MUHAMMAD HUSSAIN AND Others vs SHAHAB DIN AND Other
This petition arose from a suit for declaration filed by the petitioners, who had purchased 48 kanals 16 marlas of land from the respondents' deceased father. The transaction was subsequently cancelled by the revenue authorities on the ground that it violated Martial Law Regulation No. 64, as it constituted a sale of a part of a holding that was less than a subsistence holding. The petitioners sought a declaration of ownership, but all courts below held the sale to be void under Martial Law Regulation No. 64. The petitioners argued before the Supreme Court that the sale should be saved under the doctrine of pari delicto, contending that since both parties were equally at fault, the party in possession should not be disturbed. The Supreme Court dismissed the petition, holding that where both parties are in pari delicto, the court must refuse to assist either party, and the plaintiff's suit must fail. Consequently, the decisions of the courts below dismissing the suit were upheld.
- Whether a sale of land that violates the subsistence holding restrictions under Martial Law Regulation No. 64 is void ab initio?
- How does the doctrine of pari delicto apply to a suit for declaration where both parties are equally at fault in entering into an illegal transaction?
- Can a party in possession of land under a void transaction resist eviction or seek a declaration of ownership on the basis of being in pari delicto?
- Martial Law Regulation No. 64
ORDER
1. NASIM HASAN SHAH, J. The respondent's father, Nek Muhammad, alienated 48 kanals 16 marlas of land out of his total holding of 88 kanals 18 marlas in favour of the petitioners. The latter also obtained possession of the alienated land in pursuance of the sale. This sale was evidenced by Mutation No. 474 sanctioned on 19-8-1966.
2. After the death of Nek Muhammad, his son Rehmatullah, Respondent No. 3, moved an application before the Collector for review of the mutation on the ground that it was violative of M. L. R. No. 64 and also fraudulent. The Collector ordered the review of the mutation in pursuance whereof the A.
3. C: II, by his order dated 23-7-1969 cancelled the mutation. The peti--tioners, therefore, filed a suit for declaration that they are owners of the land and that the proceedings culminating in rejection of Mutation No. 474 were illegal and inoperative upon their rights. All the Courts below have held that as the sale in favour of the petitioners being less than subsistence holding and a sale of part of the land not being permissible under M. L. R. 64 was void. However, the learned Additional District Judge, on appeal, while upholding this plea held that the petitioners would have a lien on the suit land for payment of Rs. 3,046 which formed the consideration of the sale and so also to a further sum of Rs. 1,600 improvements. This part of the order was upheld by the High Court, which also held that in face of man--datory provisions of. M. L. R. 64 it could not give its blessing to a transaction which was patently illegal and void.
4. Khawaja Mushtaq Ahmed, learned counsel for the petitioners in support of this petition .Has argued that the sale could be saved on the doctrine of part delicto and further argued that as both the parties were in part delicto, the party in possession of the property shall not be disturbed.
5. We, on the other hand, are of the opinion that in a case where both the parties are in part delicto the Court should wash its hands off such a dispute and the party filing the suit, being also in part delicto must fail.
6. In these circumstances, no ground for interference in the decision of the Courts below dismissing the suit of the petitioners is made out. This petition must fail and is, accordingly, dismissed.