WARIS ALI Versus SHER MUHAMMAD

This second appeal questions the validity of judgment and decree, dated 22‑9‑1970 passed by the learned District Judge, Mianwali, whereby the appellant's first appeal was dismissed.

2. The land in question was allotted to Chanan Din by the Administrator, Thal Development Authority, Bakkar. He allegedly sold it in favour of the respondents, Sher Muhammad and Noor Muhammad by a deed, dated 10‑4‑1954 for a sum of Rs.1,225 and delivered its possession to them. They brought it under cultivation by investing a huge amount of money. Chanan Din in the meantime died whereafter his successors‑in‑interest namely, the present appellants denied the sale. The respondent Sher Muhammad brought the present suit for a declaration that he alongwith his brother Noor Muhammad, impleaded as defendant No. 6, was occupying the same as its owner.

3. The appellants contested the suit denying the sale by the deceased‑allottee and stated that the same was fictitious, collusive, without consideration and all that. They equally denied if the respondents had effected any improvements upon the land. They added that the plaintiff had no locus standi to maintain the suit. The Courts below concurrently held that the deceased had made the sale of the land in favour of the respondents. They spurned the objection that it was hit by section 19 of the Colonization of the Government Lands (Punjab) Act, 1912 holding that the sale‑deed Exh.P.8 recited a past transaction and did not by itself create or extinguish title in present.

4. Mr. Asad Ullah Siddiqui, Advocate for the appellants reiterated that the deceased Chanan Din being himself an allottee under the Thal Development Authority was very much bound by the restriction imposed by section 19 ibid and that any alienation made by him without the permission of the Commissioner envisaged thereunder was totally void. He sought support for this view from various decisions e.g. Ghulam Rasul and others ~v. Muhammad Anwar and others 1969 S C M R 254, Khizar Hayat and 2 others v. Shah Nawaz 1981 C L C 139, Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg P L D 1978 Lah. 421, Abdul Shakoor and 2 others v. A.S. Tasneem and 2 others 1974 S C M R 463 and lastly Saidul Zafar Mirza v. Kazi Zafar Abbas 1981 S C M R 993. A perusal of these authorities no doubt lends strength to his contention that a sale by a tenant of the State land without such permission was void, but the question having been under discussion in various judgments at various times does not seem to be as straight or simple. Ch. Mushtaq Ahmad Khan, Advocate for the opposite side placing reliance upon Ghulam Muhammad v. Mst. Sharifan Khatoon and 7 others 1980 C L C 427 contended that it being a tenement governed by the T . D . A . did not attract the application of section 19 of the Colonization of the Government Lands (Punjab) Act, 1912. He claimed that it was the Chairman of the said Authority whose consent, if at all, was required and that since they have not preferred the second appeal, the judgment whatever was binding upon them. Elaborating this point , he explained that any alienation of such a grant or allotment without the permission of the Chairman would certainly give the latter a cause of action to disown it as they would not recognise possession of an alienee under the original tenant, and conversely if they did not take exception to the same, it would not lie in the mouth of the tenant to come forward to question his own sale on the ground that it was bad in law. He cited Allah Ditta v. Jhanda and others P L D 1951 Lah. 244 and Ghulam Muhammad alias Ghulamoon v. hlsula Dad and 6 others 1980 S C M R 314 for this view and tried to distinguish the rule laid down in Saidul Zafar Mirza v. Kazi Zafar Abbas 1981 S C M R 993 on the ground that there the question to be resolved was whether a subsequent vendee without notice was protected or not. This distinction was clearly visualised on the basis of the facts of that case and it would not apply to the case in hand. In Ghulam Rasul and others v. Muhammad Anwar and others 1969 S C M R 254 undeniably the rule enunciated was that a purchaser without obtaining sanction under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 could not enforce ‑the contract, but this rule has been clearly changes in Ghulam Muhammad alias Ghulamoon's case, which purports to lay down that such a purchaser can successfully defend a suit on the plea that the alienor could not take benefit of his own illegalA act, though the State or the Thal Development Authority in this case could attack the transaction for want of permission referred to above. No authority of later times was produced so as to avoid the application of the dictum pronounced in the Ghulam Muhammad alias Ghulamoon's case. The respondents here were the purchasers. They could successfully resist the suit of the appellants in that the latter could not rely upon their own illegal act on the principle of pari delicto.

5. The Thal Development Authority, as already disclosed, took no exception to the impugned judgment and if they conceptually accepted the alienation, it would not be permissible to the appellants to find faults with it. Exh. P.10 was the record of the Thal Development Authority wherein the respondents had been all along recorded as Abaadkar in possession bearing out that acquisition of title by them under the impugned transaction was not taken exception to by them.

6. There is no merit in the appeal and the same is dismissed.

H.B.T./W‑6/L Appeal dismissed.