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Second Appeal No. 179 of 1948, decided on 1st June 1949, from the decree of the Court of the District Judge, Shahpur at Sargodha, dated 8th July 1948, affirming that of Senior Sub‑Judge, Shahpur at Sargodha, dated 23rd March 1948.

(a) Government Tenants (Punjab) Act (1893), section 8‑Does not bar the transfer of mere possession by way of license or even lease.

Section 8 of the Government Tenants (Punjab) Act, 1893, provided that the rights or interests vested in a tenant by or under the Act should not "without the previous consent in writing of the Financial Commis sioner, be transferred or charged by any sale, gift, mortgage or other private contract". This section does not bar the transfer of mere possession by way of license or even lease, and it would seem that, unless the stipulation in the statement of conditions be regarded as having statutory effect, which appears difficult, a tenant under the relevant‑ conditions who gave possession of his land to another did not incur any penalty, nor was the transaction subject to sanction of any kind.

(b) Colonization of Government Lands (Punjab) Act (1912), section 19 Prohibited modes of transfer of interest vested in tenant do not include more "charge"

Each of the modes of transfer specifically mentioned in section 19, is one which involves transfer of an in land. Applying the rule of ejusdem generis there seems to be no escape from the conclusion that any transaction which is sought to be brought within the expression "other private contract" and consequently within the scope of section 19, must share this quality with the specified modes of transfer, namely, that it should involve a transfer of an interest in land. The creation of a charge on land does not satisfy this condition.

A mere charge in the legal sense does not satisfy the necessary condition for falling within the prohibition.

(c) Colonization of Government Lands (Punjab) Act (1912), section 19 Agreement between parties prior to acquisition of land in the name of one of them that they would be joint owners of the rights acquired and joint owners also of the mare they intended to buy‑Agreement not hit by section 19.

Where there was an agreement between parties prior to acquisition, of squares of land (which was entered in revenue papers in the name of one of them, from Government on horse‑breeding conditions), that they should be joint owners of the rights acquired as also of the mare intended to be bought by them, such agreement was not hit by any anything contained in section 19 of Colonization of Government Lands (Punjab Act (1912). Plaintiffs who claimed to be joint owners with defendant of rights acquired were entitled to remain in possession of suit land and the defendant was not entitled to eject them.

A I R 1930 Lah. 835 ; A I R 1932 Lah. 32 ; A I R 1938 Lah. 721 fol.

Shuja‑ud‑din and Zahur‑ud‑din for Appellant.

B. Z. Kaikaus for Respondents.

‑This is a second appeal by one Allah Ditta, a Joyah of Chak 82‑S. B., Tahsil Sargodha, District Shahpur, who had been sued by five persons, namely Jhanda; Lal, Nawab, Sharif and Sadiq, for a declaration that the plaintiffs were in possession of a certain square of land in Chak No. 82‑S. B., in the capacity of owners, and for a perpetual injunction restraining Allah Ditta from interfering with their title and possession. The plaintiff's suit was decreed by the trial Court and this decree was confirmed in appeal by the District Judge of Shahpur. Allah Ditta has accordingly come up to this Court in Second Appeal.

The four plaintiffs other than Jhanda are sons of one Umar Bakhsh, who was Jhanda's brother. Jhanda and Umar Bakhsh were sons of one Daulat, own brother to Nikku, father of Allah Ditta defendant. Nikku and Daulat had a third brother Maula Dad, who bad a son named Karam Dad. The allegations made by the plaintiffs in the suit were as follows. When the Lower Jhelum Canal Colony was first opened, about the year 1905‑1906 Allah Ditta, Jhanda, Umar Bakhsh and Karam Dad migrated to this colony and they agreed among themselves that they would apply for two squares of land on horse breeding conditions. They also agreed that the application should be made in the name of Allah Ditta, since the land was being given only to single persons. Two squares of land were allotted to Allah Ditta, who was required to keep a mare for horse breeding purposes and both the land as well as the mare were entered in the name of Allah Ditta in the Government records but, in fact, these properties were owned in equal shares by Allah Ditta, the brothers Jhanda and Umar Bakhsh, and Karam Dad. It had also been agreed that if any of the co‑sharer wished to relinquish his rights before the land was brought under cultivation, he could do so, and the others would, pay him Rs. 1,000 for his rights. Karam Dad took advantage of this condition and gave up his share on receiving the requisite sum of money, and accordingly the share‑holders in the property became Allah Ditta one-half and Jhanda and Umar Bakhsh one‑half. Jhanda and Umar Bakhsh were in possession of one square separately, being entered in the revenue records as holding free of rent by reason of close relationship to the registered proprietor Allah Ditta. Then on the 13th June 1914. Allah Ditta executed an agreement in their favour on a Ks. 20 stamp paper. This is now in pieces and it is explained that it was stolen from Umar Bakhsh's house, and when a report was made to the police, i was later recovered in pieces and partly burnt from Allah Ditta's possession. The pieces have been pasted on a sheet of paper which is Exhibit P. 1. The scribe of Exhibit P. 1 was Karam Elahi (P. W. 2), who had also written a document Exhibit P. 2 which he described as a copy of Exhibit P. 1 and this document was relied upon as furnishing the terms of the agreement of 1914. The document purported to be executed by Allah Ditta and set out that two squares of land had been granted to him by the Government in the abadi. Jhanda and Umar Bakhsh had shared with him the expense of purchase of the mare and other charges and had also laboured equally on breaking up the banjar land and constructing ihatas, besides which they had borne their share of the cost of a water‑course In short, they had paid their share of all expenses of every kind from the start. Owing to the laws governing the colony it was difficult to get the land entered in their names, but as they had been cultivating and taking the produce of one of the two squares throughout and under the existing conditions there was a possibility of their being deprived of their rights, Allah Ditta agreed in writing that Jhanda and Umar Bakhsh would remain in possession of square No. 45 as before, and Allah Ditta and his heirs would have no right to eject them or their successors, and if he ejected them, he and his successors would be liable to indemnify Jhanda and Umar Bakhsh or their successors to the extent of Rs. 4,000. This amount was made up as below :‑

Rs. a p.

Purchase of mare ... 200 0 0

Payment of Allah Ditta's debts ... 750 0 0

Borrowed at the house ... 510 0 0

Paid to Loku Ram Sahukar ... 1,000 0 0

Miscellaneous ... 1,000 0 0

Paid towards redemption of property

in the interven ing period ... 550 0 0

It was averred that in compliance with this agreement, Allah Ditta had allowed Jhanda and Umar Bakhsh to continue in possession and enjoy ment of the square ever since 1914. Some six years before the suit, the Government had granted occupancy rights to the grantees when the plaintiffs paid their share of the Malkana along with Allah Ditta. How ever, on the 13th July 1946 Allah Ditta had sued Jhanda and the other plaintiffs for ejectment from their square and on the 23rd December 1946, a decree for their ejectment had been made by an Assistant Collector First Grade at Sargodha. They accordingly sued for a declaration of their right to remain in possession of square 45, and by way of consequential relief for an injunction restraining Allah Ditta from, interfering with their title and possession. The suit was contested or, the ground that Allah Ditta had himself acquired the mare and the land, and that the plaintiffs had no rights or interest therein. It was also contended that the suit was not maintainable and that the Civil Courts had no jurisdiction. These contentions were overruled by the trial Court which decreed the claim. Allah Ditta appealed to the District Judge who confirmed the findings of the trial Court. Accordingly Allah Ditta has come up to this Court in second appeal.

It is important to note that the dispute square has throughout been shown in the revenue records as being owned by Allah Ditta but occupied by his cousins Jhanda and Umar Bakhsh their close relationship to the proprietor. My attention was invited by learned counsel for the appellant to paragraph 17 of the statement of conditions issued by the Government of India in 1904 for the grant of land to horse‑breeding peasants under the Government Tenants (Punjab) Act, 1893. This paragraph provides as follows :‑

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

It was urged that by allowing Jhanda and Umar Bakhsh to remain in possession of one out of the two squares allotted to him, Allah Ditta had been contravening the conditions of the grant to him from the outset. This circumstance can, however, also be relied upon by the opposite party, as showing that the Colony authorities did not regard it as a breach of conditions, since they tolerated this state of affairs for a great number of years, despite being aware of its existence. By section 8 of the Government Tenants (Punjab) Act, 1893, it was provided that the rights or interest vested in a tenant by or under the Act should not, "without the previous consent in writing of the Financial Commissioner, be transferred or charged by any sale, gift, mortgage or other private contract'. This section does not bar the transfer of mere possession by way of license or even lease, and it would seem that, unless the stipula tion in the statement of conditions be regarded as having statutory effect, which appears difficult, a tenant under the relevant conditions who gave possession of his land to another did not incur any penalty, nor was the transaction subject to sanction of any kind. Section 8 of the Government Tenants (Punjab) Act, 1893, appears, however, to have been superseded by section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which provides that "none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893 . . . shall, without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub‑lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occup ancy. Any such transfer or charge made without such consent in writing shall be void . . ." This section also does not penalise the mere placing by a tenant of another in possession of land granted to such tenant.

The section is, however, relevant to the consideration of the agree ment Exh. P. 1 of which the contents are derived from the copy Exh. P. 2. It has been urged on behalf of the appellant that in the condition in which it is, Exh. P. 1 furnishes no proof of its contents in its original condition, and further that there are variations in the language of Exh. P. 2 from the language appearing on the torn pieces of Exh. P. 1, which clearly show that P. 1 is not an exact copy of Exh. P. 2. On this point it has been held by the learned Sub‑Judge of the trial Court that while Exh. P. 2 and Exh. P. 1 are not exact copies of each other, Exh. P. 2 could be termed a draft or memorandum on the basis of which Exh. P. 1 was drawn up. The writer of these two documents; Karam Elahi (P. W. 2) appears to confirm this view in his evidence. It was pointed out that this witness in speaking of Exh. P. 5 said it was a copy of entry No. 2068 in his register, whereas it was the plaintiffs' case that it was a copy of entry No. 2067, and it was explained that at the same time as Allah Ditta executed the deed Exh, P. 1 Jhanda and Umar Bakhsh allegedly executed another document, whereby they undertook to pay all laud revenue arid other dues iii respect of the square of which they were being preserved in possession, and further that entry No. 2068, in the petition‑writer's register, related to the second document, of which learned counsel for the appellant was in possession of a copy. There seems undoubtedly to be a mistake in Karam Elahi's statement for Exh. P. 5 which purports to be a copy of entry No. 2067, merely says that it relates to an agreement in favour of Jhanda and Umar Bakhsh in respect of one square of land which had throughout been in their possession, and that in case of breach Allah Ditta arid his heirs would pay Rs. 4000, byway of indemnity. This clearly has no reference to any obligations incurred by Jhanda and Umar Bakhsh, and, therefore, the error in Karam Elahi s statement being patent, it must be held that Exh. P: 5 refers to the entry relating to the document Exh. P. 1. As respects Exh P. 1 there is a clear finding of fact by the learned judge of the lower Appellate Court, namely that Allah Ditta had executed this agreement, and this finding cannot be disturbed in second appeal. The question remains, however, whether the contract evidenced by Exh. P. 2 was of a nature falling within section 19 of the Colonization of Government Lands Act. As the date of the agreement is subsequent to the coming into force of this Act, its provisions in section 19 will apply, notwithstanding that the land was given to Allah Ditta under the earlier Act of 1893. The point for consideration is whether by the document Exh. P. 2, or the similar document Exh. P. 1, there was a transfer or charge of the rights vested in Allah Ditta., "by any sale, exchange gift, will, mortgage or other private contract other than a sub‑lease" for‑ certain specified terms. It is agreed that taking the document Exh, P. 2 in its terms, it does not purport to transfer any interest in the land vested in Allah Ditta to Jhanda and Umar Bakhsh, but at the most it can be regarded as creating a charge over the land to operate as protection for the continued possession and enjoyment of the land by Jhanda and Umar Bakhsh. A charge, as is well known does not create any interest in the land charged ; at the best it serves to specify or reserve the land charged for the recovery of the particular debt in respect of which it was charged, in the event of such debt being enforced at law. Thus, the question of interpretation is narrowed down to this do the terms of section 19 prohibit creation of a mere charge on land granted in a colony by the tenant thereof, without the consent in writing of the Commissioner If the answer be in the affirmative, then as further provided by, section 19, the charge created must be held to be void. If, on the, other hand, the operative words in section 19 are held to confine the necessity for the Commissioner's consent to cases where an interest in the land is passed by the tenant, then it must be held that the mere creation of a charge does not require the Com missioner's sanction. In order to bring a legal charge within the scope of section 19, use must be made of the general words "other private con tract', which follow five specific terms of art, having reference to transfers or rights in land, namely "sale, exchange gift, will, mortgage". There is also in the words following the general words, reference to "sub‑lease'.", which is another mode of transfer of sights in land. Now, it is plain that each of the modes of transfer specifically mentioned in section 19,' is one which involves transfer of an interest in land. Applying the rule of ejusdem generis, there seems to me to be no escape from the conclusion that any transaction which is sought to be brought within the' expression "other private contract" arid consequently within the scope; of section 19 must share this quality with the specified modes of transfer, namely that it should involve a transfer of an interest in land. Now, the creation o a charge on lapel does not satisfy this condition. It is true that the section speaks of a tenant's rights being "transferred or charged" by sale, exchange, etc., and the consequential clause, which renders transactions made without sanction void, also speaks of "any such transfer or charge", but I do not think that the use of the expres sion "charge" in this manner can be employed for holding that a mere charge in the legal sense is included in the modes of transfer specified iii the section, viz., sale, exchange, gift, will, mortgage, sub‑lease or'.' other private contract." The word "charge" appears to have been used in the section to denote an encumbrance in the general sense of the term, but it is not every encumbrance which fails within the prohibition but only such encumbrance as can be brought within the meaning of the expression "other private contract" construed ejusdem generis with "sale, exchange, gift, will, mortgage" and "sub‑lease". A mere charge in the legal sense does not, as seen above, satisfy the necessary condition for falling within the prohibition and I am, therefore, clearly of the opinion that the agreement of 1914 is not avoided by anything contained in section 19.

On the basis of tire agreement, however, the plaintiffs could not place their claim higher than to be left in possession of the land, and if they were ejected to be paid Rs. 4,000. They actually claimed in the suit a declaration that they were proprietors of the square of land in suit, and their claim to such a declaration has been allowed by the learned District judge on the finding that Jhanda and Umar Bakhsh had joined with Allah Drtta to acquire the two squares of land on horse‑breeding conditions, and that they had become entitled to a half share of the land by the elimination of Karam Dad which followed shortly after. On this basis, the learned Distict judge, citing a decision of a learned Single judge of this Court in "Art Muhammad v. Muhammad Yar" (R. S. A. No. 690 of 1945) dated the 14th April 1947, has come to the conclusion that the agreement between Allah Ditta, Jhanda and Umar Bakhsh was perfectly valid and binding. He has also held that the agreement was not compulsorily registerable and further that the original agreement between Allah Ditta, the brothers Jhanda and Umar Bakhsh, and Karam Dad not having been reduced to writing, no question of registration arose. Learned counsel for the respondents has urged that on the finding recorded by the learned District judge that prior to tire acquisi tion of the two squares of land by Allah Ditta, it had been agreed bet ween Allah Ditta, the brothers Jhanda and Umar Bakhsh, and Karam Dad that they should be joint owners of the rights in question and joint owners also of the mare which they intended to buy, it should be held following a number of authorities that on the further fact found by the learned District judge, namely that Karam Dad was eliminated, Jhanda and Umar Bakhsh were owners jointly with Allah Ditta of the square in question. The authorities cited are three in number, Preman v. Hardith Singh" (A I R 1930 Lah. 835) is a decision of a Division Bench of this Court in which the application of section 19 of the Colonization of Government Lands Act was examined in a case where prior to the purchase of colony land at an auction held by Government it was agreed among the parties that the land, if purchased, was to be treated as the property of all the parties to the contract in certain defined shares. The purchase having been effected, following the rule of colony practice and law, the land was entered in the name of one of the parties only. The plaintiffs, who were among the joint purchasers and had paid their share of dues relating to the purchase, later brought a suit against the recorded tenant to enforce their title to the land. The suit was resisted on the basis of section 19, Colonization of Government Lands Act, but it was held by the Division Bench that by virtue of the contract entered into prior to the purchase the property vested in all the parties to that contract when the purchase was made and the plaintiffs had become joint tenants with Preman. They were entitled to their share of the property from the very beginning and did not acquire any interest in pursuance of any transfer from the recorded tenant or owner. "Nand v. Bhagat Singh" (A I R 1932 Lah. 32) is a decision of a learned Single Judge of this Court in a very similar case of purchase of colony land at an auction by a group of persons of whom only one was recorded in the Government papers as the owner. "Following Preman v. Hardit Singh" it was held that the agreement made in advance of purchase was not hit by section 19 of the Colonization of Government Lands Act. "Dalip Singh v. Jagat Singh" (A I R 1938 Lah. 721) is a decision by a Division Bench on similar facts, vii., that a group of persons had bought colony land at an auction and some of them were later under the necessity of moving the revenue authorities to have the land mutated in their names. They succeeded before the Deputy Commissioner, but others then appealed to the Commissioner, who cancelled the Deputy Commissioner's order on the ground that there was a transfer contrary to section 19, Coloniza tion of Government Lands Act. Eventually the plaintiffs had to bring a suit to clear the cloud on their title created by the orders of the revenue authorities, and following "Preman v. Hardit Singh" and "Hand v. Bhagat Singh" the learned Judges of the Division Bench held that their claim was rightly decreed.

In the light of these authorities there is in my judgment no escape from the conclusion that the plaintiffs are entitled to remain in possession of the suit land, and that the defendant Allah Ditta is not entitled to eject them from such land. The finding of the Revenue Court that the plaintiffs are tenants under the defendant, cannot bind the Civil Court, as in the suit a question of title was raised on which the Revenue Court was not competent to adjudicate. At the same time, it does not appear possible to grant the plaintiffs a declaration of separate proprietor ship in respect of the square of land in suit, since they rest their claim on a plea of joint acquisition, coupled with an agreement by the defendant to allow them to remain in possession indefinitely. In the result. I modify the declaration granted by the learned Sub‑Judge of the trial Court to the plaintiffs to this extent that the plaintiffs will be declared to be entitled to remain in possession of the suit property as joint owners, and they will also have perpetual injunction restraining the defendant from interfering with such possession. For the rest, the appeal is dismissed, and as there appears to have been little justification for Allah Ditta's efforts to eject the plaintiffs who were rightly entitled to remain in possession, I allow the respondents their costs of the appeal.

A. H. Decree modified.

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