2002 PLP 518 (MLD)

(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 bad 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 installments 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 installments 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, date 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 installments 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.thit 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. Rafia 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 continues 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 Ullah 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.5 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 re-appraisement 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 installments 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 installments 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 tights 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 v. 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. Q.M.H./M.A.K./G‑139/L Appeal dismissed.