' GUL MUHAMMAD KHAN, J.--- This judgment shall also dispose of R.F.A. 1 of 1974/BWP, which pertains to the same property.
2. Through this revision petition the petitioners challenge the judgment and decree dated 12th December 1973, passed by the Additional District Judge, Rahimyar khan by which the judgment of the trial Court decreeing a suit for possession of the disputed land with a perpetual injunction restraining the petitioners from interfering with the ownership rights and possession was maintained.
3. Briefly, the facts leading to this revision petition are that respondent No, 1 filed a suit for a declaration to the effect that she was owner in possession of 332 kanals 174- marlas of agricultural land as fully described in the plaint situate at village Azim Shah, Tehsil Khanpur, District Rahimyar khan and that the mutation of sale bearing No, 243 attested on 14th January 1963, was forged, fictitious, illegal and inoperative.
4. A piece of land situate in village Gullan Gul Kala owned by Muhammad Ibrahim petitioner No, 2 was gifted in favour of respondent No, 1 vide Mutation No, 346 dated 9th June 1950. This land was then exchanged with the land in dispute' in village Azim Shah on 26th March 1955. On 24th October 1958, respondent No, 1, three other wives of petitioner No, 2 and his mother executed a joint general power of attorney in favour of petitioner No, 2 authorizing him to inter alia manage the property on their behalf. That deed authorised the attorney to sell the property also. It was duly registered.
Armed with this power petitioner No, 2 managed the property for about 5 years before he sold the land in dispute to petitioner No, 1 (his son, then minor) for an ostensible amount of Rs, 83,500. The sale was not registered but witnessed by a Mutation No, 245 dated 14th January 1963. It was because of this mutation that respondent No, 1 filed a suit as referred to above.
5. That suit was decreed on 10th December 1973, and its detail follows in the next para. However, in order to show how the attached R. F. A. Arose, it may be noted that respondent No, 1 on 29th December 1973 sold the land decreed in her favour to Mirza Sher Ali Beg for a sum of Rs, 1,20,000.
Respondent No, 2 who was a co-sharer in estate on the basis of a registered gift-deed dated 27th April 1969, filed a suit for possession by way of preemption. The parties compromised on which a consent decree in the sum of Rs, 1,30,000 was passed. Petitioner No, 1 has challenged that decree in the regular first appeal.
6. The suit against Mutation No, 245 referred to in para. 4 above was contested by the petitioners on which the trial Court framed as many as 7 issues. Only Issues Nos. 1, 3, 5 and 6 have been challenged before us and the same are reproduced below for reference :-
(1) Whether the defendant No, 2 alienated the suit land in favour of the plaintiff only to save from the agricultural tax? If so, what is its effect?
(2) Whether the sale of suit land in favour of defendant No, 1 is bona fide and valid and with consideration?
(3) Whether the suit is maintainable in the present form?
(4) Whether the valuation of the suit for the purposes of jurisdiction and court-fee is correct?
7. The trial Court after considering the evidence produced by the parties found that the gift in favour of respondent No, 1 was complete and she had become the owner of the property. It also held that the sale in favour of the petitioner was void as, in view of the applicability of section 54 of the Transfer of Property Act, an oral sale did not confer any title. The suit was found maintainable and the court-fee correct. It was, therefore, decreed. The appellate Court confirmed the findings of the learned trial Judge and dismissed the appeal.
8. According to the record before us the following facts stand admitted and the learned counsel for the petitioners conceded the same before us also-
(a) a gift vide Mutation No, 346 dated 9th June 1950, was factually made in the name of respondent No, 1 by petitioner No, 2 (subject to objection that it was not intended to be so) ;
(b) respondent No, 1 had exchanged the gifted land with the land in dispute in village Azim Shah ;
(c) all the revenue demands (Dhal Bachh) were issued in the name of respondent No, 1 ;
(d) the power of attorney shows that the land in dispute belonged to respondent No, 1 ; (e)'petitioner No, 2 had been appointed a general attorney to do all those acts as given in the power of attorney on behalf of respondent No, 1.
9. The contention of the learned counsel for the petitioners, however, was that all the transactions of gift, exchange the power of attorney etc., were sham and it was never intended that any right in the land in question should Vest in respondent No,
1. According to the learned counsel petitioner No, 2 had adopted all those devices for the purpose of avoiding the levy and payment of agricultural income-tax which amounted to heavy figure previously. He also denied any effective possession having been given to respondent No, 1 or she having any authority to deal with the property. It was added that petitioner No, 2 throughout remained the owner of the property in dispute and reserved to himself the exclusive authority to deal with it.
10. The position taken on behalf of petitioner No, 2 adversely affects the position and claim of petitioner No,
1. If petitioner No, 2 always retained A for himself the ownership and possession, then no right even passed on to petitioner No,
1. A perusal of the record and the admitted facts as given above would belie the position taken by petitioner No,
2. It is to be noted that the acts done by petitioner No, 2 may be devices for achieving a particular objective but it is for us to see, not what was in his mind, but its effects as they can be spelt out from the documents and facts on record. If the intention of petitioner No, 2 was to avoid the payment of the income-tax then he achieved the object by transferring the land to a member of his family. The admissions as recorded above spell out conclusively nothing else but the fact that that gift was complete in 1950 and that respondent No, 1 remained the owner of the property. She managed the same through petitioner No, 2 and then sold it vide the sale-transaction mentioned in the attached regular first appeal. The transaction of gift was, therefore, final and could no have been questioned.
11. The learned counsel for the petitioners, however, relied on Jawala Das v. Pir Sant Das (1) the operative part of which reads as under :- .
If a statement is to be relied upon as an admission the whole statement must be taken, and in each of the cases to which the learned Judges refer it is clear that there was a definite assertion that Sainwal was a Gadi, and the person making the statement the Gadinashin, which is admitted to be the equivalent of Mahant. It may well have been that the building in which the Sainwal Gadi was originally established was a Khotta of Koh Kerana, and that the title of the Gadi had its origin in this. But if the burden of proving that Koh Kerana was the immediate founder of the Hardwar mutt is upon the respondents, as it admittedly is, their Lordships cannot think that it has been discharged by inference of this nature."
' The observations referred to above do not support the petitioners much. The entire statement taken as such rather goes a step further. The intention of petitioner No, 2 should certainly be taken as the one to save agricultural income-tax and effective and lawful means adopted therefor would be not to retain the property but to transfer or dispose it of. This Court would neither presume that petitioner No, 2 wanted to employ an illegal device to achieve his ends nor would it permit such a fraudulent act to be perpetuated or perpetrated through it.
12. In reply the learned counsel for the respondents submitted that if it be accepted for the sake of arguments that the intention of petitioner No, 2 was to keep the land in his ownership and at the same time deprive the exchequer of the necessary taxes then this Court shall not give its blessings to such a nefarious design. He further submitted that as it is well established that no person shall be assisted to benefit for his own wrong, the petitioner cannot be permitted to raise such a plea. A reference was also made to Broome's Legal Maxims, page 504, III Reprint 1975, that "no man shall set up his own inequity, as a defence, any more than as a cause of action". "The objection", said Lord Mansfield, "that contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant". The principle of public policy involved is that no Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. Similarly the Court will not assist in giving effect to a contract which is expressly or by implication forbidden by statute or public policy. Reference was also made to Allah Bakhsh v. Fazal Karim (2) to support his plea of estoppel that if the petitioner chose to gift his property and became an attorney to manage it on behalf of the donee, he shall be estopped from changing that position so far as the donee or the third parties are concerned. The principle noted above was approved by the Supreme Court in Muhammad Saeed v. The Province of West Pakistan (3) in the following terms :- "In these circumstances, it is clear that the petitioners in trying to undo the transactions of sale and to get back their property, were in fact attempting to take advantage of their own fraud. This conduct on their part would contravene the well-known principle embodied in the Legal Maxim : Wullus commodum capere potest de injuria sua propia' (Co. Litt. 148 (b)) (No man shall take advantage of his own wrong)."
13. The learned counsel then submitted that the petitioners specifically challenged the delivery of possession to the donee in their written statement but no issue was framed about the same. He relied on Muhammad Ismail v. Barkhurdar (1). It is, however to be seen that the onus for proving possession in this case was on the plaintiff-respondent. Any grievance, therefore, could be only hers. The petitioners are likely to gain if no issue had been framed. In this view of the matter they cannot raise this point in their support. Apart from what has been stated above, there is already a concurrent finding of fact, by the two Courts below, on this point. However, it is well established that in certain cases under the Muslim Law delivery of actual possession is not necessary. Reliance is placed on Ibrahim v. Wazir Begum (2).
(1) AIR 1930 P C 245
(2) PLD 1969 Quetta 18
(3) PLD 1964 SC 572
14. It was then submitted that the entries in the mutation do not carry with them a presumption of correctness and, therefore, any statement recorded thereon on behalf of the petitioners that the possession had been delivered should not be treated as correct. Reliance in this respect was placed on Muhammad v. Sardul (3). This plea also is of no use to the petitioners. The respondent did not specifically rely on the assertion being made. The entries in the mutation lose all their importance as soon as they are incorporated in the Jamabandi, the entries of which do attract the presumption being talked of. The fact that the possession had been delivered is not only supported by the Jamabandi but the transaction of exchange of that land conclusively shows that the respondent having become the owner of the gifted land had exercised her right to get the property exchanged. Acts of petitioner No, 2, therefore, do not derogate from her rights as and owner. See Farid v. Nur Bibi (4). She then admittedly managed the same through petitioner No, 2 as her attorney, who shall be estopped from challenging that capacity or the rights of respondent No, 1 thereunder.
15. In view of the above we have no doubt in our mind that the possession of the property originally gifted and the one taken in exchange remained with respondent No, 1 and that she exercised all her rights as an owner directly or through her attorney, petitioner No,
2. The gift was thus complete and she was the absolute owner of the disputed land.
16. Now we deal with Issue No,
3. Petitioner No, 2 had admitted that the sale in question being oral in nature, could not be operative and effective in view of the fact that section 54 of the Transfer of Property Act had been made applicable to the areas previously forming part of the former Bahawalpur State. He, therefore, took a sharp turn to assert that as petitioner No, I had taken the possession in pursuance to that sale, the respondent ought to have filed a suit for possession. As said above, E the pleas being taken here are mutually destructive of each other. If petitioner No, 2 still claims to be in possession as an owner then petitioner No, 1 shall be deemed to have no objection to it and he himself cannot be considered in possession. We have already thoroughly discussed the position of petitioner No, 2 that he was only an attorney and would continue to hold possession as an agent for and on behalf of respondent No, I, and not in his own capacity.
17. The learned counsel then sub1nitted that as petitioner No, 1 was being shown as the owner in possession of the disputed land in the Jamabandi Exhs. D/5 and D/6, the suit in question ought to have been filed for possession and the suit in the present form must fail. Even this plea is belied by the statement of D. W. 7 who deposed that he was paying Batai to petitioner No, 2 and held the land under him.
(1) PLD 1977 SC 144
(2) PLD 1967 Lah. 1087
(3) PLD 1965 Lah. 472
(4) PLD 1970 Lah, 512
18. The learned counsel for the respondent submitted that as the property in dispute was in possession of the tenants, the suit for a declaration and a consequential relief by way of permanent injunction was in order and could proceed as such without amending the plaint to ask for possession also. Reliance was placed on Raghunandan Prasad v. Ajodhya Singh (1), where it was held that when the liability of a cultivator to pay rent is admitted the relief, as to which one of the parties claiming the right to recover is entitled to such rent, may be claimed in a declaratory suit without infringing the provisions of section 42. In Gian Chand v. Bhagwan Singh (2) the plaintiff had sued for a declaration of ownership of a house occupied by a tenant on the basis of the will of the deceased owner. The defendant was not in possession of the house but was obstructing the plaintiff from realizing the rent. It was held that the suit for possession was not necessary as the possession will have to be taken from the tenant. A similar view was taken in Abdul Latif v.
Muhammad Latif (3). The learned counsel also cited Mian Bakhsh v. Alam Din (4) to support his proposition that in a case where the property was in possession of tenants prayer for possession alongwith a declaratory suit was not necessary.
19. In the alternative the learned counsel prayed for the amendment of the suit to include the prayer for possession and submitted that this had been done even in cases before the Supreme Court. Reliance was placed on Karam3t All v. Muhammad Yunas Haji (5) and Ahmad Din v.
Muhammad Shaft (6). In the first case the suit was allowed to be amended when it was before the Supreme Court. In the second case also it was held that the suit could not be dismissed for that reason and that Court may in such cases allow amendment by adding prayer for possession on payment of appropriate court-fee.
20. A perusal of the record particularly statement of D. W. 7 as well as the admission of the learned counsel would suffice to hold that the suit land was being cultivated by the tenants. The net result of any decree passed in favour of respondent No, 1 would be to bring about the change in the ownership column without interfering with the possession of the tenants. Tenants in possession of agricultural land or other urban properties have their safeguards against ejectment in other relevant laws and they can be ejected only it they become defaulters under those laws. Thus a Rent Controller exercises jurisdiction over urban properties other than agricultural lands while tenancies of agricultural lands are subject to the control of revenue Courts. Consequently an owner with a decree for possession against his rival claimant cannot be put in actual possession by ejecting a tenant. In the circumstances there seems to be no sense in filing a suit for possession when the civil Courts have no jurisdiction to eject a tenant from agricultural land. Respondent No, 1 thus could not be put in actual possession of the property and so she could get a declaration of her title and an injunction restraining the petitioner from interfering with her proprietary rights. We, therefore, agree with the learned counsel for the respondent that the suit as it had been filed was maintainable.
21. The last issue is about the valuation of the suit property. As we have found Issue No, 5 in favour of respondents, there is no necessity to go into this issue at all. The valuation for the purposes of court-fee and jurisdiction as it had been fixed is strictly in accordance with section 7 (iv) (c) of the Court Fees Act read with section 8 of the Suits Valuation Act. A reference may also be made to Muhammad Ashiq v. Okara Zamindara Cooperative Society Ltd. (1) where it was held that suits falling under section 7 (iv) (c) do not fall among the exceptions set out in section 8 of the Suits Valuation Act and the plaintiff himself values such a suit. In Muhammad Sharif v. Nathu (2) this Court opined that it is the allegation of the plaintiff that determines the nature of the relief claimed and in order to determine the amount of court-fee payable the nature of cause of action and the relief claimed in the plaint.
(1) AIR 1930 All. 869
(2) AIR 1932 Lah. 97
(3) PLD 1960 Lah. 982
(4) PLD 1950 Lah. 414
(5) PLD 1963 SC 193
(6) PLD 1971 SC 762
22. As regards the Regular First Appeal No, 1 of 1974/BWP, it was contended that as admittedly a sale made orally in favour of petitioner No, 1 was void and ineffective, petitioner No, 1 had no locus standi to file the appeal. It was also submitted that petitioner No, 1 was neither a party before the trial Court in the pre-emption proceedings nor could he be an appellant in this Court.
23. We have already held that respondent No, 1 became the absolute owner of the land in dispute in view of the gift made in her favour. The sale at her instance by the attorney in favour of petitioner No, 1 was void and ineffective. He, therefore, had no right to file the appeal.
For the reasons given above, it is held that the suit in the present form was maintainable and that it had been properly valued and stamped. There is a concurrent finding of fact that respondent No, 1 had become the absolute owner of the suit land in view of the gift-deed dated 9th June 1950, H and we find neither any illegality nor material irregularity in the proceedings before the Courts below or in the judgments passed by them. The revision petition and the Regular First appeal are, therefore, dismissed with costs throughout.
(I) PLD 1967 Lah. 75
(2) PLD 1965 Lah. 586