MUHAMMAD AYUB Versus MUHAMMAD YAQOOB

This judgment will dispose of R. S. A. No. 534 and R. S. A. No. 535 of 1969 as the points of law and facts in both these cases are identical.

2. The relevant facts are that the plaintiffs in each case were granted 121 acres of agricultural land in Chak No. 50/13.8., Tehsil Pakpattan, District Sahi wal under the Grow More Food Scheme since 15th of December 1956. Origi nally these lands were leased to plaintiffs/respondents for a period of three years, but later on this period was extended to five years. By letter No. 2805-62/2363 S(G)-III, dated 8-8-1962, the Government conferred upon the lessees concession of acquiring proprietary rights in their leasehold by private treaty of leases of 121 acres or under the above Scheme, who fulfilled the conditions laid down thereunder. The relevant conditions are

(1) The lessees must be cultivating the land themselves;

(2) they must not be owners of more than 121 acres of land ; and

(3) their lease should not have expired earlier than in Rabi 1962.

Although the plaintiffs claimed to be entitled to acquire proprietary rights in the state land held by them but this area was resumed by the Collector purport ing to act under the Colonization of Government Lands (Punjab) Act, 1912 on the ground that their leases had expired in December 1961 (i.e. in Kharif 1961) and did not subsist up to Rabi 1962. This area was allotted to the appellants under the Islamabad Oustees Scheme.

3. The plaintiffs-respondents filed suits for declaration that the allotments in favour of the appellants were illegal and inoperative and could not affect the rights of the plaintiffs to remain in possession of this property as allottees under the Grow More Food Scheme, and for a permanent injunction restrain ing the Provincial Government from confirming their allotments in favour of the defendants or from interfering with the possession of the plaintiffs on this property. In the body of the plaint it was alleged that the plaintiffs-respon dents had spent considerable amounts in bringing the lands under cultivation and had also fulfilled all the conditions under which they could acquire this area by sale by private treaty.

4. These suits were dismissed on the 13th of January 1965 on the ground that the plaintiffs' lease had expired before 1962 and as such the Collector was competent to resume them. The plaintiffs preferred appeals against these decrees which were accepted by the learned Additional District Judge. He held that the view of the trial Court was erroneous and was contrary to the view taken by the High Court in W. P. No. 117 of 1964. Since it was admitted before him that the plaintiffs had been dispossessed from the disputed property during the pendency of the suit and possession had then been given by the Government to the subsequent allottees, he held that the original suit for a declaration and injunction was no more competent. He however allowed the verbal request of the learned counsel for the plaintiffs/appellants before him for amendment of the plaint in order to allow them to seek the remedy of posses sion. He remanded the case for fresh decision after allowing the plaintiffs to file an amended plaint and the defendants to file a fresh written statement.

5. In compliance with the order of the Appellate Court the plaintiffs' suits were converted into suits for possession.

6. These suits were decreed on 18-12-1967 subject to payment of pur chase money as prescribed. Relying on the decision of Writ Petition No. 117 of 1961 in Muhammad Aslam v. Niaz Ahmed. It was held that the Rabi crop of 1962 must have been sown before the date of termination of the leases and since that crop must have been sown at the end of 1961, the lease of the plaintiffs must have expired in Rabi 1962.

7. Several appeals were filed against these decrees by the Provincial Government as well as by the defendants allottees. The learned counsel for the appellants in those appeals disputed the jurisdiction of the civil Courts under section 36 of the Colonization of Government Lards Act on the ground that the leases having expired before Rabi 1962, the plaintiffs had no right to obtain proprietary rights in the land in dispute and the orders of resumption were passed in accordance with the provisions of Act of 1912. This contention was repelled on the ground that if the order of resumption were illegal, ultra vires and void, the suits would be triable by the civil Court. It was held on merits that the leases commencing in December 1956 ran into the period which was covered by the phrase "in Rabi 1962". Reliance was placed on the judg ment in Writ Petition No. 117 of 1964 and also on another case decided by that time by the High Court of West Pakistan Lahore Bench in Muhammad Ashraf v. Member, Board of Revenue and another (P L D 1968 Lah. 1155). The judgments and decrees of the trial Court were therefore confirmed on the 8th of April 1969 and the appeals were dismissed.

8. Hence these appeals.

9. During the pendency of these appeals, memo. No. 1488-71/1217-CL-III dated 26-4-1971 was issued by the Government of Punjab, Colonies Department to the Deputy Commissioner, Sahiwal. This was necessitated on account of the judgment of the Division Bench of High Court of West Pakistan in the case of Muhammad Ashraf v. Member, Board of Revenue. The relevant portion of this letter reads :-

"In consequence of the order passed by the High Court, Government of the Punjab in the Colonies Department is pleased to order that without any reference to the date of allotment and the period of the termination of the lease all allottees under the Grow More Food Scheme shall be granted proprietary rights provided that they fulfil the terms and con ditions on which leases were granted. Government has been further pleased to decide that allottees mentioned in para. 2 who are to be given proprietary rights shall be restored to the lands from which they have been ousted (all subsequent leases of this area stand cancelled automatically), if the land in question has not been allotted under any permanent scheme. If however, the land in question has been allotted under any permanent scheme such allottees shall be accommodated in some alternative land with the same rights as they would have exercised on the land in question which is not possible now to be released.

The memorandum supersedes the instructions contained .in para. 3 of Board of Revenue's memo. No. 2805-62/2363/S (G)-III dated 8th August 1962 and those in opening para. of memorandum No. 8400/6? 3438-GG-III dated 8th October 1962."

8. A petition under Order XLI, rule 27, C. P. C. was submitted by the appellants for production of the above document as additional evidence. The accuracy of this instruction was not denied either by the counsel for the plaintiffs/respondents or by the counsel for the Government. I therefore allow this document to be-brought on record as evidence in this case.

9. The learned counsel for the appellants did not challenge during the arguments the findings that the leases of the plaintiffs/respondents expired in Rabi 1962 and as such the instructions dated 8-8-1962 could be invoked by the appellants. He however argued that these plaintiffs could not have taken advantage of these instructions dated 8-8-1962 for the reason that they were already owners of land in their own right which was in excess of the area allowed in the above instructions. The learned counsel however, had to con cede that the excess area was acquired by the plaintiffs/respondents after the year 1962, by inheritance from their father Haji Muhammad Din who died on the 30th of August 1963 .

10. The main argument of We learned counsel is based upon the letter dated 26-4-1971 in which it has been held that the allottees mentioned in para. 2 shall be restored to the land from which they had been ousted provided the same has not been in the meanwhile allotted under some permanent scheme in which case they shall be accommodated on some alternative land with the same rights as they would have exercised on the land in question. He argued that the appellants had been allotted the land in dispute under Islamabad Oustees Scheme which is a permanent scheme and as such on account of this subsequent development, they cannot be dispossessed from the land ; the remedy of the plaintiff's/respondents was only to seek accommodation on alter native land. He also argued that it is open to this Court to take into considera tion subsequent events including any amendment in legislation, which may have occurred during the pendency of the appeal before this Court, and to decide the matter in accordance with those events. In support of this principle of law, he relied upon James Henry George Hill and others v. Satan Singh and others (A I R 1920 Pat. 559)Narayanh Adha v. Ramchandrea R.Panditrao (A I R 1930 Bom. 554)Anantram v. Lala Murlidhar (A I R 1924 Nag. 204) Narayan and other v. Mt. Tulshi and others (A I R 1925 Nag. 104)Nadir Hussain v. Sadiq Ahussain (A I R 1425 All. 361) Priyambada Rao Dabee v. Bholanath Basu (A I R 1933 Cal. 534) Lackmeshwar Prasad and others v. Kishwar Lal Chaudhry and others (AIR1941FC5) The Province of East Pakistan v. Muhammad Hussain Mian (PLD1965SC1) saeedur Rehman v. Chief Election Commissioner, Dacca (P L D 1965 S C 157) and Commissioner of Sales Tax (West) Karachi v. Massrs Kruddsons Ltd. (P L D 1974 S C 180) It is not necessary to biscuss all these authorities. The proposition is well settled. It was held by the Federal Court of India in A I R 1941 F C 5 that the hearing of appeal under the Procedural Law of India is in the nature of re hearing and therefore the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the Consequently the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are no confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given. Reliance was placed in this case inter alia on Mukarjee v. Ram Rata (63 1 A 47). In that case, the appeal against the judgment and decree of the High Court was dismissed on the strength of a provision contained in an enactment which was passed during the pendency of the appeal before His Majesty-in-Council. In P L D 1965 S C 1, it was held that on the filing of the appeal, the matter becomes re-opened and sub Judice and has to be decided in accordance with law pre vailing. This was a case where certain amendments have been made in the law during the pendency of the second appeal. Again in P L D 1974 S C 184, it was held that pendency of the appeal destroys the finality of the judgments of the High Court if a curative statute has been passed during the pendency of the appeal and that statute has to be taken into consideration by the Supreme Court.

11. The learned counsel for the appellants further argued on the strength of Muhammad Ashraf v. Member, Board of Revenue, Hussain Bakhsh v. Muhammad Aslant (P L D 1960 Lah. 869) and Safia Begum v. Member, Board of Revenue Punjab (P L D 1973 Lah. 726), that the statements of conditions issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 acquired the ford of law, and the instruction of 1971 is not merely a Departmental instruction but has the force of law.

12. These authorities do support the argument of the learned counsel. In P L D 1968 Lah. 115, the instructions for transfer of proprietary rights were held to have the force of law. In P L D 1973 Lah. 726, it was held that the letter- issued will be considered as statements of conditions under subsec tion (2) of section 10 of the Colonization of Government Lands Act, Punjab. This view was taken on the analogy of cases decided by the Supreme Court in which it has been held that administrative instructions can be constructed as rules. These cases are Province of West Pakistan v. Din Muhammad and others (P L D 1964 S C 21), Pakistan v. Sh. Abdul Majid (P L D 1961 S C 105), Government of West Pakistan v. Dr. A. A. Aziz (P L D 1966 S C 188) and Habibur Rehman v. West Pakistan Public Service Commission (P L D 1973 S C 144).

13. The learned counsel further argued that it is difficult to dispute the jurisdiction of the civil Courts to give a declaration that the plaintiffs are entitled to acquire the proprietary rights by sale by private treaty, but this jurisdiction could not extend to passing a decree for possession subject to payment of the value according to the prescribed formula.

14. The learned counsel for the Government stated that he would neither support the appeal nor oppose it, since the Government is ready to give alternative land to either of the party against whom these appeals are decided.

15. The learned counsel for the respondents on the other hand argued that the letter dated 26-4-1971 cannot be taken into consideration because it is a subordinate legislation which cannot be given retrospective effect. He relied upon Sh. Rehmut Ullah v. Deputy Settlement Commissioner (P L D 1963 S C 633), Sh. Fazal Ahmed v. Raja Ziaullah Khan (P L D 1964 S C 293) and Mr. Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (P L D 1971 S C 252). He further argued that the amendment of the plaint had become necessary in view of the fact that the plaintiffs had been dispossessed from the land in dispute during the pendency of the suit. He produced authorities in support of the propo sition that such an amendment was permissible and urged that since no appeals had been filed against the order of remand which permitted this amendment it is no longer open to the appellants in view of the bar of section 1 05, C. P. C. to dispute or challenge the right of the plaintiff's/ respondents to file a suit for possession, or the jurisdiction of the Court to pass such a decree. He also argued that the instructions about the transfer of proprietary rights have the force of law and if the authorities under the Act refuse to follow them their order cannot be deemed to have been passed within the purview of the Act and consequently the civil Court's jurisdiction was not barred. He relied upon Secretary of State v. Mask & Co. (AIR 1940 P C 105), in support of this.

16. I do not agree with the contentions of the learned counsel for the appellants that the civil Courts had no jurisdiction to pass a decree of possession. The plaintiffs-respondents had been dispossessed on account of an illegal and void order of resumption passed by the relevant authority under the Colonization of Government Lands Act. In these circumstances, a mere suit for declaration was not competent since the same would be barred by section 42 of the Specific Relief Act. This objection is therefore without force.

17. The only question in this case is whether the letter dated 26th of April 1971, which has clearly superseded the letter dated 8-8-1962 can be acted upon in the suit as a subsequent event or legislation. In view of the concensus of the superior Courts on this question I have no difficulty in upholding this contention of the learned counsel for the appellants and in holding that this case should be decided in accordance with this letter. This letter concedes the rights of the plaintiffs-respondents to transfer of the proprietary rights in the land in dispute. It only seeks to get out of the difficulty of having to eject a person having possession of the same and holding it under a permanent scheme. The object of the letter is clearly to advance the cause of justice by refusing to dis turb the subsequent innocent allottee and by rehabilitating the original allottee on some other land.

18. Both the learned counsel have argued and agree on the principle of the law that the instructions issued for transfer of proprietary rights by the Board of Revenue had the force of law. In this view of the matter, the arguments of the learned counsel for the appellants that this memo. has also the force of law has considerable force.

19. The argument of the learned counsel for the respondents that subordinate legislation is not retrospective is not relevant to the instant cases. An appeal has been held to be in the nature of rehearing and as held by the Federal Court of India in A I R 1941 F C 5, this Court can take into account facts, events and legislative changes which have come into existence during the pendency of appeal. Again as held by their Lordships of the Supreme Court in P L D 1965 S C 1, by the filing of the appeal the entire matter becomes reopened and sub judice and has to be decided in accordance with the law prevailing at the time of dis posal of the appeal.

20. I allow this appeal and modify the decrees of the trial Court in each case to the extent of declaring that the plaintiff in this case is entitled to acquire the proprietary rights in view of the principles laid down in Board of Revenue memos. Nos. 2805-62/2363/S (G)-III, dated 8th August, 1962 No. 8400/62/3438-CG-III dated 8th October 1962 and No. 1485-71/1217-CL-III dated 26-4-1971. The respondent No. 2 is further directed to accommodate the plaintiff-respondent in some other alternative land with the same rights as would have been exercised by him on the land in dispute, within a period of two months. The suit for possession is dismissed. There will be no order as to costs. A copy of this judg ment shall be sent to the Board of Revenue, Punjab for compliance.

K. B. A. Appeal accepted.