P L D 1965 (W (PLP)

This second appeal is by the defendant Haji Noor Muhammad and arises out of a suit for declaration and injunction instituted by the plaintiff ‑respondent Ghulam Masih Gill in respect of 200 Kanals of land situated in Chak No. 322, Tehsil Fort Abbas. The plaintiff alleged that he was the owner in possession of the land and that the mutation of sale sanctioned by the Revenue Officer in respect of this land on the 13th of May 1959 in favour of the present appellant for a sum of Rs. 10,000 was incorrect and inoperative for the reason that he had never sold the land to Haji Noor Muhammad, nor had he received any consideration from him. The position taken up by the present appellant was that the plaintiff Ghulam Masih Gill was in need of money for paying Government instalments on land measuring seven squares which had been forfeited on account of non‑payment of these instalments but had been given back to the plaintiff on lease. The plaintiff approached the appellant and the latter agreed to purchase one square of land for a sum of Rs. 10,000 and paid this amount in cash to the respondent. In pursuance of this oral agreement of sale a mutation was entered and the statements of the parties were recorded by the Revenue Officer on the 31st of March 1957 and the mutation was sent to the Deputy Commis?sioner for sanctioning the sale under section 3 of the Alienation of Lands Act, but some how the papers disappeared and accordingly, a second mutation was entered with the permission of the Deputy Commissioner. In connection with the second mutation an inquiry was held by the Revenue Officer who sanctioned the mutation on the 13th of May 1959. The appellant asserted that possession of the land had been given to him in 1957 after the respondent had received the sale price and the land remained with him until the attestation of the second mutation in May 1959, but subsequently the plaintiff‑respondent forcibly dispossessed the appellant and the latter had filed a criminal case under section 447 of the Pakistan Penal Code in respect thereof.

2. The suit was tried by Malik Lehrasap Khan, Adminis?trative Civil Judge, Bahawalnagar, on the following issues:‑ (1) Whether the plaintiff, in fact, sold the land in dispute in favour of the defendant for consideration of Rs. 10,000 and transferred the possession? (2) In case issue No. 1 is proved, whether the disputed mutation No. 3 dated the 13th of May 1959 has been rightly sanctioned and is binding on the plaintiff?

3. After a detailed consideration of the evidence adduced by the parties both the Courts below have found the first issue in favour of the defendant‑appellant holding that it was proved that the defendant had paid Rs. 10,000 in cash to the plaintiff ?respondent as sale price of one square of land, and that the posses?sion was delivered to the appellant in pursuance of the sale and the land remained with him for sometime (for two years according to the trial Court and for one year according to the learned District Judge). But the Courts have further held that as section 54 of the Transfer of Property Act was applicable in the area of the former Bahawalpur State the oral sale was void and for this reason the plaintiff respondent was entitled to the decree prayed for by him. In the lower appellate Court it was urged on behalf of the present appellant that he should be allowed to amend his written statement so as to claim a refund on the sum of Rs. 10,000 which he had paid to the plaintiff‑respondent, but the learned District Judge did not allow this amendment, observing that the application for amendment had been made at a very late stage, that the proper remedy for the defendant was to bring a suit for the recovery of the sale price from the plaintiff respondent, otherwise Government will be deprived of the Court fee which the defendant will have to pay on such a suit for the recovery of Rs. 10,000; and finally, that the refund could have been granted to the defendant if he had been in possession and the plaintiff respondent had sued for possession and not for a mere declaration.

4. In the present appeal the first contention raised by Mian Muhammad Shafi, the learned counsel for the appellant, is that the Courts below have erred in holding that the transaction in dispute was governed by section 54 of the Transfer of Property Act. He contends that by virtue of the promulgation of the Central Laws (Statute Reform) Ordinance, 1960 (Central Ordinance XXI of 1960) hereinafter referred to as the Ordinance), on the 9th of June 1960, all laws operative in the area of the former Bahawalpur State and corresponding to the provisions of enactments mentioned in the Second Schedule to the Ordinance, stand repealed with retrospective effect from the 14th day of October 1955, and as by an amendment in the first section of the Transfer of Property Act as indicated in the Second Schedule to the Ordinance, the Transfer of Property Act had to be extended to various parts of West Pakistan by a notification in the official Gazette, which notification has not yet been made, the provisions of section 54 of the Transfer of Property Act, or for the matter of that any other sections of that Act, cannot be said to have been extended to any part of West Pakistan including the area of former Bahawalpur State. To put it differently, the argument of the learned counsel is that whereas under subsection (1) of section 4 of the Ordinance the previous Bahawalpur law applying section 54 of the Transfer of Property Act has disappeared with retrospective effect from the 14th of October 1955, its place has not been taken by the Transfer of Property Act in its entirety or any provisions thereof, and therefore the oral sale must be held to be valid.

5. In order to appreciate the contention put forward by Mian Muhammad Shafi it is necessary to reproduce the relevant provisions of the Ordinance. The preamble of the Ordinance states that: "Whereas the incorporation of certain former Provinces, according States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955, has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new province to which they had not extended before . . . and "Whereas it is expedient to remove from the Statute‑book certain Acts and Ordinances which have, become obsolete or have discharged their function . . . . .".

6. Sections 3 and 4 of the Ordinance are to the following effect: "Section 3.‑Amendments to effect adaptation of Central Acts and Ordinances necessitated by the establishment of West Pakistan. (1) Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October 1955. (2) Nothing in subsection (1) shall be deemed to extend, or ever to have had the effect of extending the operation of, any Central Act or Ordinance so extended or amended, to‑ (a) any Scheduled District to which, immediately before the fourteenth day of October 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter; or (b) any of the Special Areas to which, immediately before the fourteenth day of October, 1955, such Actor Ordinance did not extend, or is not otherwise extended or applied there?after; or (c) any Acceding State, not being an Acceding State incor?porated, on and from the fourteenth day of October, 1955, into the Province of West Pakistan, whose Instruments of Accession does not authorize, nor is deemed to authorize, the Federal Legislature to make for that estate such law as is contained in any such Act or Ordinance: nor shall the extention of any Central Act or Ordinance by this Ordinance be deemed to have or ever to have had the effect of retrospectively creating any offence, or of retros?pectively enhancing the punishment for any offence provided in any law for the time being in force." "Section 4.‑Repeal and re‑enactment of certain laws in force in certain Acceding States before their incorporation into West Pakistan‑ (1) Subject always to the provisions of subsection (2) of section 3 where the operation of any Central Act or Ordinance has been extended by an amendment indicated in the Second Schedule to any area which, before the fourteenth day of October, 1955, formed part of the territories of an Acceeding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re‑enacted by such Act or Ordinance, as amended by this Ordinance, as if such law were a Central Act, and the provisions of the General Clauses Act, 1897 (X of 1897), shall apply accordingly. (2) Notwithstanding the provisions of subsection (1), any?thing done, action taken, right accrued, or liability, penalty, forfeiture or 'punishment incurred, under any such law as aforesaid during the period commencing on 'the fourteenth day of October 1955, and ending with the commencement of this Ordinance, shall be deemed to have been validly done, taken, accrued, or incurred, as the case may be, and the Central Act or Ordinance by which such law is deemed to have been re‑enacted shall, to that extent, be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this ordinance."

7. It will be seen that subsection (1) of section 3 has the effect of extending to the whole of Pakistan, with effect from the 14th of October 1955, the Central Acts and Ordinances specified in the Second Schedule to the Ordinance as amended in the manner indicated in the fourth column to the Second Schedule. When we turn to the Second Schedule, we find that under the heading `The Transfer of Property Act (IV of 1882)', several amendments are mentioned out of which only the first amend?ment is relevant for our present purpose. It states: "(1) In section 1, for the third paragraph the following shall be substituted, namely: "But this Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of West Pakistan and the Capital of the Federation by the Provincial Government concerned" The effect of this amendment is clearly to postpone the extension of the Transfer of Property Act to the whole or any part of West Pakistan and the Capital of the Federation until such time as the Provincial Government chooses to notify the extension in the official Gazette. Such being the case, in spite of sub-section (1) of section 3 of the Ordinance, the Transfer of Property Act cannot be deemed to have been extended to the whole or any part of West Pakistan and the Capital of the Federation, as no notification has yet been issued by the Provincial Government in this behalf.

8. Now, turning to section 4 of the Ordinance, it is common ground between the parties that the Bahawalpur State does not fall within the ambit of subsection (2) of section 3 of the Ordinance, and therefore, the matter is governed by subsection (1) of section 4 of the Ordinance. This section comes into play 4 where the operation of any Central Act or ordinance has been extended by an amendment indicated in the Second Schedule to any area which before the 14th day of October 1955 formed part of the territories of an Acceding State. I have already observed that the effect of the amendment indicated in the Second Schedule to the Ordinance under the heading `The Transfer of Property Act' is that this Act has not yet been extended to the whole or any part of West Pakistan. Such being the case, the conse?quences of the extension of a Central Act or Ordinance, as mentioned in subsection (1) of section 4 of the Ordinance, do not ensue in the present case, i.e., the law corresponding to the Transfer of Property Act, previously operating in the Bahawalpur area, does not stand repealed. The contention of the learned counsel for the appellant that even though the Transfer of Property Act has not been extended to the former Bahawalpur area and yet the previous State law stands repealed is contradictory in terms and goes against the express provisions embodied in subsection (1) of section 4 of the Ordinance. It is clear to me that this provision of law was not intended to create a vacuum in the legislative field, and the previous State law would stand repealed only if any of the Central Acts or Ordinances mentioned in the Second Schedule is extended to the area concerned so as to take the place of the former State law. In the matter of section 54 of the Transfer of Property Act, as applied to the Bahawalpur State by a notification issued in 1931, such substitution has not yet taken place and, therefore, this provision of law as previously applied in the Bahawalpur area continues intact.

9. In support of the proposition canvassed by him, Mian Muhammad Shafi referred me to a Division Bench judgment of this Court in Mst. Shakila v. Muhammad Ramzan and others (P L D 1962 B J 42), in which the following observations appear at page 46 of the Report:‑ "While examining the validity of a previous law of Bahawalpur in relation to the laws enforced by the Ordinance, all that hasp to be seen is whether the former corresponds to the latter not in the sense of being identically the same or similar, but in the sense whether it occupies a field of legislation which is now occupied by the corresponding law extended and enforced by the Ordinance . . . The newly enacted laws or re‑enacted laws have by their own applicability and force under the Ordinance, repealed the laws which formerly occupied the field which they are now intended to fill. Each law in force in the former Bahawalpur State which may be found to be holding the field in its own sphere of legislative operation will now have to give place to the analogous law enacted and enforced by the Ordinance."

10. I am in respectful agreement with the observations made by their Lordships in the case relied upon by Mian Muhammad Shafi, but the observations are of no assistance to the appellant, for, the reason that their Lordships are clearly referring to the provisions of subsection (1) of section 4 of the Ordinance and all that they have laid down is that the former laws of the Bahawalpur State will have to give place to the analogous laws extended and enforced by the Ordinance. They do not purport to lay down that the former laws will stand repealed even if the Central Acts and Ordinances mentioned in the Second Schedule to the Ordinance have not yet been extended and enforced in the area concerned. I venture to think, therefore, that the statement made by their Lordships in paragraph 5 of their judgment under reference to the effect that "we consider that the Ordinance affects the whole sale repeal of such laws in Bahawalpur in the legislative field covered by the corresponding enactments and Ordinances enforced by the Ordinance" has to be read subject to the assumption that the Central Acts and Ordinances in question have, in fact been extended in the pursuance of subsection (1) of section 3 of the Ordinance read with the amendments mentioned in the Second Schedule to the Ordinance.

11. It was suggested by Mr. S. M. Rashid, the learned counsel for the respondent, that as Ordinance XXI of 1960 was not a validating Ordinance but merely intended to unify the laws in West Pakistan, it would not have been the intention of this Ordinance to repeal and re‑enact the laws of the former Bahawalpur State even though those laws were none other than the provisions of the Central Acts and Ordinances mentioned in the Second Schedule to the Ordinance. He submitted that as the former law which we are considering in the present case is section 54 of the Transfer of Property Act, it should be deemed to have continued in force as it was not a corresponding law, but a part of the Transfer of Property Act itself. I agree with the learned counsel that the intention of Ordinance XXI of 1960 could not have been to repeal and re‑enact the Central Acts and Ordinances which were already in force in the former Acceding States, (except, those specifically mentioned in the First Schedule), as the object of the Ordinance merely was to ensure uniformity of laws in the various integrating units of West Pakistan and if, therefore, a Central Act or Ordinance is already in force in any of the Acceding States, there would be no sense in repealing and re‑enacting the same. This intention becomes amply clear with reference to the words used in subsection (1) of section 4 of the Ordinance, namely. "Any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed." If therefore, we find that what was applied in the year 1931 in the Bahawalpur State was section 54 of the Transfer of Property Act in its entirety then the question of its repeal under subsection (1) of section 4 of the Ordinance would not arise and the section would continue intact as a part of the new legislative arrangement; but a reference to the notification issued on the 8th of May 1931 by the former Bahawalpur Government shows that only a part of section 54 was promulgated in the State, namely, to the effect that "the sale of immovable property valued at more than Rs. 100 shall be by a registered instrument". Now, this provision is only a part of section 54 of the Transfer of Property Act. For this reason, I am of the view that the law promulgated in the Bahawalpur State by means of the notification of the 8th of May 1931 extending a part of section 54 of the Transfer of Property Act has to be treated as only a corresponding law, and will accordingly be governed by the provisions of subsection (1) of section 4 of the Ordinance subject to the observations I have already made on the question whether the Transfer of Property Act is to be regarded as having been extended to the whole or any part of West Pakistan or not in terms of the amendment mentioned in the Second Schedule to the Ordinance.

12. Even if it be assumed, for the sake of argument, that the Transfer of Property Act stands extended to the former Bahawalpur State under the general provisions embodied in sub?section (1) of section 3 of the Ordinance, notwithstanding the amendment mentioned in the Second Schedule to the Ordinance, then the matter is governed by subsection (2) of section 4 of the Ordinance. This subsection has already been reproduced in an earlier part of this judgment and it will be seen that it is intended to cover the period intervening between the 14th day of October 1955 and the date of promulgation of Ordinance XXI of 1960, i.e., the 9th of June 1960, by saving the operation of the previous law during that period. It was somewhat vaguely argued by Mian Muhammad Shafi that subsection (2) does not have the effect of saving the operation of the previous law during the intervening period, but I confess that I was not able to follow the reasoning behind this argument, and I find it difficult to reduce on paper as to what exactly the learned counsel intended to convey. It is clear to me that the only object underlying subsection (2) of section 4 is that in case subsection (1) of that section applies, the transactions, which have taken place during the intervening period mentioned in this subsection shall continue to be governed by the previous State law. In the present case that law is section 54 of the Transfer of Property Act as applied to Bahawalpur in the year 1931.

13. For the foregoing reasons, I do not see any substance in the first contention put forward on behalf of the appellant, and agreeing with the two Courts below. I have no hesitation in holding that the oral sale of the disputed land in favour of the appellant in contravention of the terms of section 54 of the Transfer of Property Act, as adopted in the Bahawalpur State, is void.

14. The next contention raised by Mian Muhammad Shafi is that if it is held that the former Bahawalpur laws are still in force owing to the non‑extension of the Transfer of Property Act, then the appellant was entitled to the benefit of section 53‑A of the Transfer of Property Act which had been extended to the Bahawalpur State by a Gazette Notification dated the 14th of December 1939 issued by the former Bahawalpur Government. One has, however, only to pursue section 53‑A of the Transfer of Property Act to see that the case of the appellant is no covered by this provision of law. The first essential requiremen mentioned in the section is "where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with certainty". In the present case, there is no writing at all signed by the transferred or on his behalf. The second requirement mentioned in the section is that "the transferee has in part‑performance of the contract taken possession of the property or any part thereof, o c the transferee being already in possession, continues in possession in part‑performance of the contract and has done some act in furtherance of the contract". In the present case, although the defendant‑appellant did come into possession of the disputed property for some time, yet at the time of the institution of the suit the appellant was admittedly out of possession. Such being the case even the second requirement laid down in the section is not fulfilled. For these reasons, section 53‑A is clearly not attracted to the case. If any authority were needed, one court refer to a recent judgment of this Court in Sohna v. Allah Dad and another (P L D 1962 B J 17), in which the case law on the subject was examined by Bashir Ahmad, J., who delivered the judgment of the Court, and it was held that in the absence of a writing to evidence the contract the benefit of section 53‑A has to be denied. The second contention, therefore, also fails.

15. It was next contended by the learned counsel for the appellant that the plaintiff‑respondent in this case has not come to Court with clean hands and the relief of injunction must, therefore, be refused to him in accordance with clause (j) of section 56 of the Specific Relief Act, which enjoins that an injunction cannot be granted when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court. It is submitted by Mian Muhammad Shafi that it is the concurrent finding of the two Courts below that the plaintiff ?respondent had received a sum of Rs. 10,000 from the present appellant as sale price of the land, but in the plaint a false statement was made, and this falsehood was sought to be supported at the trial, to the effect that the plaintiff had never sold the land in dispute to the appellant and that he had not received any consideration therefore. The learned counsel has further pointed out that section 54 of the Transfer of Property Act was not invoked in the plaint but at a considerably late stage in the trial. He has submitted that the conduct of the plaintiff‑respondent is clearly such as to disentitle him to any assistance of the Court by way of injunction and even declaration which is also a matter of discretion under section 42 of the Specific Relief Act. In support of his contention, Mian Muhammad Shafi, has placed reliance on Seeni Chettiar v. Santhanathan Chettiar and others (A I R 1920 Mad. 58) and Basheshar Nath and others v. Municipal Committee, Moga (A I R 1940 Lah. 69).

16. On behalf of the plaintiff‑respondent it is submitted that the concurrent finding of fact by the two Courts below on the question of sale and the receipt of sale price by the plaintiff?respondent is open to question for the reason that both the Courts have failed to consider the effect of the omission of the present appellant to produce in evidence the Patwari and the Revenue Officer who dealt with the first mutation entered in the year 1957, as those officials alone could have proved the admission attributed to the respondent at that time that he had received the sale price of Rs. 10,000 and sold the land to the appellant. It is pointed out by Mr. Rashid that at the time of the second imitation attested on the 13th of May 1959, the respondent had denied the sale and the receipt of the sale price. The learned counsel for the respondent has further criticised the oral evidence which has been accepted by the Courts below on behalf of the present appellant. I do not see any force in the criticism put forward by the learned counsel for the respondent against the finding of fact arrived at by the two Courts below. In the first place, a finding of fact cannot be disturbed in second appeal unless it is shown that the finding is vitiated by misreading of evidence or ignoring of material evidence or consideration of in admissible evidence, but no such circumstance appears in the present case. The mere fact that the defendant‑appellant omitted to produce the Patwari and the Revenue Officer who had dealt with the first mutation does not mean that the appellant's case could not have been proved on the basis of the evidence which he did produce at the trial. The denial of the respondent at the time of the attestation of the second mutation also cannot be regarded as conclusive on the point that the sale never took place or that no money was paid to the respondent. The learned District Judge has reviewed the evidence of the parties at con?siderable length and I find myself in agreement with him when he says that there are strong circumstances which prove the appellant's case, namely, (a) that the respondent was in need of at least Rs.6,000 to pay to the Government in order to avoid forfeiture of his lands which had occurred to the non‑payment of installments due on those lands, (b) that the possession of the land in dispute was handed over by the respondent to the appellant for a period ranging between one to two years and there is no other explanation except that the possession was delivered under an agreement of sale, (c) that it is significant that the Patanama Exh. D. 6 which the respondent had obtained from Government concerning his lands, was delivered by him to the appellant. The explanation given by the respondent namely, that he had given the patta to the appellant so that the appellant would take some action with regard to it with some revenue officials, has been rightly rejected, as no one would part with his title deed except for valuable consideration. There is no evidence on the record to show that the appellant was, in any manner, handling the land affairs of the respondent and, therefore, it cannot be said that the title deed was given over to the appellant in the course of any such routine duties entrusted to the appellant by the respondent; and (d) that a previous mutation was attested with regard to this very land. There is evidence that the mutation was sent to the Collector for sanctioning the sale under section 3 of the Alienation of Lands Act. Even though the Patwari and the Revenue Officer who dealt with the previous mutation have not been produced, it is clear that the mutation could not have been forwarded to the Collector for sanction if the respondent had not admitted the said and the receipt of the sale price. I consider, therefore, that no justification is made out for interfering with the concurrent findings of fact recorded by the trial Court and the lower appellate Court in favour of the present appellant and against the respondent. On this view of the matter, it is established on the record that the plaintiff‑respondent has come to Court with unclean hands by setting up a false case to the effect that he never sold the land and that he never received the sale price from the defendant‑appellant.

17. The principle laid down in the two cases relied upon by Mian Muhammad Shall is that "section 56(j) rests on the maxim that he who seeks equity must do equity and implies that plaintiff seeking an injunction must come with clean hands. A plaintiff, who asks for an injunction, must be able to satisfy the Court that his own acts and dealings with the matter have been fair and honest and free from any taint of fraud or illegality, and that if. in his dealings with the person against whom he seeks relief or with third parties, he has acted in an unfair or inequitable manner he cannot have relief".

18. In the Madras case the learned Judges also considered the question whether the declaration should also be refused and the following concluding observations in the judgment delivered by Collins, C. J., with which Davies, J., concurred, are directly relevant here:‑ "In these circumstances, the plaintiff's conduct seems to be unfair and inequitable within the meaning of the authorities on the point. Whilst refusing an injunction on the above ground, it would not be a sound exercise of the discretion, vested in the Court under section 42 of the Specific Relief Act, to grant the plaintiff the other relief claimed, namely, declaration of his title to the trees." As a result the plaintiff's suit was dismissed.

19. It seems to that the principle of equity enunciated in the two cases cited by Mian Muhammad Shall, the learned counsel for the appellant, applies with full force in the present case on the finding that the plaintiff‑respondent set up a false case at the trial by denying the sale and the receipt of sale price. He is, therefore, not entitled to the assistance of the Court by way of injunction, of section 56 of the Specific Relief and his case is hit by clause (j) of section 56 of the Specific Relief Act. I also consider, following the Madras view, that the plaintiff is not even entitled to the discretionary relief under section 42 of the Specific Relief Act by way of a formal declaration that the sale in dispute is void. The plaintiff respondent's suit, there?fore, merits dismissal in its entirety on the grounds just given.

20. The last point urged by Mr. Muhammad Shafi is that in case any relief is given to the plaintiff‑respondent, it should be on the condition that he refund to the appellant sale price of Rs. 10,000 plus 6% interest thereon, in accordance with the principle embodied in section 65 of the Contract Act. In view of my finding that the plaintiff‑respondent', suit merits dismissal on grounds of equity I do not think it necessary to decide the question regarding the application of section 65 of the Contract Act in this case. Apart from the question whether section 65 of the Contract Act would apply or not in a case of this kind where the contract of sale was void from the very beginning, the questions of limitation as well as of the extent of benefit derived by the parties to the sale would require to be determined on the basis of fresh evidence for the reason that the appellant had remained in possession of the disputed property for a period ranging between one to two years. There are questions which can, in my judgment, be more appropriately determined in a separate suit, and it is for the appellant to adopt that course, if so advised. In this view of the matter I am fortified by the dictum in Kalka Singh and another v. Badri Singh and another (A I R 1947 Oudh 33).

21. As a result of the foregoing discussion, I accept the present appeal, set aside the judgment and decree of the Courts below and dismiss the plaintiff‑respondent's suit with, costs throughout. K. B. A.?????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.