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Civil Petition No. 187 of 1981, decided on 21st October, 1981.
(On appeal from the judgment dated 23‑12‑1980 of the Lahore High Court, Lahore in R. S. A. 197/80).
‑‑ Para. 7‑Alienation of land‑Courts below holding sale in peti tioner's favour to be void on ground of its being less than subsistence holding and sale of a part of land also being not permissible under M. L. R. 64‑District Court on appeal while upholding such plea holding petitions to have a lien on land for reimbursement of consi deration of sale and so also for a specified amount on account of improvements and such order upheld by High Court Contention that sale would be saved on doctrine of part delicto and both parties being in part delicto party in possession not to be dis turbed‑Held : Both parties being in part delicto, Court should wash its hands off such dispute and party filing suit being also in part delicto must fail.
Khawaja Mushtaq Ahmad, Advocate‑on‑Record for Petitioners.
Ch. Muhammad Sadiq, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Respondents.
Date of hearing : 21st October, 1981.
The respondent's father, Nek Muhammad, alienated 48 kanals 16 marlas of land out of his total holding of 88 kanals 18 marlas in favour of the petitioners. The latter also obtained possession of the alienated land in pursuance of the sale. This sale was evidenced by Mutation No. 474 sanctioned on 19‑8‑1966.
After the death of Nek Muhammad, his son Rehmatullah, Respondent No. 3, moved an application before the Collector for review of the mutation on the ground that it was violative of M. L. R. No. 64 and also fraudulent. The Collector ordered the review of the mutation in pursuance whereof the A. C: II, by his order dated 23‑7‑1969 cancelled the mutation. The peti tioners, therefore, filed a suit for declaration that they are owners of the land and that the proceedings culminating in rejection of Mutation No. 474 were illegal and inoperative upon their rights. All the Courts below have held that as the sale in favour of the petitioners being less than subsistence holding and a sale of part of the land not being permissible under M. L. R. 64 was void. However, the learned Additional District Judge, on appeal, while upholding this plea held that the petitioners would have a lien on the suit land for payment of Rs. 3,046 which formed the consideration of the sale and so also to a further sum of Rs. 1,600 improvements. This part of the order was upheld by the High Court, which also held that in face of man datory provisions of. M. L. R. 64 it could not give its blessing to a transaction which was patently illegal and void.
Khawaja Mushtaq Ahmed, learned counsel for the petitioners in support of this petition .has argued that the sale could be saved on the doctrine of part delicto and further argued that as both the parties were in part delicto, the party in possession of the property shall not be disturbed.
We, on the other hand, are of the opinion that in a case where both the parties are in part delicto the Court should wash its hands off such a dispute and the party filing the suit, being also in part delicto must fail.
In these circumstances, no ground for interference in the decision of the Courts below dismissing the suit of the petitioners is made out. This petition must fail and is, accordingly, dismissed.
Appeal dismissed.
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