P L D 1975 Quetta 22 (PLP)

MUSHTAK ALI KAZI, J. This is a second appeal directed against the judgment and decree dated 10‑12‑1971 passed by District Judge, Quetta in first appeal affirming the decree of Civil Judge, Quetta dated 6‑7‑1971, whereby the suit of the appellants against the respondents for possession of agricultural land and water was dismissed.

2. The facts of this case are briefly as under;

3. The appellants are Pathans by caste and are residents of Loralai 'Bazar, District Loralai, respondents Nos. 1 and 2 are the widow and daughter of one Shah Jehan son of Mulla Nek Muhammad by caste Adarhzai, residents of village Baghao, Tehsil Barkhan. District Sibi. By a sale‑deed dated 8‑8‑1953 Shati Jehan Adarhzai sold agricultural land measuring 24 Shah‑o‑roze situated in Mau Dabri, Tehsil and District Loralai. This sale‑deed was duly attested by the then Tehsildar Dori and according to this sale‑deed the entire land was sold for Rs. 7,501 to the appellants and out of this amount Rs. 6,300 were paid by the appellants to Shah Jehan and the balance of Rs. 1,200 was to be paid within one year. It was also stated in the sale‑deed that the vendees/appellants Manzoor 'Hussain and others bad been put in possession of the land in question. The sale‑deed was not, however, got registered nor was the record of rights mutated but the appellants remained in peaceful possession, of this land since the time of purchase.

4. After about two years in the year 1955 one Mullah Paindi Hamzai father of respondent No. 4 brought a claim in respect of a part of this land in execution of a money decree in a civil suit for Rs. 1,

300. This was a ,compromise decree under which Shah Jehan bad agreed to pay the amount or in the alternative to sell part of the disputed land to Mulla Paindi. These orders in execution had been passed by Extra Assistant Commis sioner Dori. The matter came up before Mr Abu Nasir, District Magistrate, Loralai, He passed an order dated 3‑5‑1953 holding that the orders in execution Proceedings passed by Extra Assistant Commissioner, Dori were illegal as' Shah Jehan had already entered into an agreement for sale of the land in question to Maqbool Hussain and Manzoor Hussain etc. and if Mulls Paindi had any claim in respect of the disputed land the proper course for him was to move the civil Court. The learned District Magistrate, Loralai also held that the land and property was said to be in possession of the purchasers, namely appellants Manzoor Hussain, Maqbool Hussain etc. eversince the execution of the sale‑deed. He, however, held that the sale of this land by Shah Jehan to Manzoor Hussain and others was unauthorised as it was in contravention of the Instructions issued by the A. G.‑G. in Baluchistan, namely, that the permanent transferors of agricultural land could only be made (a) to fellow tribesmen of the vendor (b) to other indigenous tribesmen owning land in the same area and (c) hamsayas of the tribe of the vendor, in the absence of the approval with regard to the permanent transfer by A. G: G., Baluchistan. He, therefore. directed that the entire land be entrusted to a suitable person not related to the vendor Shah Jehan, vendees Manzoor Hussain and others and the claimant iii execution proceedings Mulla Paindi. This receiver was to look after the disputed land and keep proper accounts of the produce. Eventually respon dent No. 3 Jalal Khan son of unknown by caste Alizai was put in possession of this land as a receiver.

5. The present appellants, Manzoor Hussain and others filed a revision petition against the order of the District Magistrate, Loralai before the Additional Commissioner, Quetta Division. It was argued before the Additional Commissioner that the processing before the District Magistrate, Loralai and his order were without jurisdiction as under section 8 of the Frontier Crimes Regulations 1901 if a Deputy Commissioner was satisfied from a police report or other information that a dispute existed which was likely to cause breach of the peace he could make an order in writing referring the dispute to a Council‑of‑Elders and on receipt of the finding he could pass a decree and thereafter jurisdiction of the civil Court was barred. He could not, however, himself settle the dispute which was of civil nature and pass the impugned order. Strangely enough the learned Additional Commissioner, Quetta in his order dated 30‑4‑1958 held that the impugned order of the District Magistrate, Loralai was one under section 145/146 of the Code of Criminal Procedure, as there was every, likelihood of the breach of the peace with regard to the land in question; the District Magistrate had, therefore, attached the property and appointed a receiver; that the permanent sale of this land to appellants Manzoor Hussain etc. was also prohibited by order of A. G.‑G. dated 28‑7‑1939 mentioned at serial number 35 of the "Green book", as Manzoor Hussain etc. being outsiders were not entitled to acquire permanent interest in the land and the District Magistrate, had therefore, rightly cancelled the sale of land to Manzoor Hussain and otters directing them to sue the vendor Shah: Jehan for the amount paid to him. Thus on the one hand the order of the District Magistrate, Loralai was defended on the ground of its being passed in the course of 145, Cr. P. C. proceedings when in fact there were no suds proceedings before the District Magistrate but Mullah Paindi had claimed part of this land in execution of a decree held to have been passed by the Extra Assistant Commissioner illegally and without jurisdiction. The District: Magistrate had mentioned the fact that since the sale, the land had remained` in possession of the vendees, the question of section 145, Cr. P. C. proceedings therefore, did not arise nor could the District Magistrate in the course of section 145, Cr. P. C. proceedings cancel the sale as 'being against the orders or circulars of the A. G.‑G. The learned Additional Commissioner, on the one hand holds that the impugned order of the District Magistrate was in. the course of criminal proceedings under sections 145 and 146, Cr. P. C. but in the same breath he holds that the District Magistrate was, justified in cancelling the sale of the land to the petitioners.

6. Meanwhile the receiver Jalal Khan transferred the entire land consisting of 24 shah‑o‑roze to Mulla Paindi Hamzazai. Under what orders he did so is not known. The learned Advocate, appearing on behalf of respondent Karam Khan son of Mulla Paindi, frankly states that this is a mystery which is not known to any body.

7. Faced with this problem appellants Manzoor Hussain and others filed a suit against vendor Shah Jehan, receiver Jalal Khan and Karam. Khan son of Mulla Paindi in the Court of the Civil Judge, 1st Class; Quetta, for possession of the disputed land. Shah Jehan and Jalal Khans did not contest this suit but the suit was defended by Karam Khan who contended in his written statement that the order of the Political Agent, Loralai (District Magistrate) dated 3‑5‑1955, cancelling the alleged sale was upheld in revision by the Additional Commissioner, Quetta and under these circumstances the said order could not be regarded as illegal and without jurisdiction; that the sale being bad the plaintiffs were not entitled to possession of the property in suit.

8. Against this judgment and decree the appellants preferred a first appeal, being Civil Appeal No. 62/71., before the District Judge Quetta. The learned District Judge agreed that the instructions contained in the "Green Book" prohibiting sale of land to aliens were in the nature of administrative circulars ; that these instructions suggested the administrative policy and did not render the alleged sale to be invalid; but since the agreement of sale was not registered, and it was compulsorily registrable under section 17(61 of the Registration Act, the sale did not create any right in favour of the appellants, and the findings of the trial Court in this behalf were unassailable; that the plaintiffs/appellants were not, therefore; the owners of the property by virtue of the said sale‑deed and they had failed to prove the title. The learned District Judge accordingly dismissed the appeal and awarded costs to respondent Karam Khan.

9. The learned counsel on behalf of respondent Karam Khan has argued that the alleged sale in contravention of the customary law or Riwaj by Shah Jehan was bad and secondly, that the sale deed, not having been registered under section 17 of the Registration Act conferred no title on the appellants and, therefore, the possession of land by Karam Khan, even though without any ostensible title, could not be called in question. The issue regarding the validity of the sale in contravention of the Instructions of A. G: G. bas already been decided in favour of the appellants by the District Judge, and this position has not been challenged by the respondents in any counter‑appeal or counter‑objections.

10. However, this point appears to be controversial and the two points overlap each other. I would therefore, try to dilate upon this aspect of the case regarding validity or otherwise of the transfer of the disputed land, by sale to the appellants.

11. The riwaj or custom prevalent amongst the Baluchistan tribes regarding alienation or acquisition of land has not been categorically defined in any book or treatise. Different customs prevailed amongst different tribes in each region of Baluchistan. The tribesmen themselves were not clear about these customs and the then British Administrators of Baluchistan State, therefore interpreted these customs in a manner consistent with their policy of governing these tribes. The British administrators were mainly interested in winning over the Maliks and Sardars of the various tribes, by giving them what they styled as "self‑Government" in accordance with their customs and ancient usages and traditions. . They left the internal management, to these tribal chiefs and perpetuated the system of Jirgas. This was known as the Frontier Policy laid down by Sir Robert Sandeman. Whether this primitive system and the so‑called self government through the machinery of local Jirgas and Shahi Jirgas resulted in betterment of the masses, is a question the answer to which is too obvious, to need any further elucidation. Be that as it may, the Courts now have to ascertain this customary law as best as they can. For this customary law is intertwined with personal orders of the Agent to the Governor‑General and Resident Chief Commissioner. Baluchistan, which have been stated in the form of Instructions or Circulars for the use of Political Agent to various districts or tribal areas. These Instructions are meant for general guidance and have not the force of law or regulation. Whenever these Instructions appear to violate the rules of natural justice or the principles of justice, equity and good conscience the Courts would be reluctant to apply them to the cases that may come up before them.

12. The subject of acquisition and alienation of lands to Hindus, non‑agriculturists or aliens to Baluchistan had been engaging the attention of the then British Government. They first tried to ascertain the customary law prevalent amongst the tribes and later and they modified this law in a manner suited to their general policy and the local conditions. Knowing fully well that such executive orders could always be challenged by the affected parties, they subsequently tried to obtain opinion of the Shahi Jirga as a sanction behind these orders. Thereafter they issued what are known as the orders of A. G.‑G. or General Circulars. A systematic perusal of these customary laws would show that whereas old customs in this regard were of universal application the orders and instructions of the A. G: G. based on those customs were not considered as Riwaj‑i‑aam or common customary law of Baluchistan and the opinion of tee members of Shahi Jirga was divided. Thus with regard to sale of agricultural land the Riwaj‑i‑earn was the application of principles of pre‑emption in respect of such transfers. A sale to an outsider could be objected to by the tribesmen, on the ground of introduction of such outsider into their village. The matter would then be referred to Jirga in every individual case and the Jirga would then decide the matter finally by transfer of such lands to members of their own tribe willing to pay the same price to the seller. Lands could, however, be sold even to Hindus, if there was no such objection, with the permission of the Head of the State or the A. G.‑G after the British rule. For instance some Hindus bad settled at Mekhtar, Duki and Bar‑Khan in the Loralai Illaqa where they acquired some land with the tribal Sardars' permission. After the British rule, land was transferred to them with Political Agent's permission. Before according sanction the Political Agent considered it necessary to consult the leading members and representatives of the tribe concerned.

13. It will not be out of place in this connection to reproduce extracts from the memorandum addressed by the A. G.‑G. Baluchistan to Political Agents of the a various districts including Loralai. This Circular letter is dated 22nd December 1922. It reads as under; "In this office circular letter No. 996‑Z. dated the 4th August 1908, orders were issued prohibiting the transfer of agricultural lands to Hindus and other persons, not genuine Pathans, Baluch or Brahui inhabitants of Baluchistan, without the sanction of the Political Agent. This order seems, in many cases to have been more honoured in the breach than in the observance. It now remains to decide on the policy to be adopted for the future. On the one hand the free acquisition of agricultural land by outsiders would in time result in the disintegration of the tribal system and custom on which the administration of Baluchistan is founded. On the other hard times are changing and an executive order which would have passed unchallenged fifteen years age might at any tine be taken before a tribunal which would he quite unable to uphold it, even if it had the will in do so. There are few things so upsetting to administration as an order which is capriciously enforced and which in event of opposition it might be found impossible to enforce. The Agent to the Governor‑General is inclined to think that the only remedy lies in the application of the customary law. This law undoubtedly vests a right of preemption in any genuine Baluchistan tribesman in the event of a sale to any outsider by another tribesman, even if unrelated and belonging to another tribe if others with a prior right refuse to exercise that right.'.

14. The question of alienation was then laid before Shahi Jirga at Sibi ,who decided, that whenever lands held by Hindus were to be sold then they should be sold only to tribal members of that locality and the lands mortgaged try a Hindu should revert to the members of the tribe.

15. The above principles of right of pre‑emption according to the customary law of tribes in Baluchistan were followed up to the year 1939. These customary laws were thereafter further modified by the then A. G.‑G. who again referred his proposals to the Shahi Jirga. The members of the Shahi jirga were, however, divided in accepting these proposals but the majority decision was obtained which was further modified by the A. G.‑G. and he thereafter issued a fresh order dated 2&7‑1939. He expressed in that order that the previous Circular dated 16‑2‑1923 required modification in view of the changed and changing conditions of Baluchistan. When the question of alienation of land was again referred to Shahi Jirga on the issues given in his order, some divergence of opinion was expressed by the members during the discussions, but there was a majority award on which it was possible for the A. G: G. to base the decision. These findings of Shahi Jirga as approved by the A. G: G. were as under: "Permanent transfers by an indigenous tribesman of interest in land and water in rural areas, including mortgages involving conditional sale, can only be made to‑ (a) fellow tribesmen of the Vendor; (b) other indigenous tribesmen owning land in the same area (c) Hamsayas of the tribe of the Vendor, Temporary transfers of interest in land and water whether with or without possession, may be made to any one without further restrictions than that they should not be for a longer period than 7 years." The A. G: G. also expressed that there were certain recommendations in the award which he rejected as being contrary to public policy. The first was that transfer of land by a person not an indigenous tribesman of Baluchistan may he made freely subject to any rights of pre‑emption and with the sanction of the Political Agent; the second was that the transfer of land should not be allowed in execution of money decrees and the third was regarding the transfer of water. The A. G.‑G. observed that the matter regarding sale of land in execution money decree had already been safe guarded by section 64, B.

13. C. J. R.

16. Thus the custom or "aamriwaj" was being modified by the Agent of the Governor‑General from time to time by means of executive orders and circulars. As already stated above these orders and circulars were fir the guidance of the Political Agents and had not the force of law. This was also the view taken in an earlier caw by my learned brother‑ S. A. Mahmood, J. in the case of Mehrab Khan v. Taj Muhammad and others (P L D 1961 Quetta 1). While talking of the similar circular orders mentioned in the Green Book it was observed as under: "We do not regard the circular order as having the binding force of rules, as claimed by the learned counsel . . . . . . . . . . The Commissioner. F. C. R., as respondent No. 3, has in defence of his order relied upon serial number 96 of the Green Book, which is an abstract of an order dated 20th October 1955, made by the Agent to the Governor‑General . . . . . It is not open to us to go into the question whether it was proper for the Deputy Commissioner in view of the various instructions given from time to time by the Agent to, the Governor General to make the order under reference or not. We can only interfere with the order if it is not made in jurisdiction or is not authorised by the law or suffers from an error apparent on the face of the record or involves a violation of the principles of natural justice."

17. These Instructions of the A. G: G. contained in the Green Book cannot, therefore, have the force of law, and they cannot be accepted when they are in clear violation of ordinary rules of justice, equity and good conscience. Universal custom or aamriwaj as practised through the ages has on the other hand the regularity of law and it forms part of corpus juris, which has to be applied without distortion in all simple societies which have the Courts or tribal Jirgas.

18. The original suit was instituted by the appellants for possession and not for a declaratory title. Both the Courts below have, however, considered the question whether the sale in question conferred a valid title on the appellants/purchasers and they avoided the real issue whether the appellants could be dispossessed by an arbitrary order of District Magistrate, Loralai, and possession given to a receiver, who passed on the land to Mulla Paindi, in utter disregard of the principles of natural justice. It is rather strange that by an order without jurisdiction by an executive officer, the sale is cancelled, and the land is not given back to the vendor but is passed on to an utter stranger and thereafter to Mullah Paindi without any justification whatsoever. It is true that the title of the purchasers in this case was not perfected, as the sale‑deed was not registered, because the sale was against the general in tractions of the A. G.‑G. and his permission for this transfer had not been obtained. But there was no bar subsequently to the grant of such sanction by the A. G.‑G. and the registration of the sale‑deed. The sale was, therefore, incomplete though it could not be regarded as void. It is true that the Transfer of Property Act, 1882 had not in effect been extended in respect of agricultural lands to Baluchistan ; nevertheless there are decisions to the effect that the provisions of the Act can be applied as principles of justice, equity and good conscience, even in areas where the Act does not apply. In Bhagwan v. Banvadi (1902 P R 85) it has been observed that in the Punjab where the Act is not in force its provisions as to matters of principles are followed as rules of justice, equity and good conscience. In Ganda Singh v. Secretary of State (152 1 C 231), it has been stated that, though the Act does not apply to the, N.W.F.P. but its principles govern cases arising among residents of that Province. Under section 53‑A of the Transfer of Property Act the equitable doctrine of Part Performance has been made applicable. This section does not create any title in favour of the transferee. The title still continues to vest in the transferor, but on an equitable principle, the transferee's right of possession is protected as against the transferor or person claiming through him. This principle of part performance can therefore, be applied in present case also as a rule of justice, equity and good conscience. The dispossession of the appellants by an illegal order and handing‑over of possession to an utter stranger or to Mullah Paindi cannot be perpetuated on the ground, that though the appel lants had been delivered possession and had even paid almost the entire price for the purchase of this land, the sale conferred no title and Mullah Paindi had, therefore, better right to retain possession illegally transferred under an executive order of the District Magistrate, Loralai and confirmed by the Additional Commissioner. It is certainly not equitable to justify retention of possession in pursuance of wrong orders passed, when the title to the land still vested in the vendor, while the possession of the land was rightly retained by the vendees with the consent of the vendor on the application of the doctrine of Part Performance as recognized in Equity, apart from the provisions of Transfer of Property Act itself. Mullah Paindi even claiming a part of this land under orders of Extra Assistant Commissioner in execution proceedings had already been referred to establish his claim in the civil Court and he had, therefore, no right to obtain possession under some collusive arrangement with the receiver, considered by even the counsel for respondent No. 4, as mysterious. The rule of Equity must, therefore prevail and the possession of this land should revert to the appellants. It is then for the appellants to perfect their title by obtaining sanction and getting the sale registered or by claiming possessory title. But by no stretch of imagination, can delivery of possession to Mullah Paindi or his heirs he perpetuated. The sanctioning authority, namely, the Government of Baluchistan may in a case like this, still follow the customary law and consult the tribal Chiefs of Loralai whether or not they have any objection to the sale of the land to the appellants. In the absence of any objection the sale could be confirmed; on the other hand the matter could be referred to the Jirga through the Political Agent for the Deputy Commissioner in case a right of pre‑emption is claimed by any member of this tribe Any award of the Jirga deciding the claim on the basis of customary right of pre‑emption, should be accepted under the relevant provisions of the F. C. R. But in no case can Mullah Paindi be allowed to retain possession of this land to the exclusion of the appellants.

19. The result is that the judgments and decrees of both the Courts 'below are set aside and the suit is decreed for possession of disputed land and water in favour of the plaintiffs/appellants, subject to the above observations as to the tribal customary law of pre‑emption.

20. The appeal is accordingly accepted but no order is made as to costs in the circumstances of the case‑-- AGHA ALI HYDER, J.‑

I agree. K. B. A. Appeal accepted