi and others Vs. Mst. Jhando Bibi and others (1992 SCM R 1510), Shamir, through legal heirs Vs. Faiz Elahi, through legal heirs (1993. SCMR 145) and Sher Muhammad Khan and others Vs. Ilam Din and others (1994 SCM R 470). He has further abed that the petitioners have not asserted in the written statement that they were bona fide purchasers for consideration without notice and the evidence led by the petitioners was rightly disbelieved. The judgments of the Courts below are based on true assumption of law and facts and call for no interference.
6. I have heard the learned counsel for the parties and perused the relevant record. Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 provides as under:- "Transfer of rights to be void. Except as provided in Section 17, none of the rights or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893 or this act, shall without the consent in writing of the Commissioner, or of such officer as he may be written order empower in this behalf, be transferred or charged by any sale exchange, gift, will, mortgage of other private contract, other than a sub:lease for not more than one year in the case of a tenant who has not acquired a right of occupancy and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void and if (after the commencement of this Act the transferee has obtained possession, he shall be ejected under the orders of the Collector, Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."
The judgment relied upon by the learned counsel for the petitioners Alam Khan Vs. Akla and 6 others (PLJ 1989 Lahore 248) relates to the transfer of right of possession which could not be done under Section 19 of the Act without the consent of the Collector. No such consent was obtained, therefore, the agreement in dispute in the said case was held to be violative of Section 19 c f the said Act. In the instant case agreement to sell Ex.P-1 contained a recital about the delivery of possession in favour of the 'plaintiff whereas the petitioners alleged that they are in physical possession Of the disputed land. The registered sale-deed Ex.P-4 executed in favour of the petitioners reveals that the original allottee was in physical possession of the suit land and delivered the possession to the petitioners under the sale-deed. Petitioners also claimed possession over the suit land in their written statement. Analysis of the evidence led by the parties indicates that the petitioners are in physical possession of the suit land which they acquired after execution of sale-deed but their possession on the basis of sale-deed executed by Muhammad Sabir does not make them the owners of the property in view of the previous agreement to sell executed by him on 25.1.1973 in favour of respondents Nos. 7 to 9. The grantee did not sell the rights and interest in the property while executing aforesaid document but only promised to alienate the same in favour of the plaintiffs on acquiring the proprietary rights. This agreement does not itself create any 'charge on suit property. On the basis of agreement to sell a right to sue accrued, therefore, it is not hit by provisions of Section 19 of the said Act and in this connection reference may be made to Hakim All and another Vs. Ata Muhammad and others (1981 SCM R 993) wherein the August Supreme Court observed as under:- "As in the case before us a sale and an agreement to sell are involved and not any other mode of transfer of interest, it is necessary to. Enquire into the legal conceptual aspect of sale and a contract of sale. Section 54 of the Transfer of Property Act defines 'sale' as 'a transfer of ownership in exchange for a price paid or promised or part paid and part promised'. The same section defines contract of sale as a contract for the sale if immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not by itself create any interest in or charge on such property. In the light of the express words of Section 19 of the Act what we have to examine and ensure is whether the agreement entered into with the appellants had the effect of transferring or charging by sale any right interest vested in a tenant under the Act. The document does not as noted by the learned Judge in the High Court, recite the delivery of possession nor does it imply it. The delivery of possession of the property does not seem to be taken following this contract or a part of the agreement to sell. There was an express promise and reservation made in the deed and it was quite consistent with the rest of the recital therein that after the proprietary rights had been acquired in lieu of consideration adjusted in the manner indicted in the deed the proprietary rights shall transfer it. The sale itself and the performance of the agreement to sell was delayed to a time after the grantees had acquired proprietary rights and it did not in praesenti transfer or have the effect of charging or encumbering the rights or interest Of the tenants as such. In terms therefore it did not violate the express words of Section 19 of the Act nor was it put as a defence at a time when the tenancy rights were enjoyed by the grantees."
It was also laid down in the case of Rehmat Bibi referred by the learned counsel for The respondents that when the alleged agreement was entered into the proprietary rights had not been granted to the allottee. They were subsequently granted to his successors, Bar of Section 19 being against the alienation and not against the agreement, agreement could be enforced through specific performance after grant of proprietary rights. In Shamir's case also agreement to sell relating to such a land decree for specific performance to sell after acquiring proprietary rights on the basis of sale agreement executed prior thereto could not be deemed to be void under the law. Similarly in the case of Sher Muhammad Khan after considering all the relevant judgments it was held by the honourable Supreme Court that by no stretch of imagination agreement can be termed as a sale-deed although the full consideration was paid in respect of the suit lend and its possession delivered to respondent No. 1 therein. Still its contents do not give an inkling that the document Exp-3 is a sale-deed. In .The present case too it cannot be said that Ex.P-1 is not an agreement to sell, The agreement was duly executed by Sabir with respondents :Nos. 7 to 9, who was paid full consideration and it was agreed upon that the sale-deed shall be executed by him on grant of proprietary rights to him. He was bound. By the said agreement to execute the sale- deed in favour of respondents Nos. 7 to 9. Subsequent sale and delivery of possession to the petitioners could not be in made by him. He has supported the claim of respondents Nos. 7) to 9 by filing a consenting written statement. The property having already been agreed to sell through Exp-1 the allottee Could not execute sale-deed in favour of the petitioners. The aforesaid sale-deed Ex.P-4 is in-effective on the rights of respondents Nos. 7 to 9. They have already paid the entire price and were waiting for grant of proprietary rights to the original allottee for execution of sale- deed in their favour. The subsequent sale made in favour of the petitioners by him is in-operative against their rights. The aforesaid judgment of the Honourable Supreme Court clearly supports contention of the learned counsel for the respondents that the agreement Ex.P-1 is not violative of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, therefore, the judgments of the Courts below are not open to any exception. .44
7. r- Coming to the next contention of protection provided under Section 41 of the Transfer of Property Act and Section 27-A of the Specific Relief Act, the perusal of written statement tiled by the petitioners is relevant. The petitioners have not taken up this plea that they had no notice of the agreement Ex.P-1. Although it was not so pleaded in the written statement yet issue No. 4 was framed by the learned Trial Court, whether they are protected by law. The onus of this issue was on the defendants. In discharging the proof the petitioners examined Sultan DW-1 in addition to Mehr Bakhsh petitioner as DW-2. He had stated that he was ignorant of any previous agreement to sell about the suit land and there was no such a rumour in the area. Mehr Bakhsh stated that the allottee had not disclosed about any previous agreement to sell pertaining to the suit land. This much evidence is not sufficient to conclude that they had no previous notice of the agreement and suit property was purchased without notice. The principle 'mushtri hoshiarbash' was not adhered to by the petitioners while purchasing the suit land from the allottee. The allottee has not supported the petitioners while submitting the written' statement. He in fact has supported the claim of the plaintiff/respondents Nos. 7 to 9. Petitioners failed to prove through reliable evidence of not having previous knowledge or having taken necessary pre-cautions before paying the price of the land to the allottee. The concurrent findings of both the Courts below that the petitioners have failed to prove issue No. 4 do not suffer from any legal infirmity calling for interference.
8. For the reasons stated above, this petition has no force and is dismissed with no order as to costs.