2012 PLP 947 (SCMR)

KHILJI ARIF HUSSAIN, J.

These appeals, with leave of the Court, are directed against the judgment dated 30-6-1999 passed by the Lahore High Court, Multan Bench Multan whereby revision petitions filed by the respondents were allowed, the impugned judgments and decrees of the Additional District Judge were set aside and the judgments and decrees of the trial Court were maintained.

2. Brief facts to decide the appeals are that one Ghulam Rabbani (hereinafter referred to as original allottee) was allotted two lots of 100-Kanals each in Chak No. 139/WB, Tehsil Mailsi, under the Islamabad Oustees Scheme; that he entered into two separate registered agreement to sell with the respondents Muhammad Ramzan (in Civil Appeal No.1146 of 2002) and Sardar Muhammad (in Civil Appeal No.1147 of 2002), (hereinafter referred to as respondent) for a consideration of Rs.20,000 in each case and delivered possession of the disputed land of both the lots to them; that it was covenanted that he will execute the sale deed after acquiring proprietary rights. On 21-5-1981 the successors-in-interest of the original allottee, acquired proprietary rights in both the lots and sold these on the same day to the appellants. On 26-11-1981, respondents Muhammad Ramzan and Sardar Muhammad filed two separate suits seeking specific performance of the agreements dated 24-4-1968. The suits were contested by the appellants and successor-in-interest of the original allottee. The successors-in-interest of the original allottee and the appellants filed their separate written statements. The appellants alleged that they are bona fide purchaser, without notice of earlier sale and that the sale even otherwise is violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as 'the Act'). After framing the necessary issues and recording the evidence as the parties wish to adduce, the suits filed by the respondent were decreed by Civil Judge, Mailsi vide judgment dated 30-11-1985. The subsequent purchaser/appellants filed appeal before Additional District Judge, Vehari, which was allowed vide judgment dated 29-5-1986 by holding that the agreement of sale dated 24-4-1968 was violative of provisions of section 19 of the Act. The said judgments and decrees were challenged before the Lahore High Court through revision petitions, which were allowed by the learned Single Judge in Chambers, as stated in the opening paragraph of this judgment. Hence, these appeals with leave of the Court.

3. We have heard the learned counsel for the parties and have gone through the impugned judgment of the High Court, the judgment of the trial Court, appellate Court as well as the material available on record.

4. Learned counsel for the appellants after taking us through the various documents available on record vehemently argued that Exh.P/1, agreement for the purpose of which suit for specific performance was filed in fact was a complete "sale" and as such hit by section 19 of the Act. The learned counsel further contended that from Exh.P/1, it appears that the respondent had paid the entire sale consideration, possession was handed over to them and as such for all practical purposes the Exh.P/1 is a "sale" and is not agreement of sale, therefore, High Court has committed error of law by setting aside the judgment passed by the appellate Court. To substantiate the contentions, learned counsel for the appellants relied upon the cases of Muhammad Azam v. Muhammad Iqbal and others, (PLD 1984 SC 95), Allah Rakha v. Mukhtar Ahmad Baig (1996 SCMR 1501), Chairman, District Evacuee Trust Committee, Rawalpindi v. Sharif Ahmad and others, (PLD 1991 SC 246) and Shah Nawaz L.Rs, v. Abdul Ghafoor and others, (2008 SCMR 352).

5. The learned counsel also contended that the appellants are bona fide purchasers; that without notice of earlier agreement of sale, purchased the property for a valuable consideration and as such the registered transaction in their favour is protected under section 27(b) of the Specific Relief Act, 1877.

6. On the other hand, learned counsel for the respondents while opposing the arguments advanced by the learned counsel for the appellants, contended that the agreement (Exh.P/1) is not a "sale" but is an agreement of sale by which original allottee agreed to transfer the land in question in favour of the respondent, after acquiring the title of the same upon payment of price to Government; that execution of the agreement (Exh.P/1) having concurrently been found to be proved, the High Court has rightly decreed the suit for specific performance; that the agreement itself provided that the sale-deed shall be executed after the original allottee had acquired the proprietary rights and as such the same is not violative of section 19 of the Act.

7. We have taken into consideration arguments advanced by the learned counsel for the parties and have scanned the available record.

8. To appreciate the respective contentions of the learned counsel for the parties, we would like to reproduce section 19 of the Act and the relevant clause of agreement (Exh.P/1), which read as under:-- 19 Transfers of rights to be void.

Except as provided in section 17, none of the right or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the (Executive District Officer (Revenue), or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy, any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector: Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."

9. In the case of Muhammad Sadiq v. Muhammad Ramzan and 8 others, (2002 SCMR 1821), by a three Members Bench, this Court held that sale of Government Land by the allottee with proprietary right would not take legal effect and operation of the same would remain suspended until title of the proprietary right is not acquired by the vendor.

10. This Court in the case of Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others, (1992 SCMR 1510) and Abdul Jabbar v. Abdullah, (2006 SCMR 1541), held that section 19 of the Act bar "sale" and not to an agreement of sale.

11. Section 54 of the Transfer of Property Act, 1882 defines the sale and the contract for the of sale of immovable property, that a "sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised and in case of tangible immovable property of the value of one hundred rupees and upwards, can be made only by a registered instrument, whereas the contract for the sale of immovable property is defined as that sale of such property shall take place in terms settled between the parties, but does not by itself create any interest in or charge on such property.

12. It is not disputed by the appellants that through agreement (Exh.P/1) title of the property in question was not transferred in favour of the respondent and that the possession was handed over to the respondents in part performance of agreement in terms of section 53-A of the Transfer of Property Act, 1882.

13. If the document (Exh.P/1) is read in the light of the definition coupled with the express words of section 19 of the Act, by no stretch of imagination, it can be termed as a sale deed. Its very recital started with the words and ended with this .

14. The parties in terms of the agreement had to perform their respective part of obligation i.e. Muhammad Ramzan has to pay full price of the land in question to the Government, after acquiring the ownership title to have executed registered sale deed in favour of the respondent. The respondents have to bear all charges for the performance of the agreement and the consequence of failure of either parties to perform their part of obligations was also provided, for this reason, we have no doubt in our mind that Exh.P/1 cannot be termed as a complete sale.

15. We have noted that the appellants conceded before the High Court that the agreement (Exh.P/1) was not violative of the section 19 of the Act, and in this view of the matter too, now at this stage, the appellants cannot question the validity of agreement on the ground being violative of section 19 of the Act.

16. Now coming to the question that the appellants are bona fide purchasers of the land in question, it appears that the respondents purchased the land in question on 22-4-1964 and the possession of the said land was handed over to them. The respondents in their evidence specifically stated that the original allottee was agreed to transfer the land in question in their favour in the year 1981 when he acquired ownership right. They stated that about 2-3 years back the appellants met with them when they were cultivating the land and enquired about the land under the Islamabad Oustees Scheme, to which they informed them that the land which they are cultivating is only the land under the Islamabad Oustees Scheme.

17. The appellants during the cross-examination admitted that before registration of the land in their favour they have met the respondents but have not enquired from them about agreement in their favour and that at that time, respondents were cultivating the land.

18. It is established from the record that the respondents were in possession of the land in question, cultivating the same, thus the appellants ought to have made an inquiry prior to purchasing the land in question, whether the same encumbrance in any manner and how the respondents are cultivating the land instead of the person from whom they are purchasing the same.

19. Specific performance can be ordered against every transferee from the promisor except a bona fide purchaser under section 27 of the Specific Relief Act. In the case of Daniels v. Davison, (1809) 10 RR 171), Baburam Beg and another v. Madhab Chandra Pally and others, (AIR 1914 Calcutta 333) and Magil Brahma v. Bholi Das (19 CLJ 352), it was held that possession is tantamount to notice of title of the party in possession and the purchaser ought to have enquire the nature and extent of interest, which burden has not been discharged by the appellants to protect the title as bona fide purchaser.

20. Having considered the matter from all angles in the light of material available on file, we are of the opinion that the learned High Court as well as the trial Court on the basis of evidence rightly come to the conclusion that in the given circumstances, the appellants are not entitled for the protection under section 27(b) of the Specific Relief Act and transaction was not barred by section 19 of the Act. The learned counsel for the appellants has not been able to point out any infirmity, factual or legal, warranting interference by this Court. In the facts and circumstances of the case, we do not find any substance in the listed appeals, which are dismissed with no order as to costs. S.A.K./A-16/SC Appeals dismissed.