1994 PLP 470 (SCMR)

(6) Is the agreement for sale dated 29‑1‑1968 in favour of the plaintiff on behalf of defendant No.l fictitious, illegal and inoperative as against the defendant No.3? OPD. (7) Is the defendant No.3 a valid and bona fide purchaser of the suit land for Rs.12,000? OPD. (8) Is the sale of the suit land through a registered deed dated 2‑6‑1970 in favour of the defendant No.3 by the defendant No.l fictitious, collusive and without consideration? OPP.

4. After recording and examining the evidence on the above and other issues the learned Civil Judge, Bhakkar held that Exh. Dl the alleged agreement to sell in favour of Mst. Nasim Akhtar was a fake document and that the other Exh.P3 executed in favour of the respondents was a genuine one, decreed the suit of respondent No.l vide judgment dated 27‑11‑1974. In the said judgment it was also held that the disputed land had been transferred to respondent No.l who took over its possession in pursuance of agreement to sell dated 29‑1‑1968. The appeal and regular second appeal filed by the appellants were dismissed on 10‑12‑1975 and 27‑6‑1977 respectively. .

5. Leave in this case was granted to consider whether the agreement to sell Exh.P3 executed by Jiwan in favour of respondent No.l was void in view of section 19 of the Colonization of Government Land (Punjab) Act, 1912.

6. The learned counsel for the parties for and against the appeal have been heard. The learned counsel for the appellants submitted that the High Court and the two lower Courts have misread the document Exh.P3 and other evidence relating to the transfer of the land in dispute in favour of respondent No.l. He submitted if the said is document read as a whole, it would prove that Jiwan had divested himself completely of all the rights in the land and had only bound himself for executing a sale‑deed/sanction mutation, after obtaining proprietary rights, which was a mere formality. The payment of the wholesale consideration and delivery of possession of land has fully established that document Exh.P3 was for all intents and purposes a sale‑deed and as such in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He further submitted that all the three Courts have misread the evidence relating to execution and proof of Exh.Dl and Exh.P3 and so was the case with regard to delivery of possession of the suit land. In support of the above reliance was placed by him in the case of Ghulam Rasul and others v. Muhammad Anwar and others (1969 SCMR 254); Ghulam Muhammad alias Ghulamoo v. Maula Dad and 6 others (1980 SCMR 314); Hakim Ali and another v. Atta Muhammad and others (1981 SCMR 993) and Riaz Hussain Shah v. Member, Board of Revenue (Colony), West Pakistan and 2 others (PLD 1987 SC 292).

7. As against the above the learned counsel for respondent No.l supported the findings of the three Courts and submitted that all the Courts after thoroughly examining the evidence on record came to the concurrent finding of fact that document Exh.Dl executed by Jiwan in favour of Mst. Nasim Akhtar was a fake one and that document Exh.P3 was a perfect valid document and that through this document i.e. Exh.P3 only corpus and not the tenancy rights were transferred in favour of respondent No.l and thus not in violation of section 19 of Act of 1912 that there was ample evidence on the record to prove that respondent No.l was delivered the possession of the suit land under the agreement to sell and that he is in possession of the same from the date of deed of agreement to sell executed in his favour. Reliance in support of above was placed by them in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others (PLD 1986 SC 70); Muhammad Ramzan and others v. Ghulam and others (1988 SCMR 590) and Rajab Ali v. Mst. Aisha and others (1989 SCMR 135).

8. The points raised by the learned counsel for the parties were the subject‑matter of consideration before all the three Courts. The learned Judge in his chamber after agreeing with the findings of the two Courts below on the question as to the agreement to sell executed by predecessor‑in‑interest of respondents No.2 and 3 in favour of respondent No.1 was not violative of the provisions of section 19 of Act of 1912 observed:‑‑ "It is thus clear that an agreement to sell the corpus of the land after getting proprietary rights is a valid agreement and is enforceable after actually proprietary rights have been obtained and the intending purchaser had been refused the same, but where the agreement is to sell the tenancy rights without making permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 such an agreement being void is not enforceable and thus on its strength decree for specific performance cannot be granted. Since in the present case, the agreement was to sell the corpus of the land after obtaining proprietary rights, there was no necessity of getting permission under section 19 of the above said Act and since after obtaining the proprietary rights, Jiwan had sold the property to Mst. Nasim Akhtar wife of the appellant, the respondent rightly brought the suit on the basis of the agreement, for specific performance and the same was rightly decreed." Similarly on the question of delivery of possession of the suit land under the agreement to sell, the learned Judge agreed with the findings of the Courts below and while rebutting the arguments of the learned counsel for the appellants held:‑‑‑ "I have carefully perused copy of Khasra P.1 and copy of Khasra P.4. The entry is Jiwan Abadkar through Muhammad, son of Khota, ghair dakhil kar matehat Ilam Din. There appears to be no addition in different ink. Rather the whole writing appears to be with the same pen and ink from the very beginning ********* and further according to the statement of Patwari P.W.1, father of the respondents remained in occupation as lessee up to 2‑11‑1967. May it be so but it will not make any difference. Since thereafter the possession was delivered to the respondent under the agreement to sell, therefore, in future entries not the father of the respondent but the respondent himself was mentioned as in occupation."

9. After hearing the learned counsel for the parties in the light of the above conclusion, we hardly find any merit in this appeal. The two‑fold question to be considered in this case is whether the deed Exh.P3 executed by Jiwan the predecessor‑in‑interest ‑ of respondents No.2 and 3 in favour of respondent No.l was in fact a sale‑deed and thus violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and that whether respondent No.l was put in possession of the suit land on the strength of alleged sale‑deed.

10. Section 54 of the Transfer of Property Act defines both a sale and a contract for the transfer of immovable property. According to this section sale of immovable property means:‑‑ "Sale is a transfer of ownership in exchange for a price paid or promised or part‑paid and part‑promised." Contract for sale of immovable property is defined:‑‑ "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property." Now, if the document Exh.P3 is read in the light of the above definition coupled with the express words of section 19 of Colonization of Government Lands (Punjab) Act of 1912, by no stretch of imagination it can be termed as a sale deed. Its very recital starts with the words and concludes with. Though Jiwan had received the full sale consideration in respect of the suit land and its possession delivered to respondent No.l but still its contents do not give an inkling that the document Exh.P3 is a sale‑deed. Through the said document Jiwan did not transfer his tenancy rights but had only agreed to sell the corpus at the hands of respondent No.l. Therefore, the said transfer was not in violation of section 19 of Act of 1912. A similar question came for consideration before the Full Bench of this Court in Civil Appeal No.216 of 1978 decided on 16‑6‑1981 where in para 12 it was held:‑‑ "On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantee had acquired proprietary rights. Such a reservation in‑ the deed itself showed the awareness of the prohibition and recognition of its legal effect and effort op the part of contracting parties to keep this sale within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provision of section 19 of the Act or of the public policy behind such a statutory provision." This view has been followed in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others (PLD 1986 SC 70) relied upon by the " learned counsel for the respondents and we respectfully follow the same view. The authorities cited by the learned counsel for the appellants ‑are clearly distinguishable and thus not relied upon.

11. As for the document D2 both the lower Courts have expressed doubts about its genuineness, and we think rightly so, because the delivery of possession of the suit land was not made to the appellants on the strength of document Exh. Dl. And further that after agreeing to sell the suit land at the hands of respondent No.l at Rs.23,000 why Jiwan should sell the same land in favour of the appellants on a tar lesser amount

12. So far as the delivery of possession of the suit land is concerned all the three Courts have held that its possession was delivered to respondent No.l under the deed of agreement to sell. This fording is based on correct appraisal of evidence brought on the record. A certain entry in the Khasra Gardawari with the different ink or person would by itself not create any doubt on the other evidence with regard to delivery of possession of the suit land.

13. In view of the above, the appeal is dismissed. A.A./S‑789/S Appeal dismissed.