1989 PLP 3659 (MLD)

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19. Transfers of rights to be void. Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act 1893, or this Act, shall, without the consent in writing of the Commissioner, 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 obtained 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.' The agreement in question is embodied in deed Ex.P.1 Admittedly, at the time of entering into the said agreement, proprietary rights had not been conferred on Ahla and it was stipulated that he would execute the sale‑deed in favour of respondents Nos.1 and 2 when proprietary rights would be conferred on him. According to EXP.1, a sum of Rs.4,500 was paid by respondents Nos. 1 and 2 to him and they also agreed to deposit future instalments, payable to the province of the ‑Punjab, by Ahla. As regards possession of the disputed land, it was stated in the agreement deed that respondents Nos. 1 and 2 were already occupying the said land as tenants and that they would continue to be in possession thereof. Obviously, reference to respondents Nos. 1 and 2 as tenants was not correct because being himself a tenant, Ahla could not have tenants under him. Therefore, respondents Nos. 1 and 2 would be treated as sub‑tenants qua him. This view was shared by both the learned counsel who argued this matter before me.

3. Much capital was made by learned counsel for the f petitioner out of rcc4al in the agreement deed relating to possession. It was urged by him that right of possession was one of the rights of the tenants (allottee), referred to in section 19 of the said. Act, and since it was transferred by Ahla in favour of respondents Nos. 1 and 2, without seeking consent of the Collector, the agreement was void and illegal. In this connection, reliance was placed by him on Hakim Ali and another v. Atta Muhammad and others (1981 SCMR 993).

4. It was not disputed by learned counsel for respondents Nos. 1 and 2 that the right of possession is one of the rights of the tenant as‑envisaged by section 19 of the said Act. It was also conceded by him that 'if possession had been transferred under the agreement in question, the' agreement could not be entered into without the consent of the Collector. He, however, tried to get over the provisions of section 19 of the said Act by arguing that possession of the disputed land was with respondents Nos.1 and 2 before the execution of the agreement deed, as sub‑tenants under Ahla (allottee), and, therefore, recital in the agreement deed that they would continue to remain in possession thereof did not oblige them to secure permission of the Collector under section 19 of the said Act.

5. I am afraid respondents Nos. 1 and 2 can't get out of the teeth of section 19 of the said Act on the score of their previous occupation as sub‑tenants. A perusal of second part of section 19 would show that sub‑lease for a specific period could be made without the consent of the Collector but by allowing respondents Nos. 1 and 2 to continue to be in possession of the disputed land for all times to come, in pursuance of the agreement deed in question. Rulia, in fact, surrendered his right of possession in favour of respondents Nos. I and 2, for good. In this respect, therefore, respondents Nos. 1 and 2 stepped into the shoes, of Ahla. It was nothing but transfer of his right of possession by Ahla, which he could not do, under section 19 of the Act, without the consent of Collector. Admittedly, no such consent was obtained. Thus, the agreement in dispute appears to be violative of the provisions of section 19 of the said Act.

6. In the case of Hakim Ali and another, cited by learned counsel for the petitioner. Supreme Court did not take exception to an agreement, inter alia, for the reason that it was not accompanied by transfer of possession. Agreement in the present case being the converse of the one involved in the cited case is, therefore, open to exception.

7. For the above reasons, I hold that the agreement under challenge is in contravention of section 19 of the said Act and as such respondents Nos. 1 and are not entitled to its specific performance.

8. Issue No.9 was in regard to specific performance. Since it has been found that respondents Nos. 1 and 2 were not entitled to specific performance: findings of the learned lower Courts on issue No.9 will have to be reversed. As indicated earlier, it was held by them that the agreement deed could be specifically enforced.

9. As already pointed out, alternative relief claimed by respondents Nos. 1 and 2 was the refund of Rs.16,871,20‑Rs.4,500 alleged to have been paid by them to Ahla, the predecessor‑in‑interest of respondents Nos. 3 to 5, and Rs.8,371.20 to the Provincial Government, by way of instalments. Issue No.10 was framed by the learned trial Court in regard to refund of Rs.16,871.20, but no finding was recorded thereon by the learned lower Courts for the reason that they found the respondents entitled to the relief of specific performance of the agreement. Although it was denied by respondents Nos.3 to 5 that Rs.4,500 were paid to Rulia, their predecessor‑in‑interest, yet no separate issue was framed in this behalf. As against this, separate issue, i.e. issue No.12, was struck in respect of the alleged payment of instalments by respondents Nos. 1 and

2. Issue No.12 was found in favour of respondents Nos. 1 and 2 (plaintiffs) by both the learned lower Courts. None of the parties said anything against their finding on issue No.12. It is, therefore, affirmed.

10. As there was no issue with regard to the alleged payment of nor there is any finding of the learned lower Courts in this regard, I am reluctant t o record my finding m the matter, especially for the reason that one party or the other may come up with the plea that some evidence was not led by him on question relating to payment of Rs.4,500 due to the absence of a specific issue in this behalf. Learned counsel for the parties also did not raise any argument on the said question. In my opinion, therefore, justice demands that case should back to the learned trial Court for proper decision of the said question.

11. For the foregoing reasons, findings of the learned lower Courts on issue No.9 are reversed and that issue is decided against respondents Nos. 1 and 2 (plaintiffs). Findings of the learned lower Courts on remaining issues, other than issue No.10 are, however, affirmed because they were not taken exception to by any of the parties. As for issue No.10, a clear finding will have to be recorded thereon by the learned trial Court after framing an additional issue regarding payment of Rs.4,500 by respondents Nos. 1 and 2 to Rulia on the basis of the agreement in question and recording a finding on that additional issue in the light of the evidence of the parties.

12. In result, I set aside judgments and decrees passed by the learned lower Courts and remand the suit to the learned trial Court with the direction that shall frame the following additional issue and decide it before recording a Ilea finding on issue No.10 and then dispose of the suit afresh in the light of above observations and in accordance with law:‑ "Whether the plaintiffs paid Rs.4,500 to Rulia on the basis of the agreement in question:" Before recording finding on this additional issue, the learned trial Court shall allow the parties to produce such additional evidence thereon as they may like to adduce. The civil revision is decided accordingly, with no order as to costs.

13. Parties shall appear before the learned trial Court on 2nd April, 1989.

14. Before parting with this case, I would like to say that I was reluctant to remand the case because the parties have been litigating for years together but I could not help so doing for the reasons already given. However, with a view to ensuring early finali7ation of the matter, I direct that the learned trial Court shall re decide the suit within two months and if an appeal is preferred against its judgment and decree that shall also be decided within three months. Parties shall invite attention of the Courts concerned to these directions if at any stage they are oblivious thereof. If the matters are not decided within the given period, fortnightly reports shall be furnished stating reasons therefore. These reports shall be placed before me without any delay. M.Z.S./A‑627/L Case remanded.