1. Land measuring 280 Kanals, 1 Marla situated in revenue estate of Chak No.133/16-L, Tehsil and District Khanewal belonged to Provincial Government and was allotted to one Malla as "Dakheel Kar" on 19-3-1945. Mst. Ferozi was transferee of 1/2 share of that land, but so far the proprietary rights have not been conferred on her. Respondent No.1 filed a suit for possession of 40 Kanals, 4- 1/2 Marlas against Mst. Ferozi claiming that she out of her total land measuring 146 Kanals, 1 Marla agreed to sell the plaintiff/respondent No. l on 14-12-1959 for a consideration of Rs.5,000 and out of the total consideration Rs.4,800 were received by her at the time of execution of sale agreement, the remaining amount of Rs.200 was agreed to be paid at the time of registration of sale-deed or attestation of mutation. It was also claimed in the suit that the possession of the land was handed over to him. The alleged agreement was registered on 23-2-1960. It was also claimed that Rs.200 were also received by the' appellant. Claim of plaintiff/respondent No. 1 was that he fulfilled all the terms of the contract, therefore, he was entitled for the possession of the land. The suit was contested by the appellant on the ground that the land was occupied by Rehmat A.I and Fazal Elahi as tenants; they failed to pay the share of produce on which ejectment petition was filed by the appellant. They were ordered to be ejected and during the execution proceedings respondent No. l Muhammad Aslam son of Fazal Elahi (one of the plaintiffs) filed a declatory suit and got declaration of 3-5-1961, but the same was dismissed on 30-5-1964. Meanwhile, respondent No. l in collusion with his father Fazal Elahi assumed the possession and resisted the execution of warrants, and litigated upto the level of Board of Revenue, but failed. The final order of M.B.R. Dated 10-7-1969 was against him. Finally he was ejected from the land. Thereafter, he filed the present suit for possession on 29-9-1969.
2. The suit was resisted by the present appellant and out of the pleadings, following issues were framed:--
(1) Has the plaintiff locus standi to sue? OPP.
(2) Has the suit been correctly valued for purposes, of court-fee and jurisdiction, if not what is the correct valuation? OPPs.
(3) Is the suit barred by time? OPD
(4) Whether the suit is incompetent in its present form? OPD.
(5) Whether the suit is bad in view of preliminary objection No.6? OPD.
(6) What is the effect of the dismissal of previous suit of the plaintiff on this suit? OPD.
(7) Whether the plaintiff is the owner of 1/2 share in the property in dispute? OPP.
(8) Relief. the suit vide its judgment, dated 25-9-1974.
3. It is necessary to point out that issues Nos.2, 5 and 6 were decided as having been conceded by the appellant/defendant. Issue No.1 regarding locus standi was decided in favour of plaintiff. Issues Nos.3 aid 4 regarding suit barred by limitation and whether the suit is incompetent in its present form were decided against the respondents: Issue No.7 was decided in favour of respondents/plaintiff and the suit was decreed with cost.
4. The appeal filed by the appellant was also dismissed by the learned Additional District Judge, Multan vide its judgment, dated 30-4-1977 and the finding of the learned trial Court was maintained on issue No.7 while issues Nos.3 and 4 were decided as having not been pressed.
5. Hence the present regular second appeal.
6. Learned counsel for the appellant contends that all the issues were pressed into service by the appellant before the learned lower appellate Court and specific ground was taken in memorandum of appeal as ground Nos.4 and 5 about the suit being incompetent in its present from and also barred by limitation and those were very important issues and have been wrongly stated in the judgment of the learned Lower Appellate Court that those have not been pressed.
7. Issue No.4 is very important and goes to the roots of the present case as the suit was only for possession of the land without seeking declaration regarding-title. The agreement of sale has been considered by both the Courts below as a document of title which is not proper and warranted under the law. The receipt of consideration has been specifically claimed. The respondents/plaintiffs should have filed a suit for specific performance. It has been further argued that admittedly the sale agreement was not registered in the presence of the appellant. She never appeared before the Tehsildar; the only three witnesses were Rehmat A.I, Barkat A.I and Muhammad Tufail, real brother, who were inimical towards the appellant as there was litigation pending against them.
8. On the other side, learned counsel for respondents/plaintiffs has argued that this is a concurrent findings of fact and the same should not be interfered with in the second appeal. There is no misreading or misappreciation of evidence.
9. Heard. Record perused.
10. The appellant had filed a suit for ejectment against Rehmat A.I and Fazal Elahi for non-payment of the rent. The AC-II ordered their ejectment on 10-3-1963. At the time of execution of warrant of ejectment, Muhammad Aslam, respondent No. l took over the possession of land claiming that he has purchased 40 Kanals of land from Mst. Ferozi and resisted the execution of the warrants. He filed a suit and got a stay order from the Civil Court. His suit was dismissed in default on 30-5-1964.
11. Thereafter, he filed an objection petition to the execution of the warrants and obtained the stay order. The Collector accepted the appeal of the respondents on 12-4-1969. The appellant then filed second appeal before the Additional Commissioner. The same was dismissed on 19-6-1969 by holding that Muhammad Aslam, respondent No. l is 'trespasser. The revision petition filed by him was also dismissed by the Member Board of Revenue vide order, dated 10-7-1969. After failing to resist the execution of ejectment petition, respondent No. l filed the present suit on 29-9-1969 for possession of 1/2 share of the land and as he had purchased the same from Mst. Ferozi, present appellant for a consideration of Rs.5,000. Out of which Rs.4,800 sale consideration was paid to her and he had executed a written sale-deed on 14-12-1959. The remaining amount of Rs.200 was to be paid at the time of registration of the sale-deed or attestation of the mutation. The possession was handed over to him and the sale agreement was registered on 23-2-1960. It was also claimed by them that she had received an amount of Rs.200 and in this way he had become full owner of the land after payment of the total consideration. The possession was illegally obtained from him. The same was claimed through this suit.
12. Issue No.3 was regarding the limitation while issue No.4 was regarding form of suit; both these issues were decided by the learned trial Court against the defendant/appellant. While the same finding was challenged by the appellant before the learned Lower Appellate Court, in grounds of appeal. In Lower Appellate Court decided both these issues as having not been pressed while upholding the finding of the learned trial Court on issue No.7. The learned counsel has challenged the findings on issues Nos.3 and 4 by arguing that both these issues were illegal and important; and has wrongly been stated by the leaned Lower Appellate Court as having not been pressed.
13. I have come to the conclusion that both these issues were legal and very material for the proper decision of the case. Regarding issue No.5, admittedly, the Government of Punjab is owner of the property in dispute and till now entries in the revenue record reflect the same position. The land belonging to the Government could not be transferred without necessary I permission under section 19-A of the Colonization of Government Lands Act, and any alienation in violation of that section is of no legal effect, therefore, the Province of the Punjab was the necessary party in the suit and in its absence, the suit was not maintainable. Furthermore, respondent No. l plaintiff claimed his title on the basis of agreement of sale. There is no sale-deed or mutation attested in his favour; mere on the basis of agreement of sale it cannot be presumed that he has become the owner of the property without seeking/filing a suit for specific performance and at least he should have sought declaration, but mere suit for possession on the basis of agreement of sale and the finding of the Courts below that he has become owner of the property in dispute by payment of consideration is patently illegal. It was a legal issue and the Court was duty bound to look into on its own whether the suit was competent or not.
14. Regarding issue No.7, the appellant has specifically denied the execution of agreement of sale and receipt of the consideration. Any agreement without consideration is void under the law. The onus to prove issue No.7 was on plaintiff/respondent No.1. The opinion of handwriting expert was also in negative which was obtained at the instance of respondent/plaintiff. No evidence to prove the passing of consideration has been broughton record. She had also denied her appearance before the Tehsildar. Findings of both the Courts below on issue No.7 are erroneous and based on misreading and misappreciation of evidence, therefore, findings of both the Courts below on issue No.7 are reversed.