SHAMIR, through Legal Heirss vs FAIZ ELAHI, through Legal Heirs

1. ' WALI MUHAMMAD KHAN, J.---Waryam and others, heirs of Shamir deceased/plaintiff, appellants herein, through leave of the Court, challenge the judgment dated 24-2-1991 of the Lahore High Court, Multan Bench, whereby Regular Second Appeal No,988 of 1979 filed by the heirs of Faiz Elahi deceased/defendant, respondents herein, was accepted, the judgment and decree of the Additional District Judge as an appellate Court dated 2-12-1979 was set aside and that of the trial Court restored. The leave granting order is as follows:-- "Leave to appeal is granted to examine the following questions of law:

(1) Whether specific performance could at all be ordered when the tenant had not acquired the proprietary rights nor had the transferee obtained permission of the Collector under section 19 of the Colonization of Government Lands Act, 1912?

(2) Whether in ordering specific performance and maintaining it under the impugned orders, the violation of express provision of section 19 of the Colonization of Government Lands Act, 1912, has not taken place?"

2. ' The facts of the case, briefly stated, are that Shamir, predecessor-in-interest of the appellants was owner of the suit land equal to 1/6 share measuring 30 Kanals 7 Marlas out of Khewat No,71/49 measuring 182 Kanals 4 Marlas recorded in the Jamabandi 1961-62 situated in Chak No,62/5.L, Tehsil and District Montgomery. He applied to the Collector under section 19 of the Colonization of Government Lands Act, 1912 (hereinafter to be referred as the Act) for grant of sanction to alienate the suit property but the same was rejected on 29-9-1963. However, he executed an agreement to sell the suit land dated 1-11-1963 in favour of Faiz Elahi for a sum, of Rs,10,000 out of which he received Rs,5,000 as earnest money and the balance was to be paid at the time of execution of the regular sale-deed. Faiz Elahi instituted a suit for specific performance which was decided on the basis of compromise and decreed vide order, dated 21-6-1965.

3. ' Shamir, predecessor-in-interest of the appellants, filed a suit against Faiz Elahi for declaration that the decree dated 21-6-1965 passed for the specific performance of the suit land was illegal, without consideration, based on fraud and collusion, and obtained through undue influence, hence ineffective on his rights. Prayer for perpetual injunction to restrain the defendant from interference in his possession was also solicited. It was alleged in the plaint that he was occupancy tenant of the suit land and had not yet acquired the proprietary rights; that he was a eunuch having bad health and was under the undue influence of the deceased/defendant; that the defendant through fraud secured the thumb-impression of the plaintiff on the application for permission for the sale of land to the Collector as well as on the agreement to sell dated 1-11-1963 and later on fraudulently and collusively obtained decree for specific performance from the Civil Court, dated 21-6-1965 without paying anything to him. The defendant contested the suit and besides the denial of allegations made by the plaintiff in the plaint, alleged that the plaintiff had already acquired proprietary rights on 1-7-1958 in respect of the suit land which was evident from the general power of attorney dated 6-9-1962 in favour of defendant and, in consequence, there was no need for sanction of the Collector for the alienation of the suit land. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge dismissed the suit of the plaintiff vide judgment and decree, dated 30-6-1975. ' However, the appeal filed against it succeeded vide the judgment and decree, dated 2-12-1979 whereby the judgment of the trial Court was set aside and decree prayed for was granted in favour of Shamir plaintiff/predecessor- in-interest of the appellants. The heirs of the defendant preferred Regular Second Appeal against it which was accepted through the impugned order, hence the instant appeal through leave of the Court.

4. ' We have heard Mian Muhammad Siddique, Advocate for the appellants; Ch. Muhammad Ashraf Azeem, Advocate, for the respondents; and have perused the record of the case with their assistance.

5. ' The learned counsel for the appellants argued that the suit land being occupancy tenancy could not legally.Be alienated without the prior sanction of the Collector under section 19 of the Act ibid, and that the agreement to sell already executed by Shamir in favour of Faiz Elahi besides being fraudulently obtained and without consideration, could not be specifically enforced through the Civil Court and, in consequence, the decree for specific performance is illegal and not binding on the plaintiff. The learned counsel for the respondents, on the other hand, argued that section 19 of the Act ibid bars alienation of the occupancy rights and not the execution of agreement to sell.

6. However, according to him, Shamir had already acquired proprietary rights in 1958 and section 19 was inapplicable to the transfer in question.

7. ' It was held by a Division Bench of this Court in the case of Ghulam Rasul v. Muhammad Anwar 1969 SCM R 254 that a transfer prohibited by section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is void even as between the parties to the transaction and that in the absence of such consent, in writing of the Government, no specific performance of an agreement to sell could be ordered. However, a Full Bench of this Court in case Muhammad Iqbal v. Mirza Muhammad Hussain PLD 1986 SC 70 held that agreement to sell was not hit by the provisions of section 19 of the Act ibid. The latter judgment was followed in the case of Akhtar All v. Muhammad Hanif 1989 SCM R 604 and Muhammad Afzal v. Rehmat All 1991 SCM R 1785. Consequently, even if Shamir had not acquired the proprietary rights before the sale in favour of Faiz Elahi defendant the agreement to sell and the decree passed thereon could not be held to be void under the law.

8. It is evident from the documentary evidence placed on the additional paper book that Shamir had acquired the proprietary rights of the suit land on payment of necessary consideration and at the time of the execution of the agreement to sell and the decree for specific performance he was full- fledged owner of the suit property and competent to sell the same under the law. The allegations made by him in his plaint for declaring the decree for specific performance as invalid for want of sanction under section 19 of the Act were unfounded and rightly ignored by the trial Court as well as the High Court.

9. ' As regards the fraud and undue influence alleged by the plaintiff, suffice it to say, that no evidence worth the name was produced to substantiate the wild allegations made by him. The witnesses produced by the plaintiff did not say a word about the allegation of fraud, undue influence or collusion and their statements are in the nature of mere hearsay. The plaintiff himself did not appear as a witness to depose on oath/solemn affirmation regarding the fraud or undue influence practised upon him in the execution of the agreement to sell and the compromise resulting in the passing of decree for specific performance by the Civil Court. Needless to mention that fraud must be proved through strong and independent evidence and in the case in hand, no evidence at all was produced in support of the allegation of fraud. The impugned judgment of the High Court, therefore, does not suffer from any legal infirmity or misreading or non-reading of evidence.

10. ' Resultantly, the instant appeal is dismissed. However, we are of the view that the plaintiff/predecessor-in-interest of the appellants dragged the defendants/respondents in a protracted litigation without any rhyme or reason and put them to unnecessary financial loss, mental torture and agony, and to compensate them we burden the deceased/plaintiff Shamir with compensatory cost of Rs,50,000 which shall be recoverable from his estate in the hands of his legal heirs (appellants herein).