1989 PLP 1789 (CLC)

(5) Relief. Addl: Issue. Whether the defendant No.1 has prescribed title by adverse possession? OPD

3. The learned trial Judge took up issues Nos.3 and 4 together and found them in favour of the petitioner. On issue No.2 he held that doctrine of estoppel did not operate against the petitioner. He also found that the suit was within time and the plea of adverse possession raised by respondent No.1 was not available to him and in consequence he decreed the suit. Respondent No.1 went up in appeal to the Court of learned Additional District Judge, Bannu, at Lakki. It appears that the learned counsel for the parties confined their arguments to issue Nos.2, 3 and 4 before the learned Appellate Court. The learned Additional District Judge, however, came to the conclusion that the impugned consent decree was not procured through misrepresentation; that the petitioner was estopped to challenge the legality and propriety of the impugned consent decree and the mutation; that the transaction was neither fraudulent nor without consideration and finally; that it was not hit by the bar against alienation of land under the Act. In consequence while accepting the appeal, the learned Appellate Court dismissed the suit brought by the petitioner. Hence this petition.

4. In support of this petition, Mr. Khuda Bakhsh Khan, the learned counsel for the petitioner confined his arguments to the findings of the learned Additional District Judge on issues No.2 and 4 only. Mr. Khuda Bakhsh Khan contended that the petitioner was not estopped under the "rule of constructive liability" because there is no estoppel against a statute. The learned counsel vehemently argued that the learned Additional District Judge has mis-constructed the provisions of section 4 of the Act by holding that the bar against the alienation under the Act had been created for period of fifteen years and that, therefore, it stood removed after the said period. He maintained that the statutory bar under section 4 of the Act remained operative not only for the period of fifteen years from the date of commencement thereof but also on a date to be notified by the Provincial Government: on which water from the rivers and subsoil water is made available for the irrigation of the land. In support of his contention the learned counsel for the petitioner placed reliance on an unreported judgment of Peshawar High Court in R.SA. No.302/1967 wherein the transactions completed in village Titar Khel in the year 1967 through consent decree were held to be barred under the provisions of the Act.

5. S. Zafar Abbas Zaidi, the learned counsel for respondent No.l on the other hand, precisely raised the following points:‑ (i) That the consent decree was an "agreement to sell" and does not fall within the admit of `alienation' as defined in subsection (1) of section 2 of the Act and that, therefore it did not fall within the mischief of section 4 i id; (ii) that respondent No.l had matured title to the suit land by adverse possession; (iii) that the petitioner was estopped to challenge the transaction which had been duly completed by his deceased father; and (iv) that, in any case, the impugned decree passed by the learned trial Judge was operative to the extent of only 2/5th share devolved on the petitioner from his father in that respondents 2 and 3 and having failed to file revision, the impugned appellate order had attained finality qua their rights.

5. In support of his first contention that the consent decree amounts to an agreement to sell, Mr. Zaidi lent support from Habib v. Haji Muhammad PLD 1970 Kar. 495 and Turab Shah v. Warad Shah PLD 1987 Pesh.

132. In the first precedent, late Ghulam Safdar Shah, J as his Lordship then was, held that it was an established principle of law that a consent decree is just an agreement between the parties notwithstanding the fact that it has been recorded by and bears the seal of the Court. In the second precedent. Faiz Muhammad Khan, J. observed as under:‑ "It is settled principle that a consent decree passed in favour of a person does not stand on a higher footing than a contract so far as its legal character is concerned, although it has affixed to it the seal of the Court:'

6. Respectfully following the ratio in these two cases, I hold that a consent decree is just an agreement between the parties nothwithstanding the fact that it has been recorded by and bears the seal of the Court. In the instant case, therefore, the impugned consent decree would be deemed to be an agreement between the petitioner's father and respondent No.l

7. The learned counsel for respondent No.l then placed reliance on Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690 to argue that section 4 of the Act prohibited only alienation of land and not the agreement to sell. The learned counsel for the petitioner, however, pointed out that in Abdullah Khan's case their Lordships of the Supreme Court had clearly held that the attack on the agreement for sale can succeed on the ground of public policy, namely, to defeat a law and that in the instant case that is precisely what had been resorted to by the parties to the consent decree and again invited my attention to the unreported judgment of the Peshawar High Court m the case of Akram Khan v. Habibullah Khan and others (R.S.A. No.302/1967), referred to above. This case is, however, clearly distinguishable from the facts of the present case. In the case in hand, the bar under section 4 ibid was lifted when it was deleted by virtue of North‑West Frontier Province New Irrigation Projects (Control and Preservation o Speculation in Land) (Amendment) Act, 1969 (Act IV of 1969) with effect from the 19th of March, 1969. A legal bar against the alienation of land within the contemplation of section 4 ibid was removed and by necessary implication the i validity of the impugned mutation attested after coming into force of Act IV of i 1969 remained unaffected. ,

8. There is yet another aspect of the case as well. The alienations under the Act were not in the nature of absolute prohibition but could be brought about by availing of the concession enacted in the proviso to section 4 ibid since deleted. The question would be whether in consequence of deletion of section 4 ibid the agreement to sell in the nature of the consent decree would not be tantamount to an imperfect title within the contemplation of both the consent decrees and the mutation attested thereunder or at least the mutation, which was attested much after the enforcement of Act IV 1969 lifting the ban on alienations, would be validated. In this context, the learned counsel for respondent No.l invited my attention to Paragraph 32(c) of Martial Law Regulation No.64 and maintained C that on the authority of Shammoon. v. Ahmad 1986 SCMR 888, respondent No.l herein could defend his title to the suit land. To my mind, analogy can be validly drawn from the dictum of the august Supreme Court in Shammoon's case particularly when the conditional bar envisaged by section 4 ibid stands removed by the coming into force of Act IV of 1969 and respondent No.l can validly defend his title to the suit land.

9. This brings me to the pleas of adverse possession and limitation raised on behalf of respondent No.l. The learned counsel for respondent No.l on the authority of Raja v. Karam Ali PLD 1951 Lah. 177 contended that even if the transaction effected by virtue of the impugned consent decree was held to be void, he had prescribed title to the suit land by adverse possession as against the petitioner and respondents 2 and 3 who had succeeded their father Ghulam Akbar Khan. It is not denied that respondent No.l had entered into possession of the suit land from 1‑5‑1968 when the consent decree was passed. The suit was instituted on 22‑10‑1978. Consequently neither the plea of adverse possession is available to the answering respondent nor the suit was barred by time.

10. Nonetheless even if it be held that the transaction evidenced by the impugned consent decree was void, the predecessor‑in‑interest of the petitioner and the answering respondents were in pari delecto in respect of the transaction which is in contravention of section 4 of the Act. Both of them agreed to defeat the said provision of law and put their illegal agreement into effect. The petitioner and respondents 2 and 3 who claim to have inherited the suit land from their father would be debarred to seek the assistance of the Court to get possession of the suit land on the maxim, pad delicto potior est conditio nossidentis (where each party is equally in suit the law favours him who is actually i in possession). In this context, I may refer to Raja's case noticed above. In this monumental judgment, in which the Division Bench comprised of their Lordships SA. Rehman and M.R. Kayani, JJ. noticed "Qader Bakhsh v. Hakim AIR 1932 Lah. 503, Venkata Subhaya v. Attar Shaikh Master AIR 1942 Mad. 252 and Sundrabi v. Manohar AIR 1933 Born. 262 wherein this maxim was held fully attracted and observed as under:‑ "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 delicto in respect of the transaction, which was in contravention of section 19 of Punjab Act V of 1912. By an agreement 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 pari delicto potior est conditio possidentis. (where each party is equally in suit 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 property in pursuance of an illegal or immoral contract to recover it back. The exceptions to the applications of this maxim are provided by cases where the illegal contract has not yet been executed and lochs poenitentiae still exists, or where one party is the oppressor and the other oppressed." Their Lordships were further pleased to clarify the application of this maxim in the following words:‑ "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 the 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." Applying the maxim pari delicto potior est conditio possidentis (where each party is equally in suit the law favours him who is equally in possession) to the case in; hand, the plaintiff‑petitioner should have, therefore, been non‑suited by the trial'. Court in the present case on this ground as well.

11. For the foregoing reasons, I would dismiss this petition in revision‑with costs throughout. AA./789/P Revision dismissed.