1980 PLP 1799 (CLC)

It was on an application moved by Fazal Dad, the occupancy tenant for alienation of the land in suit that the Collector, as he was empowered by law to transfer the land to the landlords, did it accord ingly in favour of the landlords. It was during the very pendency of those proceedings before the Collector that Fazal Dad sold the land to Muhammad Hakeem, the plaintiff' without obtaining a certificate from the Collector to do so and it was afterwards that the purchase of the land by the 'landlords under section 60 of the Tenancy Act was duly made and so defendants Nos. 5, 6 and 7 were deemed to have purchased the land in suit under a dial law. Thus the contention of the landlords is that they as vendees of the land in suit, made payment of mortgage money to the mortgagees through a Revenue Officer as required by law and thus the question of redemption of mortgage by the plaintiff did not arise at all. The trial Court struck the following issues;

(1) Whether the land in dispute was purchased by Muhammad Hakeem, the plaintiff through a registered sale-deed dated 16-6-2002 B. K. O. P. P. (2) Whether the land in dispute was mortgaged with Piran Ditta for a sung of Rs. 260 and the defendants are in possession of the land as Mortgagees ? O. P. P. (3) Whether the land in suit was purchased by defendants Nos. 5, 6 and 7 from Fazal Dad for a sum of Rs. 800 and as such they are in posses sion of the same as owners ? O. P. P. (4) Relief. The trial Court found that the plaintiff, no doubt, obtained a sale-deed of the land to suit from Fazal Dad, the occupancy tenant but it was without an authority from the Collector as required by section 60 of the Tenancy Act before whom the proceeding under section 60 were still underway and, on their inclusion in pursuance of the order of the Collector, the land-owners were deemed to have purchased the land under section 60 of the Tenancy Act. By the purchase so effected under section 60 of the Tenancy Act, Muhammad Hakeem was adversely affected who then lodged a suit for recovery of the sale money against Fazal Dad, the occupancy tenant in the Court of Munsif Mirpur from where he was granted a decree for the amount claimed. And consequently it was held by the learned trial Court that the defendants NOS. 5, 6 and 7 for being rightful purchasers of the land in suit were in possession of the same as such and matter in issue was decided in their favour dismissing the suit of the plaintiff with costs. On appeal to the District Judge the plaintiff-appellant could not even come out successful as the lower Appellate Court agreed with the findings of the trial Court. The sale of the land in suit made by Fazal Dad, occupancy tenant in favour of the plaintiff' and purchase of the same by the landlords under a special law stood proved. There is a documentary evidence en record to substantiate the transfer of the land in favour of the parties, viz. Muhammad Hakeem, a stranger on the one hand and the landlords on the other hand. The certified copy P. C. of a decision of a civil Court in relation to recovery of the sale money by the plaintiff is also on record to which there is no rebuttal made by the plaintiff: It shows that the sale in favour of the plaintiff was inoperative and ineffectual against the rights of the purchasers of the land under sec tion 60 of the. Tenancy Act and it was admitted therein as such by the plaintiff himself. Toe land-owners paid the mortgaged money to Piran Ditta as purchasers of the land and therefore, they cannot be treated as mortgagtes of the land as the learned counsel for the appellant has urged to treat then as such. Then the learned counsel for the appellant has contended that as under section 138 of the Transfer of Property Act of 1977 B. K. do transfer of immovable property would be valid unless and until it is in writing and registered under the provisions of section 61(2) of the Registration Act of 1977 B.K. and as transfer of the land in suit in favour of the landlords lacks registration; it cannot be given precedence over the sale-deed registered in favour of Muhammad Hakeem, the plaintiff. This contention of the learned counsel is also without force as there is an exception in the very section 1.38 o the Transfer of Property of Act itself to the effect that a case governed by an special law contrary to this provision of the law in relation to the registration of an instrument, is exempted from the operation of this provision of law. Here section 60 of the Tenancy Act provides a complete mode of transfer of occupancy rights in favour of the landlords and it was all done in accord ance with law in the instant case. The landlords, i.e.; landowners namely, defendants Nos. 5. 6 and 7 (Anayat Khan, son of Ali Ahmed, Boota and Gulzar sons of Gulzar) are the purchasers of the land in suit four which they had paid the consideration to the occupancy tenant through a competent Revenue Officer and since then they have been in possession of the land in suit as owners and so they cannot be treated as mortgagees of the land in suit. It was during the pendency of the proceedings under section 60 of the Tenancy Act. that the sale deed was executed in favour of the plaintiff which became ineffectual as admitted by the plaintiff himself while obtaining a decree for recovery of the amount paid by him to Fazal Dad for the purchase of the land in suit. Thus under these circumstances, the stand of the landlords is legally founded on a strong footing as compared to the case of the plaintiff-appellant; therefore, his appeal stands dismissed with costs. M. Y. M. Appeal dismissed.