1986 PLP 267 (SCMR)

On the pleadings of the parties, the following issues were framed by the learned trial Judge:‑ (1) Whether defendant No.1 (respondent No.4) validly sold for good and lawful consideration the land in dispute in favour of the plaintiffs (respondents Nos. 1 to 3) and completed the sale in September, 1954? (2) If issue No‑1 be decided in the affirmative whether defendant No.1 (respondent No.4) gifted. the land in favour of defendants Nos. 2 to 4 (appellants)? If so, what is the effect of the gift on the rights of the plaintiffs (respondents Nos. 1 to 3)? (3) Whether the agreement of sale and the sale itself made by defendant No.1 (respondent No.4) in favour of the plaintiffs (respondents Nos. 1 to 3) regarding the land in dispute were null and void being in contravention of section 19 of the Act V of 1912? (4) Whether the suit in its present form is incompetent, the proper form of suit being one for specific performance of contract? (5) Relief.

6. In this suit, respondent No.4, filed a written statement alongwith an affidavit admitting the claim of respondents Nos. 1 to 3 but subsequently he applied for the withdrawal of the written statement on the ground that it had been fraudulently obtained. The learned trial judge after an enquiry, however, found that the written statement had been voluntarily filed and thus rejected the application for withdrawal and against this order, neither the appellants nor the respondent No.4 then took any further steps.

7. On the conclusion of the trial, the learned Civil Judge vide judgment dated 11‑11‑1968 found, on issue No.1 that in September, 1954, defendant No.1 (respondent No.4) validly hold the suit land to the plaintiffs (respondents Nos. 1 to 3). As regards issue No.2, it was found that the defendant No.1 (respondent No.4) did execute and get registered the deed of gift (D‑1), but the gift was not accompanied by possession and was not, therefore, valid. On issue No.3 he held that in March, 1954, defendant No.1 (respondent No.4). made a valid agreement to sell the suit land to the plaintiffs (respondents Nos. 1 to 3) and that section 19 of the Colonization of Government Lands Act, 1912 was no bar either to the agreement of sale or to the sale itself. On issue No. 4 it was found that the suit as constituted was competent. As a result of these findings he decreed the suit.

8. The appellants alone feeling aggrieved by the judgment and decree passed against them by the learned trial Judge, filed an appeal before the learned Additional District Judge, Multan, who vide judgment dated 8‑7‑1959 reversed the judgment and decree of the trial Court holding that the gift in favour of the appellants was valid and effective.

9. On second appeal, the learned Single Judge of the Lahore High Court, Lahore, however, reversed the judgment and decree of the lower appellate Court and restored that the trial Court vide judgment dated 16‑6‑1972 holding that the conclusion of the learned Additional District Judge that the gift in favour of the appellants was valid was manifestly erroneous as the gift pleaded by them remained inchoate on account of lack of delivery of possession and as such was invalid. Hence this appeal by leave of this Court. Leave to appeal was granted to examine the following points: (1) That neither the High Court nor the first appellate Court has considered or decided issue No. 3 raised in the trial Court, namely, as to whether the agreement of sale executed by respondent No. 4 in favour of respondents Nos. 1 to 3 was hit by the provisions of section 19 of the Colonization of Government Lands Act, 1912; and (2) that neither the High Court nor the first appellate Court has considered, whether the suit for a declaration simpliciter was properly framed. Section 19 of the Colonization of Government Lands Act, 1912 Provides:- 19 . Transfer of rights to be void.

Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the Commis sioner, or of such officer as may be written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub‑lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector: Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."

10. Mr. Iftikharul Haq Khan, learned counsel for the respondents pointed out from the record that sanction for the sale had been duly accorded by the competent authority on 5‑11‑1954 (Exh. P.7), the agreement of sale was not, therefore, hit by the provisions of S. 19 of the Colonization of Government Lands Act, 1912. The sale otherwise suffered from no defect. The assertion of respondents Nos. 1 to 3, herein, in their plaint of the sale in their favour as conceded by respondent No.4 in his written statement in its entirety. Although he attempted to wriggle out of this admission by advancing a specious plea that he was induced to do so on account of some fraud practised on him, he was not allowed to do so on the finding that he had filed his written statement freely and voluntarily. This finding of the learned trial Judge was not challenged any further. Thus, neither the agreement of sale nor the sale itself was infirm on any account and as pointed out already, the provisions of section 19 were not contravened in this case.

11. As regards the second contention regarding the form of the suit, we consider this to be a highly technical plea and the defect in the form, if any, can be corrected even now. The result is that there is no force in this appeal which is accordingly dismissed hereby, leaving the parties to bear their own costs. M.I. Appeal dismissed.