1980 PLP 427 (CLC)

(1) Whether the suit is properly valued for purposes of court fee and jurisdiction ? O. P. P. (2) .Whether this court has no jurisdiction to try the suit ? O. P. D. (3) Whether the plaintiff has no locus standi ? O. P. D. (4) Whether the plaintiff is owner in possession of the suit property '.' O. P. P. (5) Whether defendant No. 8 has appointed defendant 7 as his attorney who had unlimited powers for the disposal of the property? O. P. P. (6) Whether defendant No. 8 has transferred the property as detailed to para No. 4 of of the plaint and executed an agreement on 3rd March, 1969 ? O. P. r. (7) If issue No. 6 is proved in affirmative whether the agreement ;s fictitious, collusive and illegal ? O. P. D. (8) Whether the plaintiff has paid the entire amount of consideration and had become the full owner of this property ? O. P. P. (9) Whether mutation No. 8 dated 28th May, 1969 and mutation No. 9 dated 7th December, 1969 are illegal and void as stated in para No. 7 of the plaint ? O. P. D. (10) Whether the rights of the defendants are protected under the Transfer of Property Act. (11) Relief.

4. Issue No. 5 was decided in favour of the plaintiff on the basis of a certified copy of the power of attorney Exh. P. 9 which -was irrevocable. Issues Nos.. 4, 5, 6, 7 and 8 were also answered in favour of the plaintiff. Issues Nos. 9 and 10 were decided against the defendants. Issues Nos. 1, 2 and 3 were decided in favour of the plaintiffs since they were not pressed. As a result of these findings, the suit of the plaintiff was decreed without any order as to costs.

5. An appeal was filed by respondents No. 1 to 6 and 8 which was allowed by the learned Additional District Judge on the ground the transfer in favour of the appellant, if any, was void under section 19 of the Colonization of the Government Lands (Punjab) Act, 1912 in so far as the proprietary rights were obtained after the execution of the said agreement. For the same reason it was held that section 53-A of the Transfer of Property Act did not come into play.

6. The learned counsel argued that in this case the price of the area in dispute had already been deposited by Mohammad Yamin Khan by Exh. D. 3 and D. 5 on 2nd October, 1968 and 29th November, 1968 before a the execution of the agreement Exh. P. 3, dated 3rd March, 1969. He relied upon llam Din v. Mohammad Din (P L D 1964 S C 842) in which it was held that the proprietary rights vest in the purchaser of such a grant as soon as the value of the property is deposited in the Government Treasury and it is not suspended till the execution of a conveyance deed.

7. This argument has force in the circumstances referred to above. Section 19 cannot be extended to bar the acquisition of any right by the! appellant. But section 19 is not applicable to the facts of the present case since admittedly this property is not governed by the Colonization of Govern ment Lands (Punjab) Act, 1912. The learned counsel for the respondents for this reason relied upon the terms and conditions of the grant which are referred to in Exh. D. 1 (sale deed). These terms and conditions are incorporated in Notification No. 1477-542130-Th dated 27th June, 1955 which lays down a similar bar on the transfer of the tenancy, as there is under section 119 of the Act of 1912. But the learned counsel for the appellant argued that these terms and conditions were enforced after the tenancy grant. Ile, however referred to another set of terms and conditions to Notification No. 331-54-735-Th, dated 15th March, 1954 published in the Punjab Gazette Extraordinary Issue dated 14th.Mach, 1954. But this is not helpful to the appellant so far as the bar regarding transfer is con cerned. Para 17 of this Notification provides that if the- tenant has acquired proprietary rights in part of the tenancy under condition No. 16 here ln before contained he shall not inter alia transfer in any way his right in the said part of the tenancy.

8. The argument of the learned counsel is that this bar is only about the transfer of a part of the tenancy in case proprietary rights are already obtained in some part thereof. But this argument has not impressed me. It implies clearly that there was a bar in regard to the transfer of the tenancy rights. After the acquisition of proprietary interest in part of the tenancy that bar was removed from that portion but it is emphasised in the above para that the bar remains effective in regard to that part which is still under tenancy.

9. But this is only an academic discussion. Since 1 have already held that if the value of the property had already been deposited before agreement Exh. F. 3 was executed, there would be no bar against the transfer either under section 19 or under any of these terms and conditions. Now it is clear from the document Exh. P. 3 that the appellant had never obtained proprietary rights or interest in this property The learned counsel, therefore, fell back upon section 53-A of the Transfer of Property Act, which is as follows :- "Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part perfor mance of the contract and has done some act in furtherance of the contract, J and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

10. The argument of the learned counsel would certainly have force regarding half of the property since it is clear from Exh. P. 3 that originally the agreement was regarding one half of the land in dispute and the possession of only one half of it purported to have been delivered at the time of the execution of this document. But there is another difficulty in the way of the appellant and that is created by the last proviso to the above section. As stated above the land had already changed hands twice. Once the property was sold by Mohammad Yamin Khan t Mohammad lqbal who in his turn sold it to Fateh Mohammad respondent No.

6. The appellant cannot succeed under section 53-A if it is proved that that either Mohammad Iqbal or Fateh Mohammad were transfer for value and without any notice of the agreement EXh. P.

3. In these circumstances it was necessary for the appellant to base his claim upon this provision which. he has not done. )f there had been sufficient evidence for enabling the Court to render judgment on the question involved in the proviso that could have been done but the learned counsel for the appellant states that the appellant can plead benefit of section 53-A in a suit for possession which has airead) been filed by Fateh Mohammad respondent No. 6 against him. In these circumstances it would - be futile to pursue this line. The appellant in these circumstances cannot be allowed to fall back on section 53-A in the suit. He may take this plea in the suit filed by Fateh Mohammad. Since the appellant has not been able to prove that he has acquired any proprietary interest in the property, the appeal is dismissed. However, the parties shall bear their own costs. K. M. A. Appeal dismissed.