' This regular second appeal is directed against the concurrent findings recorded by the trial Court vide judgment and decree, dated 12-3-1980 and that recorded by the Appellate Court vide judgment and decree, dated 21-10-1985 by virtue of which the suit for declaration and permanent injunction was decreed.
2. The facts are that Fazal Din and Muhammad Ibrahim the predecessors-in-interest of the respondents filed a suit for declaration that they are owners in possession of the land in question on the basis of a registered sale-deed dated 19-9-1946 which was purchased by them from Azam Khan deceased. According to the plaint the land in question measuring 200 Kanals situate in Khewat No,38 Square No,59 and Chak No,86-DB Tehsil and District Bahawalpur was owned by Azam Khan which was granted to him under Abadkari Scheme. Azam Khan had paid the total sale price by way of the instalments and thereafter sold the said land in favour of Fazal Din and Muhammad, Ibrahim through a registered sale-deed, dated 19-9-1946. According to plaintiff they were put in possession and continued to enjoy the possessions thereof. However, the registered sale-deed was not given effect in the Revenue Record with the result that Azam Khan continued to be shown in possession as Abadkar. Therein. It is further averred that taking benefit of these wrong entries in the Revenue Record, the said Azam Khan after taking permission under section 19 of the Colonization .Of Government Lands (Punjab) Act V of 1912 alienated the land in question in favour of Hakim, All (Original defendant) and a Sale Mutation No,43 dated 26-11-1952 was attested in his favour. As per the plaint, after Mutation No,43 in favour of Hakim Ali, Mutation of Exchange No,46 dated 10-5-1953 was made as a result of which the subject land reverted to the Government while Hakim Ali obtained certain other land in exchange. The land in question was then allotted to Lal Din and Noor Muhammad under the Abadkari Scheme. These allottees again obtained permission under section 19 of the Act V of 1912 and then made a sale of the subject land in favour of Habib Ullah and Ghulam Hussain and Mutation No,142, dated 2-2-1968 was made in their favour. The said Habib Ullah and Ghulam Hussain returned the land in question once again to the Government and in exchange got other land allotted to them vide Mutation of Exchange. No,152 dated 10-6-1968. The result was that the suit property once again reverted to the Government while Ghulam Hussain and Habib Ullah sold the land obtained in exchange of the subject land in favour of Ghulam Rasool petitioner (herein) vide Mutation No,153, dated 19-6-1968.
3. Despite the maze of the aforesaid transactions the case of the plaintiff is that since Azam Khan had made payment of whole of the sale price by way of the instalment to the Government, therefore, he had become full owner of the suit-land and the registered sale-deed. Dated 19-9- 1946 was competently made in favour of the plaintiffs. According to the plaintiffs the registered sale-deed would not suffer from lack of necessary permission under section 19 of the Act V of 1912.
After having divested himself of his rights, Azam Khan was not left with any right in the land in question to alienate it by sale all over again in favour of Hakim Ali. As the foundation was illegal, all other transactions based upon it, would be of no legal value.
4. The suit has been contested by Hakim Ali and his Legal Heirs. It was contended that the sale- deed in favour of the plaintiffs was "invalid as Azam Khan did not obtain prior permission under section 19 of the Act V of 1912. It was further contended that the sale mutation made in favour of Hakim Ali by Azam Khan, was valid as it was made after the necessary compliance with section 19 of Act V of 1912. The possession of the plaintiff was also denied. The legality of subsequent transactions was supported. The petitioner who is the last vendee vide Mutation No,153, dated 19-6- 1968 further claimed that he is in possession of the land which he purchased from Habib Ullah and Ghulam Hussain and he is the owner of the same. He claimed to be a bona fide purchaser of the land so purchased for the valuable consideration without notice.
5. The protracted course followed by this litigation need not be re-counted. Suffice it to say that after two successive remands by the Appellate Court the final list of issues which came to be decided by the learned trial Court is as follows:-- ISSUES
(1) Whether the plaintiffs are in possession of the suit-land? OPP.
(2) If not whether the form of the suit is correct and the valuation for the purpose of Court-fee and jurisdiction is correct? If the valuation is correct what should be the valuation of the suit.? OPD.
(3) Whether Azam sold the suit-land in favour of the plaintiffs on 19-9-1946? If so, whether Azam was competent to sell the suit-land without obtaining permission of the Collector and what is its effect? OPD.
(4) Whether the suit is'time-barred? OPD.
(5) Relief.
6. After remand of the case the following additional issues were framed by the learned Civil Judge, Bahawalpur:--
(1) Does the suit against defendant No,2 lie and the suit is had for misjoinder of parties? OPD.
(2) Is the order of the Collector under section 19 of the Colony Act final and cannot be challenged in Civil Court? OPD.
(3) Was the land in dispute allocated to defendants Nos.3 and 4 under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, if so, cannot the allocation be challenged in Civil Court? OPD.
(4) Relief.
7. After second remand of the case the following further issues were framed:--
(1) Whether defendant No,28 is a bona fide purchaser for value without consideration? OPD.
(2) Whether defendant No,28 made the suit-land agriculturable by an expenses of Rs,70,000? If so, with what effect?
8. After considering the evidence produced by the parties learned trial Court found that the suit was within time; that the Civil Court has the jurisdiction in the matter; that the same was not barred under section 36 Act V of 1912; that respondents Nos.1 to 14 have been in possession of the subject land since the date of purchase in 1946; that the suit is maintainable and properly valued for the purposes of Court-fee and jurisdiction; that the registered sale-deed dated 19-9-1946 was duly executed in favour of the plaintiffs and that Azam Khan had become the owner of the subject land after paying all instalments to the Government and was competent to execute the sale-deed in favour of the plaintiffs even without the permission under section 19 of Act V of 1912. It was further held that after the registered sale-deed dated 19-9-1946 Azam was not left with any right to conduct any sale in favour of Hakim Ali (respondents Nos.16 to 21 herein). All subsequent transactions including the sale in favour of Ghulam Rasool were also held to be null and void. The learned trial Court further found that the acquiring of land by Ghulam Rasool petitioner was not in good faith as he was not found to be a bona fide purchaser for valuable consideration without notice. According to the trial Court the appellant should have apprised himself of the chain of transaction preceding his purchase from Ghulam Hussain and Habib Ullah.
' Resultantly vide judgment and decree, dated 12-3-1980, the learned trial Court decreed the suit.
9. Feeling aggrieved of the said judgment and decree Ghulam Rasool appellant filed an appeal which was dismissed by the Additional District Judge, vide judgment and decree, dated 21-10-1985.
The learned Appellate Court reappraised the entire evidence and arrived at the following conclusions:-
(a) that Azam had paid the entire instalments of the subject land to the Government by 12-6-1946.
Thus, Azam had become the full owner of the land in question and was competent to alienate the same through sale without permission under section 19 of the Colonization of Government Lands (Punjab) Act V of 1912.
(b) that the registered sale-deed, dated 19-9-1946 was duly proved to have been executed by Azam in favour of Fazal Din and Ibrahim.
(c) that after the said sale-deed, the subsequent Mutation No,43 from Azam in favour of Hakim Ali and Mutation of Exchange No,46 by Hakim Ali and the Province of Punjab were void and conferred no valid right on the transferees.
(d) that all subsequent transactions based upon Mutation Nos.43 and 46 were also void and that the suit was within time.
(e) that the appellant Ghulam Rasool did not establish himself to be a bona fide purchaser without notice.
10. Sheikh Hakim Ali, Advocate, learned counsel for the appellant has contended that the sale- deed, dated 19-9-1946 allegedly executed in favour of Fazal Din and Muhammad Ibrahim was hit by section 19 of the Colonization of Government Lands (Punjab) Act V of 1912 inasmuch as no Patta Malkiat had been issued in favour of Azam vendor before he executed the sale-deed. According to him Patta Malkiat is the only document which could confer ownership rights upon the allottee of the Abadkari Scheme and that the payment of the total instalments even if proved on the record did not confer full ownership rights upon the said Azam. He next argued that the evidence on the record was not sufficient to prove the execution of sale-deed in favour of the plaintiffs. His further contention is that the suit was not filed within the period of limitation and was thus, liable to be dismissed as barred by time. Regarding the rights of the appellant Ghulam Rasool it was contended that he was a bona fide purchaser of land from Ghulam Hussain and Habib Ullah and that he could not be deprived of the land purchased by him on the basis of the sale-deed, dated 19-9-1946. He lastly contended that in any case the jurisdiction of the Civil Court was barred under section 36 of the Act V of 1912.
11. On the other hand, Malik Abdul Ghafoor, Advocate the learned counsel appearing for the respondents Nos.1 to 14 submitted that both the learned lower Courts have concurrently found, upon the correct appreciation of evidence that the registered sale-deed, dated 19-9-1946 was proved on the record and that this concurrent findings of fact is not open to challenge in second appeal. The learned counsel for the respondents placed reliance upon Ali Muhammad v. Mst. Rabia Bibi and 3 others PLD 1971 BJ 38, Faiz Ali v. Mst. Rabia Jan and two others PLD 1956 Lahore 94, Ilam Din v. Muhammad Din PLD 1964 SC 842 and Said Ali Shah v. Muhammad Shafi 1989 SCMR.
1594.
12. The learned counsel for the respondents further contended that the land in question has been in continuous possession of the respondents/plaintiffs, and therefore, suit for declaration and injunction was competent: He also submitted that despite erroneous entries in the record of rights, the cause of action would accrue to the respondents/plaintiffs upon the threatened invasion of their right of ownership and possession. As regards the status of the appellant, it was urged that the sale in his favour by Ghulam Hussain and Habib tlllah was not a transaction which could be isolated from chain of transactions originating from Mutation Nos.43 and 46 which was the illegal foundation for subsequent transactions. According to him if foundation be illegal all superstructure based upon it must also fall with it.
13. Arguments have been heard and record perused.
14. The objection raised against the proof of sale-deed dated 19-9-1946 cannot be sustained.
Extensive evidence was produced by the parties before the trial Court. The evidence of the respondents/plaintiffs comprised of Hidait Ali P.W.1, vendor, Azam P.W.2., Ali Muhammad P.W.3 Noor Hasan P.W.S and Rehmat Ali P. W.6. Further, Allah Ditta Lumberdar of the village was also produced who stated that he had identified Azam before the Registrar. The learned trial Court appreciated the statement of these witnesses and found that the sale-deed stood proved. While coming to this conclusion the trial Court did not find the evidence produced on behalf of the defendants to be sufficient to rebut the witnesses produced by the plaintiff. This finding of fact was upheld by the learned Appellate Court which again conducted reappraisement of evidence as the final Court of fact. In second appeal the findings of the Courts below on question of fact cannot be interfered with. This is particularly so when no misreading or non-reading of evidence has been indicated.
The next contention of the learned counsel for the appellant that the allottee who had acquired land from the Government under Colonization of Government Lands (Punjab) Act, 1912 could not alienate the same without permission under section 19 (ibid) is also devoid of force. It is proved on the record, and has been concurrently found so, that the original allottee namely Azam had paid the total instalments to the Government before executed sale-deed in favour of the plaintiffs/respondents. The fact of such payment was considered by a learned Division Bench of this Court in the case of Ali Muhammad v. Mst. Rabia Bibi and three others PLD 1971 B.J.
38. In that case the allottee of the Government land namely Ali Muhammad had paid all the instalments due in 1946 but no Patta Malkiat was made in his favour until his death in 1955. After his death all his legal heirs were found entitled to inherit him despite the fact that no Patta Malkiat had been issued. It was held therein that an allottee is to be deemed to be a tenant of the land in question until such time as the full amount of purchase money has been paid and the other conditions set forth in the statements of conditions have been fulfilled. In the case of Ilam Din v.
Muhammad Din PLD 1964 SC 842, it has been observed that the proprietary rights matured in favour of the purchaser when proper dues have been deposited. The rule laid down is:- "that in respect of the obligations to third parties, the title in the property matured in favour of the purchaser when transfer having been authorized, the proper dues had been deposited."
15. Applying this rule to the case in hand it is found established that Azam had paid the full amount of dues to the Government and had obviously fulfilled all other conditions of sale except the drawing up and registration of conveyance deed which was not a condition within his power to fulfil. There is nothing on the record if there was any substantial condition which Azam had failed to fulfil. In this view of the matter it is held that Azam, by dint of having paid all the dues to the Government had been vested with proprietary rights and was competent to transfer the land in question in favour of respondents/plaintiffs by means of a registered sale-deed executed in their favour. The contentions of the learned counsel for the appellant that he was a bona fide purchaser for value without notice and thus, stood protected is also not correct. When it is found that the sale-deed, dated 19-9-1946 was competently made by Azam it has to be held that the subsequent transfer of the subject land by Azam in favour of a third party shall be without legal authority.
Mutation No,43, dated 26-11-1952 in favour of the Hakim Ali, thus falls to the ground. All the subsequent transactions, of exchange or sale based upon this mutation shall also be a nullity. The lower Courts have correctly found that the Mutation No,153 dated 19-6-1968 in favour of the appellant was in line of the same chain of transactions which originated from Mutation No,43 dated 26-11-1952 and Mutation No,46 dated 10-5-1953. When foundation is without basis, the superstructure made upon it must also fall. Reliance is placed upon Yousaf Ali N. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104.
16. The upshot of the above discussion is that this regular second appeal is devoid of any merit and is hereby dismissed leaving the parties to bear their own costs.