MUHAMMAD ASLAM Versus MUHAMMAD SHAFI

This second appeal arises out of a suit for possession of 1/2 portion of 423 kanals 10 marlas of land decreed by the trial Court but dismissed on appeal by the learned District Judge, Sargodha, on 1‑7‑1964.

2. The facts, as stated by Sahibdad in his plaint, are that under the then Horse Breeding Scheme in the colony areas only one member of a family could acquire land on lease, therefore, Fazal Dad in agreement with his brother Sahib Dad applied for it. It was stated that 423 kanals 10 marlas in Chak No. 81 Southern of Tehsil Sargodha were consequently allotted to Fazal Dad as a tenant under the Government tenancy laws with the common funes of both the brothers in equal shares. Fazal Dad purchased the mare in his name out of the joint funds, and after procurement of the land it was possessed and cultivated jointly and some residential rooms were also con structed with joint expenses. It was on 3‑4‑1912 that Fazal Dad executed an agreement acknowledging the joint interests of both the brothers in equal shares. It was agreed to that in case the brothers could not carry out together, they would partition the land in two equal shares. As contended, Sahib Dad soon after joined Army and entrusted the management of the half share to his nephew, Hakam Ali, who had been regularly paying him the rent. In the meantime, Fazal Dad died and his interests were represented by his son Mohammad Shafi. In 1,940, the horse breeding conditions were abrogated and the tenants were allowed to purchase the land. The plaintiff contended that he paid his own half share of the sale price and became proprietor of half share alongwith the respondent Mohammad Shafi but to his surprise, the proprietary rights were obtained by the respondent in his own name and when asked to transfer the half share to the appellant‑plaintiff, he refused to do so and was making efforts to eject Hakam Ali.

3. The suit originally filed was for a declaration, but on the objection of the respondent, it was changed into one for possession. All averments in the plaint, including the execution of agreement, were denied and it was objected to that the suit was barred by limitation. Except that the plaintiff had not paid the proprietary dues, all the issues were decided in favour of the plaintiff and his suit was decreed on payment of Rs. 1100.00 as his share of sale price. But on appeal filed by the defendants the suit was dismissed, therefore, this second appeal. It may be pointed out that during litigation the plaintiff also died and his legal representatives are the appellants now.

4. The learned District Judge held that both the brothers had jointly purchased the mare and on the basis of the same obtained the grant in dispute and they built the Ihata with their joint expenses and that they jointly cultivated the land, and Fazal Dad in acknowledgment of the joint arrangement had executed the agreement on 3‑4‑1912. But it was observed that the agreement was void being hit by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 as it passed interest to the plaintiff without prior permission of the Collector. It was further held that the suit was time‑barred. However, the original oral agreement was held to be enforceable for getting the share of the produce.

5. It is a common question between the parties that the land was a grant under the Horse Breeding Scheme allowed in the name of Fazal Dad and the last instalment was paid in October 1944. Relying on Ram Din v. Mohammad Din ( P L D 1964 S C 842 ), it was not disputed that the effective date for passing of the proprietary rights is the date of payment of the full price and other dues and is not postponed till the formal sale deed is executed and registered. In this appeal, besides the plea of limitation, the main dispute rests on the question whether from the facts and circumstances of the case, Sahibdad was a joint owner with his brother from the very first day or had acquired rights on account of the agreement executed during the tenancy. If so, whether that agreement was hit by the provisions of section 19 of .the Colonization of Government Lands (Punjab) Act, 1912.

6. Under section 19 of Colonization of Government Lands Act, none of the rights or interest vested in a tenant shall without the consent in writing of a Collector be transferred or charged by any sale, exchange, gift. will, mortgage or private contract. Any such transfer or charge made without consent in writing is void. According to Ghulam Rasul and others v. Mohammad Anwar and others ( 1969 S C M R 254 ) a transfer prohibited by section 19 of the Act is void even as between the parties to the transaction.

7. But the question arises whether the understanding between the brothers was such which created a right in the tenancy in violation of the provisions of section 19 of the Act. It was contended by the learned counsel for the appellants that the brothers had agreed to be joint in equal shares from the very beginning even before the tenancy was obtained. The agree ment (Exh. P. 1) dated 3‑4‑1912, which was held by both the learned Courts below to have been executed by Fazal Dad, was only an acknowledgment of the past understanding and virtually did not create new rights. In support of his contention, he referred to various authorities. In Allah Ditta v. Jhanda and others ( P L D 1951 Lah. 244 ) it is laid down that the prohibition under section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) shall apply only where a tenant had acquired some interest in the lands of the Govern ment. Where an agreement was reached before any interest had been acquired or granted by the Government, it could not be hit either by section 8 of Act VII of 1893 or by section 19 of Act V of 1912. The same view was adopted in the later case, Fateh Mohammad v. Mohammad Shafi ( P L D 1953 Lah. 251 ) according to which a grant acquired in pursuance of an antecedent agreement between three brothers but in the name of one was not hit by the provisions of section 19 of the Act. A similar question was resolved in Mohammad Hayat Khan v. Subedar Yar Mohammad Khan ( PLD1966SC612 ) holding that section 19 of the. Colonization of Government Lands Act does not prohibit any and every kind of agreement but only agreements which purport to transfer or to charge the rights and interests vested in a tenant holding land under the Act. It was further held that for determining the Arue nature of the transaction one must look into the entire background which led to it.

8. In order to appreciate the import of the document and the real inten tion of the parties, it is reproduced below:‑

9. From the document, it was nowhere indicated that it created a righ or charge in the property. The first part of document merely recited an already existing jointness in expenses and usufruct. The second part contain ed a promise to hand over a separate possession if Sahib Dad, the promisee, did not agree to the existing situation of joint possession. Whatever the rights of the parties in this document, it is clear that by means of this document no rights in the land had been created, in other words, it is not deed which affects any transfer. The true intention of the parties was not that Fazal Dad should first become owner of the proprietary rights and then transfer them to his brother, but that he had acquired rights on his own behalf as well as on behalf of his brother. It is stated in the document that both the brothers had first purchased the mare and on the basis of this mare, the allotment was procured, meaning thereby that the brothers had agreed t the terms of jointness much before the grant was obtained. In the circumstances, the agreement being an acknowledgment of an oral agreement t acquire the rights was perfectly valid and the learned District Judge, in spite o observing that the original oral agreement between the plaintiff and Fazal Dad had been arrived at before the acquisition of the grant, was wrong in holding that the agreement was void. In such a case where there was already an understanding to purchase jointly, the moment the proprietary rights were acquired the plaintiff became a co‑sharer in the land.

10. On the question of limitation, it was contended by the learned counsel for the respondents that it was a question of fact decided by the learned District Judge that from the year 1912 when the plaintiff joined the Army he had never remained in possession of this land either personally or through tenants and that he never, during all these years, received any share of the produce of the land, that proprietary rights were acquired in October 1944 and the suit was filed on 18‑4‑1953 which was clearly barred by, time. According to the learned counsel, the District Judge was justified in holding that the suit was primarily for specific performance and the period was three years from the date of acquisition of the proprietary rights. Any how relying on Hussain Bakhsh and others v. Mohammad Alam and others ( P L D 1960 Lah. 869 ) it was contended that under Article 120 of the Limitation Act, the suit was beyond six years from the year 1944, the time the ownership was acquired. In the abovementioned authority, it was laid down that the document did not expressly refer to any agreement antecedent to the acquisition or even joint purchase of the mare, but it conceded that the money and labour spent on the grant was joint and in the light of that agreement, it was accepted that the grant was acquired in pursuance of an agreement as to joint acquisition. But on the point of limitation,, it was held that although the acquisition was intended to be joint there was the fact that since the year 1918, the plaintiff in that case had not been in receipt of his share of the produce of land. The suit which was for possession simpliciter was filed in Decem ber 1952, primarily against Mohammad Alam who had acquired proprietary rights in the year 1944. It was laid down that Mohammad Alam, the person acquiring proprietary rights could not become a benamidar for the law pro hibited transfer of shares to more than one person. He could not hold it for the benefit of others, but when he or his representatives did acquire the .ownership rights, then the bar that stood in the way of enforcement of the agreement was removed. The result would be not that Hussain Bakhsh plaintiff' automatically became the owner but that Muhammad Alain was under an obligation to transfer the property to Hussain Bakhsh on payment of his own share of land. The highest at which the case of the plaintiff can be put is that Muhammad Alam became a trustee for him to the extent of his share. The term used as highest was because there were distinguishing features in that case itself which might stand even in the way of the applica tion of the ordinary principles stated above. In that case, the acquisition in which the share was claimed was not the original grant but another grant in Chak No. 86 and the person acquiring was not the original tenant but his son who was not even fixed with the knowledge of an agreement executed by his father. In these circumstances, it was held that the precise right was to have the property transferred to him on payment of his share of the price of proprietary rights so that the suit should not be for possession but for con veyance. It was further held that whenever a transfer has to be completed before a right to possession accrues, the limitation for filing the suit for transfer or conveyance cannot be avoided by filing a suit for possession. If the suit was to be regarded as one for conveyance then it was either a suit for specific performance of an agreement which had been entered into by the parties antecedent to the acquisition of the horse‑breeding grant or it was a suit calling upon a trustee to convey the property to the beneficiary. In the first alternative the suit would be governed by Article 113 of the Limitation Act and the limitation would be three years from the time when specific performance was refused. In the second alternative the cause of action under Article 120. Limitation Act, would arise either when the money for acquisition of proprietary rights was paid or at the most when the deed of transfer was executed in favour of Muhammad Alam which occurred on 1 st of July 1944. In either of the two cases the suit was held as time barred.

11. It is no doubt that the present case is identical in several facts such as in both the cases the agreement executed during the subsistence of the tenancy, did not by itself create any right but referred to a past oral agree ment, the sale price was not paid by the plaintiff and they did not remain in occupation of the land for a period of more than 12 years although the proprietary rights were obtained in 1944. Both the suits were for possession but the distinguishing feature in both the cases is that in the former the defendant against whom the relief was sought was a tenant who, with no knowledge about the agreement executed by his father, had obtained the eland in exchange for the one originally granted to his father and the agreement relating to one land could not be applied to the other unless through the Count. But in this case, the land remained the same and the subject matter of the agreement did not change. It is also not found in the docu ment of the present case that there was a promise to confer title on acquisi tion of proprietary rights. In this state of affairs, the plaintiff has not to seek the land by way of specific performance. Having entered into an agreement to purchase on behalf of the plaintiff, if Fazal Dad went back upon his agreement and acquired property for himself alone, he would, under the circumstances in which the deed was executed, become a constructive trustee for the plaintiff to the extent of his share. An agent for purchase, if he acquires property for himself becomes a trustee fur his principal and the principle underlying it is accepted in illustrations (e) and (f ) of section 3 0 the Specific Relief Act wherein trustee has been defined. It is the duty of the trustee to protect the rights of the party to the agreement, who had reposed confidence in him.

12. In the present case, the agreement is a simple acknowledgment of the interest of the plaintiff and his right to remain in possession of 23 acres of Sand. It is not executory in form and does not contain a promise to execute f a sale‑deed or mutate the property in favour of the plaintiff‑promisee, therefore, the present suit need not be for specific performance but its present form as for possession was quite in order. The suit initially was instituted for a declaration that he was an owner in possession through Hakim Ali and on acquisition of proprietary rights the defendant bad denied the plaintiff's share and started making attempts to dispossess his tenant. The prayer of declaration has been amended to one for possession. From the averments of the plaint it was not a case of dispossession or discontinuance but a simple suit for possession on account of title, therefore, is was Article 144, Limitation , Act which would apply and limitation shall be 12 years from the date when ‑the possession of the defendants becomes adverse. A person who holds possession on behalf of another, does not by a mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Thus a trustee or a co‑sharer who holds possession on !behalf of the beneficiary or the other co‑sharer, during his absence, cannot acquire a title by adverse possession, however long the absence may be. In .order to assert hostility he has to set up his claim by specifically indicating the time from which adverse possession has commenced and his possession from that day should be open without any effort to effect concealment. Not only this there must be an ouster and that too of which the owner has knowledge. Mere occupation or enjoyment or management of joint property by one co‑sharer does not constitute adverse possession as against the other co‑sharer unless there is a disclaimer of the latter's title by open assertion of a hostile title by the former, or unless there is actual ouster or some act equivalent to ouster. Such adverse possession cannot commence during the period the defendant had been himself a tenant and did not become an owner. The proprietary rights were acquired in October 1944 and the suit filed in 1953 would in no case be barred by time.

13. For the reasons above‑mentioned, the learned District Judge was not justified in granting the decree in favour of the respondent. The appeal is accepted and setting aside the impugned decree, the decree and the judg ment of the learned trial Court are maintained and the suit of the appellants ,is decreed with costs. s. A. H. Appeal accepted