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Review Side No. 24 of 1955‑56, decided on 15th June 1956, District Montgomery.
S. 15‑Mistaken appreciation of facts‑Review lies.
An order passed by a Member of the Board of Revenue, on a mistaken appreciation of facts, is a good case for review for his successor in office.
Ghulam Ali Alvi and Muhammad Sadiq for Kh. Abdur Rahim for Petitioners.
Muhammad Iqbal Husain for Respondent.
The order of Mr. A. R. Khan, Member Board of Revenue, reviewed (infra) by Mr. H. A. Majid, Member Board of Revenue, is .set out below :-
It appears that Kalu, Kakku and Nura sold their occupancy rights in 66 kanals 10 marlas of Crown land in Chak No. 36/4L Tahsil Okara, District Montgomery to Mabbu, the appli cant, on 8th July, 1940 with the permission of the Collector under section 19 of the Colonization of Government Lands Act. While giving this permission, the Collector passed an order to the effect that the applicant should complete the transaction within four months otherwise the permission that was being granted would be considered to have been cancelled.
On 13th September, 1940, the, applicant deposited Rs. 437‑12‑0 on account of the malikana and the incidental charges for the acquisition of proprietary rights in the disputed land. Thereafter for about 14 years, he did nothing further in the matter. In 1954 however, he made an application to the Collector praying that, as he had deposited the malikana in 1940, a sale‑deed should be executed in his favour. Thereupon, Kalu, Kakku and heirs of Nura also made an application to the Collector praying that they should be allowed to purchase the proprietary rights in the land in question. On 6th June, 1955, the Collector rejected the application of Mabbu, the applicant, and permitted the respondents to get a sale‑ deed executed in their favour on their depositing the malikana and incidental charges for the purpose. The applicant thereafter went in appeal to the Commissioner who, however, passed an order in favour of the respondents on the ground that they appeared to have been in possession as they were shown as occupancy tenants under the Provincial Government in the Jamabandi of 1952‑53 and because the applicant had failed to comply with the orders of the Collector dated 8th July, 1940 regarding the completion of the transaction within four months and thereupon dismissed the appeal confirming the order of the Collector.
It is against this order of the Commissioner that the applicant has come in revision to this Court.
It has been contended on behalf of the applicant in course of the hearing of this revision application, that the applicant had actu ally become the owner of the proprietary rights as soon as he had deposited Rs. 437‑12‑0 on account of the malikana and incidental charges in respect of the land in question and, therefore, it was he who was entitled to get a sale‑deed executed in his favour. In support of this contention, the ruling given by the High Court in Falz Ali v, Mst. Raffia Jan (P L D 1956 Lah. 94), has been relied upon. It has been held therein that according to conditions, by which the tenure of a Government tenant was governed, a sale‑deed was not required to complete the purchase and that section 30 of the Colonization of the Government Lands Act does not say that a tenant cannot purchase proprietary rights in his tenancy lands without obtaining a sale‑deed from the Government". On the other hand, it has been contended on behalf of the respondents that the said ruling did not apply in this case because the applicant had failed to comply with the order of the Collector regarding the completion of the tran saction within four months and in any case, he was not entitled to get a sale‑deed executed in his favour after 14 years particularly when the respondents had been in possession as was evidenced by the Jamabandi of 1952‑53.
From the record of the case, it appears that on 27th January, 1940 an application was made to the Collector by Kaiu, Kakku and Nura for permission to sell their occupancy rights to the appli cant. Therein they had stated to the effect that they had received Rs. 3,000 as consideration and that the vendee, in due course, was to pay zar‑i‑malikana. These statements were verified by the Colony Assistant on 27th January, 1940. Mabbu, the applicant, also made a statement before the Colony Assistant on the same date that he had paid Rs. 3,000 as consideration and was prepared to pay zar‑i‑malikana. After these statements had been recorded, the Colony Assistant on 30th January, 1940 recommended to the Col lector that permission for the sale applied for should be granted subject to the deposit of zar‑i‑malikana. Thereupon, the Collector on 8th July, 1940 passed an order to the effect that, according to the recommendation of the Colony Assistant, permission was being granted for the sale of the land in question and that the transaction should be completed within four months otherwise the permission that was being granted would be deemed to have been cancelled. In pursuance to this order, the applicant on 13th Sep tember, 1940 deposited the amount of Rs. 437‑12‑0 as advance of purchase price of the proprietary rights of land grant of 36/4L held by Kalu, Kakku, and Nura (in other words on account of the malikana and incidental charges for the acquisition of the proprie tary rights in the land in question and the execution of the sale- deed) to be kept in revenue deposit.
From these facts, it would appear that Kalu, Kakku and Nura had sold their occupancy rights in the land in question to the applicant on the understanding that he would thereafter pay the malikana and incidental charges and get a sale‑deed in respect of the land in question executed in his favour. It was apparently in accordance with this understanding that the applicant on 14th September, 1940 deposited Rs. 437‑12‑0 as indicated in the order passed by the Collector on 8th July, 1940.
Clause No. 19 (3) of the conditions for such grants (p, 47). The Punjab Colony Manual Supplement No. IV), the same as preferred to and discussed in Falz Ali v. Mst. Raffia Jan (I) on p. 99 provides :‑
When any tenant shall, under the provisions and in pursuance of the preceding clauses of this condition, have purchased the proprietary right in any lands from the Government and shall have duly paid the whole of the purchase money therefore to the Government, and shall have complied with all the terms and conditions herein before provided in that behalf, the Government shall execute, or cause to be executed a valid conveyance granting, conveying and assuring the proprietary right so purchased to the purchaser and the purchaser shall thereupon, in respect of the land so purchased, cease to be subject to the conditions herein con tained, with the exception of conditions No. 5, 6, 7, 8, 12 and 22 of this statement, by which, and by the provisions of Punjab Act V of 1912 applicable to proprietors of land, he shall continue to be bound".
In regard to this clause, it has been observed by the learned High Court judges in course of their discussion on the legal aspects of the case referred to earlier :‑
It is noteworthy that by this clause "the Government shall execute‑a valid conveyance granting, conveying and assuring the proprietary right so purchased to the purchaser" only after the tenant shall . . . . have purchased the proprietary right . . . ." Therefore, according to the statement of conditions, by which the tenure of a Government tenant is governed, a sale‑deed is not required to complete the purchase, and its execution is probably, intended only for the greater satisfaction and surety of the purchaser.'
No recent ruling of the High Court to the contrary has been brought to my notice by the counsel for the respondents. There fore, relying on the ruling given in Falz Ali v Mst. Raffia Jan, (P L D 1956 Lah. 94) which is based on some earlier rulings of the High Court referred to therein, I accept the contention raised on behalf of the applicant and find that the transaction in question in respect of the proprietary rights of the land in question was completed as soon as the applic ant had deposited Rs. 437‑12‑0 on account of the malikana and incidental charges and the same had apparently been accepted on behalf of the Government.
Apart from this, the applicant had, as stated here, deposited the malikana dues and incidental charges within four months as required by the Collector. This amount had apparently been accepted on behalf of the Government by the authorities concerned on this account. Thereafter, it was obviously for the Government or the authorities concerned acting on behalf of the Government in the matter to execute a sale‑deed in favour of the applicant. Merely because he had made no further move in the matter, he could not be deprived of his right to get a sale‑deed executed in his favour even at this late stage, as he desired, obviously in order to get his proprietary rights in the land in question further assured and con firmed.
In view of the finding given above, I accept the revision application, set aside the orders passed by the Collector and the Commissioner and order that a sale‑deed should be executed in favour of the applicant in respect of the land in question.
Announced in the presence of the parties and the counsel for the petitioner.
‑This case relates to an occupancy tenancy which was originally held by the petitioners and which, according to the respondent was purchased by him from them. The present respondent asked the Collector on 23rd August 1954 to grant him the sale‑deed of proprietary rights in respect of this land. The Collector refused his request on 6th June, 1955, because the present petitioners had also sought permission to purchase proprietary rights and the Collector's permission was granted to them accordingly in the same order. The present respondent appealed to the Commissioner who dismissed his appeal on 8th November 1955. The present respondent put in a petition of revision before the Board of Revenue and my predecessor (Mr. A. R. Khan) passed an order on 29th March 1956 in his favour, directing that a sale‑deed should be executed in his favour in respect of the land in question. I have been asked to review this decision of my predecessor.
The basis of the present respondent's claim is as fol lows :‑
(1) That the petitioners put in a petition before the Revenue. Officer on 27th January, 1940 mentioning that they had received Rs. 3,000 from the respondent out of Rs. 3,500 fixed as the price for the land and that the respondent would pay the remainder Rs. 500 into the Treasury in respect of the proprietary rights still to be obtained from Govern ment. The prayer made in the end was that Mabo should be permitted to deposit the said Rs. 500 in the Treasury. The Deputy Commissioner, who had been authorized by the Commissioner to deal with such matters under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, passed an order on 8th July 1940 to the effect that he permitted the sale of the occupancy tenancy which should be completed within four months after the lapse of which period the permission would automatically termi nate.
(2) The petitioners made their statements before the Colony Assistant on 27th January, 1940 saying that the bargain for the sale had been struck at Rs. 3,500, out of which Rs. 3,000 had already been received. The petitioners prayed that they should be permitted to sell the land to Mabo, who would become responsible for the satisfaction of the conditions of the grant afterwards.
(3) That the Jama6andi of 1940‑41 shows Mabo in pos session of the land and paying no rent to the present peti tioners, because of the transaction of purchase.
(4) The present respondent deposited Rs. 437‑12‑0 in the treasury on 13th September 1940 as an advance" for the purchase of proprietary rights of land grant held by Nur, Kalu and Kakku, to be "kept in deposit".
I regret to disagree with my predecessor on the point whether the factum of purchase of the occupancy tenancy from the present petitioners was proved by the above facts. To my mind, the above four facts do not prove anything beyond a bargain or agreement between the parties. The present petitioners did not make any statement anywhere to the effect that they had actually sold their occupancy rights. The present respondent never went to the patwari in order to get a mutation of purchase recorded. Even when he deposited the money in the Treasury, he had to say that the land grant was held by the other party. If he had already purchased the occupancy rights, he should have made sure that the land grant would be shown as held by him and he would pay the money for proprietary rights and not as a Revenue Deposit for the purposes of making an advance towards the purchase of those proprietary rights.
It has taken the present respondent 14 years to think of utilizing the advance payment which he made in 1940. He has been willing for those 14 years to pay malikana to Government, whereas in fact the money due for proprietary rights had been paid by him in 1940. All these matters are indications of the present respondent's knowledge that the occupancy rights had not been transferred to him.
In the above circumstances, I would hold that the order passed by my predecessor on 29th March, 1956 was based on a mistaken appreciation of the facts disclosed in this case. I accordingly accept this petition for review and direct that the present respondent should not be granted any sale‑deed in respect of the land in question. If the present petitioners, who are shown as occupancy tenants in our records, desire to purchase proprietary rights, their request should be granted; subject to one condition, namely that if the present respon dent moves a competent Civil Court for a declaration to the effect that the occupancy rights in this land have been previ ously sold to him, within a period of the next three months, the question of selling the proprietary rights to the present petitioners should be kept pending till the decision of his suit by the Civil Court.
A. H. Petition accepted.
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