' Niaz Muhammad filed a suit for declaration against Abdur Razzaq etc. Respondents that he alongwith his brother was an allottee of Government land in equal share under the Grow More Food Scheme measuring 200 Kanals situate in Chak No,310-N.R. Tehsil Fortabbass. According to the plaint the plaintiff leased the said land in the year 197,0 to Suleman son of Abdul Ghafoor predecessor-in-interest of the respondents for the period of six years and delivered the possession.
The lease was on year to year basis and was to expire in "Kharif" 1976. The plaintiff later came to know that on the basis of order of the Collector, dated 24-8-1971 passed under section 19 of the Colonization of Government Land (Punjab) Act, 1912 Mutation No,70, dated 27-11-1971 was attested by virtue of which the rights of the plaintiff to the extent of his share were sold in favour of the predecessor of the defendants/respondents.
' The plaintiffs challenged order, dated 24-8-1971 and Mutation No, 70, dated 27-11-1971 to be in effective upon his rights.
2. The suit was contested by the defendants on legal and factual grounds. The defendants categorically stated that the plaintiff had infact transferred his rights in favour of the predecessor- in-interest of the defendants and that the suit was without merit. From the pleadings of the parties, following issues were framed:--- ISSUES
(1) Whether the plaint has been deficiently stamped? If so, what is correct valuation? OP Parties.
(2) Whether the plaintiff is estopped to file the present suit? OPD.
(3) Whether order of Collector, dated 24-8-1971 and thereafter Mutation No,70, dated 27-11-1971 is fictitious, collusive, void without consideration and ineffective over the rights of the plaintiff.
(4) Whether the plaintiff is entitled to recover the possession of the suit land from the defendant?
OPP
(5) Whether the defendant is entitled to get special costs under section 35 A of C.P.C.? OPD.
(6) Relief.
3. The learned trial Court initially decreed the suit on 26-5-1979. The Additional District Judge, accepted the appeal and remanded the case on 6-12-1984. After remand the suit of the plaintiff/petitioner was dismissed on 5-1-1988. His appeal was dismissed by Additional District Judge on 5-4-1989. The present civil revision is directed against concurrent findings passed by the learned trial Court and confirmed by appellate Court. The learned counsel for the petitioner did not seriously contest the concurrent finding of fact arrived at by the two Courts below. His main contentions in support of this civil revision are as follows:-- ' The first submission is that assuming the General Power of Attorney (Exh.D-1) executed by Niaz Muhammad plaintiff in favour of Abdul Razzaq son of Muhammad Suleman Khan was a validly registered document, as the sale made by the said attorney was in favour of his (the attorney's) father namely Muhammad Salernan Khan, the sale would be void ab initio without special permission of the principal that is the plaintiff himself. For this legal proposition the learned counsel relied upon the case of Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 to state that if the General Attorney purchases the property for his own benefit or if he alienates the principal's property in favour of his relation, he should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject. He also relied upon the case of Malik Riaz Ahmed and others v. Mian Inayatullah and others 1992 SCMR 1488 to canvass that an attorney was duty bound to have brought to the notice of the executants of power of attorney, the intended sale prior to the entering into the agreement to sell and to seek instructions in that behalf.
This is particularly so, according to the learned counsel for the petitioner, if the attorney has any personal gain in the transaction. The learned counsel further placed reliance on the case of Barkat. 'v. Muhammad Sadiq and others 1990 CLC 1532 to show that such a transaction by the attorney without informing the principal would be void ab initio.
' Second contention raised by the learned counsel for the petitioner is based upon the provisions of section 54 of Transfer of Property Act, 1882. The precise submission is that in view of the provisions of section 54 of the Transfer of Property Act no title shall pass to the vendee without the execution of a registered sale-deed and that Mutation No,70, dated 27-11-1971 would not create any title in the vendee of the mutation. For this proposition amongst others the learned counsel for the petitioner cited the case of Habib-ur-Rehman and another v. Mst. Wahadani and others PLD 1984 SC 424 to submit that an unregistered document cannot create title, if the same required registration under section 49 of the Registration Act, 1908. He further stated that if same payment is proved to have been made under such unregistered document the proposed vendee can only legitimately claim to have a charge on the property for the amount paid by them as purchase money for the property. Further relying upon the case of Mst. Akhtar Begum. v. Mian Aziz and others 1985 SCMR 1617, it was urged that the effect of application for section 54 of Transfer of Property Act, 1882 was that sale of land of value of more than Rs,100 would take place only by instrument in writing and registered in accordance with law and that sale not fulfilling requirement of section 54 could not confer a clear title as owner. In short the submission was that there could be no transfer of title by means of a mutation alone.
' The third contention of learned counsel for petitioner is based upon the offer that the plaintiff/petitioner as P.W.4 made to take special oath to the said vendee Muhammad Suleman. By this submission the learned counsel desired to infer a adverse presumption against the said Muhammad Suleman or his successors-in-interest. While pressing this objection the learned counsel relied upon Article 163 of the Qanun-eShahadat and the case of Muhammad Luqman v.
Bashir Ahmed PLD 1994 Karachi 492.
4. In reply Choudhary Abdul Sattar, Advocate, learned counsel for respondent, adverted to the contents of agreement to sell (Exh. D-2) in which what was proposed to transfer were the rights which were available to the plaintiff/petitioner under section 19 of the Colonization of Government Land (Punjab) Act, 1912. According to the learned counsel for the respondent, the rights or interest vested in a tenant shall not be transferred without the consent in writing of the Commissioner and that any such transfer without such consent in writing shall be void. According to the learned counsel for the respondent, the Government continues to be the owner of the property till full proprietary rights are settled on the allottee. In this context he submitted that transfers of rights such as are contemplated in the instant case are not full ownership rights, where section 54 of the Transfer of Property Act may be attract. He drew a comparison between the sections 19 and 30 of the Act of 1912 to show that rights under section 19 were limited and lesser than the rights mentioned in section 30 (ibid). In answer to the contention that general attorney before making a sale to his kith and kin must obtain the prior permission of the principal, the learned counsel for the respondent referred to the statements of witnesses such as D.W.1, D.W.2, D.W. 5 and D.W.6 to forcefully contend that according to the said witnesses Niaz Muhammad petitioner had himself appeared before the Tehsildar for the purpose of sale of his rights. D.W.1 and D.W.2 are the stamp vendors and the scribe of the agreement Exh.D-2 which was executed by the petitioner himself.
D.W.5 Talib Hussain is the real brother of the petitioner who is a co-share in equal share in the land in question who also confirmed the sale by the petitioner. D.W.6 is the Tehsildar Land Acquisition WAPDA, Bahawalpur who attested the Mutation No,70 and who deposed that the petitioner Niaz Muhammad himself appeared before him and who also appended his signatures.
5. After considering the respective arguments of the learned counsel for the parties and going through the oral as well as documentary evidence it is found that there is voluminous and consistent evidence to prove that the petitioner had transferred his right in the land in question in favour of respondents. This was stated by the petitioner's own witness P.W.1, Abdul Ghafoor Clerk D.C. Office Bahawalnagar as well as D.W.1 Stamp Vander who stated to have sold two stamp papers to the petitioner for agreement to sell and power of attorney. D.W.2 Muhammad Nasir Shah scribed Exh.D-1 and Exh. D.2 as per instructions of the petitioner. D.W.5 Talib Hussain is the real brother and co-sharer in the land in question who confirmed the sale by the petitioner of his share.
D.W.6, D.W.7 D.W.8 and D.W.9 have all consistently deposed about the safe by the petitioner.
Furthermore, the petitioner had himself applied to the Collector for obtaining NOC for the transfer of his rights under section 19 of the Colonization of Government Land (Punjab) Act of 1912 upon which the NOC Exh.P.2 was issued. In view of this overwhelming evidence it is idle for the learned counsel for the petitioner to contend that the attorney should have sought his permission when the petitioner himself had all along participated in and executed the agreement to sell and the disputed mutation himself. The contention has no force. The second contention based upon section 54 of the Transfer of Property Act is also baseless. Firstly, the transaction involving the sale of rights under section 19 are not hit by section 54 of the Transaction of Property Act as these rights are not full rights which are proposed to be transferred. Secondly the plaintiff/petitioner is not entitled to any discretionary relief as one who seeks equity must do equity himself. The conduct of the plaintiff/petitioner, as is depicted from his statement and also from the statements of his witnesses which show that his stance was most contradictory. The third contention of offering special oath to Muhammad Suleman is equally baseless. A perusal of the statement of the plaintiff as P.W.4 would show that while in the earlier part of his statement, he categorically denies to know the said Suleman, be proposed the offer of special oath in the later part of his statement. This conduct besides being contumacious also falls in short of the requirement of Article 163 of the Qanun-e-Shahadat Order, 1984, where the plaintiff is first ohlieed to make the statement on special oath himself and then to offer the special oath to the other party.
6. The upshot of the above discussion is that there is no merit in the contentions raised by the learned counsel for the petitioner. Even otherwise, the concurrent findings of fact arrived at by the two Courts below are a correct appreciation of the evidence recorded and no misreading or non- reading has been pointed out. This revision petition has no merit and is hereby dismissed. Parties to bear their own costs.