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Regular First Appeal No. 79 of 1953, decided on 18th Febru ary 1958 from the decree of the Court of Chaudhry Muhammad Ali, Senior Civil Judge, Montgomery, dated the 26th March 1953.

S. 5‑-Valuation for purpose of jurisdiction appearing at unusual place in decree sheet‑Counsel filing appeal in Court of District Judge instead of High Court being mislead by wrong contents as to valuation contained in unattested copy of plaint supplied by appellant‑Mistake of counsel bona fide-‑Appeal filed in High Court on day it was returned by District Judge‑Delay in filing appeal in High Court condoned.

S. 21 (b)‑Tenancy right in hands of male tenant who is not original tenant must be regarded as ancestral land qua collaterals of tenant, if tenant is governed by custom in matters of succession.

Karam Din v. Sharaf Din 89 P R 1898 ref.

S. 60‑Transfer of occupancy rights in contravention of Ss. 53 & 56 is voidable at instance of landlord‑Section 60 does not confer any power of alienation upon tenant.

S. 19‑Tenant cannot transfer land without consent of Com missioner‑Transfer without sanction is void.

Nihala v. Ishar Singh and another 68 P R 1894, Didaru and others v. Bana and others 31 P R 1896, Karam Din v. Sharaf Din 89 P R 1898, Labh Singh v. Hassu and others I L R 22 Lah. 212, Miran Bakhsh v. Mian Khan and others A I R 1945 Lah. 249, Puran Chand v. Mahesha and others 69 P R 1900, Nikka v. Mst. Gurdai and others 52 P L R 1911 and Baggu and others v. Mst. Dan and others 1922 Lah. 278 ref.

Ss. 36 & 19‑Civil Court has no jurisdiction to quest consent of Collector.

S. 36‑Civil Court can decide whether land is ancestral or not. 'C "

O. VI, r. 17‑Appellate Court framing additional issue and remanding case‑Parties may amend pleadings and adduce evidence.

Ata‑ur‑Rahman for Appellant.

Muhammad Amin Khan for Respondents.

Dates of hearing: 4th and 5th February 1958.

These two appeals arise out of two suits filed by the appellant Masud Ali Khan in the Court of the Senior Civil Judge, Montgomery. The suit which has given rise to R. F. A. No. 79 of 1953 was instituted against Rangbaz Khan and Hukam Dad Khan in respect of a sale of agricultural land made by the latter in favour of the former for Rs. 3,000. The defendants in the other suit, which has led up to R. F. A. No. 80 of 1953, were Rangbaz Khan and Abdul Aziz and related to a sale of agricultural land made by the latter for the former for Rs. 1,400. Admittedly, one Pehlwan was the original occupancy tenant of the lands in both the suits under the Colonization of Government Lands (Punjab) Act of 1912. After his death, his sons, Hukam Dad and Abdul Aziz, came into possession of the tenancy lands. The plaintiff, who is a collateral of the vendors, challenges the sales on the ground that they were made in contravention of the customary law by which the parties are governed. Both the suits were dismissed with costs by the learned Senior Civil Judge by his judgments and decrees dated the 26th of March 1953.

Both the appeals were filed .in this Court on the 15th of August 1953, much beyond the prescribed time. The appellant has applied under section 5 of the Limitation Act for condonation of the delay. The appeals were originally filed on the 15th of April 1953‑within 20 days of the decision by the trial Court ing the Court of the District Judge, Montgomery at Lahore by Mr. Ghulam Haider Shah, Advocate, who had not appeared in the trial Court as a counsel in either suit. The circumstances which led the learned counsel to file the appeals before the District Judge were as follows. He did not notice any valuation in the copies of the decrees because instead of appearing at the usual place it was mentioned in the first line at the top on the first page almost unusual, and improper, place for stating the jurisdictional value. In the unattested copy of the plaint supplied to the counsel by the client the value was stated to be Rs. 20. As this value did not seem to accord with the facts in the judgments the learned counsel valued the appeals at Rs. 3,000 and 1,400, respectively, the amounts for which the two sales had been effected. When the two appeals came up for hearing before the District Judge on the 15th of August 1953 it was noticed that the valuation of each of the suits was Rs. 7,500 and the appeals were, therefore, returned to the appellant for presentation to the proper Court. They were filed in this Court on the same day. We are, of the, opinion that the mistake of the counsel in these cases was bona fide and excusable and we condone the delay accordingly.

In each suit the same issues were framed. They are as follows:‑

(1) Is the suit not maintainable with regard to the land in dispute by virtue of section 36 of the Punjab Colonization of Government Lands Act, 1912, and has the Civil Court no jurisdiction

(2) Is the land in suit ancestral qua the plaintiff and Abdul Aziz defendant

(3) Are the parties governed by custom of agriculturists according to which rights of alienation of property are restricted

(4) In case issues Nos. 2 and 3 are proved, was the sale effected for consideration and necessity

(5) Is the suit collusive

(6) Is the suit within time

(7) Relief.

Issues Nos. 1, 2 and 3 were answered against the plaintiff and the 5th and 6th in his favour. Under the 3rd issue, the learned trial Court found that the parties were governed by custom according to which ancestral property could be alienated only for legal necessity; but he went on to remark that since the property in the suits was not ancestral, the issue was not "of any importance". The 4th issue was not decided apparently because the suits were liable to be dismissed on the findings recorded under the 1st and 2nd issues.

The appellant has attacked the findings of the Court below under the first and second issues and the respondents have not challenged the finding as regards the custom under the third issue. The second issue was argued before us‑and correctly‑as if it involved the question whether the customary rule restraining improper alienations is applicable to occupancy tenancies governed by the provisions of the Punjab Colonization of Government Lands Act (V of 1912) hereinafter referred to as "the Act". It was not contended by the appellant that, apart from the provisions of that Act, occupancy tenancy rights are not such interest in land which can, in the connotation of the Punjab Customary Law, become ancestral property and be, thus, subject to the Customary Law relating to alienations. This proposition was negatived by a Full Bench of the late Punjab Chief Court in Karam Din v. Sharaf Din (89 P R 1898) as far back as the year 1898 and has never been urged in any case since then. In any case a tenancy governed by the Act and in the hands of a male tenant, who is not the original tenant, must, in view of the provisions contained in section 21 (b) of the Act, be regarded as ancestral land qua the collaterals of the tenant if the latter is, in matters of succession, governed by custom. The question, therefore, arises whether any enactment in the instant cases, the Punjab Colonization of Government Lands Act of 1912 has taken away the power of the collaterals to restrain any alienation of occupancy rights in any particular category of lands.

Both sides have cited in their support rulings under the Punjab Tenancy Act. The appellant points out that the provisions of sections 53, 56 and 60 of the Tenancy Act are, for the purposes of this case, at par with those of section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912). According to him, under both the Acts an occupancy tenancy cannot be alienated without the landlord's consent. He argues that since it has been held or observed in Nihala v. Ishar Singh and another (68 P R 1894) and in four subsequent Full Bench decisions, viz. Didaru and others v. Banna and others (31 P R 1896) Karam Din v. Sharaf Din (supra) Labh Singh v. Hassu and others (I L R 22 Lah. 212) and Miran Bakhsh v. Mian Khan and others (A I R 1945 Lah. 249), that a transfer of the occupancy rights made with the consent of the landlord or in compliance with the provisions of the Tenancy Act, cannot be challenged by the reversioners and the alienee acquires an unimpeachable title, it must be held that similarly a transfer by an occupancy tenant in Government lands made with the consent of the Collector (or the Commissioner) cannot be impugned by his collaterals on any ground. The respondents, on the other hand, have relied upon two Single Bench rulings in Puran Chand v. Mahesha and others (69 P R 1900) and Nikka v. Mst. Gurdai and others (52 P L R 1911) and Division Bench ruling in Baggu and others v. Mst. Dani and others (1922 Lah. 278) for the proposition that even an alienation made with the consent of the landlord under the Tenancy Act is liable to be restrained by the collaterals. It is true that in some of the cases the observations relied upon by the parties are merely obiter dictum and do not contain the ratio‑decidendi; but the existence of two conflicting views is undeniable.

The reason for the decision in Nihala v. Ishar Singh relied on by the appellant, is that an occupancy tenancy is a special interest creat ed and regulated by statute in the Punjab and cannot, therefore, be ancestral land. This reasoning was expressly repudiated in subsequent Full Bench decisions and has never been reasserted again by any Judge. The ratio of the decisions in the four Full Bench cases, of which Didaru v. Banna and Karam Din v. Sharaf Din are the leading ones, was that alienation under certain circumstances "is expressly sanctioned by the Act." This reason, undoubtedly, finds some support from the provisions of the Punjab Tenancy Act of 1887 as well as from those of 1868. Sections 34 and 35 of Act XXVIII of 1868 run as follows:‑‑

"Section 34‑Any tenant having a right of occupancy claimable in accordance with the terms of any of the clauses of section 5 may alienate the land in his occupation or any part thereof.

"Every other tenant may alienate the land in his occupation . . . . . . with his landlord's previous consent."

"Section 35‑Every person other than the landlord, to whom land is alienated under section 34, shall, in respect of such land, have the rights and be subject to the same liabilities as the tenant making the alienation."

The relevant portions of sections 53 and 56 of Act XVI of 1887 are as follows:‑

"Section 53‑A tenant having a right of occupancy under section 5 may transfer that right . . . . . . subject to the conditions mentioned in this section."

"Section 56‑A right of occupancy under any other section than section 5 shall not be attached or sold in execution of a decree or order of any Court or, without the previous consent in writing of the landlord, be transferred by private contract."

Section 60 of Act XVI 1887 merely lays down that a transfer of occupancy rights made in contravention of the provisions of sections 53 and 56 shall be voidable at the instance of the land lord; and cannot be, by any means, construed as conferring any power of alienation upon the tenant.

As against the provisions of sections 53 and 56 and 60 in the Tenancy Act we have only section 19 in Act V of 1912. This reads:‑

" . . . . . none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893,. or this Act, shall, without the consent in writing of the Commissioner, . be transferred . . . . . . Any such transfer or charge made without such consent in writing shall be void

It will be observed that this section, unlike sections 53 and 56 of the Tenancy Act, does not even say that the tenant "may alienate the land" or "may transfer that right" The only two questions with which the section concerns itself are, that a tenant cannot alienate without the consent of the Commissioner and that an alienation made without such consent shall be void. It does not even remotely or indirectly deal with the Question as to when and under what circumstances a tenant possesses the right or power to alienate his tenancy. It only says that if a tenancy is proposed to be alienated, it shall not be done without the consent of the Commissioner or of such other officer as he may empower in that behalf. Whatever may be the position under the Punjab Tenancy Act it is clear that the Act (V of 1912) does not confer upon the tenant the power of the alienation, which must be discovered and determined by his Personal Law. The only effect of this section is that if the tenant possesses the power of alienation, under the law applicable to him, he cannot exercise it without the consent of the authority concerned. We are, therefore, of the opinion that the finding of the learned trial Court on the second issue is erroneous and that the properties in question must be considered to be ancestral qua the plaintiff and, in view of the finding of the trial Court under the third issue, it can be alienated only for legal necessity.

The finding of the learned Senior Civil Judge on the first issue must also be set aside. There can be no manner of doubt that under section 36 of Act V of 1912 a Civil Court has no jurisdiction "in any matter of which the Collector is empowered by this Act to dispose". Under section 19 a Collector has the power to consent or not to consent to an alienation. In the present cases, the Collector did consent to the alienation ant it is not the purpose of the suit to Question that consent in any manner. The plaintiff's claim is that notwithstanding that consent the alienations were bad under the Customary Law‑which we have already held is applicable to the alienation in question. The question involved in the second issue is not put beyond the pale of the Civil Courts' jurisdiction by the provisions of section 36.

As the fourth issue has not been decided by the lower Court the cases must be remanded to it. We, however, note that in paragraph 3 of his written statements the first defendant Rangbaz Khan alleged that after purchasing the occupancy rights he acquired the proprietary rights to the land from the Government. In view of this allegation, which is not denied by the plaintiff. it was necessary for the lower Court to consider the effect of that event upon the present suits We, therefore, frame the following issue in both the suits and direct the trial Court to decide that as well:‑

Has the fact that the defendant Rangbaz Khan acquired proprietary rights in the land in suit after the sale in question any effect upon the present suit If so, what is its effect

If necessary, the parties will be allowed, for the purposes of this h issue, to amend their pleadings, and to lead evidence should they so desire.

We allow these appeals, set aside the decree of the trial Court and remand the cases for decision in accordance with law in the light of this judgment. Costs in this Court shall abide the result of the suits. The parties are directed to appear in the Court of Senior Civil Judge Montgomery on the 3rd of March 1958. These cases shall have precedence over all the other normal work in that Court and shall be disposed of with all possible speed.

K. M. A. Cases remanded.

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