P L D 1954 Lahore 629 (PLP)

B. Z. KAIKAUS.‑This judgment will dispose of Regular Second Appeals Nos. 325 to 335 of 1952 which arise out of suits that had been consolidated. The facts that led up to the present litigation are the following. Ahmad Shah who is plaintiff No. 1 in all these suits owned land in some villages of Mianwali District. He is a Qureshi by caste which is a notified agricultural tribe in that District. In 1927 Ahmad Shah was declared an insolvent. On the 25th of December 1929 his lands were sold by the receiver to various persons. Some time after, it is not material when, Ahmad Shah was discharged. On the 23rd of August 1951 Ahmad Shah and Muhammad Yar filed 11 suits against persons who had purchased the lands of Ahmad Shah on the 25th of December 1929 for possession of the lands. The ground of the claim is that the sales were void on account of section 16 of the Punjab Alienation of Land Act and took effect as usufruc tuary mortgages for a period of twenty years so that they terminated on 25th December 1949. Muhammad Yar plaintiff No. 2 is alleged to be a transferee of one‑half of the lands from Ahmad Shah. The suits were dismissed by the trial Court and on appeal the decision of the trial Court was confirmed. These eleven appeals have been filed by the plaintiffs. The points in dispute, in so far as I am concerned with them now, are two. The first is whether the suits are barred by section 4 of the Provincial Insolvency Act or by the rule of res judicata. The second is whether the suits are within time. The lower Court: have given effect to both these pleas by the defendants, As regards the first plea it may be stated that there is no decision by the Insolvency Court holding the sales to be valid. The argument put forward is that the insolvent must make a claim with respect to the invalidity of the sales before the Insolvency Court and he cannot have recourse to the ordinary Courts at all. This argument receives support from a judgment of this Court in Ram Chand v. Ahmad Yar (A I R 1933 Lah. 65). The circumstances of the present case are similar to, though not identical with, the circumstances of that case. There too the land of an insolvent had been sold by the receiver and the insolvent had filed a suit claiming the land. The insolvency proceedings appear to have been pending for the Official Receiver was a defendant in the suit. Jai Lal, J. held that though there was no specific provision in the Insolvency Act barring the suit, the insolvent himself could seek no remedy beyond the Insolvency Court for recovery of any property that may have been illegally sold by the Court. The case had been heard ex parte and was not fully argued. With all respect I cannot agree to the proposition laid down in that case. The jurisdiction of the Civil Court can be excluded only either by an express provision or by a necessary impli cation, and no provision has been pointed out in the judgment which would imply an ouster of the jurisdiction of ordinary Civil Courts. What I regard as a strong argu ment in favour of the plaintiffs is that it is always open to a party to attack an order of a Court on the ground of want of jurisdiction. The plea taken in the present case, as in the reported case, is that the Insolvency Court had no jurisdiction to sell the land of an agriculturist on account of the provisions of section 16 of the Alienation of Land Act. A void order is a nullity. It has no existence in the eye of law. The plaint in the present case amounts to saying that the plaintiff is the owner and the defendants are trespassers as there is no sale in their favour at all. If the Insolvency Court had no jurisdiction to sell the property in dispute it cannot acquire jurisdiction by the failure of the insolvent to approach the Court. Even if the insolvent expressly agreed to the sale he could confer rid jurisdiction to sell on the Insolvency Court. Another objection to the proposition laid down in Ram Chand v. Ahmad Yar (supra) is that the Insolvency Court' may become functus officio after the discharge of the insol vent and to close the doors of ordinary Courts to the insolvent would in such a case leave him entirely without a remedy. In the present case the suit has been brought when the Insolvency Court is no longer in existence: I would, therefore, hold that the suits are not barred by the principle of res judicata. On the question of limitation, however, the position of the plaintiff is weak. These sales took place on the 25th of December 1929 and apparently the purchasers have been in possession. There is a finding of fact by the learned District Judge that the defendants have been in possession for more than 20 years and that finding has not been challenged before me. If the Insolvency Court had no jurisdiction to sell and the defendants are just trespassers, these suits are obviously time‑barred. The argument put forward on behalf of the plaintiff is not that the defendants have not been in possession but that the sales in their favour have taken effect as mortgages for a period of 20 years which expired in the end of 1949 and gave a starting point of limitation. I will quote here section 16 of the Alienation of Land Act as it stands at present:‑ "16. (1) No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any Civil Court, whether made before or after the enforce ment of this Act. (2) Notwithstanding anything contained in any other enactment for the time being in force no land belonging to a member of an agricultural tribe shall, in execution of any decree or order of any Civil or Revenue Court, whether made before or after the enactment of this subsection, be leased or farmed for a period exceeding 20 years or mort gaged except in one of the forms permitted by section 6, and, if the land is already under lease, farm or mortgage, the period of the base, farm or mortgage made by the Court shall not exceed the period, if any, remaining after the total period of the existing lease, farm or mortgage is deducted from the period of twenty years: Provided that the period of any lease, farm or mortgage, made by the owner, (a) subsequent to the institution of the proceedings which have led to the decree or order in execution of which the land is being alienated by the Court, or (b) within twelve months, previous to the institution of proceedings referred to in (a) above and proved to be of a fraudulent and collusive character shall not be so de ducted. 2‑A. Every lease, farm or mortgage made under sub section (2) shall be determinable at any time by the owner of the land by tendering to the Deputy Commissioner an amount which shall bear to the amount in consideration for which transfer has been made the same proportion as the unexpired period of transfer bears to the total period for which the transfer has been made. Explanation.‑Lease includes a temporary alienation of land in satisfaction of a money decree. 2‑B. The Deputy Commissioner shall give notice to the parties and after hearing then, and recording such evidence is nay be produced shall determine the amount to be tendered under subsection (2‑A) 2‑C. When the amount as determined has been deposited with the Deputy Commissioner he shall make an order that the lease, farm or mortgage be immediately determined; that the owner be put in possession as against the lessee, farmer or mortgagee; and that the amount In deposit be paid i o the person entitled. 2‑D. For the purpose of enforcing an order under sub section (2-C) the Deputy Commissioner may exercise all the powers of a Civil Court conferred m Order XXI, rules 97 acid 98 of the Code of Civil Procedure. 2‑E. A Civil Court shall not have jurisdiction in any Twitter of which the Deputy Commissioner is empowered to dispose under subsections 2 (A), 2 (B) 2 (C) and 2 (D) or take cognizance of the manner in which lie exercises a v power vested in him by these subsections. 2‑F. The order of the Deputy Commissioner shall be subject to appeal or revision in the manner and to the extent prescribed in sections 13‑B and 13‑C and the period of limitation shall be as laid down in section 13‑D. (3) Nothing in this section shay 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 now permitted by law." That the Insolvency Court could not have sold the land is established by Mirza v. Jhanda Ram (A I R 1930 Lah. 1034.). It is a Division Bench judgment and holds that section 16 of the Alienation of Land Act applies to sales in insolvency also. In fact the matter is quite clear from subsection (2) of section 60 of the Provincial Insolvency Act, according to which all provisions relating to execution of decree are to apply to the enforce ment of an order of adjudication. It is clear, therefore, that so far as the sale is concerned, it would be void. Learned counsel for the plaintiff relies, however, on subsection (2) of section 16 according to which although there is no power to sell, there is a power to lease the land for a period of 20 years or to mortgage it in one of the forms permitted by section

6. He contends that as the Court had power to make a temporary alienation for a period of twenty years, the sale should take effect to the extent to which the power of aliena tion existed. He relies on the general principle that whenever a person executes a transfer he passes whatever title he is capable of passing. If he transfers the rights of ownership but possesses a lesser right; the lesser right will stand transferred. The first objection to the argument put forward by learned counsel is that subsection (2) of section 16 on which he relies was not in existence in 1929 when the sales in question took place. The first paragraph of this subsection was introduced in 1931 on account of certain judgments of this Court accord ing to which although the land of an agriculturist could not be sold in execution of the decree it could be attached and leased for more than 20 years. I may refer to Lachhman Singh v. Mahant Ram Das (A I R 1929 Lah. 66.), Nasar Din v. Buta Mal (A I R 1930 Lah. 77.) and Wir, Bhan Jiwan Das v. Surain Singh (A I R 1930 Lah. 841.). Even in Mirza v Jhanda Ram (supra) it had been recognised that although the Court had no jurisdiction to sell the land, it could attach the land and make a temporary alienation. The position; before the amendment, therefore, was that although lane: of an agriculturist could not he sold, the Court was entitled to lease it for any number of years. Under the circumstances the plaintiff on his own argument is faced with a dilemma. If he says that the sales being invalid the defendants became trespassers, the suits are time‑barred. If, or the other hand, he takes up the position that all title that the Court could pass did pass, he would have no right to sue at all for possession for according to the law as it stood before the amendment, the Civil Court could have leased the land for a thousand years or more. There is no process of reasoning by which the plaintiff, while accepting that some title passed to the defendants, may establish that that title has now termi nated. He wants to set up a mortgage for 20 years under one of the forms permitted by section 6, but there is no method by which he can attain this result. The alienees are all agriculturists. Learned counsel relies upon section 14 also but that has obviously no application. That section applies only to a case where an alienation is in contravention of section 3 or section 3‑A. The alienations in favour of the defendants are not in contravention of sections 3 or 3‑A. The result is that either, I should hold the defendants to be trespassers in which case the suit is time‑barred, or (accepting the proposition put forward by the learned counsel for the plaintiff‑appellant that such title as could pass did pass) I should hold that everything short of ownership passed to the defendants in which case the plaintiff has no right to sue at all. Let me make it clear that I am not accepting tile proposi tion put forward that even in a case like the present all title short of ownership will pass. That proposition applies to voluntary sales by parties and not to a case where a Court or a public officer purports to exercise a particular authority vested in him for selling, leasing, or mortgaging the land of a litigant. If he makes a transfer without jurisdiction his act is a nullity and cannot give rise to any rights. No authority has been quoted before me for showing that the doctrine applies to sales by Courts or officers. As a result these appeals are dismissed with costs. Leave to appeal under the Letters Patent is granted. A. H. Appeals dismissed.