1975 PLP 294 (SCMR)

(i) Whether in view of section 19 of the Sind Rural Credit and Land Transfer Act, XLIX of 1947, the decree, in question, could be execut ed only in respect of lands in excess of minimum area of 300 acres ; and (ii) Whither the second execution petition was barred by limitation. At the hearing of the appeal, M.r. Sharsfuddin Pirzada, wanted to raise another ground that in view of the bar contained in the Administration of Evacuee Property Ordinance XIV of 1949 and Act XII of 1956, the decree for specific performance passed by the Sub‑Judge on 21st December, 1949. was a nullity as the land in suit had already been treated as evacuee pro perty. This ground was neither raised in the written statement nor in the grounds of appeal before the High Court nor in the petition for leave to appeal. It was also not raised in the concise statement filed on behalf of the appellant. Mr. Pirzada, however, argued that as the question raised went to the jurisdiction of the Civil Court to pass any decree or order in respect of evacuee property, it was a fit case for allowing him to raise the ground even at this belated stage. The prayer made by Mr. Pirzada was refused as the decree was not a nullity (‑n its face. The order passed by Mr. Akbar Hussain, was challenged in the High Court as without lawful authority but the learned Judges, by order dated 11th May, 1966, upheld its legality. Moreover, this ground was not taken up by Mst. Hiran Bai in the objections filed by her in the execut ing Court. On the contrary, she had, all along, contended that she was a non‑evacuee and that the land owned by her was non‑evacuee property. It was, therefore, not open to her legal representatives to adopt a contradictory plea that the land and garden in suit were evacuee property. This disposes of the preliminary ground raised by the learned counsel for the appellant. The other two grounds raised in the petition for leave to appeal nave, likewise, no force. Section 19 of the Sind Rural Credit and Land Transfer Act, XLIX of 1947, provides as under "19. (1) Notwithstanding anything contatne6 in any‑ law for the time being in force, the provisions of this section shall have effect as respects alienations of land in execution of a decree or order of a civil or revenue Court, whether made ;before or after the commencement of this Act. (2) Where the holding of a landholder at the date of such decree or order does not exceed the minimum area, no part of his holding shall be sold in execution of such decree or order. (3) Where such holding exceeds the minimum area, so much of the hold ing as constitutes the minimum area shall not be sold in execution of such decree or order, (4) So much of the land as is not available for sale by virtue of subsections (2) and (3) may, in execution of such decree or order, be leased or farmed for a term not exceeding twenty year; or mortgaged in one of the forms permitted by or under section 8. (5) The execution of a decree in which a court has ordered the sale of any land shall be transferred to the Collector, and such transfer shall be deemed to have been made under the provisions of section 68 of the Code .of Civil Procedure, 1908. The provisions of the said Code and of the Rules made thereunder shall apply to such a decree as if it was transferred under section 68 of the said Code; Provided that the Collector shall not sell any land of the judgment debtor unless he is satisfied that the amount of the decree cannot be realised by mortgaging or leasing the land. (6) Nothing in this section shall affect the right of any government to recover arrears of land revenue or any dues which are recoverable as arrears of land revenue in any manner permitted by law. Minimum area as defined in section 2 of the Act means "an. area of three hundred acres." The contention that the second execution application filed by the res pondents was beyond time proceeded on the ground that the 1st application for execution made on 13th February, 1951, was not, in accordance with law, as it was made in violation of the provisions of sections 3, 4 and 19 of the Sind Rural Credit and Land Transfer Act, XLIX of 1947. Sections 3 and 4 have no application to the facts of this case because the sale in this case was to be made in pursuance of the decree passed by a Civil Court. Section 3 provides that where the holding of a landlord does not exceed the minimum area, he shall not make a permanent alienation of the whole or any part of his holding and where the holding of a landlord exceeds the minimum area, he shall not make a permanent alienation which has the effect of reducing his holding to an area less than the minimum area. Section 4 excludes from the application of section 3 a permanent alienation of land to which the Collector has given his sanction or a gift of land made in good faith for a religious purpose or for purposes of education or medical relief. Adverting to section 19 of the Sind Rural Credit and Land Transfer Act, XLIX of 1947, we find that it does not impose an absolute bar on permanent alienation of minimum area of land. On the contrary, if the Collector gives his consent, the land may be alienated permanently. Alter natively it may be leased or farmed for a term not exceeding twenty years or mortgaged in one of the forms prescribed under section

8. The assent of the Collector could be obtained in this case for sale of land to the respon dents. In the alternative, the Collector might have leased, farmed it out or mortgaged the land and garden to them for a period of twenty years. On this premises, the decree passed by the Sub‑Judge on 21st December, 1949, for sale of the land and garden owned by Mst. Hiran Bai to the respondents was perfectly legal and not in contravention of the provisions of the Sind Rural Credit and Land Transfer Act XLIX of 1947. The other ground that the decree for specific performance could not be executed in respect of lands below the minimum area of 300 acres was nega tived by the provisions of Martial Law Regulation No. 64 which had come into force before the Sub‑Judge gave directions to the official Receiver to execute the sale deed in favour of the respondents. Section 3 provided that the provisions of the Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document. The provisions of the Regulation thus prevailed over the corresponding pro, visions of the Sind Rural Credit and Land Transfer Act, XLIX of 1947. ". While the Sind Rural Credit and Land Transfer Act, XLIX of 1947, prohibited alienation of lands below the minimum area of 300 acres. the Regulation reduced the minimum area to 12 acres. Paragraph 25 of the Regulation which deals with alienation of economic holdings and sub sistence holdings provided as under :‑

"25‑(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding. Provided that such a person may alienate his entire holding. (2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding. Provided that such a person may alienate his entire holding. (3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of sub sistence holding. Provided that such a person may alienate his entire holding. (4) No person owning an area equal to or less than a subsistence hold ing shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding. Provided that he may alienate his entire holding. Economic holding is defined in paragraph 2 of the Regulation as sixty four acres of land in the Federal Capital and in Khairpur and Hyderabad Divisions, and two squares or two rectangles or fifty acres, whichever is more, elsewhere. Subsistence holding is defined as an area of sixteen acres of land in the Federal Capital and in Khairpur and Hyderabad Divisions, and half a square or half a rectangle or twelve and a half acres of land, whichever is more, elsewhere. The above provisions of paragraph 25 leave no room for the argument that Mst. Hiran Bai could not sell her entire holding of lands and garden after Martial Law Regulation 64 had come into force. Under rule 32, Order XXI of the Code of Civil Procedure, the Official Receiver is to act on her behalf as a vendor and execute the sale deed in favour of the respondents. In the same capacity, he will present it for registration and receive the sale price which will give discharge to the respondents. In the light of the provisions of Martial Law Regulation No. 64, set out above, section 19 of the Sind Rural Credit and Land Transfer Act, XLIX of 1947, was not a bar to the execution of the decree for specific performance of the contract for sale of lands and garden, in suit, to the respondents. Both the grounds raised in support of the appeal are thus without any substance. Mr. Pirzada desired us to observe that the sale price received by the Official Receiver from the respondents should be made payable to the appellant. No specific directions are necessary in this behalf as the appellant is, in law, entitled to receive the balance of the sale price as legal representa tive of Mst. Hiran Bai. The lands and garden were lawfully held to be non -evacuee property and on that ground the Settlement authorities can have no claim to the sale price. The appeal is dismissed leaving the parties to bear their own costs throughout. Appeal dismissed.