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Petitioner: GHULAM MEHR VS Respondent: CHIEF LAND COMMISSIONER, PUNJAB, LAHORE AND 2 Other
Court Name: Lahore High Court Judge(s): K. Muhammad A. Samadani, Karam Elahi Chauhan Title: GHULAM MEHR vs CHIEF LAND COMMISSIONER, PUNJAB, LAHORE AND 2 Other Case No.:Writ Petition No. 845 of 1973 Writ Petition No. 1791 of 1973 M. L. R. No. 64 of
JUDGMENT
Reported As: PLD 1974 Lahore 520 Result: A. Judgment JUDGMENT KARAM ELAHBS CHAUHAN, J.-The following pedigree-table which was given to us by the learned counsel for the parties, will help in understanding the facts of this cases :---- First wife. Mst. Nazir Second wife. Mct. Tasawwar Begum, Ghulam Mehr daughter. Petitioner. Muhammad Muhammad Daughter Daughter Daughter No. 2No. 3 born in 1955. Haji Mukhdoom Muhammad Aslam was father of Ghulam Mehr peti--tioner, Muhammad Afzal, respondent No. 2 and Muhammad Akram, respondent No. 3. The petitioner is from the first wife of Haji Makhdoom Muhammad Aslam, namely, Mst. Nazir Begum and is a step-brother of Muhammad Afzal and Muhammad Akram who were born from the second wife of Haji Makhdoom Muhammad Aslam, namely, Mst. Ashraf Bibi. The case of the petitioner, as pleaded in the writ petition, is that the father of the parties owned land in villages Kot Miana and Ghaus Muhammad Wala, Tehsil Bhalwal, District Sargodha. He made a settlement of his property before the birth of Muhammad Afzal respondent No. 2 (who was born in 1954-55) (exact date not known). After the birth of Muhammad Afzal, the father directed the petitioner and respondent No. 3 to sell away certain land owned by them in village Kot Miana and out of the sale proceeds of that land and also of some other land of the father, he purchased 429 kanals in Chak No. 49-NB Sargodha for Rs. 1,00,000.00 in his own name. This property remained in the name of the father of the parties who
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later on gifted it to Muhammad Afzal respondent No. 2 somewhere in 1961. Later on the petitioner Ghulam Mehr and Muhammad Akram respondent No. 3 at the instance of their father transferred an area of 415 kanals from village Kot Miana and an area of 83 kanals in village Ghactc Muhammad wala to Muhammad Afzal respondent No. 2 in exchange for an area which was to be given to them from Chak No. 49-NB, Sargodha. The transactions with regard to villages Kot Miana and Ghaus Muhammad wala were entered in Mutations Nos. 533 and 116 respectively on 16-7-1964 and were attested on 17-9-1964. 2. It appears that an area of 122 kanals and 15 marlas from Chak No. 49-NB, Sargodha which is situated and adjacent to the city was acquired for defence purposes in connection with which a notification under section 4 of the Land Acquisition Act (I of 1894) was issued on 4-12-1962 and Notifica--petition under section 17 of the said Act was issued on 1-2-1963. The award was made on 9-12-1963 fixing compensation at Rs. 1,00,000 which was received by Muhammad Afzal. After receiving the aforesaid compensation under protest he filed a reference application under section 18 of the Land Acquisition Act which was decided by the Court concerned on 22-12-1969 whereby the amount of compensation was enhanced to some extent with a direction that the enhanced amount should be paid on or before 30-4-1970. The said amount was duly received by Muhammad Afzal. The respondents submitted that the possession of the area involved in the case was taken over somewhere in the year 1963 and was transferred to the P. A. F. In the same year. After excluding the area which was acquired by the P. A. F., the balance left with Muhammad Afzal was only 307 kanals in that village. 3. It further appears that till then the relations of the parties were quite cordial and an effort was made from the side of Muhammad Afzal to transfer the area from Chak No. 49-NB. Sargodha to the petitioner and Muhammad Akram through mutation No. 468 which was entered on 18-2-1965 but was ceremoniously rejected by the Revenue Officer on the sole ground that Muhammad Afzal was minor. The parties, it appears, resolved this hurdle through the efforts of their father as is evident from a civil suit bearing No. 309/1965 which was instituted on 26-6-1965 by petitioner and Muhammad Akram for getting declaration regarding their rights in area of 205 kanals of land out of the total holding of 422 kanals in Chak No. 49-NB alleging that they were its owners on the basis of the family transactions and adjust--ments etc., hereinbefore mentioned. In this suit Muhammad Afzal had been sued through his natural guardian namely, his father Haji Makhdoom Muhammad Aslam. The plaint makes a mention of some of the material facts hereinbefore recited and after making relevant complaint the plaint ended with a prayer for grant of a declaratory decree regarding the rights of the plaintiffs together with a decree for a permanent injunction against the defendants. Copies of the plaint and written statement have been placed on the record which show that the claim of the plaintiffs and various factual pleadings and details of their version were accepted by the father acting for himself and his son Muhammad Afzal. The father also made a statement in Court to that effect on the basis of which the decree prayed for was passed on the same date. The decree reads as follows :----- (Sd.) Civil Judge II Class, Sargodha. On the basis of the aforesaid decree mutation No. 274 was then entered on 18-7-1966 and attested on 28-6-1967. The father of the parties, we are told, died on 30-6-1967 apparently after completing the aforesaid mission and settling land on all the three sons in somewhat equal portion and to an equal extent in all the three villages hereinbefore mentioned. 4. After the death of their father it seems Muhammad Afzal respondent No. 2 and his real brother Muhammad Akram respondent No. 3 of course with the blessings of their mother Mst. Ashraf Bibi tried to deprive their step-brother, namely, the present petitioner from his share in the land in Chak No. 49-NB especially because they felt that this land being situated in the heart of Sargodha Cantonment had become more valuable than the land in other villages which were at a distance
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of 30/40 miles from Sargodha. On 26-1-1970, therefore, Muhammad Afzal (through his mother Mst. Ashraf Bibi) filed a civil suit to get rid of the aforesaid transaction with regard to the transfer of land on his part from Chak No. 49-NB Sargodha in favour of the petitioner and respondent No. 3 challenging mutation No. 274 and the civil suit decree hereinbefore mentioned. This suit, however, was withdrawn by him on 24-4-1972 as will be explained later. While the suit was still pending Muhammad Afzal filed a belated appeal against the attestation of mutation No. 274 before the Collector which was accepted by him on 26-10-1971 whereby he quashed the mutation aforesaid. The present petitioner filed an appeal which was accepted by the learned Additional Commissioner on 6-1-72 who held that on the date when he was pronouncing the order a civil suit of Muhammad Afzal was still pending and as such the Collector should not have interfered in the matter in that state of affairs and should have rather waited for the result of the suit. After making these observations he quashed the order of the Collector. Muhammad Afzal, respondent No. 2, filed a revision which was dismissed by the learned Member, Board of Revenue, on 22-2-1972 who observed that the issue pertained to the Land Reforms authorities and could not be attended to in the aforesaid revenue proceedings. Feeling that the suit had become a hurdle in his way Muhammad Afzal, as already mentioned, withdrew the same on 24-4-1972. 5. However, taking a clue from the observation of the learned M. B. R., Muhammad Afzal then filed an application under rules 3 and 12 of the West Pakistan Land Reforms Rules, 1959 read with Para. 235(c) of the Land Reforms in West Pakistan (Volume 1) before the learned Chief Land Commissioner. There was some controversy regarding the date of the filing of this application and we sent for the original record from the Court of the learned Chief Land Commissioner which shows that the said application was filed prior to the promulgation of the present Land Reforms Regulation (M. L. R. 115) of 1972 which had come into force on 11-3-1972 (respondent No. 3 has pleaded that it was filed on 4-3-1972). This application was accepted by the learned Chief Land Commissioner by two orders dated 10-10-1972 and 16-4-1973 whereby he held the transaction contained in mutation No. 274 as void inasmuch as it was, according to him, in violation of paragraph 25 of Land Reforms Regulation (M. L. R. 64) of 1959 which directed that a person could not make such transfer of land which would reduce the area left with him below a subsistence holding. In the instant case after the transfer in favour of the petitioner and respondent No. 3 the area left with Muhammad Afzal was only 102 kanals and 10 marlas whereas a subsistence holding in this District was 111 kanals and 5 marlas. The area left with Muhammad Afzal in this way, according to the learned Chief Land Commissioner fell below the subsistence holding only by 8 kanals and 15 marlas. The result of the orders of the learned Chief Land Commissioner is that whereas they strike down one limb of the transaction of exchange or family settlement hereinbefore mentioned with the consequence that Muhammad Afzal would be eligible to retain the land in Chak No. 49-NB (which he had given in exchange) the said orders say nothing about the land which had been received by Muhammad Afzal far earlier in the two villages of Kot Miana and Ghaus Muhammad Wala. Feeling aggrieved from the last mentioned orders of the learned Chief Land Commissioner Ghulam Mehr has filed the present writ petition in this Court. 6. The first point argued by the learned counsel for the petitioner was that the transaction in hand vis-a-vis his client was a separate transaction by itself. He submits that Muhammad Afzal through his father had transferred 1021 kanals of land to petitioner and an equal area to Muhammad Akram, the total being 205 kanals. The said Muhammad Akram in his written-statement in this Court has taken up the position that the transaction was void which according to the learned counsel for the petitioner means that so far as he is concerned he has abandoned his rights in the part-area transferred to him, and considers his real brother Muhammad Afzal to be still the owner of the same. Proceeding with the argument learned counsel for the petitioner submitted that the plaint in the suit which was filed by Muhammad Afzal on 26-1-1970 (a copy of which duly existed on
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the record of the learned Chief Land Commissioner) also shows that though Muhammad Afzal had claimed a declaration of his title about the entire area of 307 kanals (including 205 kanals transferred to Ghulam Mehr and Muhammad Akram) but actual possession which he wanted was only of an area of 98 kanals and 5 marlas which allegedly was with Ghulam Mehr which indicates that so far as Muhammad Akram was concerned he i.e. Muhammad Akram had already given up any claim to the portion transferred to him. Learned counsel for the petitioner argued that Muhammad Akram had filed a written statement in the aforesaid civil suit as well-(copy placed on record)--accepting the plaint which meant that he did not own or claim any transfer in his favour. In that view of the matter, the only transfer operative in the field, it was argued, was that which sad been made in favour of the petitioner. The shares of the two transferees it was contended by the learned counsel for the petitioner in the land transferred to them were separate and if Muhammad Akram qua his share does not consider it as a valid transfer, then in the eye of law his share remains with the alienor and if the same is added in the balance holding of Muhammad Afzal then his holding does not get reduced from the subsistence holding in any manner. The contention raised has force. Petitioner Ghulam Mehr and Muhammad Akram respondent No. 3 had earlier given separate area/share from their holdings in villages Kot Miana and Ghaus Muhammad Wala to Muhammad Afzal and similarly Muhammad Afzal bad also given area to a specific extent to each of them in the Chak in dispute. If Muhammad Akram goes out, then the transfer in favour of the petitioner suffers from no infirmity. When confronted with this situation, learned counsel for Muhammad Akram and Muhammad Afzal submitted that this point regarding sever ability of each transfer should not be allowed to be raised for the first time in this Court as it was not raised before the learned Chief Land Commissioner by the present petitioner. The contention has no merit. We find from the record of the learned Chief Land Commissioner that petitioner Ghulam Mehr had specifically raised this point in his written submissions dated 23-11-1972, filed through his then learned counsel Raja Muhammad Anwar. The actual passage therein occurs in this form:------- "It is significant to note that the decree in dispute is in favour of both Ghulam Mehr and Muhammad Akram (the real brother of petitioner). But in all the proceedings directed and launched by Muhammad Afzal against this decree, his elder brother Muhammad Akram has, in collusion with him, been impleaded as pro forma respondent. He too, for the reasons above stated, instead of opposing these proceedings has been unjustifiably supporting them. If he were honest in his action, he had better surrender his share of 1021 kanals of land in Chak No. 49-NB which he received through the impugned decree. If this land is eliminated according to Muhammad Akram's own showing, the share of Ghulam Mehr respondent in Chak No. 49-NB which is only 1021 kanals is saved from the mischief of M. L. R. 64. This view finds support from PLD 1967 W. P. (Rev.) 22." A perusal of the order of the learned Chief Land Commissioner, however, shows that he did not attend to the aforesaid point and aspect of the case which means that his orders are without lawful authority. From A another point of view it tantamount even to failure to exercise jurisdiction on his part in that respect. The case referred to in the written submissions of the petitioner viz., Muhammad A.I and another v. Isa Khan and another (PLD 1967 W. P. (Rev.) 22 was a case where, as in this case, a co- transferee backed out of a transfer in his favour and the vendor tried to invoke para. 25(3) of M. L. R. 64 of 1959, for claiming the whole transfer as void, but the learned Member, Board of Revenue refused to interfere in the sale which had been maintained by the Collector and the Additional Commissioner to the extent of 1/2 share in favour of the co-purchaser who was trying to get that transaction maintained. The alienor and the backing out co-vendee before the learned Member Board of Revenue had raised certain pleas of fraud and deception etc. But the learned Member, Board of Revenue directed them to get their rights established in a civil Court. In that case the balance of the sale was hit
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if a co-vendee went out, whereas in the instant case it will be just the reverse and the sale in favour of the remaining co-vendee will be quite in order if the other co-vendee disowns the transfer of any portion of land to him. However, the failure of the learned Chief Land Commissioner to attend to this aspect of the matter which went to the roof of the case renders his orders as to be without lawful authority as earlier mentioned. 7. The next point raised by the learned counsel was with regard to the construction of sub-Para. (3) of Para. 25 of the Land Reforms Regulation (M. L. R. 64) of 1959. It is necessary at this stage to reproduce Paragraph 25 which reads as follows:- "Para. 25. Restrictions on alienation of holdings.-(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: Provided that such a person may alienate his entire holding. (2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding: Provided that such a person may alienate his entire holding. (3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of sub--sistence holding: Provided that such a person may alienate his entire holding. (4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding, or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza. (5) Any alienation made in contravention of the provisions of this paragraph shall be void. (6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commis--sioner." The present case falls within sub-para. (3) of para. 25 which, to excuse repetition, states that "no person shall be allowed to alienate any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding". If we read the aforesaid sub-para carefully, we notice that it prohibits the person concerned from alienating any portion of his holding which may reduce his balance holding below the subsistence holding This shows that the bar to alienate is not absolute and pertains only to the relevant fraction involved in any particular case. To illustrate our view by an example, if a large area is alienated, the transfer of the whole of the area will not be rendered void, but transfer only of that much portion will be void which by itself reduces the balance left with the alienor below the subsistence holding. This construction is clearly deducible from the phrase, "any portion of his holding which may reduce" the balance left with the transferor below the subsistence holding. Proceeding in this way, since in the instant case the balance left (i.e. 102 kanals and 10 marlas) with the transferor, after the transfer of 205 kanals out of 307 kanals, was short --only by 8 kanals and 5 marlas), from the subsistence holding (which is 111 kanals and 5 marlas), the transfer to the extent of the aforesaid area of 8 kanals and 15 marlas, will only be void and not with regard to the rest of the area, because, it is the aforesaid fraction which reduces the size of his holding to an area less than the area of subsistence holding. In this way if 8 kanals and 15 marlas are taken away from 205 kanals it means that transfer of the balance area of 196 kanals and 5 marlas, was quite valid and in order. The transaction in hand to that extent, therefore, did not suffer from any infirmity. The learned Chief Land Commissioner acted without lawful authority in striking down even this portion of the transfer. We have preferred to adopt this
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construction because we are of the view that the intention of Para. 25 of M. L. R. 64 of 1959, was not to stop the land-holders from obtaining necessary credits or otherwise a good price for their lands, but only to avoid fragmentation of their holding. The view that, we have adopted in no way destroys that purpose and rather purports to achieve it without violence to other rights of the citizens to acquire or dispose of property. Situations are not lacking where for instance a party to as contract is unable to perform the whole of his contract-(the performance of a part being prohibited or illegal)-but law authorises him to perform that part which he can perform. Reference here may be made to section 14 of the Specific Relief Act and the two illustrations contained therein which are reproduced below:---- "Section 14.----Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small unperformed is to the whole in value, and admits of com--pensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency." illustration (a) turns out that 98 bighas of the land belong to A, and the two remaining bighas to a stranger, who refuses to part with them. The two bighas are not necessary for the use or enjoyment of the 98 bighas, nor so important for such use or enjoyment that loss of them may not be made good in money. A may be directed at the suit of B to convey to B 98 bighas and to make compensation to him for not conveying the two remaining bighas, or B may be directed, at the -suit of A, to pay to A, on receiving the conveyance and possession :of the land, the stipulated purchase money, less a sum awarded as com--pensation for the deficiency". Illustration (b) (b) In a contract for the sale and purchase of a house and lands for two lakhs of Rupees, it is agreed that part of the furniture should be taken at a valuation. The Court may direct specific performance of the contract notwithstanding the parties are unable to agree as to the valuation of the furniture, and may either have the furniture valued in the suit and include it in the decree for specific performance, or may confine its decree to the house." Reference may also be made to section 15 and its two illustrations which are as follows:---- "Section 15.----Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion tract where part of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to comp--ensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. Illustration (a) (a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50 bighas of the land belong to A, and the other 50 bighas to a stranger who refuses to part with them. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A, waiving all right to compensation either for the deficiency or for less sustained by him through A's neglect or default, B is entitled to a decree directing A to convey those 50 bighas to him on payment of the purchase money." Illustration (b) (b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The garden is important for the enjoyment of the house. It turns out that A is unable to convey the garden. A cannot obtain a decree against B for the specific performance of the contract, but if B is willing to pay the price agreed upon, and to take the estate and house without the garden, waiving all right
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to com--pensation either for the deficiency or for loss sustained by him through A's neglect or default, B is entitled to a decree directing A to convey the house to him on payment of the purchase-money." PLD 1965 SC 37), where principle of maintaining a contract in part was upheld. To the similar effect in Rotherford v. Adams (AIR 1915 P C 113), which accepts the right of a purchaser who can "elect to take all that he can get" and clarifies that "this right applies only to a deficiency in the subject- matter described in the contract." As a matter of fact we have really not been able to appreciate the stand-point of Muhammad Afzal. Respondent No. 2 in this respect. If Muhammad Afzal had filed a suit for specific performance of the agreement we could understand that Ghulam Mehr could have taken up the plea that he was not agreeable to stick to the lesser area. But we cannot comprehend that when Ghulam Mehr is willing to maintain the deal even though it is cut short for example by 8 kanals and 15 marlas in exchange for which he has already given land to Muhammad Afzal, how can Muhammad Afzal resile and say that even lesser area he will not allow to be retained by Ghulam Mehr. It is to be pointed out that when a statute directs certain transfers to be void Courts can ascertain as to how far, to what extent and for what purpose the transaction is void and cases may be available where it may be void…
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