RAJAB ALI vs Mst. AISHA and others
This petition for leave to appeal arose from a dispute over the possession of land allotted under the Well Sinking Scheme by the Thal Development Authority. The petitioner, the original allottee, sought possession of the land from the respondent, claiming the land had only been leased for two years. The respondent contended that the petitioner had sold the land to her in 1963, and she had fulfilled all payment obligations. The core legal question was whether the petitioner could rely on statutory prohibitions against the transfer of allotted land to reclaim possession after having voluntarily sold the land and received consideration. The Supreme Court upheld the High Court's decision, which restored the trial court's judgment in favor of the respondent. The Court held that the petitioner, having received consideration and voluntarily parted with possession, could not invoke statutory prohibitions against transfer to non-suit the purchaser. The key principle laid down is that a party who enters into an agreement to sell and receives consideration cannot rely on statutory restrictions on transfer to invalidate the transaction and reclaim property from the purchaser.
- Can an allottee of land under the Thal Development Authority who has received consideration and parted with possession rely on statutory transfer prohibitions to reclaim the land?
- Is a purchaser of land in possession entitled to defend a suit for possession by relying on an agreement to sell, even if the transfer was technically prohibited by statute?
- Does the principle of pari delicto prevent a seller from challenging a land transfer agreement they voluntarily entered into?
- Section 19, Colonization of Government Lands (Punjab) Act 1912
ORDER
1. ' JAVID IQBAL, J.--This petition for leave is directed against the order of the Lahore High Court, Lahore dated 19th June, 1982 whereby the regular second appeal of the respondents was accepted and the judgment and decree passed by the lower appellate Court was set aside restoring the judgment and decree passed by the trial Court in favour of the petitioner.
2. ' Briefly the facts are that the petitioner was allotted the disputed land under the Well Sinking Scheme by the Thal Development Authority. He took possession of the said land and brought it under cultivation. Subsequently in 1963 he transferred the possession of the suit land to Mst.Aisha respondent who is in continuous possession of the same through her husband Muhammad Ismail- respondent and Muhammad Nazir respondent-tenant. In 1972 the petitioner filed a suit in the civil Court against the respondents seeking possession of the disputed land on the ground that he had only leased the suit land in favour of respondent No.1 in a period two years but she had to surrender possession after the expiry of the lease period. He also contended that even if she had executed an agreement supported by his affidavit respecting the suit land in her favour then such agreement and affidavit in her possession were collusive and fraudulent as well as illegal. The case of respondent No.1 inter alia was that the petitioner had sold the land to her in 1963 through an agreement and that she was in possession of the same as she had also paid all the instalments payable in respect of the same to the Thal Development Authority. The trial Court dismissed the suit of the petitioner but on his appeal the Additional District Judge set aside. The judgment and decree of the trial Court. However, as stated above on the R.S.A. Preferred by the respondents the judgment and decree of the lower appellate Court were set aside and the judgment and decree of the trial Court were restored on the ground that so far as the disputed land was concerned which was allotted to the petitioner, its transfer was prohibited by the allottee under condition 20 of the grant as well as section 19 of the Colony Act without prior permission of the Chairman Thal Development Authority. But however, the petitioner himself was party to the agreement to sell the same in favour of respondent No.1 and who had received consideration as well as delivered possession of the suit land to respondent No.1 was not in a position to avail of the provisions of condition No.20 which could have only been availed of by the grantee of the said land i.e. Thal Development Authority. Respondent No.1, therefore, was competent to defend the suit brought against her by the petitioner for possession of the said land by pressing into service the agreement to sell executed in her favour by the petitioner as she could also avail of the principle of pari dclicto as against the petitioner. Reliance in this connection had been placed on 1980 SCMR 314 (Ghulam Muhammad alias Ghulam-un v. Maula Dad and others) in which it was laid down that a petitioner who undertook to do all that was necessary for formally completing sale and parted with possession after receiving consideration could not rely on section 19 of the Colony Act so as to non-suit the purchaser.
3. ' We have heard learned counsel at some length and we do not find any fault with the impugned order of the High Court particularly when the provisions of section 19 of the Colony Act are identical to those of condition to the grant referred to above. In the light of this discussion we do not find any substance in this petition which is accordingly dismissed.
Cited by 7 cases
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- AKBAR ALI and others vs LAL and others 1997 PLD Lahore 709
- SULTAN AHMAD Etc vs MEHR DIN Etc (K.L.R. 1994 Revenue Cases 132)
- Mst. REHMAT BIBI and others vs Mst. JHANDO BIBI and others 1992 SCMR 1510
- FATEH MUHAMMAD And Others vs AISHA BIBI And OTHER 1990 CLC 1996
- (Retd.) GROUP CAPT. A.M. MORAD vs MUHAMMAD AZMATULLAH SIDDIQUI And 3 Other 1991 SCMR 2415