1989SCMR 196 (PLP)

SAAD SAOOD JAN, J.‑‑This appeal by special leave is from the judgment of the Lahore High Court which reversed the judgment of the Additional District Judge and restored that of the trial Court.

2. The parties are closely related as the respondent is the real paternal uncle of the appellant. After Independence they together with another brother of the respondent namely, Din Muhammad, occupied Bungalow No. 3‑D in Model Town, Lahore. When the settlement operations started, the bungalow was transferred to Din Muhammad. He entered into an association agreement with the respondent and as a result a portion of the bungalow, measuring 3 kanals, was given to the respondent. The respondent obtained the provisional transfer order on 8‑11‑1959 and the permanent transfer deed on 18‑11‑1961.

3. A part of the portion transferred to the respondent, measuring 1 Kanal 16 Marlas and 150 square feet, was in the actual occupation of the appellant. The appellant had a compensation book in respect of his verified claim. On 21‑3‑1960, the parties entered into an agreement whereby the respondent agreed to sell to the appellant that portion of the property which was in his possession. On his part, the applicant was not only to pay a sum of Rs. 3,600 but also any compensation either in the form of cash or property which he might receive against his compensation book. Subsequently, the appellant obtained one Kanal of land out of Plot No. 59‑E in Model Town in an auction held by the Settlement Department. He utilized his compensation book for paying the price of this piece of land.

4. On 13‑9‑1968, in pursuance of the earlier agreement of 21‑3‑1960, the parties executed an exchange deed whereby the respondent transferred the promised area from the property No. 3‑D to the appellant and in return obtained m addition to Rs. 3,600 in cash, the piece of land out of Plot No. 59‑E which had been transferred to the appellant. The exchange decd was registered on 6‑12‑1968.

5. The exchange deed of 13‑9‑1968 was in violation of the bye‑laws of the Co‑operative Model Town Society inasmuch as these prohibited sub‑division of plots: Consequently, when the respondent applied to the Society for permission to raise construction on his part of the property, it was refused.

6. On 26‑3‑1969, the respondent filed a civil suit for a declaration, inter alia, that he continued to be the owner of the part of the property bearing No. 3‑D which had been transferred to the appellant under the exchange decd of 13‑9‑1968 as the said deed was void on account of the violation of the bye‑laws of the Society. The suit was decreed by the trial Court on 18‑9‑1972 with the finding that although the exchange was valid per se, it could not be given effect on account of the bye‑laws of the Society within whose jurisdiction the property in dispute fell; thus, the agreement between the parties could not be possibly performed and for that reason it had become void

7. From the judgment of the trial Court, the appellant preferred an appeal ' before the Additional District Judge. By his judgment dated 28‑5‑1974 the learned Additional District Judge accepted the appeal and dismissed the suit. He held that the suit was not in proper form as being out of possession the respondent ought to have sought the relief of possession also. He further held that there was no inherent defect in the exchange deed which would make the agreement between the parties impossible of performance. He also observed that the bye‑laws of the Society were subject to alteration at any time and that there was no restriction that by an amendment therein the Society could not remove the embargo placed on sub‑division of plots and that in any event the bye‑laws could be relaxed.

8. From the judgment of the learned Additional District Judge the respondent preferred a revision petition in the High Court. A learned Single Judge took the view that the agreement was void because it was in conflict with the bye‑laws of the Society; consequently, it could not be enforced. As regards the form of the suit, he held that on transfer of the property in favour of the respondent by the Settlement Department the appellant became a statutory tenant by operation of Section 30, Displaced Persons (Compensation and Rehabilitation) Act, that being so, the respondent could not claim the relief of possession from a civil Court. Accordingly, he set aside the judgment Io f the learned Additional District Judge and restored that of the trial Court.

9. Learned counsel for the appellant did not seriously attack the finding the High Court with regard to the legality of the exchange but urged that after the said transaction had been held to be void, it was not open to the respondent to claim ownership of the properly in dispute as both the parties were pari delicto and in any case the relief of declaration being discretionary in nature, it should not have been granted to a party who had voluntarily entered into an unenforceable agreement. In support of his argument, he referred to the decision of this Court in Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 SC 612.

10. It is difficult to accept contention of the learned counsel for the appellant. As would appear from paragraph 8 of the plaint the respondent had clamed title to the land in dispute not on the basis of the exchange which has been described to be void but on the foot of the transfer documents issued in his favour by the settlement authorities. It was a ground independent of the deed of exchange. No doubt, if an agreement is illegal and the parties are pari delicto, a Court would be reluctant to assist them in retrieving the properties transferred there under but then, notwithstanding the illegality of an agreement a plaintiff can succeed in recovering a property which is the subject‑matter of that agreement if he brings a suit on the strength of his own title and is not compelled to rely upon the illegal agreement in order to obtain relief. Thus, in Bowmakers Ltd. v. Barnet instruments Ltd. (1944) 2 All England Law Reports 579) the Court of Appeal in England observed: In our opinion, a man's right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the. trial, that the chattels in question came into the defendant s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim." In Mistry Amar Singh v. Kulubya ((1963), 3 A.E.R. 499), the Judicial Committee of the Privy Council, relied upon the observation of the Court of Appeal in Bowmakers Ltd. case. It may be mentioned that in the case before us, it was not the respondent but the appellant who was relying upon the illegal agreement in support of his defence. The case of Malik Muhammad Hayat Khan, cited by the learned counsel for the appellant is clearly distinguishable as in that case the plaintiff after taking advantage of a family arrangement which was incorporated in a compromise deed wanted to wriggle out of it by advancing a plea based on Section 19, Colonisation of Government Lands Act when that plea was on facts not available to him.

11. It is then contended that as the respondent was admittedly out of possession, the suit for mere declaration was not maintainable for inasmuch as the further relief of possession even though available to him, had not been sought. This contention is also without any substance. As observed by the High Court, on the transfer of the property in dispute to the respondent, the appellant became a statutory tenant under him by operation of Section 30, Displaced Persons (Compensation and Rehabilitation) Act. The exchange decd being void, it did not change the status of the parties. Admittedly, in view of the provision of the Punjab Urban Rent Restriction Ordinance the Civil Court could not have directed the ejectment of the appellant. It was, therefore, not a case where the respondent could seek relief of possession from a Civil Court. It may also be mentioned that the learned counsel for the respondent made a prayer to this Court that he should be permitted to amend his plaint so as to claim the relief of possession also. Had the Rent Restriction Ordinance been applicable, we would have allowed this prayer in view of the judgment of this Court in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, for, it was not the position of the appellant before us that by allowing the amendment the nature of the suit would be changed. For the reasons stated above this appeal is dismissed with costs. M.Y.H./M‑610/S Appeal dismissed.