1986 PLP 2049 (MLD)

7. By letter dated 30‑12‑1970, the Board of Revenue, conveyed to the Deputy Commissioner, Lahore, its decision rejecting the proposal to exchange the land, opted by respondent No.3 under M.L.R. 89/91, with the said land in Tehsil Ferozwala. The Forest Department, was informed to acquire the land in village Jajja Kalan, under the Land Acquisition Act, if it was required by them and the Settlement Officer, Sheikhupura directed to eject Dr. Abdul Wahab from the land aforesaid and recover from him the rent for the period, he remained in possession thereof. The petitioners' predecessor‑in‑interest brought W.P. No.51 of 1985, to challenge the validity of the decision of the Board of Revenue, but it was dismissed in limine with the observation, that his remedy lay in filing a civil suit. The Supreme Court refused to grant leave to appeal, on 6‑10‑1971.

8. It was thereafter, that Dr. Abdul Wahab deceased filed a suit for declaration, to the effect that the Board's order was void and ineffective on his rights in the land situate in Chak No. 25/UCC and that he was in its lawful possession. A decree for permanent injunction, restraining the respondents, from interfering with his possession and the rights in the suit land, was, also prayed for. The suit was contested by the respondents on factual as well as legal plane. The learned Civil Judge formulated the following legal issues, on the basis of the preliminary objections, raised in the written statement, by the respondents:‑

(1) Whether this Court has got no jurisdiction to try this suit? (O.P.D.). (2) Whether the plaintiff has got no locus standi to file this suit?. (O.P.D.). (3) Whether the suit is liable to be rejected under Order VII, rule 11 C.P.C.? (O.P.D.). (4) Relief. Both the parties led evidence, on consideration whereof, by his judgment dated 28‑1‑1982 the learned Civil Judge under issue No.1 found that the Court had territorial jurisdiction. However, his decision on the other issues, was in respondents' favour. Consequently, he rejected the plaint.

9. The deceased plaintiff filed an appeal, against the judgment and decree of the learned trial Court but the learned Additional District Judge who heard it, concurred with the findings of the trial Court. Upon the dismissal of his appeal, the deceased came to this Court under section 115, C.P.C.

10. The learned counsel for the petitioners, in his lengthy arguments has vehemently criticised the procedure followed by the trial Court in rejecting the plaint, under Order VII, Rule 11, C.P.C. and the learned Additional District Judge's refusal to intervene in appeal. He argued that in order to see as to whether or not the plaint discloses any cause of action, the Court cannot rely upon the defence version, but has to confine itself, to the contents of the plaint only; it has to start with the assumption that the facts narrated in the plaint are correct and find out whether even then no relief can be granted to the plaintiff. If this procedure was followed, the learned counsel went on to contend, there would have possibly been no occasion to frame the issues. According to him both the Courts below in deciding issue No.3 made a marked departure from the case law on the subject; that their decision is wholly influenced by the defence plea, but even then they ignored the documentary evidence brought on the record, by the deceased plaintiff. To high‑light the provisions of Order VII, Rule 11, C.P.C. the learned counsel heavily relied upon Pahloomal Motiram v. Abdul Quddus Behari and others P L D 1971 Kar. 250, Seven Stars Goods Transport Co. (Regd.) v. The Administrator, Karachi Municipal Corporation, Karachi P L D 1976 Kar. 21, Hakim Saleem Ahmad v. Government of Sind 1982 C L C 269 and Mahmud Ahmad Butt v. Lahore Development Authority PLD 1981. Lah.

153. Referring to the alternate plea that the case was disposed of on merits, the learned counsel contended that in doing so, it was incumbent upon the trial Court to have considered and discussed the entire evidence, but it merely made a cursory reference to some of the documents and failed to advert to the bulk of the evidence. In his submission, such a decision is wholly faulty and ‑cannot be treated as a decision on merits.

11. The precedents cited by the learned counsel for the petitioners no doubt support the propositions that while examining the question of cause of action, the Court should apply its mind to the facts disclosed in the plaint and not to the pleas raised by the defendant in defence. But in considering the contents of the‑plaint, it is legitimate to treat the documents and the material referred to therein, as part thereof. In the instant case, in the plaint, certain orders of the Member, Board of Revenue and other public functionaries, have been mentioned. It is in this context, that in deciding issues Nos. 2 and 3, the learned Courts below, relied upon these documents. It may be observed, that the provisions of Order VII, Rule 11, C.P.C. are not exhaustive of the circumstances in which a plaint may be rejected. The Court has the inherent jurisdiction to 'nip an incompetent suit at the earliest moment. In the words of S.M. Murshed, C.J., in Burmah Eastern Ltd. v, Burmah Eastern Employees Union and others P L D 1967 Dacca 190, such a suit "should not be allowed to further encumber legal proceedings".

12. I may usefully refer here, to the Supreme Court's observations in M. Moosa v. Muhammad etc. 1975 S C M R 115 which arose out of a suit for defamation, against a lawyer and' others. The suit was founded on certain allegations, levelled against the plaintiff by the defendant's lawyer in the correspondence exchanged between the lawyers of the two sides. In the written statement, the defendant, pleaded that the publication was covered by the privilege of an Advocate; was made in the discharge of his professional obligations, as a counsel and prayed for rejection of the plaint under Order VII, Rule 11, C.P.C. The Chief Justice .of the Karachi High Court, upheld the defendant's plea and rejected the plaint. The Supreme Court declined to intervene in appeal and even rejected the review petition. The observations of the Supreme Court appearing at page 49 of the report, are reproduced below: ‑-- "His next contention is that in a defamation suit, Rule 11 of Order VII of the C.P.C., has no application. Sub‑rule (a) of Rule 11 of Order VII, C .P . C . clearly says that a plaint may be rejected where 'it does not disclose a cause of fiction'. In the present case, if the plea of privilege, as held by this Court, was available then the plaint did not disclose a cause of action either against Mr. 'Lakhani or the other defendants arid, therefore, the application was fully competent and the plaint was rightly rejected."

13. Seemingly, the learned trial Court treated the issues as legal issues and disposed of the suit on the basis: of the evidence on the record. But even if it, is considered that the Court wholly proceeded under Order VII, Rule 11, C.P.C., its judgment could not have been set aside en that ground or on the, ground that it failed to frame issues on merits. It is evident from the record that the parties were alive to the questions in issue and went to the trial with full knowledge thereof. The deceased plaintiff had adequate opportunity to produce his evidence and he availed of the same. Apart from oral evidence he brought on the record, a fairly large number of documents to substantiate his case in the light of the contentions raised by the respondents. It is obvious that he was not taken by 'surprise. It is settled, that if the suit is conducted by the parties with awareness of the particular points involved in it, and they adduce evidence in support of their respective versions then merely because no specific issue was framed by the Court, would not render its decision as illegal. This view finds support from Dulhin Rajkishore Kuer v. Muhammad Qayyum and others A I R 1942 Pat.366 wherein a Division Bench of the Patna High Court maintained:‑-- " . when evidence was given and the question was raised in both tile Courts below the decision cannot be assailed merely because there was an omission to frame a specific issue on the point." Again in Hiranmoy Bhaduri. v. Probal Kumar Pramanik 205 I C 138 a Division Bench of the Calcutta High Court held:‑-- "In spite of the defect in the frame of the issue, however, the parties in the present case seem to have gone to trial, knowing full well what the question for decision was. At least the plaintiff was given an opportunity ‑of meeting the point raised at the trial though not covered by the issue, and he cannot be heard to say that the defect in the frame of the issue prejudiced him when he did not avail himself of that opportunity." In Mst. Mitna v. Syed Fuzl Rub and others 13 M I A 573 a money suit, 'filed on the basis of a bond, was; decreed by the trial Court without settling the issues to be decided. In appeal the High Court of North Western Provinces Agra did not consider the omission of such a character, as to necessitate the remand of the case to the Court of the first instance. Even the Privy Council declined to intervene in second appeal and observed:‑ "The Court, however, nevertheless conceived that It was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real‑question between them was,' that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a re‑trial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section of the Civil Procedure Code. At all events, it appears to their Lordships that there is nothing in the Code which made it imperative upon the appellate Court, or now makes it imperative upon their Lordships, to yield to that objection, and, therefore, fully concurring, in the observations made by the appellate Court that if was the duty of the Judge to settle the issues, and that it was much to be regretted that he omitted to settle those issues, they still think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mistrial of the cause which vitiates all the proceedings and renders a new trial necessary."

14. The main argument on the petitioner's side against treating the trial Court's judgment as one on merits, as already stated, is that it did not consider the petitioner's entire evidence. But this contention had no merit. The nature of the rights of the petitioners and that of their predecessors‑in‑interest in the land in dispute, the true character of agreements for sale, the attributes of the deceased's possession and the question of exchange, are the main issues on which the fate of his suit hinges. It is discernible from the record that the entire evidence having bearing on these points, was considered by the trial Court. At least, before me during the course of his arguments, the documents, referred to by the learned counsel, are the same which find mention in the judgments of the Courts below. He has failed to show that the procedure followed by the learned trial Court resulted in any prejudice to the deceased /plaintiff. The trial Court's failure to frame issues on merits and its decision on the basis of issues Nos. 2 and 3, in my estimation do not vitiate its judgment. The fact that instead of dismissing the suit, the trial Court rejected the plaint, is, not of much significance. There is, thus, no good reason to denude the trial Court's judgment of its complexion as a judgment on merits.

15. The issue of exchange is the pivotal point. In this respect, the learned trial Court maintained that there was merely a proposal for exchange of the land in village Jajja Kalan, with that of Chak No. 25/UCC, but on consideration of the details thereof, it was rejected by the Board of Revenue on 30‑12‑1970. However, Dr. Wahab's stand, was that the documents Exhs. P.37 to P.41 comprised orders of the Board of Revenue and established the exchange,' but this argument was turned down. In the opinion of the learned two Courts below, these documents constituted internal noting of the department and did not clothe the deceased with any legal right, envisaged by section 42 of the Specific Relief Act, to sustain the suit for declaration.

16. These findings have seriously been criticised by the learned counsel for the petitioner. He reiterated the arguments advanced on the basis of these documents, before the two Courts below and added that these being the certified copies of the orders passed by the Members, Board of Revenue, were admissible in evidence as part of the public record. According to him by virtue of these documents the exchange was fully proved; the irregularity, if any, in the transactions evidenced by the agreements dated 31‑7‑1962, 9‑1‑1963 and 29‑7‑1967 (Exhs. P.14, P.15 and P.5) stood cured but these were illegally excluded from consideration by the Courts below. I have examined the documents and do not feel persuaded to differ with the findings of, the learned Courts below. Exh. P.37 is a part of the office noting dated 18‑3‑1966 whereby the Member, Board of Revenue, expressed his inclination to grant the permission for exchange to respondent No.3 and show the new area in the name of the latter. This noting cannot be regarded as an executable order and in any case, it was entirely for the benefit of respondent No.3, who was asserting his own ‑rights. In P.38, an office note dated 22‑12‑1967 of the Secretary, Land Utilization Department, was put, up before the Member (Land Utilization), on which he recorded his observation that the area sold to respondent No.3 could not be resumed; the question of exchange was not even adverted to by him. The next document Exh. P.39, again consists of office noting dated 23‑10‑1968 by the Secretary (Colony) with which the Member (Colonization) agreed. But the noting shows that the order had to be issued after obtaining prior sanction of the Member (Land Utilization), and when the file was passed on to that Department, the Secretary (Land Utilization) on 14‑11‑1968, put up the following note:‑-- "If M.B.R. (L U) agrees, the case may be referred back to the Colonies Department for finalization of the case. It may be submitted that while allowing the exchange a formal order shall have to be passed giving the details (Khasra No., village, etc.) of the area which is to be treated as surrendered land (worth 7636 units) so, that we may correct our accounts." The Member (Land Utilization), seems to have agreed with this noting. Exh. P.40 so depicts. It appears that thereafter the case was placed in the meeting of the Full Board held on 23‑4‑1969, wherein vide Exh. P.41 the following decision was taken:‑-- "The Full Board decided that the optee purchasers/ occupants of the land may be consulted whether they are agreeable to accept the exchange on land for land basis or they insist that value of lands in exchange should be assessed on the basis of Produce Index Units. In the latter case they may be asked to give their choice of land elsewhere. It was further decided that Member (Colonies) Board of Revenue may decide the matter in the light bf the abovementioned observations of the Full Board after holding a meeting with Secretary (Colonies), Secretary (Land Utilization) and representative of the Forest Department."

17. This decision was followed by the rejection of the proposal for exchange of the land‑vide Board's order Exh. P.25, challenged in the suit. It reflects, that in pursuance of the decision of the Full Board, respondent No.3 and Dr. Abdul Wahab were consulted, the relevant portion of Exh. P.25 in this behalf is reproduced below:‑-- ........ The Settlement Officer, Sheikhupura, consulted the parties and he reported that:‑-- (i) both Mr. Ahmad Saeed Khan and Dr. M.A. Wahab do not agree to exchange the land on the formula of Acre for Acre, (ii) Mr. M.A. Wahab insists on retaining the area presently occupied by him in Chak No.25/UCC which is 2186 Kanals as against 1571 Kanals 2 Marlas, surrendered by Mr. R.A. Saeed Khan in Jajja Kalan. The P.I. Units value of the area occupied by Dr. M.A. Wahab is 4797 as against 3618 of the land in Jajja Kalan, and (iii) R.A. Saeed Khan wants to get the area in Chak No. 26/UCC.

2. That Board of Revenue has given the matter its careful consideration and it has been observed that M.A. Wahab and R.A. Saeed Khan neither agree among themselves nor have they agreed to abide by the decision of the full Board mentioned above. There is thus no way of settling the issue. The Board of Revenue, therefore, rejects the proposal of exchange of their land in Attari Games Reserve, District Lahore, with State Land in Sheikhupura District." In the face of the documents which are the anchor sheet of the petitioners' rights, I wonder how it could be claimed that the exchange was approved by the Board of Revenue: The basis on which the deceased‑plaintiff rested his case was wholly untenable. The learned Courts below, therefore, justifiably came to the conclusion that the Board of Revenue did not sanction the exchange. These documents were not ignored. These were duly considered. But the interpretation put thereon by the plaintiff, was not accepted by the Courts. Even my appraisal thereof is also the same. There can be no doubt that the power to allow or refuse the exchange vested in the Board of Revenue. The Courts, therefore, had no jurisdiction to substitute their decision for that of the Board. In the circumstances, of the case, no fault can be found with the rejection of the proposal.

18. The relief sought by the petitioner's predecessor‑in‑interest to protect his possession, was also denied to him and his version that he was lawfully inducted into the land, was discarded by the Courts below. It is in the deceased's statement. dated 4‑1‑1982 that he was delivered possession under the orders issued on 4‑1‑1964 by the Deputy Commissioner Sheikhupura and an entry to that effect was made in the Patwari's 'roznamcha'. But this assertion did not find support from the 'roznamcha waqiati' got .produced by the respondents as Exh. D.3. However, the deceased contended that the document was interpolated but this allegation remained unproved. In the Courts below, the respondents urged that the deceased managed to get the possession, unauthorisedly, in connivance with the lower revenue staff.' Their this submission prevailed with the Courts below.

19. It is urged that this finding is contrary to the record. In this respect, my attention has been specifically drawn to the letter dated 15‑6‑1967 (Exh. P.16), which shows that in response to an inquiry made by the Board, the Deputy Commissioner Sheikhupura conveyed to the Secretary (Colonies)' that the possession was delivered to Dr. Abdul Wahab, through the Tehsildar on 11‑4‑1964. This communication finds mention in Exh. P.38. Similarly, there is reference to the delivery of possession in Exh. P.39 and Exh. P.40. The expression figuring in the office note dated 14‑11‑1968 (Exh. P.40) of the Secretary (Land Utilization) to the effect:‑

"possession of State land in Sheikhupura District was given obviously by the revenue staff in 1964, rightly or wrongly." is suggestive of the inference, that whatever the nature of the deceased's possession initially was, the authorities acquiesced therein and as the proposal of exchange remained under consideration of the Board, his possession was not objected to. It transpires from his statement, that in the year 1977, the Board of Revenue held an inquiry and the possession of the deceased was adjudged as unauthorised. I am of the view that after the Board's refusal to allow the exchange, his possession ceased to be lawful.

20. On the argument, that possession was delivered to the petitioner's predecessor‑ in‑interest under the proposed exchange, their learned counsel has made, a vain attempt to defend the possession, under the doctrine of part performance. But the rule envisaged by section 53‑A of the Transfer of Property Act cannot be invoked. There is no written contract, which is sine qua non for `application of this provision of law. The evidence of lawful induction of the deceased into the land is, also not on the record. The letter of the, Deputy Commissioner, Sheikhupura under which the possession is said to have been passed on to the deceased, has not been produced. Exchange as defined in section 118 of the Transfer of Property Act, contemplates mutual transfer of ownership of one thing with another. However, here the land in both the villages belonged to the Government. The deceased rested his whole claim on the agreement and thus, had not acquired any right in the land in village Jajja Kalan much less the ownership.

21. In deciding the jurisdictional issue and the question of the locus standi of the deceased, to file the suit, the Courts below held that respondent No.3 was merely an optee under M.L.R. No.89/91, who did not pay the purchase price and thus, ownership rights were not transferred to him and the land continued to vest in the Provincial Government. That as optee respondent No.3 had no right to transfer any interest in the land to Major S. M. Salim and Hafiz Muhammad Siddique. The Courts further held that the transaction made under the agreement Exh. P.14 in their favour was void and the subsequent transactions based thereon also suffered from the same infirmity. It was held that the suit was barred by law and the deceased‑plaintiff had no locus standi to file the suit for declaration and at the most he could file a suit for specific performance. In this behalf, reference was also made to sections 19 and 36 of the Colonization of Government Lands (Punjab) Act, 1912.

22. The land surrendered by respondent No.3, which he opted to purchase, was governed by the provisions of the Scheme formulated under para. 8 of M.L.R. 89 as amended by M.L.R. 91 of 1961. Paras.10 and 12 of the Scheme which are relevant for the purposes of this case, are reproduced below:‑ "

10. The purchaser shall not, without the sanction in writing of the Collector, alienate any portion of the land sold, before he had paid the entire purchase price and executed deed of conveyance prescribed for similar alienation in the region concerned. Where a claimant has purchased surrendered land in more than one village, he can be granted proprietary rights and consequent power to alienate the same in a village in respect of which he has paid the price in full and has executed the requisite deed of conveyance.

12. Unless otherwise permitted in the scheme, the provisions of the Act and the rules, if any, made thereunder shall apply to the transfers made under this scheme." As per interpretation clause of the Scheme the "Act" referred to in para. 12 means the Colonization of Government Lands (Punjab) Act, 1912. It has been argued from the petitioner's side that para. 10 is a complete code, which excit3dos the application of sections 19 and 36 of the Act, to the transfer of the surrendered land, and both the Courts below erred in placing reliance on these provisions. Such exclusion, was also sought to be spelt out from the phraseology of para. 12 ibid. According to the learned counsel, since para. 10 placed an embargo only on the alienation of the land, it was not a bar for the optee to enter into an. agreement with some other person, to transfer land after acquisition of proprietary rights and execution of the deed of conveyance in his favour. He then referred to the agreement Exh. P.4 and urged that the intention of the parties thereto, was that respondent No.3 would alienate the land to Major S.M. Salim and Hafiz Muhammad Siddique when it was permanently settled on him. He endeavoured to enlist aid for validity of this agreement, from Manzoor Hussain v. Zulfiqar Ali 1983 S C M R 137 and submitted that it was not hit by para. 10 of the Scheme or even by section 19 of the Act. The learned counsel then laid hand on the deed of power of attorney Exh. P.3 to state that the agreements Exhs. 15 and P.5 and the deeds of power of attorney Exh. P.4 and Exh. P.6, executed by Major S.M. Salim and Hafiz Muhammad Siddique respectively in favour of Dr. Wahab deceased, are in conformity with law. He submitted that upon the terms of the deed of power of attorney Exh. P.3, the two attorneys were authorized to further delegate powers conferred on them. It was also pointed out that the terms of the agreements Exhs. P.14, P.15 and P.5 are almost the same. The argument thus, was that the Courts, below were wrong in law, in dubbing these agreements as void. As regards the frame of the suit the learned counsel asserted that the deceased‑plaintiff challenged the validity of the Board's order Exh. P.25 and further prayed for protection of his lawful possession and thus, suit for declaration and: permanent injunction was fully competent.

23. It is to be noticed 'that on 27‑7‑1963‑ respondent No.3 cancelled the deed of power of attorney Exh. P.3. On the authority of Shafique Hussain v. Abdul Qasim P L D 1979 Kar. 22, this cancellation has also been assailed and it is submitted that as Major S.M. Salim and Hafiz Muhammad Siddique had interest in the land which was the subject‑matter of the agency, the deed of power of attorney, in their favour, which expressly incorporated, an averment that, it was irrevocable, could pot be revoked. Thus, it was‑ vehemently urged that the revocation was ineffective in law.

24. I am unable to agree with the meanings given to para. 12 of the Scheme by the learned counsel for the petitioners. It is evident, that the Scheme permits' transfer of the land, otherwise than provided by the Act. The Act is excluded only to the extent, that it is not extended to the matters which are covered by the Scheme but to the residuary it applies. A comparison of para. 10 and section 19 demonstrates that while under para. 10, without the written consent of the Collector, the purchaser cannot "alienate any portion of the land sold" but the Prohibition envisaged by section 19 covers the transfer of rights or interest, in the land held by a tenant by "sale, exchange, gift, will, mortgage or other private contract". The two provisions do not suffer, from any irreconcilable conflict and can stand together.

25. Let averments made in the plaint now be looked into to find out as to how far the plaint is not hit by para. 10 and section 19 ibid. According to its para. No.3 both Major S. M. Salim and Hafiz Muhammad Siddique, purchased from respondent No.3 for consideration valuable rights and interest in the land and its possession was also passed on to them. In para. 4 it is stated that the petitioners' predecessor‑in‑interest purchased all the rights and interest of Major S. M. Salim and was, also put into the possession of the land in village Jajja Kalan para. 7 unequivocally states:‑

........Hafiz Muhammad. Siddique, like Major S.M. Salim sold and transferred irrevocably and for ever all his rights, title and interest in the property in question for consideration in favour of the plaintiff with the result that the plaintiff became the sole 'and exclusive owner of all the rights in the suit land which at one time vested in Rao Ahmad Saeed Khan." These narrations, leave no doubt that the case set up by the plaintiff in the plaint, was that he purchased all the rights and interests held in the land, by respondent No.3. True enough, in the plaint it is mentioned that respondent No.3 after conferment of proprietary rights on him had to transfer the land to Major S. M: Salim and Hafiz Muhammad Siddique. But it is merely a passing reference: The burden of the rights claimed by the deceased‑plaintiff, as disclosed by the plaint, appears to be that respondent No.3 parted with his entire rights in the land by way of sale in favour of Major S.M. Salim and Hafiz Muhammad Siddique who further, sold away the same to the deceased plaintiff. Such a transaction is neither permitted by para. 10 nor by section 19.

26. Reverting now to the agreement Exh. P.14 I find that it contemplates sale of 7636 produce index units by respondent No.3 to Major S. M. Salim and Hafiz Muhammad Siddique, as already stated, at the rate of Re. 1, Annas 12 per unit. Though under the agreement, respondent No.3 had agreed that on issuance of P.T.D., he would execute sale‑deed of the land against the units, in their favour, but in its concluding part is clearly narrated". Undeniably,' Major S.M. Salim and Hafiz Muhammad Siddique could not have passed on to Dr. Abdul Wahab rights better than those enjoyed by them. If the petitioners' claim, that the deceased held only agreements for sale Exh. P.15 and Exh. P.5, in his favour, it is a settled law that a mere agreement for sale does not create any right or interest in the property. See section 54 of the Transfer of Property Act and Sh. Nazir Ahmad v. Haji Ghulam Hussain etc. 1985 C L C 7.

27. I have already found that before the institution of the suit, the possession of Dr. Abdul Wahab ceased to be lawful and neither there was any exchange of land nor the doctrine of part performance could be availed of by him. It has also been observed that the sanction of exchange was the sole domain of the Government. In these circumstances, the suit for mere declaration did not lie. Conversely, if the deceased pleaded sale. para. 10 of the Scheme and sections 19 and 36 of the Act, stood in his way. The decision of the learned Courts below in this respect is not open to any exception. I am not unmindful that a suit questioning the‑.validity of an order passed by a public authority, can be filed, but in the instant case, the challenge thrown to the Board's order Exh. P.25 and the suit filed in this behalf, was misconceived. It may be stated that the observation made by the Courts below, that the deceased could have filed a suit for specific performance was subject to the condition that the ownership of land was acquired by respondent No.3 and the agreements in question were found to be valid.

28. My these conclusions find support from the case‑law on the subject. According to the judgment in Malik Abdul Qadoos v. Maryam Bibi and others P. L D 1981 Lah. 456, it is entirely for the revenue authorities, whether in particular case, permission under section 19 should or should not be granted. In the precedent case, under an agreement for sale of land, governed by the Colonization of Government Lands (Punjab) Act, a transaction comprising part payment of sale price coupled with the delivery of possession, was, held to be akin to a sale prohibited by section

19. In Nazar Muhammad v. Farid 1986 MLD '2074. A learned Single Judge of this' Court took the view that an agreement for sale does, not confer possessory or proprietary rights, on the purchaser, in the State land, and the possession of such a purchaser, to which the Collector has not accorded sanction, cannot be protected by the civil Court. The law is established, that a transfer prohibited by section 19 is void even as between the parties and such an agreement for sale cannot be specifically enforced. It has been held so, in Ghulam Rasool and another v. Muhammad Anwar and another 1969 S C M R

254. In. Manzoor Hussain v. Zulfiqar Ali relied upon by the learned counsel for the petitioners, the land was alienated by the purchaser with the express written sanction of the Collector, required under para. 10 of the Scheme but such a sanction is missing in this case. This precedent, therefore; cannot be of any help to the petitioners.

29. I now proceed to examine the deeds of power of attorney. The deed of general power of attorney dated 31‑7‑1962, Exh. P.3 is the basic document. But under it, respondent No.3 appointed Major S.M. Salim and Hafiz Muhammad Siddique as his attorney, jointly and not severally. The law on the subject of creation of agency is, clear that when a power is given to the joint agents, it is to be presumed that such power has been granted on the consideration of personal nature and their act can bind the principal only if the agents act jointly. It is manifest from the narration of the facts, in the earlier part of this judgment, that Major S.M. Salim and Hafiz Muhammad Siddique did not act jointly, particularly so far as the land in Chak No. 25/UCC and its exchange are concerned, the former never appeared on the scene. It is, therefore, doubtful that the two agreements Exhs. P.15 and P.5 and the two deeds of power of attorney, Exhs. P.4 and P.6 can bind respondent No.3.

30. It is on the record that respondent No.3 cancelled the deed of power of attorney i.e. Exh. P.3 on 27‑7‑1963. The documents Exh. P.4 and Exh. P.15 both, dated 9‑1‑1963 executed by Major S.M. Salim are pre‑cancellation. However, Exh. P.5 and Exh. P.6 dated 29‑7‑1967 executed by Hafiz Muhammad Siddique are post‑cancellation. Apart from the fact, that the two attorneys could not act separately, it is significant that the cancellation of power of attorney took place before it was acted upon by Hafiz Muhammad Siddique. This would further deprive Exh. P.5 and Exh. P.6 of their validity, for, there can be no gain‑saying that an agent can no longer bind his principal by any transaction, entered into by him, with a third party, after the revocation of his authority.

31. The argument of the learned counsel for the petitioners, that Exh. P.3 is an irrevocable deed of power of attorney, is yet to be evaluated. When 'an authority is given to an agent, as security in respect of some liability of the principal or for securing some benefit to the agent, upon the principles enshrined in section 202 of the Contract Act, such an authority, in the absence of express contract, cannot be revoked. But when the agent fails to fulfil his part of the contract; which is the foundation of the security of his rights and creation of beneficial interest in his favour, the principal is not debarred from terminating the agent's authority. It is evident from the agreement dated 31‑7‑1982 (Exh. P.14) that a sum of Rs. 6,683 was payable to respondent No.3 by Major S.M. Salim and Hafiz Muhammad Siddique, within six months of its execution. The certificate Exh. P.45 issued by the Habib Bank limited shows that this amount was offered to him for payment in August, 1963. Before the trial Court, on the strength of these documents, respondent i do.3 tried to justify cancellation of the deed of power of attorney, on account of breach of agreement, by the other party. This argument was not rejected by the Courts below. In Shafique Hussain v. Abdul Qasim P L D 1979 Kar. 22 in construing section 202, it was maintained that the existence of the agent's interest in the property forming the subject‑matter of the agency, can either be gathered from the document or from the course of the dealings between the parties. However, in that case as a matter of fact, they agent was found to have passed on the entire consideration to the allottee and paid full price of the land to the Government. Such a situation does not obtain in the instant case. It is noteworthy teat neither Major S. M. Salim nor Hafiz Muhammad Siddique, came far ward to dispute the cancellation deed. For all these‑ reasons, the petitioners cannot be heard to say that the authority given to the predecessor‑in- interest of deceased‑plaintiff, was irrevocable.

32. The land in village Jajja Kalan has already been settled on respondent No.3 and on payment of the sale price the sale‑deed executed in his favour by the Government. Even if the deeds of power of attorney, are held to be operative, the status of Dr. Abdul Wahab was merely that of a sub‑agent of respondent No.3. The objection of the respondents that Dr. Abdul Wahab had no locus standi to file the suit, in his own name is not without substance.

33. The land in both the villages, as stated earlier, vested in the Government. The question for consideration before the Board of Revenue, was, as to whether or not land opted for respondent No.3 could be exchanged with land in Chak No. 25/UCC. The rights of respondent No.3 throughout the proceedings, remained the main theme. Ordinarily, an agent cannot sue in his own name on behalf of the principal. However, section 230 of the Contract Act creates an exception to this rule and enumerates 3 eventualities, when an agent is entitled to sue in his own name. These are:‑ (i) Where the contract is made by the agent for a foreign principal; (ii) Where the agent does not disclose the name of the principal; (iii) Where the principal though disclosed cannot be sued. An agent having an interest, in the property, does not fall within any of these exceptions. Thus, even if the petitioner's claim that the deceased's authority was coupled with an interest, is accepted it is difficult to agree that he could sue in his own name.

34. As all the points urged on behalf of the petitioners have failed, the impugned judgment and decree are upheld and this revision petition is dismissed but with no order as to costs. M . Y . H . Revision dismissed.