P (PLP)

The exceptions to the application of this maxim are provided by cases where the illegal contract has not yet been executed and locus poenitentiae still exists, or where one party is the oppressor and the other oppressed. The general rule is that no one can set up his own fraud, but the maxim given above forms an exception to that general rule. No plea, it is true, was raised in the trial Court or in the grounds of appeal in this Court, based on this maxim but once the facts are established, it would be the duty of the Court to, stay its hand and refuse any relief to a party that comes to the fountain of justice with sullied hands. A transferee from such a person could not acquire a better right than his transferor possessed. Broom's Legal Maxims, p.

486. A. I. R. 1932 Lab. 503, A. I. R. 1949 Mad. 252 and A. I. R. 1933 Bom. 262 ref. (i) Adverse Possession‑‑Possession and dispossession? Act. 142 of Limitation Act applies. Plaintiffs clearly alleged possession and dispossession of the suit land in their plaint. The issue as framed in the trial Court also placed the onus of proving possession within twelve years of the institution of the suit on the plaintiffs. Clearly the pleadings attracted the application of Article 142 of the Limitation Act, and it was incumbent on the plaintiffs to prove that they were in possession of the property of which they wanted possession, within twelve years of the institution of the suit. That possession may have been actual or construc?tive in either case they would have succeeded. But, on the facts it is clear that right from the start, the appellant, Raja, had been in possession of the suit‑land in his own right and not on behalf of Khuda Bakhsh. or his successors‑in‑interest. For failure to prove this possession within the statutory period, the plaintiffs' suit merited dismissal. It does not matter that the appellants could not have, in the circumstances of this case, successfully raised the plea of an adverse title. Even if, for the sake of argument, it may be assumed that the initial possession by Raja was permissive and that Ex. D.2 evidences a license granted by Khuda Bakhsh to Raja, it was not a naked license but a license coupled with a grant which could not be revoked by the grantor arbitrarily, at his sweet will. Yakub Ali Khan and Zahir Abbas, for Appellants. B. Z. Kaikaus, for Respondent. S. A. RAHMAN, J.‑It is necessary to set out the following facts in order to appreciate the points involved in this first appeal. One Bhai Khan alias Khan Muhammad was occupancy tenant in two squares of land under Government on a horse breeding tenure in Colony district of Sargodha. He sold his tenancy rights sometime in 1925, presumably with the sanction of the relevant authorities under the Punjab Colonization of Government Lands Act, 1912, ostensibly in favour of Khuda Bakhsh, father of Nazar Muhammad, defendant in this case. It appears, however that Raja Khan,? defendant appellant, was one of the actual beneficiaries of this sale, and he provided half the consideration for the sale to the tune of Rs. 11,

000. His name was not mentioned in the sale deed because it was apprehended that Government may not approve of more than one transferee as the rule of primogeniture governs such tenancies. Right from the start, however, Raja Khan was given possession of one square out of the two by Khuda Bakhsh, and he enjoyed' its usufruct virtually as an occupancy tenant. On the death of Khuda Bakhsh, Nazar Muhammad, his son succeeded him and his name was recorded as occupancy tenant in the revenue records. In 1940, Government by a notification authorized occupancy tenants to acquire ownership rights on payment of certain premia. On the 19th March 1942, Nazar Muhammad paid Rs. 1,240 to Government and acquired proprietary rights in both squares. Raja Khan offered to pay him half, the share of the premium payable, but his offer was not accepted. Nazar Muhammad apparently did not want to stick to the arrangement between his own father and Raja Khan, and repudiated the rights of Raja Khan in a statement before some Revenue Officer. Consequently, on the 16th March 1939, Raja Khan institu?ted a declaratory suit against Nazar Muhammad, praying that he may be declared to be a co‑sharer in the two squares of land held by Nazar Muhammad and that he was in possession along with the defendant as occupancy tenant under the Government and not as a mere tenant‑at‑will under defendant. This suit was dismissed on the 8th of April 1940. Appeals taken against that decision to the District judge and to this Court also failed. The High Court decision is dated the 24th of March 1944. In the meantime, Nazar Muhammad sold away the square which was in Ike possession of Raja Khan, to Karam Ali, etc., the plaintiff's in this case, by registered deed dated the 28th of March 1942, for a consideration of Rs. 8.000. This sale had been preceded by a notice of ejectment issued through a Revenue Court at the instance of Nazar Muhammad to Raja Khan and the latter was unsuccessful in the suit which he brought to contest that notice. Execution of the ejectment order was sought through Revenue Officers, but it seems, Nazar Muhammad merely gave a receipt of delivery of possession to the Girdawar who went to execute the order, but no actual possession was taken by Nazar Muhammad. On the strength of the receipt passed by the latter, the execution was consigned to the record room as fully satisfied on the 27th of June 1942. The suit out of which the present appeal has arisen was lodged by the plaintiffs‑respondents on the 18th of June 1944. It was alleged in the plaint that Nazar Muhammad, who was the absolute owner of the land in suit, had sold it along with some other land in the plaintiffs, favour for consideration, that the defendants, Raja and his brothers, had been duly ejected by Nazar Muhammad before the sale and had delivered possession of the land to the plaintiffs but that some two months after the ejectment, in the beginning of August 1942, the defendants had again taken illegal posses?sion of the land, by force. Nazar Muhammad was impleaded as a pro forma defendant. The suit was resisted on behalf of Raja and his brothers on the ground that Raja was a co‑purchaser of the two squares with Khuda Bakhsh, father of Nazar Muhammad, and had been throughout in possession of one‑half share in his own right. It was denied that he was ever dispossessed. The contract of sale however, it was admitted, had been declared void by the Civil Court but it was pleaded that Raja had been in continuous adverse posses?sion for more than the statutory period of twelve years and therefore had acquired absolute title. Even the bona fides of the sale in favour of the plaintiffs were attacked. The trial Sub‑Judge framed the following issues :‑

(1) Is plaintiff not the owner of the land in dispute? (2) Did not plaintiff remain in possession of the land in dispute within twelve years before the institution of the suit? On issue No. (1) it was held that the plaintiffs were owners of the land in dispute by purchase from Nazar Muhammad, who was its legal owner. On issue No. (2), the finding was that the defendant's possession was never disturbed as alleged in the plaint in 1942, that he had all along been in posses?sion in his own right from the time of the sale in favour of Khuda Bakhsh but that as the plea of adverse posses?sion was not open to Raja against the Government, by virtue of the provisions of the Punjab Colonization of Government Lands Act, and the plaintiff's now stood in the shoes of Government after having acquired proprietary rights, the defendant's plea of adverse possession must fail. In consequence of these finding a decree for possession of the land in suit in favour of the‑plaintiff's and against the contesting defendants was passed, but the parties were left to bear their own‑costs. Raja and his brothers have appealed to this Court against that order. It is conceded by learned counsel for respondents that, as evi?denced by the document Ex. D.

2. Which is an agreement execut?ed by Khuda Bakhsh in favour of Raja Khan on the 9th of July 1926, Raja appellant had paid Rs. 11,000 out of the total considera?tion of Rs. 22,000 for the sale of two squares by Bhai Khan alias Khan Muhammad. He had entered into possession of one square from that very time. The document Ex. D. 2 further shows that Khuda Bakhsh acknowledged Raja Khan to be "owner" of half of the two squares of land and the mare. He added that if he refused to give him his share, he would pay him back half of the entire amount incurred in acquiring the two squares. The finding of the trial Court to the effect that Raja Khan was never dispossessed in 1942, as was alleged by the plaintiffs, appears to be unexceptionable on the basis of the evidence on record. The story that Raja Khan yielded up possession in execu?tion proceedings willingly and then forcibly retook possession, is intrinsically unconvincing. What seems to have happened is that Nazar Muhammad, apprehending trouble if he sought to execute the order of ejectment, contented himself by passing a receipt for the delivery of possession to the Girdawar when the latter ‑went to the spot, and got the execution proceedings filed. The statement of Muhammad Hayat (P. W. 3), Sahiba (P. W. 4), Akbar Ali (P. W. 5) and Muhammad Hussain (P. W. 6) to the effect that delivery of possession actually took place at the spot by ploughing, is not borne out by any documentary evidence. The witnesses made unimpressive statements and little credit can be attached to what they stated. Muhammad Hayat is the son‑in‑law of the plaintiff Karam Ali. Sahiba professed ignorance as to whether any writing about the delivery of possession to the plaintiffs was executed, while Akbar Ali and Muhammad Hussain do not even belong to the parties village. They had no reason to be present at the spot at the time of the alleged delivery of possession. On the contrary, the witnesses examined on behalf of the contesting defendants stated consistently that Raja had never been dispossessed. Having regard to the course of litigation between the parties, this accords with the? probabilities of the case. This being the factual position, it remains to be seen what legal consequences would follow. The first contention raised by Mr. Yaqub Ali Khan on behalf of the appellants is that the transaction, ostensibly in favour of Khuda Bakhsh alone but really for the bene?fit of Khuda Bakhsh and Raja, was not within the mischief of sec?tion 19 of the Punjab Colonization of Government Lands Act. This section declares void any transfer of interest by an occupancy tenant under Government, to another person, without the written sanction of the Commissioner or his nominee, except for a sub‑lease which may extend to seven years in respect of an occupancy tenancy. Admittedly there was no such sub‑lease in the present case. It was argued that the section did not come into play when' there was an agreement precedent to the transfer to share the pro?perty between the ostensible transferee and another. Such an agreement must undoubtedly have existed in the 'present case as the circumstances reveal. Reliance was placed in this connection on Hussain Khan v. Jahan Khan (58 P. R. 1913), Dalip Singh v. Jagat Singh (A. I. R. 1938 Lah. 721 D. B, Allah Ditta v. Jhandu (1949 P. L. D. 158) and the judgment .of Sharif J. in Regular Second Appeal 690 of 1945 decided on the 14th of April 1947. In the Punjab Record case plaintiff, jointly with defendant, applied in 1897, for a grant of land on the Jhang' Branch of the Chenab Canal, and it was agreed between them that if only one of them succeeded' in obtaining the grant, the other should be his co-?sharer in the tenancy, and that when on the expiry of the tenancy, the land was acquired in ownership by the grantee, one‑half of it should be transferred by sale to the other party. Defendant alone succeeded in obtaining a grant, and in 1908, acquired proprietary rights therein. On his refusal to sell half of the land to the plaintiff as agreed, the latter brought a suit for specific performance of the contract to sell. It was held that sec?tion 8 of the Government Tenants (Punjab) Act was no bar to the suit and the contract was not void under section 23 of the Contract Act, nor voidable under section 19 of that Act. It was added however, that the decision would not be binding on the Financial Commissioner. It may be pointed out that section 8 of the Govern?ment Tenants (Punjab) Act did not declare a transfer, effected without the consent of the Financial Commissioner, to be void: Indeed, section 8 did not provide any penalty for its contravention. Section 19 of Punjab Act V of 1912, on the contrary, expressly declares any transfer in contravention of that section to be void: The authority, therefore, is distinguishable from the facts of the present case. The other authorities cited, all pertain to cases where the parties acquired land from Government and not from a tenant or occupancy tenant under Government. Section 19, therefore; would not in terms be attracted to those cases. Whether the transaction in the present case be regarded as one of transfer by Bhai Khan, without consent of the relevant authority, in favoar of Raja Khan, or one by Khuda Bakhsh in the appellant's favour, in either case it 'Would be hit by section 19 and could not be upheld as legal. Indeed, the question hardly arises in the face of the clear decision of this Court in the previous litigation by the parties to the effect that the association of the appellant with Khuda Bakhsh could in no circumstances be co6utenanced by law. In the judg?ment of this Court dated the 24th of March 1944 it, was added, however, that as the appellant was in occupation of the land, it would be open to him to raise any defence that he chose, when an attempt was made to oust him. I would hold that the transfer in favour of Raja Khan was void as being in contravention of section' 19 of Punjab Act V of 1912. It was next contended that even if the contract of which the appellant seeks to take advantage, was void, he had acquired a perfect title by adverse possession as against Bhai Khan and his successors‑in‑interest, by possession in his own right for over twelve years. It is conceded that as against Government such an adverse title could not have been perfect because Government was at liberty under Punjab Act V of 1912, to eject the appellant as a trespasser at any time by a mere order of the Collector. But it is urged that Raja Khan could prescribe in respect of the limited rights possessed by Khuda Bakhsh as occupancy tenant and could acquire similar rights as against him, though not against Govern intent. It is undoubtedly true that a trespasser can acquire title by adverse possession confined in respect of quantity and quality to the title which his act has extinguished. It is also clear from the evidence on record with right from the start, the possession by Raja Khan was not permissive in any sense, although he entered into possession with the consent of Khuda Bakhsh. He held the land in his own right and Khuda Bakhsh placed him on an equal footing with himself. He enjoyed the whole of the produce of the land and himself paid the land revenue and other cesses for the square in hr's possession. There is thus a good deal of force in the plea of adverse possession raised in the present case.? But I am of the opinion that the appellant is debarred by the principle of constructive res judicata from raising this plea because of the previous decision inter partes. He could have pleaded adverse possession in the previous suit as an alternative. ground for his title. As has been laid down in "Sardara v. Shiv Lal (A. I. R. 1944 Lah. 282‑‑F. B.), when the right claimed in both suits is the same, the subsequent suit will be barred as res judiaatm though the right in the subsequent suit is sought to be established on a ground different from that taken in the first suit. In the previous suit also Raja attempted to establish that he was an occupancy tenant and he wishes to make out a similar title in the present case though on a different ground. This the law would not permit him to do. The fact that ownership rights now vest in Nazar Muhammad or his transferee and not in Government would make no material difference too the nature of the cause sought to be set up. Government was no party to the previous suit either. I would hold, therefore, that the plea of adverse title is not open to the appellant. Mr. B. Z. Kaikaus on behalf of the respondents adopted the alternative argument in answer to the plea of adverse posses?sion that a Revenue Court had already held the appellant to be a tenant under Nazar Muhammad and that being a finding of a Court of exclusive jurisdiction, should operate as res judieata on that point. The order of the Revenue Assistant in the ejectment suit is dated the 23rd of December 1941. A copy is on the record and it appears that the learned Revenue Assistant came to the conclusion that the relationship of landlord and tenant subsisted between the parties. But it is equally clear on a perusal of that judgment that the appellant had raised the question of title explicitly and the finding, therefore, has to be read in the light of that plea. A question of title was not within the exclusive) jurisdiction of the Revenue Court and an adverse finding on that', question would not be binding on the parties. The authority cited by Mr. Kaikaus and reported as Rai Singh v. Man Singh (A.

1. R. 1933 Lah. 738) is not apt in this connection as the question of title was not at all raised in that case before the Revenue Court. His further argument that no tenant of lands in India could acquire a right of permanent tenancy by prescription against his landlord involves an obvious fallacy, inasmuch as it assumes that the, relationship of landlord and tenant subsisted at one time between the parties. This was certainly not the case here. The cases cited by him, namely, Nainapillai v. Ramanathan (A.

1. R. 1924 P. C. 65) and Madhavrao v. Raghunath (A. I. R. 1923 P. C. 205), are distinguishable on this ground from the present case. For the same reason section 9 of the Punjab Tenancy Act has no relevancy. This point, however, need not be laboured further in view of the finding that the appellant is precluded from pleading adverse title. Mr. Yaqub Ali Khan then invoked the principle of "feeding the grant by estoppel" on behalf of his client. Reliance was placed by him for this purpose on Tilakdhari Lal v. Khedan Lal (25 Cal. Weekly Notice 49). In that case it was held by the Privy Council that if a man who has no title whatever to property, grants it by a conveyance, which in form would carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes. The authority is not in point as here there, is no question of the original transferor having no title and attempting to convey property not vesting in him at the time of the transfer. Whether the transferor be regarded as Bhai Khan or Khuda Bakhsh, in either case the title did vest in him at the time just preceding the transfer. The principle contended for by learned counsel is, therefore, of no avail to his clients. Mr. Yaqub Ali Khan then attempted to take advantage of the principle of part‑performance embodied in section 53‑A of the Transfer of Property Act. That principle, it is well‑settled, can only be pressed into service as a shield by a defendant to protect his possession of property which has been conveyed to him for consideration but of which the legal title has not vested in him owing to some formal defect like lack of registration of the of transfer. Here the contract of transfer was ab initio void and the principle has no application to such a case. For identical reasons the reference of learned counsel for the respondents to section 43 of the Transfer of Property Act is equally misconceived. There was no fraudulent or erroneous representation made by the transferor to the transferee in this case If any authority is needed for the view that the principle of sec?tion 43 of the Transfer of Property Act cannot be availed of by the appellant in these circumstances, reference may be made o6 Radha Bai v. Kamod Singh (I. L. R. 30 All. 38) Krishnama?ehariar v. Tiruvengadachariar (A. I. R. 1920 Mad. 659‑D. B.). Reliance was then placed on behalf of the appellants on section 55 of the Transfer of Property Act and it was urged that at least a charge existed on the land to the extent of the purchase money paid by the appellant as against the seller. The seller however, was obviously Bhai Khan and he is no party to the present suit. Even if Khuda Bakhsh be regarded as the seller, I am of the opinion that the principle embodied in section 55 regarding charge of the purchase money on the property sold in favour of the vendee, cannot be invoked in respect of an illegal contract which is void ab initio. The authority cited by Mr, Yaqub Ali Khan in this connection is Mst. Shankri v. Milkha Singh (A. I. R. 1941 Lah. 407‑F. B.), which was a case to which the principle of section 53‑A of the Transfer of Property Act was held applicable. I have already observed above that that principle cannot be invoked by the appellants in the circumstances of this case. It seems to me however that the plaintiffs should have been non‑suited in the present case on another ground. The facts have revealed that both Khuda Bakhsh and Raja Khan were in Pari delici`o in respect of the transaction, which was in con?travention of section 19 of Punjab Act V of 1915. By an arrangement between them, they agreed to defeat the provisions of that law, and put their, illegal agreement into effect. Raja Khan paid Rs. 11,000 to Khuda Bakhsh and the latter delivered possession of one 'square of land to the former. Now that the facts have come to light, neither Raja Khan nor Khuda Bakhsh or his successor‑in‑interest could seek the assistance of the Court in getting back their properties as the maxim, in par', delicto potior est conditio Possidentis, (where each party is equally in fault the law favours him who is actually in possession) would apply in full force. For a discussion of this maxim reference may be made to Broom's Legal Maxims page 486 et. seq. This maxim is established not for the benefit of plaintiffs or defendants but is founded on the principles of public policy which will not assist a plaintiff who has paid over money or handed over pro?perty in pursuance of an illegal or immoral contract to recover it back. The exceptions to the application of this maim are provided by cases where the illegal contract has not yet been executed and locus poenitentiae still exists, or where one party is the oppressor and the other oppressed. This maxim was resorted to in a case by a Full Bench of this Court in Qadir Bakhsh v. Hakam (A. I. R. 1932 Lab. 503). That was a case of a benamidar who brought a suit to recover possession of property from the beneficiary. It was held that the latter is not precluded from pleading that both parties were in pari delicto and thus showing the real nature of the transaction. The same principle was affirmed in Venkata Subbayya v. Attar Sheik Mastan A. I. R .1949 Mad. 252‑D. B.), where a plaintiff who sought to recover money paid under and illegal contract, was non‑suited. Another authority taking a similar view is Sundrabai v. Manohar (A. I. R. 1933 Born. 262‑D. B.), There is no doubt that the general rule is that no one can set up his own fraud, but the maxim given above forms an exception to that general rule. No plea, it is true, was raised in the trial Court or in the grounds of appeal in this Court, based on this maxim but once the facts are established, it would be the duty of the Court to stay its hand and refuse any relief to a party that comes to the fountain of justice with sullied hands. A transferee from such a person could not acquire a better right than his transferor possessed. There is still another ground on which the plaintiffs' suit should have been dismissed. The plaintiffs clearly alleged possession and dispossession of the suit land in their plaint. The issue as framed in the trial Court also placed the onus of proving possession within twelve years of the institution of the suit on the plaintiffs. While discussing this issue, however, the learned trial Sub‑Judge went into the question of adverse possession by the defendant Raja and came to the conclusion that no adverse possession could be held to have been established. This was an erroneous approach. Clearly the pleadings attracted the application of Article 142 of the Limitation Act, and it was incumbent on the plaintiffs to prove that they were in possession of the property of which they wanted possession, within twelve years of the in?stitution of the suit. That possession may have been actual or constructive in either case they would have succeeded. But, on the facts as found above, it is clear that right from the start; the appellant, Raja, had been in possession of the suit land in his own right and not on behalf of Khuda Bakhsh or his successors in? interest. For failure to prove this possession within the statutory period, the plaintiffs' suit merited dismissal. It does not matter that the appellants could not have, is the circumstances of this case, successfully raised the plea of an adverse title. That question indeed would not arise.??????????? Even if, for the sake of argument, it may be assumed that the initial possession, by Raja was permissive and that Ex. D. 2 evidences a license granted by Khuda Bakhsh to Raja, it was not a naked license but a license coupled with a grant which could not be revoked by the grantor arbitrarily, at his sweet will. There was a provision in Ex. D. 2, to the effect that if Khuda Bakhsh wanted to oust Raja, he would have to pay him back Rs. 11,

000. In any case, therefore, on that assumption also, the plaintiffs would not have been entitled to eject Raja without offering to pay him Rs. 11,

000. The transferees from Khuda Bakhsh or his son, would be bound by the conditions of the original license which was not revocable without compliance with the condition to which it was subject. But that question really Seems to be of an academic nature, in view of the findings arrived at above. I would, therefore, allow this appeal, set aside the order passed by the learned Sub‑Judge and dismiss the plaintiff's' suit with costs throughout. KAYANI, J.‑I agree. K. M. A. ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.