2010 PLP 965 (MLD)

CH. NAEEM MASOOD, J.

The revision petition is directed against the judgment and decree, dated 2-12-2002, passed by the learned Additional District Judge, Sahiwal.

2. Brief facts of the case are that respondent No.2, Mst. Rajan Bibi widow of Ahmed Ali/Hamid Ali is the allottee of land measuring 2-Kanals, situated in Chak No.96/9-L, Tehsil and District Sahiwal. It is asserted in the plaint that Mst. Rajan Bibi, whose husband was the brother of the petitioners, made an oral agreement to sell the property in dispute for a consideration of Rs.25,000 of which she received earnest money of Rs.7,

000. She made an application to the Collector under section 19 of the Colonization of Government Lands Act for the sale of the said property, and on 16-9-1992 made a statement before the Colony Assistant, Sahiwal to that effect, so as to get permission from the District Collector, Sahiwal. But the said application was dismissed in default on 25-11-1996 and her application was not allowed. It is asserted in the plaint that the petitioners stressed Mst. Rajan Bibi to get her application restored but she refused to do so. Mst. Rajan Bibi/respondent No.2 seriously contested the above suit and denied the contents of the plaint. On the pleadings of the parties, the following issues were framed: (i) Whether the plaintiff has no cause of action? OPD. (ii) Whether the suit is insufficiently valued for the purpose of court-fee and jurisdiction? OPD (iii) Whether the Court has no jurisdiction to try the suit? OPD (iv) Whether the suit is mala fide and the defendants are entitled to receive special costs? OPD (v) Whether the plaintiff is entitled to the relief claimed for? OPP. (vi) Relief.

3. The learned trial Court vide its judgment and decree, dated 26-1-2001 decreed the suit of the petitioners. Government of Punjab filed an appeal against the above-said judgment and decree, which has been accepted by the learned Additional District Judge, vide the impugned judgment and decree, dated 2-12-2002.

4. The learned counsel for the petitioners vehemently contends that the learned lower appellate court has misread the evidence and also has not taken into consideration that Mst. Rajan Bibi/respondent No.2 had made an application to the Collector for the transfer of the land; hence findings in respect of section 19 of the Colonization of Government Lands Act are erroneous.

5. On the other hand, learned counsel of respondent No.2 Mst. Rajan Bibi supports the impugned judgment and decree.

6. I have heard the learned counsel for the parties and have seen the record minutely.

7. It is on the record that the proprietary rights had not yet been granted to Mst. Rajan Bibi/respondent No.2. Her application for grant of permission under section 19 of the Colonization of Government Lands Act was not allowed, hence the suit was hit by the provisions of section 19 of the Colonization of Government Lands Act. Besides the proprietary rights have yet not been granted. Though the agreement could be made in between the parties but the agreement could only be enforced through specific performance after the grant of proprietary rights. It is held by the Hon'ble apex Court in 1992 SCMR 1510 titled "Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others", as follows: -- "

Section 19

When the (alleged) agreement was entered into proprietary rights had not been granted to the allottee/grantee and these were subsequently granted to his successors

Bar in section 19 being against the alienation and not against the agreement, agreement could be enforced through specific performance after the grant of proprietary rights." This dictum of the Hon'ble Supreme Court has further been reaffirmed in 2002 SCMR 1821 titled "Muhammad Sadiq v. Muhammad Ramzan and 8 others" wherein it is observed as follows:-- "

Section 19

Registration Act (XVI of 1908), S. 48

State land

Sale of State land without prior sanction in terms of section 19 of Colonization of Government Lands (Punjab) Act, 1912

Effect

Such transfer either through registered or unregistered sale-deed would not be a sale, but would be a contract of sale not hit by provisions of section 19 of Colonization of Government Lands (Punjab) Act, 1912, and would be enforceable in law a sale after acquisition of proprietary rights by vendee/allottee

Bar contained in section 19 of Colonization of Government Land (Punjab) Act, 1912, was only confined to the extent of permanent 'transfer of ownership rights in property, thus, registered sale-deed in such a situation would not get precedence over the unregistered sale-deed to claim better title.

8. The mere fact that Mst. Rajan Bibi/respondent No.2 had made an application to the Collector would not benefit the petitioners as the same application was not granted.

9. Moreso, D.W.1. Nosher Ali Patwari has clearly stated in his statement that the property in question belongs to the Government of the Punjab and proprietary rights of the same have not yet been granted to Mst. Rajan Bibi. D.W.2 Abdul Haq, Colony Clerk had also made a statement that the proprietary rights of the property in dispute had not yet been given to Mst. Rajan Bibi. In view of these facts, no exception can be made to the impugned judgment passed by the learned lower appellate Court. Moreover, no illegality or material irregularity has been demonstrated to have been committed by the learned lower appellate Court. 9-A. In sequel thereof, the revision petition is dismissed leaving the parties to bear their own expenses. M.H./M-761/L Revision dismissed.