1984 PLP 94 (SCMR)

MIAN BURHANUDDIN KHAN, J. ‑Leave was granted to the appellants b this Court vide order dated 20‑2‑1979 on the ground that the impugned judgment of .the Lahore High Court under appeal, appeared to be contrary to the express provisions of section 54 of the Transfer of Property Act and thus the land in dispute had not assumed the status of `evacuee property' as the transfer of the same in the name of Hardial Singh had not been executed by a registered sale‑deed.

2. The dispute in this appeal relates to land situated in hak 46/GB, Tehsil and District Sargodha. The appellants were refugees from East Punjab and had applied for the transfer of this land under the Ejected Tenants Scheme on the assumption that the land was State land and was not Evacuee Property. The Government of Punjab (respondent No. 3) transferred the land to the appellants under the Scheme for a consideration of Rs.20 per produce index unit which was to be paid in 20 instalments. After the appellants had paid 19 instalments, respondent No. 4 made an application to the Chief Settlement and Rehabilitation Commissioner in 1972 that the land in dispute was Evacuee Property and had been illegally transferred to the appellants under the Ejected Tenants Scheme. The Chief Settlement and Rehabilitation Commissioner directed the Deputy Commis sioner/Additional Settlement Commissioner (Land) to submit a report and on receipt of this report the Deputy Secretary (Rural) to the Chief Settle ment and Rehabilitation Commissioner Punjab directed the Deputy Commissioner/Additional Settlement Commissioner (Land) that the property in question being Evacuee Property `will revert to the Com pensation Pool and will become available for allotment against the land claims and the request of the applicants for the transfer of an area there from way be considered strictly on merits and according to law'. Thereafter, the allotment in the name of the appellants under the Ejected Tenants Scheme was cancelled and the same was transferred to respondents Nos. 4 to 7.

3. Aggrieved by this order, the appellants filed a writ petition in the Lahore High Court assailing the validity of the cancellation order. The petition was contested by the respondents but the writ petition was dismissed vide the impugned judgment dated 15‑10‑1978.

4. Learned counsel appearing for the appellants made the following contentions ; that the appellants were bona fide purchasers for a value and were in possession of the land for considerable period and have paid the price of the land by instalments and had also incurred huge expenses on the development of the land in dispute because the same was of low quality ; they had also acquired vested rights in the land in question and while deciding their matter the Settlement authorities did not afford an opportunity to the appellants of being heard and all proceedings were conducted at the back of the appellants so much so that even a notice was not sent to any one of them at any stage, and, therefore, the impugned order of the Settlement authorities is void, illegal and without lawful authority. He further contended that even if the land was held to be Evacuee Property, it should have been sold to the appellants at the price fixed by the competent authorities, but, instead, the land was sold to the respondents, who either had no claim or had a claim which was not sufficient to get the total area under allotment ; and that even if the land is cancelled from the appellants' names, they were entitled to purchase the same under section 3 (i) (b) of Act XIV of 1957 ; that this position had been partially admitted by the learned High Court Judge and the learned Judge was of the view that the land in question could not have been allotted to the respondents unless it had been offered for sale by the Government to the appellants and they had refused to purchase the same, and finally that cancellation of the land from the names of the appellants without any notice was against the principle of natural justice.

5. We have examined the contentions of the learned counsel and would decide the matter on the question on which leave was granted by this Court i.e. whether the transfer in the name of Hardial Singh evacuee was `complete' in the eye of law before he evacuated to India. Under section 54 of the Transfer of Property Act the transaction had not been completed legally as no registered sale‑deed was executed. Therefore, the sale was incomplete.

6. The facts gleaned from. the record show that the land in dispute was purchased in open auction in 1945 by Hardial Singh a non‑Muslim evacuee. The entire sale price of the land and even Stamp Duty. For execution of Conveyance Deed was also deposited by him upto 30‑8‑

146. But the Sale Deed could not be executed due to Hardial Singh's evacuation to India in the wake of partition of the sub‑continent and hence the contract of sale between the Government and Hardial Singh non‑Muslim was complete as the possession of the land was also transferred to Hardial Singh vide entries of Khasra Girdawari of Rabi, 1947. As a matter of fact, the disputed land had been under the possession of Hardial Singh before the advent of Pakistan and had been correctly declared as Evacuee Property after the migration of non‑Muslim purchaser vide the entrie3 in Khasra Girdawari of Rabi, 1947. Thus, it is incorrect that the land in question was owned by the Provincial Government in 1947. Name of the Settlement and Rehabilitation Commissioner, having once been mentioned in the Khasra Girdawari was repeated up to Rabi, 1953 and the land stood declared as Evacuee Property. It could not again be reverted to the Pro vincial Government without an order or a decree of a Court. The contention of the learned counsel that the land in dispute is State land is not supported by the revenue record of the suit land.

7. It may further be mentioned here that Memo. No. 3038‑C, dated 11‑7‑1951 issued by the Punjab Government to all the Deputy Commissioner reads as follows :‑ "Proprietary lands abandoned by the evacuees in colony areas in the Punjab which had been resumed by the Government for breach of conditions applicable to those areas, should be treated as Evacuee Property for the purpose of settlement of refugees and allotted to them under the Rehabilitation Settlement Scheme. The area in respect of which the price of the proprietary rights was paid partially or wholly by the evacuee, but the deed of conveyance was not executed by them before evacuation, should also be treated as evacuee property up to the extent of which the money claims of the Govern ment had been paid and allotted to the Refugees under the Rehabili tation Settlement Scheme. "The words up to the extent to which the money claimed of Government had been paid' were subsequently deleted vide correction Slip No. 5021‑C, dated 12‑1‑1952 issued by the Deputy Secretary, Punjab Government, Rehabilitation and Colonies Department.

8. In view of the factual history of case narrated above, section 3(1) of the Pakistan Administration of Evacuee Property Act, 1957 would not be applicable to this case because the disputed land had been declared as Evacuee Property before the promulgation of the said Act and all subsequent e proceedings treating it as State land and allotment thereof under the Ejected Tenants Scheme is rendered illegal and void.

9. Regarding the argument‑non‑registration of the sale transaction between Hardial Singh and the Punjab Government, it may be mentioned that the Transfer of Property Act does not apply to the rural areas of the Punjab and the principles of justice, equity and good conscience would not be attracted to technical rules as the entries in the revenue record do not support the case of the appellants. The land declared as evacuee would not be treated as State land. The land in dispute was trusted evacuee from 1947 to 1953 as is established from the revenue record. Therefore, it was not open now to the revenue authority to treat it as non‑evacuee without obtaining requisite declaration from the Custodian Authorities, which has not been done in the present case.

10. Sale is defined in the Transfer of Property Act as being a transfer of ownership for price. In a sale, there is an absolute transfer of all rights in the property sold. No rights are left in the transferor. Somewhat similar point came up before the learned Judges of the Lahore High Court in a case reported in P L D 1956 Lah: 94 wherein a declaration was sought to the effect that a certain gift of land made by a widow, who had acquired the land by purchase of proprietary rights under the provisions of the Colonization of Government Lands (Punjab) Act V of 1912, was null and void under custom, the question was whether the widow had acquired proprietary rights in land before or after the commencement of Colonization of Government Lands (Punjab) (Amendment) Act, 1944. It was held that if she had acquired such rights before the commencement of that Act, she became absolute owner of the land and the suit was incompetent but if she acquired such rights after the commencement of that Act, her interest in land was go Nerved by section 30‑A of the Colonization of Government Lands (Punjab) Act V of 1912. In the circumstances of this case it was held that the widow became full owner of the tenancy lands in possession on the date when she deposited, and the Government accepted the sale price.

11. Again, in the same year in Ibrahim v. Mst. Rajji and others ( P L D 1965 (W. P.) Lah. 609) it was held that a widow who succeeded to the tenancy on the death of her son and who, in compliance with the terms and conditions prescribed under the Colonization of Government Lands (Punjab) Act V of 1915 had deposit ed, before coming into force of Act VI of 1944 by which section 30‑A was added to the Colonization of Government Lands (Punjab) Act V 1912, the purchase money, the proprietary rights in the land shall be deemed to have been acquired by her from the date of deposit, an absolute estate in the land and alienation of the land by her by way of gift was, therefore, not restrained by the provisions of section 30 :A of Colonization of government Lands (Punjab) Act V of 1912.

12. Similar view was taken by the learned Judges of this Court in Ilam Din v. Muhammad Din (P L D 1964 S C 842): In this case the question was whether the estate of a husband which devolved on the widow for which payment had been made by the husband, the proprietary rights had taken effect from the date on which the payment and the order of transfer of the‑ rights to her, were made, or on the such later date on which the deed was executed and registered. Some arguments were built upon the requirements of section 175 of the Government of India Act, 1935 which was then in force, to support the contention that the contract of sale was ineffective unless duly executed as required by the aforesaid section. The reply to this question was that ever since 1915 it had, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the property matured in favour of the purchaser when, transfer having been authorised, the proper dues had been deposited. The proprietary title had been passed to the widow when she had made full payment of the price of land.

13. In the case of Ali Muhammad v. Mst. Rabia Bibi and 3 others (P L D 1971 B J 38) Ali Muhammad deceased had acquired land under the Colonization of Government Lands Act. He paid all the instalments due in 1946, but no sale‑deed was executed in his favour until his death in 1955. In 1958 the land was mutated in its entirety in favour of his son Ghulam Qadir. In 1964 Ghulam Qadir obtained patty malkiyat from the Collector and then made the two sales in favour of Ali Muhammad and Muhammad Hussain. The widow and daughters of Ali Muhammad (not one of the vendees) filed a suit claiming their Muslim Law shares. The two Courts below held that Ali Muhammad deceased had made payment of the instalments due on the land, had become a proprietor and, therefore, his succession was not governed by the provisions of the Colonization of Government Lands Act relating to inheritance of tenancies, but by the ordinary law of succes sion. Both the Courts below, repelled the contention that proprietary rights , would not pass without registration of the sale‑deed in terms of section 54 of the Transfer of Property Act which is applicable to the territories of the former Bahawalpur State. In coming to this conclusion, reliance was placed on P L D 1956 Lah. 94 and P L.D 1964 S C

842. After hearing the learned counsel the learned Judge Anwarul Haq, C. J. as he then was, held‑ "that the proposition enunciated in both the authorities is that proprietary rights pass to the purchaser once hoe has paid all the instal ments due and has complied with the other conditions of the grant and for this purpose it is not necessary that the final formal convey once deed should be executed as required by section 175 of the Government of India Act, 1935 which was applicable to both these cases. However, their Lordships of the Supreme Court have gone further in the case Ilam Din v. Muhammad Din and have observed that "ever since 1915, it had, in an unbroken line of cases, been held that in respect of obligations to third parties the title in the property matures in favour of the purchaser when, transfer having been authorised, the proper dues have been deposited ...It is argued that, however, the case might lie as between the Government and the new proprietor, it is accepted on all hands by the Revenue Department as well as by the civil Courts that proprietary title does pass when the payment has been made in full, sufficiently to be effective in relation to or as against third parties. Accordingly, I would bold without hesitation that the succession here in question does not fall to be determined under section 30‑A, aforesaid.' It seems to us that it is clear from these observations that what their Lordships were laying down was that in spite of the non‑fulfillment of the formalities relating to the drawing up and execution of the conveyance deed, proprietary rights did accrue to the purchaser once the purchase was authorised and the transfer price had been paid, and that such rights were effective as against third parties in any case. Now in the present case even though the conveyance deed may not have been registered, as required by section 54 of the Transfer of Property Act, the possession of Ali Muhammad when he died in 1955 must be regarded to be that of a proprietor as against third parties whatever the defect in his title as against the Provincial Government that has no bearing on the question of succession when Ali Muhammad died in 1955."

14. In the light of above, sated consistent view hold that the proprietary rights in the property in question in the instant case vested in Hardial Singh, evacuee, and entries to that effect in Jamabandi and Girdawari would leave no doubt in one's mind that the sale was in all respects, complete as to essential elements of a sale (i) the parties (ii) the subject‑matter (iii) the transfer or conveyance and (iv) the price or consider‑action. Hence, we find no merit in this appeal, which is dismissed with no order as to costs. M.Z.M appeal dismissed.