1982 CLC 61 (PLP)

3. The respondents resisted the suit, and asserted that the deceased was owner of land measuring 88 kanals 18 marlas and sale of part thereof to the appellants being in conflict with M. L. R. 64 was void. They also pleaded that the appellants occupied the land as tenants.

4. The real contest between the parties was as to whether or not the sale in favour of the appellants was void. The learned Civil Judge held that the total land of the respondents' father was less than subsistence holding and, therefore, under the provisions of M. L. R. 64 sale of part of this land was not permissible. He maintained that the agreement of sale being void ab initio bad no legal sanction and thus the mutation was rightly reviewed. Accordingly the learned trial Court by its judgment and decree dated 7‑6‑1979 dismissed the suit to the extent of declaratory relief but passed a decree in the appellants' favour that they would have lien on the suit land for payment of Rs.3,

046. In appeal the learned Additional District Judge held that the appellants were not owners in the village before the sale in dispute and the transaction was clearly a breach of M. L. R.

64. It appears that the appellants claimed improvements to the extent of Rs.1,

600. At the appellate stage the respondents readily agreed to pay this amount to the appellants. The learned Additional District Judge thus modified the judgment and decree of the trial Court in the terms that the appellants would remain in possession of the land till they were paid the sale price of Rs.3,046, and so also Rs.1,600, for improvements. The appellants have now come to this Court in second appeal.

5. The learned counsel for the appellants argued that the land was sold by the respondents predecessor‑in‑interest, to the appellants who received the consideration and passed on the possession to them; during his life time he never challenged the sale. It was argued that after his death, it was not open to the respondents, to question the validity of the sale under para. 25 of the West Pakistan Land Reforms Regulation, 1959. Reliance was placed on Ghulam Muhammad v. Maula Dad and others (1980 S C M R 314). It was also contended that if the sale contravened any provision of law, then both the parties being pari delicto, the law would help the party in possession. In support of this proposition, the learned counsel referred to Muhammad Amin v. Mian Muhammad (P L D 1970 B J 5).

6. It is not disputed that the respondents' deceased father being owner of an area measuring less than subsistence holding, the sale of part of the holding was violative of Paragraph 25 of M. L. R. 64 and thus was void ab initio. In Ghulam Muhammad's case, as against the disposition of the suit land, there was merely an agreement for sale and the Provincial Government, in the context of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, also did not object to the transaction. Furthermore, the vendee and not the purchaser of the property, was the suitor before the Court. This authority is thus distinguishable. It is to be noticed that in the instant case, the appellants have sought an equitable relief of declaration and permanent injunction. In Ghulam Rasool v. Muhammad Anwar (1969 S C M R 254), the Supreme Court declined to enforce a contract in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, and held:‑‑ " ..An equitable relief could not be granted to a person, the foundation of whose claim rested upon an illegality. Equity moves in aid of law and not to defeat law."

7. The argument resting on Maxim pari delicto is also misconceived. At page 490 of the Broom's Legal Maxims it has been laid down:‑ " .The maxim, in par! delicto potior est conditio possidends, is as thoroughly settled as any proposition of law can be. It is a maxim of law, 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; for ...the Courts will not assist an illegal transaction in any respect;" .The maxim is, therefore, intimately connected with the more comprehensive rule of our law, ex turpi causa non oriture actio on account of which no Court will allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal" .. ; and the maxim may be said to be a branch of that comprehensive rule; for the well‑established test, for determin ing whether money or property which has been parted with in connection with an illegal transaction can be recovered in a Court of justice, is to ascertain whether the plaintiff, in support of his case, or as part of his cause of action, necessarily relies upon the illegal transactions; if he `requires aid from the illegal transaction to establish his case', the Court will not entertain his claim . . . . ." This maxim is not a rule of law and like most of the other maxims, is founded on consideration of justice and equity. These considerations cannot override the express provisions of the statute. Paragraph 3 of M. L. R. 64 expressly provides:‑ "...The provision of this Regulation, and any rule or order mad thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract,‑instrument, deed or other document." In the face of mandatory provisions of the Regulation, this Court cannot give its blessing to a transaction which is patently illegal and void. In Muhammad Amin v. Mian Muhammad, the sale violative of section 54 of the Transfer of Property Act was sought to be saved on the strength of the doctrine of pari delicto, on the plea that a plaintiff could not be heard on inquiry against a defendant who was inducted into the possession of the property by him, under an illegal deal challenge through the suit. I do not think that in the circumstances of the case, this ruling can be of any avail to the appellants.

8. The instant case has another distinctive feature. The appellants themselves prayed for an alternative relief that they were entitled to hold the land in their possession, till the refund of the sale price. Both the learned Courts below accepted their lien over the suit land till the sale price of Rs.3,046, was paid back to them by the respondents. The learned Additional District Judge, as observed above, also awarded to them, their entire claim of Rs.1,600, on account of improvements. Thus whatever the amount was incurred by the appellants, under the illegal sale, would be refunded to them. On this analysis also, the doctrine of pari dellcto shall have no application.

9. The jurisdiction of the Court to grant a declaratory relief is always discretionary. Thus when the plaintiffs/appellants themselves asked for refund of the money spent by them the learned Courts below were not wrong in refusing the declaratory relief and accepting the appellants' lien over the suit land till the refund of the money due to them. For all these reasons the judgment and decree of the learned First Appellate Court are upheld and this appeal is dismissed, leaving the parties to bear their own costs. M. Y. H. Appeal dismissed.