P L D 1949 Lahore 1 (PLP)

A Court cannot appoint a Commissioner for purposes other than those mentioned in the section. (h) Punjab Alienation of Land Act, 1900, S. 3‑A‑Agriculturist creditor. It is impossible to hold that the plaintiff "carries on the business of advancing loans". It is clear that he advances loans to certain persons as a means of facilitating continuous supply of the commodities which he sells at his shop and on some occasions he may also advance small sums for immediate personal needs of these suppliers, and when he does not make a 'business or a living out of putting out money on interest. Mahmood Ali and Ghias Muhammad for Appellant. Shamair Chand for Respondents (absent). Cornelious, J.--‑The facts of the suit out of which this appeal arises may be briefly stated. The land in suit measures ten killas and is situated in Gujranwala. It was held under mortgage with possession by the plaintiff Muhammad Wazir from its owner the defendant Jahangiri Mal, the mortgage being dated the 13th September 1938 for a sum of Rs. 5,500 out of which 2,000 carried interest at one percent per mensem. On the 24th August 1940, Jahangiri Mal agreed to sell this land to Muhammad Wazir and received a sum of Rs. 100 by way of earnest money for which the document (Exh. p. 2) was executed as a receipt and also as a memorandum of the agreement, which was that the sale price should be Rs. 7,400 and after deducting the amount due on the mortgage with interest, the balance should be payable; it was agreed also that the sale‑deed would be executed and registered within a week. On the 28th October 1940, Muhammad Wazir sent a lawyer's notice to Jahangiri Mal claiming performance of the contract of sale and on the 31st October, he received a reply to the effect that Jahangiri Mal could not afford to wait as interest was accumulating and as the plaintiff had not made an account as promised, Jahangiri Mal had sold the land to Sant Ram for a sum of Rs. 8,000 reserving the mortgage debt due to Muhammad Wazir. In fact, the sale deed in favour of Sant Ram was executed and registered on the 19th October 1940. In the reply (Exh. p. 1) it was stated that the sale had taken place in the presence of the plaintiff. The suit was brought by Muhammad Wazir on the 13th August 1942, against Jahangiri Mal and Sant Ram for specific per?formance of the contract of the 24th August 1940. A plea was taken by Sant Ram that he had further mortgaged the property to one K. B. Nasir‑ud‑Din, who should be impleaded, and this was accordingly ordered by the Court. Jahangiri Mal admitted the contract to sell, but alleged that it was obtained by the exercise of undue influence, and was also void because the consideration was uncertain. ‑He also pleaded that the plaintiff was in breach for failing to offer payment of the consideration to him within a week as stated in the document (Exh. p. 2). Sant Ram's pleas were that he had brought the property from Jahangiri Mal in good faith without notice of the previous contract of sale. The validity of that contract was challenged on the grounds that it had not been performed within a week, that the terms of the previous mortgage‑deed were very harsh and unconscionable, that it the Court reopened the mortgage and took an account of the profits enjoyed by the mortgagee, viz., the plaintiff something would be found due to the mortgagor, that the sale was induced by under influence, and that the sale consideration was an uncertain amount. It was also pleaded that specific performance of the contract should not be allowed on the grounds that a sale by Jahangiri Mal to Muhammad Wazir would contravene the provisions of section 3‑A, Punjab Alienation of Lands Act, 1900, which prohibits the sale of land by an agriculturist to his agriculturist creditor, unless the vendor should have cleared off his debts and a period of three years should have elapsed from the date of such payment. Two other pleas were advanced in support of the same contention namely, that the plaintiff had delayed for a period of two years before making any attempt to secure a sale‑deed in his favour and further that as a collateral of Jahangiri Mal, Sant Ram could pre‑empt a sale of the land to Muhammad Wazir. The learned Senior Sub‑Judge who tried the case has found that the agreement dated the 24th of August 1940, was duly proved and that it was not obtained by undue influence. In regard to the questions whether the plaintiff had resiled from, or failed to perform his part under the contract, no clear finding was given, but it was held that he was guilty of inordinate and intentional delay which was prejudicial to the defendant, and consequently he was not entitled to a decree for specific performance. As regards the other grounds upon which this right was challenged it was held that the amount of the sale consideration was not uncertain, but Sant Ram as a collateral of Jahangiri Mal had a good claim to pre‑empt a sale by Jahangiri Mal to Muhammad Wazir, and besides, a sale by Jahangiri Mal to the plaintiff would contravene section 3‑A, Punjab Alienation of Land Act. On the two last‑mentioned grounds it was held that specific performance of the agreement of sale to Muhammad Wazir should be refused. It was further held that the questions whether Sant Ram and K. B. Nasir‑ud‑Din were bona fide transferees without notice were immaterial, The plaintiff's suit was dismissed with costs on the grounds mentioned above and the plaintiff has appealed to this Court. Relief by way of specific performance of contract is essentially equitable and it is consequently of importance to state at the outset that there is clear proof on the record that both Sant Ram and K. B. Nasir?ud‑Din were aware at the time when they entered into their respective transactions in respect of this land, that the previous owner Jahangiri Mal had agreed to sell it to the plaintiff. An admission to this effect, was made on behalf of K. B. Nasir‑ud‑Din in so many words by his counsel prior to the framing of issues. Sant Ram denied notice both in the statement before issues and in his evidence, but it was proved that in a previous pre‑emption suit "Sant Ram v. Jahangiri Mal" instituted on the 26th August, he had clearly admitted that on the 4th October 1940, at Gujranwala he learnt that Jahangiri Mal had agreed to sell the land in suit for Rs. 7,200 (this was obviously erroneous) to Muhammad Wazir, and he approached all the brokers and told them that he was prepared to pay Rs. 1,000 more. Thus it is clear, that both these transferees took the suit land with notice of the pre‑existing agreement of sale in the plaintiff's favour and neither of them is consequently in a position to set up any equities against the plaintiff. The plea of Jahangiri Mal that Muhammad Wazir had resiled from his contract prior to the sale in favour of Sant Ram and that he had failed to perform his part of the contract is obviously unsound. In a contract of sale of immovable property time is not ordinarily of the essence. The period of a week fixed by the agreement (Exh. p. 2) has, therefore, no binding effect. The only evidence in support of these pleas is that of the defendant Jahangiri Mal, and as he stood to gain to the extent of at least Rs. 600 by selling to Sant Ram, his statement cannot be accepted without reserve. The sum payable in cash by Muhammad Wazir to Jahangiri Mal in August or October 1940, was by no means too large for a person in the position of Muhammad Wazir who runs a commission shop for the sale of fruits and vegetables and whose bahis pronounced before a local Commissioner ii: the case show large advances of sums such as Rs. 500, Rs. 800, Rs. 1,400, etc., to dealers from whom supplies were to be obtained in the future. Consequently, there need be no doubt as to the plaintiff's readiness to perform his part of the contract at tile tine when Sant Ram bought the land from Jahangiri Mall. The plaintiff's interest in the land is sufficiently established by the notice of the 28th October 1940, which he sent. He explains that he was moved to send this notice when Sant Ram came tc him and enquired what was due to him under Jahangiri Mal's mortgage; the plaintiff enquired why Sant Ram was asking and learnt that Sant Ram had agreed to buy the land. This incident is denied by Sant Ram but it is in his interest to do so and it has already been seen that San: Ram falsely denied knowledge of the agreement in favour of Muhammad Wazir. There is nothing inherently improbable in Muhammad Wazir': version which may accordingly be accepted. On the point of laches, the learned Senior Sub‑Judge has referred firstly, to the interval of 21 months which elapsed between the date on which Muhammad Wazir learnt of the sale to Sant Ram, and the date of his suit, and remarked treat the plaintiff's plea of illness was unsupported by proof and his further suggestions that being in possession he was not in a hurry and that Sant Ram had promised that he would sell the land to him were both unconvincing. Reliance was also placed upon Muhammad Wazir's admission that he brought his suit about a fortnight after receiving a notice from K. B. Nasir‑ud‑Din claiming to redeem his mortgage, and an adverse conclusion was drawn from the plaintiff's failure to implead this person as a defendant. On these grounds, it was held that the delay was "intentional, inordinate and prejudicial to the defendant". It does not appear that the learned Senior Sub‑Judge gave sufficient attention to the admission made by Sant Ram that he owed Rs. 8,000 to the plaintiff and other land belonging to him was under mortgage to the plaintiff. This is important for the reason that it placed Sant Ram, under the influence of Muhammad Wazir, and consequently there is nothing improbable in Sant Ram having undertaken to let the plaintiff but the land eventually. Sant Ram of course denies this, but he had manifested his anxiety to retain the land against the challenge of the plaintiff by false statements in a number of other respects. I find no difficulty in believing that the plaintiff, being assured of regaining the land by means of a suit, and being further in a position in which he was enjoying the produce of the land and at the same time a sum of Rs. 240 per year was accumulating as interest in his favour chose not to move for the purpose of obtaining specific performance of the agreement in his favour, until he found that the now owner whom he had every hope of ousting had further alienated the property. Then he thought he could no longer and there can be no doubt that his appreciation of the position was correct, for it is well‑settled that where a statute of limitation imposes a bar, mere inaction by a claimant within the time allowed by the statute cannot be treated as evidence that he has waived or abandoned, his rights, but on the other hand where a claimant knows that a party against whom he has a claim is altering his position in the belief that the claimant has abandoned or will not enforce his claim and even then, the claimant does nothing, his inaction may bar his claim even within the period of limitation vide Lekh Singh v. Dwarka T(ath A I R 1929 Lah. 249 (D B). The failure to implead K. B. Nasir‑ud‑Din in the suit is in my opinion wholly immaterial, he could have no independent claim in respect of the property which could be enforced against the plaintiff, for his status in respect of the property was subordinate to and depended upon that of Sant Ram and conse?quently if Sant Ram lost the land, K. B. Nasir‑ud‑Din also would lose his mortgage. In the present case, the only proof of any change of position in respect of the land following after the sale to Sant Ram is the mort?gage in favour of K. B. Nasir‑ud‑Din, and since Muhammad Wazir instituted his suit immediately after he became aware of this mortgage it cannot be said against him that he was guilty of inaction of the kind which would result in his being non‑suited in a claim for specific perfor?mance nor is there anything in the circumstances of the case which might when coupled with the lapse of time, provide sufficient evidence of intention on Muhammad Wazir's part to abandon or waive his rights. For these reasons I consider that :4he conclusions reached by the Court in regard to an estoppel and laches, as barring the suit are not correct. In support of the view that because Sant Ram could successfully prompt a sale of the suit land by Jahangiri Mal to Muhammad Wazir, specific performance of the agreement to sell between the two latter persons should not be granted, two authorities have been cited by the Senior Sub‑Judge of which the first is (Saheb) Dayal Singh v. Mahabir Singh A I R 1930 All. 166 which follows Habib‑ur‑Rahman v. Ali Asghar A I R 1925 Cal. 1237. In the latter case, proceeding on the basis that in the Province of Bengal there was a general right of pre‑emption under the Muhammadan Law in favour of Mohammedans, the learned judges of the Calcutta High Court held that it was inequitable to decree specific performance of an agreement for sale of land against a subsequent purchaser where the latter was entitled to pre‑empt a sale of the same land in favour of the plaintiff. In the Allahabad case, the parties other than the vendor were apparently non‑Muslims but the right of pre-?emption raised in favour of the second vendees was not related to any statute. In the Punjab the land of pre‑emption has now been codified in the Punjab Pre‑emption Act, 1913, and as will be seen, this makes a material difference to the argument. The second ruling relied upon by the learned Senior Sub‑Judge is Ganda Ram. v. Ram Chand A I R 1924 Lah. 163 where the suit was inter alia for specific performance of an agreement to sell a certain portion, being the middle portion of a house. The vendees had become owners of this portion as well as the two other portions of the house and in refusing the decree for specific performance a learned single judge of this Court observed that to grant the decree would lead to constant trouble and friction between the plaintiff and the vendees, and further that as the middle portion and the two side portions of the house had a common entrance from the street, the vendees would have a superior right of pre‑emption under section 16 (fourthly) of the Punjab Pre‑emption Act in consequence of which "the decree for specific performance even if allowed would become nugatory and would not avail the plaintiff in any way whatever". It appears to me, speaking with respect, that the conclusion of the judge was made without regard to the provisions of section 3, subsection (5) of the Act, the relevant portion of which is as follows:‑ " 'Sale' shall not include‑ (a) A sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer. (b) ??????????. Learned counsel for the appellant has cited a Division Bench authority of the Punjab Chief Court published as Nawab v. Tikaya Ram 40 P R 1911 where the facts were as follows:‑ In a suit for pre‑emption of a sale of certain land, the plaintiffs were sons of one Jowaya who at an earlier date had sold certain other land to two of the defendants by registered conveyance which provided that, it Jowaya's minor nephew whose land he was purporting to sell subse?quently repudiated the sale, Jowaya would give an equal area of land out of his property in substitution for the loss of the minor's share. Later the minor repudiated the sale and recovered his share of the land sold by Jowaya whereupon the vendees sued Jowaya for possession of the land which he had undertaken to give in substitution and obtained a decree for possession. The plaintiffs claimed to have a right of pre-?emption in respect of this decree and the defendants met the claim with the plea that there was in fact no sale for the purposes of the law of the pre‑emption, This contention had prevailed before the Divisional judge and the learned judges of the Division Bench agreed that the decree by itself did not effect the sale but that it merely gave the decree‑holders a right to secure the land, and until the decree was executed it resembled a mere agreement to sell, inasmuch as it merely gave the decree‑holders a right to complete the transaction. The learned judge went on to remark as under:‑ "The Act provides that 'a sale' for the purpose of the law of pre?-emption does not include a sale in execution of decree, and we cannot limit this wide expression merely to sales effected in execution of ordinary decree. It seems to us that the words are as applicable to sales which are completed by the execution of decrees such as that in this case, and that it is only in the case of voluntary sales inter partes that the provisions of the Act apply. In the present case the so‑called 'sale' was in no sense voluntary. Jowaya, as we have pointed out, did his utmost to resile from his bargain and he fought the case brought against him by the vendees to the bitter end". Although the provision in the present Act excluding certain sales from the purview of the Act, which has been reproduced above is somewhat differently worded from that which was interpreted by the learned judges of the Punjab Chief Court, the conclusions reached by them appear to me, speaking with great respect, to be still valid and eminently sound. At first sight, it may appear that if a sale has effect in conse?quence of a decree, it is not taken out of the purview of the Punjab Pre?-emption Act, unless the decree be one for money, but examination of the provisions of rules 32 and 34 of Order XXI of the Civil Procedure Code clearly shows that in a case like the present where an actual conveyance will eventually have to be executed in the plaintiff's favour if he succeeds in obtaining a decree, the expression "sale" has reference to this conveyance and need not be regarded as meaning either the decree or the decrees as executed. Under rules (5) of rule 32 cited above it is provided that when a decree for the specific performance of a contract has not been obeyed, the Court may in addition to providing other relief "direct that the act required to be done may be done so far as practicable by the decree‑holder, or by some other person appointed by the Court", and with reference to the execution of a document rule 34 expressly provides that where the decree makes such a provision, a draft of the document is to be prepared by the decree‑holder and served on the judgment debtor through the Court where after having considered objections the Court shall modify the draft Is it thinks fit and the document shall thereafter be executed by the judge or such officer as may be appointed for the purpose, and the rule further provides that a document so executed shall have the same effect as if it had been executed by the party ordered to execute it. Provision is also made for registration of the documents if required by the law, at the instance of the Court. These provisions make it plain that a sale effected in consequence of a decree for specific performance such as that claimed in the present suit is entirely different from a voluntary sale, for the purposes of pre‑emption. It is in fact an act of the Court, as statutory substitute for the person who is in default, and as such acts must be deemed to be performed by orders of the Court, the consequent sale: is clearly precluded from the mischief of the Punjab Pre‑emption Act by virtue of the provisions already cited. "Ganda Ram v. Ram Chand" (cited above) cannot, therefore, be regarded as laying down the law correctly in this respect. It remains to consider the conclusion reached by the Court that the plaintiff was a creditor within the meaning of section 3‑A, Punjab Alienation of Land Act. This term has been defined by the section as meaning "a person or a firm carrying on the business of advancing loans". It appears that the learned Senior Sub‑judge referred the decision off the question whether Muhammad Wazir satisfied this condition to a local Commissioner and this is clearly in contravention of section 75, Civil Procedure Code, which limits the power of a Court in regard to the issue of commissions to four purposes namely the examination of a person, the making of a local investigation, the examination or adjustment of accounts and the making of a partition. The report of the local Commissioner Mr. Amar Nath Vohra is printed at page 26 and shows that he was required to report whether Muhammad Wazir "is a money‑lender '. The local Commissioner recorded a certain amount of evidence including statements by munims of the plaintiff's firm, and found that the plaintiff had been lending money on pronotes to persons of three classes namely, persons who cultivated vegetables and water?melons or who took lands on lease for such cultivation, persons who had bought the fruit of gardens as contractors and persons who bought and sold commodities through the plaintiff's firm. On the question whether such persons were "traders", the local Commissioner was in some doubt. He noted that money had been advanced on some occasions to such persons for house‑hold needs and marriages etc. On some of the pronotes interest was chargeable. He, therefore, concluded that Muhammad Wazir was money‑lender. It is quite clear from the state?ment of Tara Chand munim of the plaintiff's firm that any loans advanced by Muhammad Wazir were almost exclusively to persons who were suppliers of vegetables and fruits to the plaintiff's shop, and money was generally advanced to finance cultivation. A list of relevant items out of the plaintiff's bahis is printed at page 45 of the paper book, and it shows only nine items of small advances to various persons which are not expressly in relation to gardens or field cultivation, and none of these shows that there was any stipulation by way of interest. Obviously, it is impossible to hold that the plaintiff carries on the business of advanc?ing loans". It is clear that he advances loans to certain persons as a means of facilitating a continuous supply of the commodities which he sells at his shop and on some occasions he may also advance small sums for immediate personal needs to these suppliers, but there is nothing which would indicate that he "makes a business or a living out of putting out money on interest". Consequently the finding of the Court below which merely adopts the conclusion reached by the local Commissioner on this point cannot be supported and there is nothing in law to bar the plaintiff from purchasing the land in suit from Jahangiri Mal. In any case, even if the provisions of section 3‑A of the Punjab Alienation of Land Act applied, the requisite sanction of the Deputy Commissioner could be obtained ex post facto to validate sale. For these reasons I am of the opinion that the suit has been wrongly dismissed by the lower Court and I would accordingly allow this appeal and decree the plaintiff's claim for specific performance of the contract of 24th of August 1940 with costs in both Courts. Abdul Rashid, C. J.--‑I agree. K. M. A.????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.