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Second Appeal No. 248 of 1969, decided on 17th April, 1984:

‑‑‑O. XLI, r. 22‑Appeal‑Respondent may object to decree as if he had preferred separate appeal.

Messrs Yousaf & Co. v. Mst. Rasheeda Begum P L D 1975 Kar. 684 ;

P L D 1959 Lah. 178 and A I R 1943 Mad. 698 re;

‑‑ Ss. 68, 72 & 73‑Lease deed‑Proof‑Alleged executant categori cally denying execution of lease‑deed and having put his thumb -impression on said deed‑Scribe of document not examined but only two attesting witnesses examined‑Held, best evidence to prove execution of lease‑deed would have been that of finger print expert‑'

Both Courts below had erred in holding that execution of deed was duly proved simply on basis of statement of two attesting witnesses without taking into consideration categorical denial of alleged execu tion.

‑‑‑ S. 62‑Contract Act (IX of 1872), S. 23‑‑Grant of land under S. 62 of Code ‑Terms and conditions of grant‑Land granted inter alia on condition that grantee was not entitled to mortgage, sell or lease same before all dues were cleared without permission in writing of Collector‑Neither dues cleared nor permission for transfer sought from Collector‑Transfer of land by grantee in contravention of terms and conditions of grant, held, was void, ab initio under S. 23 of Contract Act.

Hakim v. Karam Khan and others 1981 C L C 1303 ; Wall Muhammad v. Noor Ali P L D 1963 Kar. 302 and Ganesa Naicken v. Arumugha Naicken A I R 1954 Mad. 811 ref.

S. A. Shamsi for Appellants.

Nemo for Respondents.

Date of hearing: 17th April, 1984.

This is second appeal from the judgment of Additional District Judge, Dadu, dated 30th April, 1969 in Civil Appeal No. 18 of 1967 whereby he had set aside the judgment of Civil Judge IInd Class, Dadu, dated 20th January, 1967 in Civil Suit No. 56 of 1966 filed by the prede cessor of the present respondent namely, Wali Muhammad.

2. The facts of the case are that one Hashmat Ali was granted Survey Nos. 478/2, 3, 4 and 479/1 situated in Deh Ameenani Taluka and District Dadu by Barrage Mukhtiarkar, Larkana on installment basis by an agree ment, dated 26th October, 1951. The area of the land was 15.32 Acres. The said Hashmat Ali appointed Wali Muhammad as his Manager on the land. The terms and conditions of the grant stipulated that the grantee shall not be entitled to mortgage, sell or lease the survey numbers in dispute before all the amounts of instalments with interest thereon, have been paid. It is alleged by Wali Muhammad that on 24th April, 1957 he obtained lease of the survey numbers in dispute from said Hashmat Ali for 90 years on payment of Rs.9,000 and that such lease‑deed was registered with Sub‑Registrar, Dadu. He claims to have taken possession of this land in pursuance of the lease. It may be stated that by this date all the instal ments bad not been paid by the said Hashmat Ali under the terms of the lease, which is Exh. 59 on the trial Court's record‑ The terms and condi tions of the lease are contained in the Annexure to Exh. 59 which has been produced as Exh. 61 in the trial Court's record. Last instalments for the land in question was paid by the grantee i.e. Hashmat Ali to Barrage Department m the year 1961, in pursuance of which the transfer order .was issued in his favour on 26th August, 1965 in Form 'A'.

3. On 28th August, 1965 Hashmat Ali sold this land to appellant Fazal Muhammad and Bashir Ahmad by a registered sale‑deed. They also obtained possession of the suit land.

4. Wali Muhammad then filed a civil suit before the Civil Judge for declaration and injunction on the basis of his lease‑deed praying that he may be declared to be rightful lease‑holder of the land in suit and that the appellants may be restrained from interfering with his possession over the suit land.

5. The appellants contested the suit on the ground that the lease‑deed (Exh. 22) upon which Wali Muhammad has based his claim, is a forged document and in the alternative the lease deed being in contravention of condition No. 8 of the grant was null and void. It would be appropriate to reproduce here the condition No. 8 of the grant

"8. The grantee or his heirs, executors and assignees may not without the permission and writing of the Collector, lease, mortgage, sell or otherwise encumber the land granted or any portion thereof before all the amounts one on such land on account of the occupancy price. and interest thereon shall have been paid."

6. Several other pleas were also raised where upon the learned trial Judge framed following issues :‑‑

(1) Whether the suit is not in proper form

(2) Whether the plaint is insufficiently stamped

(3) Whether Hashmat Ali leased out the suit land to the plaintiff for a period of 90 years, for a consideration of Rs.9,000

(4) Whether the lease is valid and legal if not, what is the effect

(5) What is the effect of lease on sale of the property in suit by Hashmat Ali in favour of defendant No. 2

(6) Whether the plaintiff was the attorney or agent of Hashmat Ali to look after his land in suit "

7. After recording evidence of the parties, the learned Civil Judge held that the lease‑deed (Exh.22) being in violation of condition No. 8 of the grant, was null and void ab initio, because it was executed on 24th April, 1957 when all the instalments of the land in suit had not been paid by Hashmat Ali. As stated already, the last installment was paid in 1961. The learned trial Judge, therefore, dismissed t‑he ‑ suit of Wali Muhammad.

8. He filed appeal, before District Judge, Dadu. It was transferred to Additional District Judge, Dadu, who was of the. opinion that the lease was voidable and not void and as such the suit of Wali Muhammad could not have been dismissed. Consequently he allowed the appeal, set aside the judgment of the trial Court and decreed the suit of Wali Muhammad for declaration and injunction vide his judgment, dated 30th April, 1969, which has been impugned in the present second appeal.

9. Mr. S. A. Shamsi, learned counsel for the appellants has vehe mently argued that the learned first appellate Court had not referred to the arguments of the appellant's counsel addressed to challenge the genuineness of the lease‑deed (Exh. 22). It is stated that this fact was argued before the learned first Appellate Court, but in spite of this he did not refer to the arguments on that point. Mr. Ali Ahmed Qureshi was Advocate of the appellants before the learned Additional District Judge. He has filed an affidavit that in spite of his arguments before the learned Ad ditional District Judge that the lease‑deed (Exh. 22) was a forged document, no reference was made by the learned Judge to these arguments nor this question was considered by him:

10. Mr. S. A. Shamsi has, therefore, attacked the judgment of the first Appellate Court on two‑fold grounds. First, that the lease‑deed in favour of. Wali Muhammad, the predecessor of the present appellants, is a forged document and secondly, that even if the lease‑deed is taken to be a genuine document, it is null and void being in violation of condi tion No. 8 of the grant. He had also argued that although the trial Court and the first Appellate Court have both held that the lease‑deed was duly executed by Hashmat Ali, in spite of this he is not precluded from supporting the judgment of the trial Court even on those points which were decided against him, without filing counter‑objections. He has referred to rule 22 of Order XLI, sub‑rule (1) of which reads as under :‑.

"(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection to the decree which he could have' taken by way of appeal, provided he has filed such objection in the Appel late Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further tang as the Appellate Court may see fit to allow. "

It has been argued by Mr. Shamsi that it was not necessary for him to have filed cross‑objections before supporting the judgment of the trial Court on the point decided against him i.e. on the question of the lease‑deed being a forged document. In support of this plea he has referred to the case of Messrs Yousuf & Co. v. Mst. Rasheeda Begum (P L D 1975 Kar. 684) in which Agha Ali Hyder, J. observed as under :‑

"When an appeal is preferred, the appellant, is, generally speaking, seeking to get rid of an adverse decision, adverse to him whole or in part, which means that the opposite party had succeeded wholly or in part "That success might be result of a decision in his favour on one or some only of several grounds urged by him; the Court negativing the other or otheRs.As regards these latter grounds, he cannot and need not appeal, however, erroneous the decision, because there is no right of appeal to a party, who has succeeded. But when the opposite party prefers an appeal, he may find himself in a difficult situation if he is obliged to remain content with supporting the decision on the only point o points on which he had succeeded without resorting to the others on which he had failed. For instance it may turn out on examination that some or all of these other grounds are good, while those accepted by the lower Court are unsubstantial. It is to provide for such a contingency, and to avoid injustice to the respondent in such a case the rule has been enacted giving him liberty to support the decree if necessary by relying on any of the grounds decided against him in the Court below. The use of the word support' makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration, giving him a further advantage. This, he can secure only by an appeal or cross‑objection."

The above view was based on decisions reported in P h D 1959 Lah. 178 and A I R 1943 Mad. 698.

11. .1 have therefore, allowed Mr. S. A. Shamsi to attack the judgment of the first appellate Court on the ground of the lease‑deed (Exh 22) being forged. He has referred to the evidence on this point and stated that Hashmat Ali has, in his deposition, categorically denied execution of any lease‑deed in favour of Wali Muhammad. He also denied having put any thumb‑impression/mark on this deed. The scribe of the document Exh. 22 has also not been examined. Only two attesting witnesses Ghulam Dastagir and Anwar Din have been examined. But Anwar Din has stated that he had attested the document at the shop of the petition writer and then left. But in cross‑examination he stated that he had identified Hashmat Ali before the Sub‑Registrar. The other attesting witnesses Haji Muhammad and Kazi Fateh Muhammad have not been examined. The best evidence to prove the execution of the lease‑deed would have been that of the Finger Print Expert, who could have examined thumb‑impression of Hashmat Ali on the disputed lease‑deed (Exh. 22) with his thumb‑impression on the sale‑deed which he executed in favour of the appellants, or with his thumb‑impression taken before ‑B the Court. In my view both the Courts below have erred in holding' that the execution of the lease‑deed was duly proved simply on the basis of the statement of two attesting witnesses Ghulam Dastagir and Anwarl Din, without having taken into consideration the categorical denial of Hashmat Ali about its execution.

12. Be that as it may it cannot be denied that the lease‑deed (Exh. 22) was in contravention of condition No. 8 of the grant. This condition was incorporated in the grant by the Collector in pursuance of powers under section 62 of the Bombay Land Revenue Code. Hence it shall be deemed to be a statutory condition. Section 23 of the Contract Act lays down that a consideration or object of an agreement is lawful unless it is forbidden by law or is of such nature that if permitted, it would defeat the provisions of law or is opposed to public policy and that all agreements with such consideration shall be unlawful and void. Reference in this connection has been made to the decision in the case of Hakim v. Karam Khan and others (1981 C L C 1303) in which Zaffar Hussain Mirza, J. (as he then was) held that transfer of land by a grantee in contravention of the terms and conditions of the grant without previous sanction of the Collector is null and void. These obser vations were also made in connection with a transfer, which was made by a grantee in contravention of condition No. 8 of the grant, which was similar to the condition in the case of Hashmat Ali's grant (Exh. 6l). The next case relied upon in this connection is that of Wali Muhammad v. Noor Ali (P L D 1963 Kar. 302) in which it has been held by A. S. Farooqui, J. that where there is a provision in the statute or rules framed thereunder prohibiting transfer of a licence, lease or contract granted under the statute, a transac tion involving such transfer would be void under section 23 of the Contract Act, 1872. Reliance has also been placed on a decision of Madras High Court in the case of Ganesa Naicken v. Arumugha Naicken (A I R 1954 Mad. 811). This case also relates to transfer made by a grantee in violation of terms and conditions of the grant. Following observations, which are relevant for the purpose of this case, are reproduced :‑

"11. The Dharkhast grant is in the nature of a gift by the Govern ment. It is intended to be personal to the grantee. That is why there is a specific provision in the grant that the property shall not be alienated without the consent of the Tahsildar (vide Exh. A‑1). Any contract which has the effect of circumventing this policy of the Government would, in our opinion, be opposed to public policy. It can well be imagined that serious and disastrous consequences might ensue if we were to uphold the plea of the plaintiff‑respondent that there could be benami acquisitions of sites on Dharkhast. Government may in accordance with their avowed policy grant sites on Dhaikhast to Harijans or members of Scheduled Castes. If the respondent's plea were to be accepted, a rich exploiter could make the members of the privileged classes apply for grants of sites and subsequently set up his own title to them on the ground that the applicants were only his benamidars or NamelendeRs.That would be completely destroying the object of the Government.

12. When there is a specific provision in the grant that there should be no alienation without the consent of the Tabsildar, by declaring the plaintiff's title we would in effect be circumventing that provision."

13. I am in respectful agreement with the decisions referred to above. There is no doubt as to the fact that the lease‑deed in favour of Wali Muhammad, even if taken for granted, was made by the grantee Hashmat Ali in the year 1957 by which time he had not paid all instal ments in respect of the suit land. The lease was, therefore, in violation of condition No. 8 which has been reproduced in para. 5 above. It was, therefore, rightly held to be void ab initio by the learned trial Judge.

The result is that the appeal is allowed with cost, the judgment of the first Appellate Court is set aside and that of the trial Court restored. Consequently the suit of the respondent for declaration and injunction also stands dismissed.

M. B. A. Appeal allowed.

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