MUHAMMAD IQBAL AND OTHERS vs MIRZA MUHAMMAD HUSSAIN AND OTHERS

' ASLAM RIAZ HUSSAIN, J.-This appeal by Muhammad Iqbal and 4 others is directed against the judgment of the High Court, dated 12th November, 1980.

2. Facts giving rise to the appeal are, briefly, that Government land measuring about 17 Marlas and 3 Sarsahis was allotted to Ghulam Rasocil (now deceased) as Dakhilkar. Subsequently he made an application to the Collector, Sheikhupura, for being given proprietary rights over the said land The application was still pending decision when Ghulam Rasool aforesaid entered into an oral agreement with Pirzada Muhammad Hussain (respondent No, 1) to the effect that he would transfer the said land in his favour for a sum of Rs, 5,000 after the proprietary rights have been conferred upon him. He, however, received the price of the land in advance. Before the conferment of the proprietary rights in pursuance of his application, Ghulam Rasool was murdered. After his death two of his legal heirs made another agreement with the abovesaid Mirza Muhammad Hussain admitting the earlier oral agreement and agreed to fulfil the same by transferring the suit land to him as and when the proprietary rights were given to them by the Provincial Government.

3. Subsequently, after some time, the application of Ghulam Rasool (deceased was accepted and the proprietary rights were conferred on his legal heirs. But in spite of repeated requests by Mirza Muhammad Hussain the land in question was not sold to him. He, therefore, filed a suit for specific performance. During the pendency of the suit he also impleaded the 5 appellants as respondents (Nos. 14 to 20), as they had purchased the land in question.

' The suit was resisted by the respondents Nos. 1 to 13, who denied the existence of any oral agreement relating to the land in dispute. Respondents 14 to 20 did not set up a case of their being bona fide purchasers without consideration and without notice of the earlier agreement and only contended that even if such an agreement did exist the plaintiff-respondent was not entitled to specific performance of the contract. The plea of limitation was also not raised by any of the respondents. On the pleadings of the parties following issues were framed.

(1) Whether Mst. Hakim Bibi defendant No, 9 was divorced by Ghulam Rasool, if so its effect ? 0. P. D.

(2) Whether Ghulam Rasool deceased had agreed to sell the suit property to the plaintiff and whether he had received Rs, 5,000 from him as amount of consideration ? 0. P. D.

(3) Whether the plaintiff is entitled to the specific performance of contract of sale mentioned in issue No, 2 0. P. P.

(4) Relief.

4. The learned trial Court decided all the issues in favour of Mirza Muhammad Hussain (respondent No, 1) and decreed the suit vide judgment, dated 3-3-1979. The defendants (appellants herein) filed an appeal which was accepted by the learned District Judge, Sheikhupura on 12-5-1979. Feeling aggrieved Mirza Muhammad Hussain filed an R. S. A. Before the High Court which was allowed, vide the impugned judgment, dated 22-11-1980.

' Muhammad Iqbal and others thereupon filed a C.P.S.L.A. Before this Court and the main contention urged on their behalf, was that since the oral agreement with Mirza Muhammad Hussain was made by Ghulam Rasool when he had not yet acquired proprietary rights,' the same was hit by section 19 of the Colonization of Government Lands Act, 1912, and could not, therefore, be enforced ; and that the High Court had erred in holding to the contrary. Leave was thereupon granted in the following words : "The question whether the prohibition under section 19 and the fact that the proprietary rights had been acquired not by Ghulam Rasool but by others would affect the enforciaility and legality of the oral contract requires fuller examination and more authoritative pronouncement from this Court"

' It appears that in granting leave the Court was influenced by the fact that leave had already been granted in another case (CPSLA No, 444/78) on the same question.

5. The present appeal came up for hearing before this Court on 3-7-1985 and both the learned counsel addressed the Court on the effect of section 19 of the Act in question on the enforceability of a contract made before proprietary rights had been conferred on the vendor. This question has, however, already been answered by a Full Bench of this Court in its judgment, dated 16-6-1981 in Civil Appeal No, 216 of 1978, arising out of C.P.S.L.A. No, 444 of 1978 and, as such, an authoritative pronouncement of this Court on this point has already been made.

' In that case, Government land measuring 98 Kanals and 4 Marlas in District Vehari was granted to one Mst. Jan on terms applicable to the Islamabad Oustees. On her death her two sons succeeded to the grant. On 24-12-1970, the grantees executed an agreement to sell that land in favour of Hakim Ali and another person. It was specifically stipulated in the sale-deed that the same would be executed after the grantees/vendors had acquired the proprietary rights in the land in dispute in that case. Proprietary rights were conferred on the two grantees on 28-7-1975, but they sold the same land to Ata Muhammad and two others through a registered sale-deed, on 30-7-1975. But when the vendees wanted to get the entries made in their favour in the revenue record they came to know about the previous contract of sale made with Hakim Ali etc., who had even obtained an ex parte decree in respect of the land in question. Ata Muhammad etc., therefore, filed a civil suit cm the strength of the registered sale-deed in their favour, seeking a declaration that they had become owners of the land in question. The suit was resisted by Hakim Ali, etc. And was, however, dismissed. The plaintiffs then filed an appeal before the District Judge which was accepted and the decree passed by the Civil Judge, Vehari, was set aside. A Civil Revision filed by Hakim Ali, etc., in the High Court was also dismissed. The matter then came up to this Court and leave was granted on the question already mentioned above, which is the same on which leave was granted in this case,

6. It was held by this Court in paragraph 12 of its judgment in that case that a contract of this kind was not violative of the provisions of section 19 of the Colonization of Goverment Lands Act, 1912.

Paragraph No, 12 may be reproduced here for facility of reference "On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantees had acquired the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of the contacting parties to keep themselves well within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provisions of section 19 of the Act or of the public policy behind such a statutory provision."

7. We respectfully follow the abovenoted view taken by a learned Full Bench of this Court and hold that the oral agreement of sale by Ghulam Rasool in favour of Mirza Muhammad Hussain (respondent No, 1) is not hit by the provisions of section 19 of the aforesaid Act. It may be mentioned that the same view has been taken in. Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg (1), Ghulam Muhammad v. Lakhaingh and Mst. Khurshid Begum v. Inam Rabbani (2) on which the High Court has relied while delivering the impugned judgment.

' Since leave was not granted on any other question relating to limitation or locus standi of respondents 14 to 20, nothing need be observed in relation to those aspects of the case.

(1) PLD 1978 Lab. 421 (2) 1979 CLC 570

8. The net result of the above discussion is that we uphold the judgment of the High Court and dismiss the Appeal with costs throughout.