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Letters Patent Appeal No. 31 of 1949 under clause 10 of the Letters Patent decided on 6th March 19,51, from the decree of the Court of Mr. Justice Cornelius of the High Court of Judicature, at Lahore, dated the 1st June 1949, passed in Regular Second Appeal 179 of 1948, (published P. L. D. 1949 Lah.158) modifying that of District Judge, Shahpur at Sargodha, dated the 8^th July, 1948.

Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 8 and 19‑Agreement reached before any interest acquired--- Is outside scope of Act‑Government may object to cultivation or possession of person other than tenant‑‑But no objection can be taken after acquisition of proprietary rights.

The prohibition under section 19 of Colonisation of Govern ment Lands (Punjab) Act (V of 1912) shall apply only where a ten ant had acquired some interest in the lands of the Government. Where an agreement was reached before any interest had been acquired or granted by the Government, it could not be hit either by section 8 of (Act III of 1893) or by section 19 of Act (V of 1912).

The Government, however, was not bound to recognize the transfer of any interest in or charge on the property. The oral agreement between the parties, before an application was made for the grant of land on horse breeding conditions, was out side the scope of the Act.

During the continuance of tenancy, it might have been possible for Government to take any objections to the cultivation or possession of a part of the land under the grant, by the plaintiffs. No such objection can be taken, after the acquisition of proprietary rights in the land, for the simple reason, that as laid down in section 30, it is no longer "subject to any statement of condi tions issued in the above mentioned Act", barring of course the rights of the Government to the minerals etc. detailed in Schedule II of the Act.

Where in pursuance of an agreement, some property was purchased from the Government or tenancy rights acquired therein, the contract between the parties was binding and it was not considered a transfer of the nature prohibited tinder section 19 of Act V of 1912. The Government might for its own purposes insist upon the performance of the obligations under the grant, by the person, who is recorded, as a. tenant under them; but the person himself would not be exonerated from the consequences of his own contract with some other person.

A. I. R. 1930 Lah. 835, A. I. R. 1932 Lah. 32, A. I. R. 1938 Lah. 721 and A. I. R. 1936

Lah. 576 ref. to.

Manzur Qadir and M. H. Munir, for Appellant.

B. Z. Kaikaus, for Respondents.

‑This is a Letters Patent Appeal by the defendant arising out of a suit for a declaration and injunction. The dispute relates to colony land situated on the lower Jhelum canal and the parties to the litigation are first cousins. One Dadu had three sons Nikku, Daulat and Maula Dad. Nikku is represented by his son Allah Ditta defendant‑appellant. Daulat had two sons Jhanda and Umar Bakhsh. Jhanda is plaintiff No. 1. Umar Bakhi3h had died and he is represented by his sons Lal, Nawab, Sharif and Sadiq plaintiffs Nos. 2 to 5. ‑ Maula Dad had a son Karm Dad. The plaintiffs alleged that on the opening of the colony, Allah Ditta, Jhanda and Umar Bakhsh sons of Daulat and Karm Dad son of Mania Dad entered into an agreement that an effort be made to acquire land on the horse breeding grant and if it succeeded, the property would be enjoyed in equal Shares. The expenses for the purchase of the mare and of bringing land under cultivation etc., were to be borne in specified shares. It was further agreed that if any co‑sharer, before the land was broken up, wanted to retire, he could do so on receiving the compensation of Rs. 1000. Two squares of land were so granted but as the grant could be only in the name of one person, it was entered in the name of Allah Ditta. The parties, however, con tinued in occupation of the land, according to their shares, and on the retirement of Karm Dad, on the receipt of consideration of Rs. 1000, Allah Ditta had one half and the Eons of Daulat, the other half. On 13th June 1914, a document, based on the earlier oral agreement, was executed between the parties, in which it was further provided, that if the plaintiffs were ever ejected from one square of land in their possession, they would be entitled to a sum of Rs. 4,000. The original agreement was stolen and was later discovered in the form of torn pieces, which were pasted on a piece of paper (marked Ex. P 1). The pro prietary rights were also acquired jointly in equal shares and the plaintiffs remained in cultivating possession, as owners of one square of land No. 45. The revenue records, however, mentioned Allah Ditta first as the occupancy tenant and then the owner. Taking advantage of the revenue entries, a suit for 'ejectment was brought by Allah Ditta on 13th July, 1946 and this was decreed on 23rd December 1946. It was asserted that the ques tion of title could not be decided by the revenue Court and its decision could not, in any way, be binding upon the plaintiffs. It was prayed that a decree for a declaration be passed in favour of the plaintiffs : that they were in possession of square No. 45, as owners, not liable to be ejected, at the instance of Allah Ditta defendant and that the defendant be permanently restrained from disturbing the possession of the plaintiffs.

The defendant categorically denied all the averments made in the plaint. It was also‑pleaded that the agreement, if proved, was not valid and enforceable ; inasmuch as it violated the provisions of a Statute.

The trial Court held that the plaintiffs had been in possession of the land in suit "as owners under the original verbal and written agreement" and decreed the suit. This finding was affirmed in appeal and the decree of the trial Court was upheld by the learned District Judge. On second appeal, the learned judge in Chambers agreed with the‑ findings of fact of the Courts below but slightly modified the decree to this extent that "the plaintiffs will be declared to be entitled to remain in possession of the suit property as joint owner; and they will also have a perpetual injunction restraining the defendant from interfering with such possession". The defendant has now come up in Letters Patent appeal.

It was vehemently contended by the learned counsel for the appellant : that the so‑called‑ original agreement of the year' 1904 was void ; that the substituted agreement of 1914 could not be enforced ; as it was in contravention of the provisions of the Coloni zation of Government Lands (Punjab) Act, 1912 and that the Government could not in any way be bound by a decree of a Civil Court and on that ground as well, the decree would be wholly infructuous.

At the time of the grant of land on horse breeding conditions, Act No. III, the Government Tenants (Punjab) Act, 1893 was in operation. Paragraph 17 of the statement of conditions issued by the Government of India in 1904 for the grant of land to horse breeding peasants was as follows :‑‑

"The tenant shall not without the‑previous consent in writing of the Financial Commissioner, transfer or attempt to transfer any right, title or interest in, or possession of, the whole or any part of the said land or sublet the same for more than two harvests, or create or attempt to create any charge thereupon..‑

This was in conformity with section 8 of the Act. This is in the following terms :‑

"The rights or interests vested in a tenant by or under this Act shall not be capable of being attached or sold in execution of a decree or order of any Court or in any insolvency pro ceedings, nor shall they or any of them, without the previous consent in writing of the Financial Commissioner, be trans ferred or charged by any sale, gift, mortgage or other private contract.

The Act of 1993 had for its object the grant by the Government of special tenancies in certain lands in the Punjab, which were the property of the Government and wholly or partly irrigable from Government canals. The section and the conditions of the grant referred to above, did not in so many words declare that the transfer etc‑, of the nature mentioned therein, was void or that any action like ejectment could be taken against the transferee. This omission was supplied in section 19 of the Colonization of Government lands (Punjab) Act V of 1912. The prohibition shall apply only where a tenant had acquired some interest in the lands of the Government. Where an agreement was reached before any interest had been acquired or granted by the Government, it could not be hit either by section 8 of Act III of 1893 or by section 19 of Act V of 1912. The Government, however, was not bound to recognize the transfer of any interesting or charge the property. The oral agreement between the parties, before an application was made for the grant of land on the horse breeding conditions, was outside the scope of the Acts.

The agreement of 1914 by Allah Ditta was reduced into writing after the passing of Act V of 1912, which conferred greater privileges upon the tenants and permitted the acquisition of proprietary rights under certain conditions. It was admitted that from the very beginning Jhanda (Plaintiff No. 1) and Umar Bakhsh (father of plaintiffs Nos. 2 to 5) had associated themselves, with the purchase of the mare, the breaking up and cultivation of the land and the meeting of all the necessary expenses. The land, under the rules, could not be transferred or entered in their names and in order to guard against any injury, to them for this reason, it was agreed, that they would, on no account, be liable to be ejected from .the land in their possession and in the alter native to receive Rs. 4,000 as damages. This document did not itself crate any right in favour of the plaintiffs ; it was a reaffir mation of the rights already possessed‑by‑them. The agreement did not, therefore, contravene the provisions of section 19 of Act V of 1912.

During the continuance of tenancy, it might have been possible for Government to take any objection to the cultivation or posses sion of a part of the land under the grant, by the plaintiffs. No such objection can now be taken, after the acquisition of pro prietary rights in the land, for the simple reason ; that as laid down in section 30, it is no longer "subject to any statement of conditions issued in the above mentioned Act", barring of course the rights of the Government to the minerals etc., detailed in Schedule II of the Act.

The effect of an antecedent internal agreement vis- -vis section 19 of the Colonization Act V of 1912, has been considered by this Court in more cases than one. In Preman v. Hardit Singh reported as A. I. R. 1930 Lah. 835, the defendant entered into a contract with t e plaintiffs whereby he was to bid at an auction held by the Government for the sale of certain land, and the land, if purchased, was to be treated as the property of all the parties. Accordingly the land was purchased, and as the price was settled to be paid by instalments, the defendant was recorded as the tenant of the land. Plaintiffs brought a suit to enforce their right to the land which was resisted on the ground that the interest of a tenant was not transferable under section 19, Act V, of 1912 without the consent of the Commissioner. It was held that :

"by virtue of the contract entered into between the parties the title to the property vested in all the persons as soon as the purchase was effected and the plaintiffs became joint tenants with Preman. The acquisition was made by Preman on behalf of all the parties to the contract; and the plaintiffs were there fore, entitled to their share of the property from the very beginning and did not acquire any interest in pursuance of any transfer from Preman .

It might be mentioned that so long as the full price was not paid, the purchaser was to be treated as a tenant under the Coloniza tion Act V of 1912.

Nand etc. v. Bhagat Singh etc., reported as A. I. R. 1932 Lah. 32 is a Single Bench judgment. It was held that:

"section 19 applies to cases where a party had already obtained tenancy rights in the land in a colony and afterwards transferred it without the requisite permission ; it does not invalidate an agreement to purchase rights in such land in partnership or jointly before such rights have been granted to any of the contracting parties".

A. I. R 1930. Lah. 835 was followed.

Dalip Singh v. Jagat Singh (A. I. R. 1938 Lah. 721) is another Division Bench judgment. A entered into a contract with B by which A was to bid at an auction held by Government for the sale of land. The land if purchased was to be treated as the property of the parties in certain defined shares. A was successful in bidding for the land. A then had his name recorded as the occupancy tenant of that land until full payment of the purchase money and interest. A suit brought by B to enforce his title to the land under the agreement was resisted on the ground that under section 19 the rights or interests vested in a tenant under the Act could not be transferred without the consent in writing of the Commissioner and that any transfer made without such consent in writing was void. It was held that:

"by virtue of the contract entered into between the parties, the title to the property vested in both the persons as soon as the purchase was effected, and B became joint tenant with A from the very beginning and as B did not acquire any, interest in pursuance of any transfer from A, to latter 's objection must f ail".

A. I. R. 1930 Lah 835 was followed and A. I. R. 1932 Lah. 32 and A.I R. 1936 Lab. 576 were relied on

The above decisions will show that this Court has consis tently taken the view : that where in pursuance of an agreement, some property was purchased from the Government or tenancy rights acquired therein, the contract between the parties was held binding and it was not considered a transfer of the nature prohibited under section 19 of Act V of 1912. The Government might for its own purposes insist upon the performance of the obligations under the grant, by the person, who is recorded as a tenant under them; but the person himself would not be exonerated from the consequences of his own contract with some other person.

For the above reasons we would dismiss this appeal with costs.

K. M. A. Appeal dismissed.

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