P L D 1981 Karachi 443 (PLP)

The trial Court gave findings on both the issues against the appellant and held that the prior .. permission of the Deputy Commissioner was necessary in absence of which the sale was void ab initio. Upon. these findings the trial Court by the impugned judgment dated 22‑8‑1966 dismissed the suit of the appellants, but very fairly ordered that the respondents shall refund the consideration amount to the appellants alongwith interest at Rs. 6 per annum. The appellants welt to challeng the aforesaid judgment in this appeal.

3. Mr. A. M. I. Nomani contended that the restrictions imposed by Act III of 1899 were no longer applicable to the land in dispute on account of the effect of section 16. of the Displaced Persons (Land Settlement) Act. 1958 (hereinafter referred to as the Act). Section 16 of the Act on the date of the Sale Deed in dispute was in the following terms 'Every person who is permanently settled on any land under this Act shall, subject to the general laws applicable to the area in which the land is situated, be entitled to hold and enjoy the rights and title conferred on him and to transfer or alienate the same." This section was amended by Ordinance XIII of 1964 and after its amendment read as follows; "Notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person." Now the Sind Act No. III of 1899 as its preamble shows was promulgated to provide for the grant by the Government of special occupancies in certain lands in the Province of Sind which are property of the Government and are wholly or partly irrigable from Government Canals. Section 8 of the aforesaid Act III of 1899 provides as under :‑ "The rights or interests vested in an occupant by or under this Act shall not be capable of being attached or sold in execution of a decree or order of any Court or in any insolvency proceedings, nor shall they or any of them without the previous consent in writing of the Collector, be transferred or charged by any sale, gift or mortgage or other private contract Provided that ............ (not applicable)."

4. I was referred to Taza Grd v. Said Ghulam (1) in which a Full Bench of the High Court of West Pakistan, Peshawar Bench expressed the view that the comparison of the language of section 16 before the amendment and after the amendment does not show any material difference in the meaning though there was a change in the language. The view taken in that case was that at any rate the unamended section 16 conferred full proprietary right on the displaced person, in that the section in very clear terms states that the displaced person would be entitled to hold and enjoy the rights and title conferred on him and to transfer or alienate the same. This view was approved by their Lordships of the Supreme Court in Sultan Muhammad v. Muhammad Siddiq (2). It may, however, be pointed out that their Lordships were considering the effect of the language of section 16 of the Act in order to see whether the rights conferred under the said section were subject to the right of pre‑emption created under the Pre‑emption Acts. The argument of the learned counsel for the appellants is that by operation of section 16 of the Act the fall proprietary rights were conferred on the respondents and they were, therefore, entitled to alienate the same without the intervention of the Deputy Commissioner. Learned. counsel re‑inforced his contention by referring to section 4 of the Act, subsection (3) of which provides that on publication of a notification for acquisition of evacuee lands, the right, title and interest of the evacuee or persons claiming through him in the land shall be extinguished and the land shall vest wholly and absolutely in the Government free from all encurribrhnces:

5. The term "land" has been defined in section ?, subsection (3)‑ as under :‑ 'Land' means evacuee property consisting of land held for agricul tural purposes or for purposes subservient to agriculture or to pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes ail rights of evacuee in such land, but does not included‑‑ (1) P L D 1967 Pesh. 157 (2) P L D 1973 S C 347 (a) property as defined in sub‑clause (b) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956, or in sub‑ clause (d) thereof ; or (b) such evacuee land as may be declared by the Chief Settlement Com missioner as a building site." (The underlining* is mine). The plain reading of the aforesaid definition of land alongwith section 4 makes it clear that it is the rights of the evacuee which constitute land which upon publication of the notification under section 4 vest wholly and absolutely in Government. According to rule 7‑A of the Displaced Persons (Land Settlement) Rules, 1959 after the acquisition of the land under section 4 the Revenue Officer of the area concerned has to cause a mutation of extinction of all evacuee rights and interest in the entire estate to be entered and disposed of and the Government was to be substituted for the evacuee holders of the right in the estate. Now the position under un amended section 16 is also that the person who is permanently settled on such land was "entitled to hold and enjoy the rights and title conferred on him and to transfer or alienate the same". The term "settlement" has been defined in section 2(8) of the Act as under; ", .`Settlement' means conferment on a displaced person of any perma nent right in or title to any land under this Act, whether such right or title be proprietary, occupancy, tenancy or of any other kind."

6. The cumulative effect of all the aforesaid provisions is that upon permanent settlement under the provisions of the Act the allottee steps into the shoes of the evacuee and is vested with the rights possessed by the evacuee in the land at the time of its acquisition under section

4. If the evacuee enjoyed the totality of proprietary rights in the land the title in the land would obviously vest in the person permanently settled on such land. But if the evacuee was not possessed of the totality of the proprietary rights of owner ship clearly the allottee will not be entitled by virtue of the settlement to high rights than those of the evacuee. The whole object of the Settlement Law seems to be to settle displaced persons in order to compensate them for the losses suffered by them on account of expropriation by Government of India of their rights in property in India and in lieu to permanently transfer to them the rights abandoned by the evacuees in the evacuee property. It is in this prospective that the question of the effect of restrictions imposed by Act III of 1899 is to be examined. There is no dispute between the parties that the evacuee owners had acquired the land in dispute by way of Government Grant ;therefore, by virtue of section 3 of the Government Grants Act, 1895 the restrictions, conditions and limitations contained in the grant must be given effect to according to their tenor notwithstanding any law to the contrary. Obviously, therefore, the rights vested in the evacuee grantees were not transferable by sale; gift or mortgage or other private contract without the previous consent in writing of the Collector as provided in section 8 of Act III of 1899. These were the restrictions and conditions which continued B to attach to the grant and were .finally transmitted with. the land to the transferees ‑ under the Settlement Law. If it is held that these conditions and limitations on the power of transfer by the holder for the time being of the land in question were removed because of the acquisition of the land under section 4 of the Act, it would amount to saying that the land was resumed by the Government and a fresh grant was made without such conditions. However. ~ the object underlying section 14 of the Act was only to allot and dispose of lands forming part of the compensation pool contituted under section

5. The compensation pool comprised of the land vesting in the vacuees to the extent of rights enjoyed by them, In this view of the matter I have reached the conclusion that notwithstanding the provisions of the Act the respondents could not transfer the land to the appellants without the prior sanction of the Deputy Commissioner. Admittedly no such sanction was obtained prior to the execu tion of the Sale Deed and even subsequent request made in this behalf was C rejected. The result is that the alienation made in favour of the appellant was void ab initio and conferred no title on the appellants.

7. For the foregoing reasons, there is no merit in this appeal which is accordingly dismissed. The parties are, however, left to bear their ‑own costs. nt. Y. H. Appeal dismissed.