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Civil Petition for Special Leave to Appeal No. 229 of 1985, decided on 11th October, 1986.

(From the judgment of the Lahore High Court, Multan Bench, dated 8‑7‑1984 in Letters Patent Appeal No. 14 of 1968).

‑‑‑S. 3‑‑Limitation‑‑Plea raised at Supreme Court stage that suit in Trial Court was time‑barred, not entertained‑‑Point of limitation vis‑a-vis Trial Court not having been pressed before a lower appellate forum, next higher appellate forum would not be compelled to entertain same on plea raised by a party who gave it up before lower appellate forum.

Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others PLD 1974 Lah. 458 and Amir Bakhsh and others v. Allah Yar and others P L D 1974 SC 124 ref.

Muhammad Ishaq and others v. Shah Muhammad and others 1985 S C M R 799 rel.

‑‑‑Art. 185(3)‑‑Colonization of Government Lands (Punjab) Act (V of 1912), S.19‑‑Civil Procedure Code (V of 1908), 0. XXIII, R. 3‑‑Tenancy rights, transfer of‑‑Collusive consent decree from Civil Court‑‑Widow transferring Government tenancy land through collusive consent decree, without obtaining permission from designated Authority‑‑Transfer challenged through civil suit which was decreed and collusive consent decree was held void‑‑Order impugned‑‑Plea that lack of permission was not fatal to case because subsequent to sale by widow, Government on payment of its dues, had executed sale‑deed, not entertained‑‑Main basis for sale by Government was collusive decree which had been set aside and thus sale could not remain intact‑ ‑Petition for leave to appeal dismissed.

Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 S C 612 distinguished.

Aitzaz Ahsan, Bar‑at‑Law and Mahmood A. Qureshi, Advocate- on‑Record for Petitioner.

Ch. Hafeez Ahmad, Advocate Supreme Court and Rana Maqbool Ahmad Kadri, Advocate‑on‑Record for Respondents.

Date of hearing: 11th October, 1986.

Leave to appeal has been sought from judgment, dated 8‑7‑1984 of the Lahore High Court; whereby the petitioner's Letters Patent Appeal arising out of a land case, was dismissed.

The facts given by the learned counsel are that Mehr Allah Yar who died in 1921 had held tenancy rights under the Colonization of Government Lands Act in land measuring more than 4,000 Kanals. He left two widows Sahib Bibi and Bakhat Bhari as also two daughters Sardar Bibi (respondent No. 1) from Sahib Bibi and Gul Bibi (respondent No. 28) from Bakhat Bhari. Wali Muhammad petitioner's predecessor‑in- interest claiming to be a collateral of Allah Yar sought mutation in his favour from the Revenue Authorities. on the basis that he was the adopted son of Allah Yar and also that the latter had executed a will in his favour in 1918. The Revenue Authorities, however, did not accept his claim and the land/tenancy was mutated in favour of the two widows namely, Sahib Bibi and Bakhat Bhari presumably for their life‑time. It is stated that Mehr Fazil and some others claiming to be collaterals of Allah Yar challenged the claim of Wali Muhammad in a Civil Court but they did not succeed. However, that question is not before the Court in the present litigation. Mst. Sahib Bibi died in 1930. Wali Muhammad again asserted his claim for getting the land mutated in his favour but failed. The mutation was attested in favour of the other widow namely, Bakhat Bhari. Thus, the entire land in the tenancy came to Mst. Bakhat Bhari after the death of Sahib Bibi. Wali Muhammad then filed a suit in 1932 against Mst. Bakhat Bhari making the same claim which had earlier been rejected by the Revenue Authorities on the death of Allah Yar. It may be stated here that Mst. Bakhat Bhari was the sister of the wife of Wali Muhammad as also the mother of his daughter‑in‑law. A consent decree was passed in favour of Wali Muhammad in 1935 against Mst. Bakhat Bhari to the extent of one‑half of the share in the land. It is admitted that Mst. Sardar Bibi respondent No. 1 who amongst others seems to be the main contestant in the present case was not then impleaded as a party by Wali Muhammad in the said suit. Mst. Bakhat Bhari and Wali Muhammad, it is stated, paid the Government dues and obtained the proprietary rights in the land to the extent of one‑half share each and the Government executed sale deed in their favour. Mst. Bakhat Bhari died in 1955 whereupon Mst. Sardar Bibi the daughter of Allah Yar from Sahib Bibi and two others who claim to be nearer heirs than Wali Muhammad filed suit for declaration seeking the voidence of the consent decree passed in favour of Wali Muhammad in 1935 on the ground of collusiveness and fraud as also for injunction. In the meanwhile Wali Muhammad had alienated some land to the petitioner and four others. The suit was decreed in 1964 with the finding that in reality in the garb of a Court decree Wali Muhammad obtained transfer of Government tenancy land in his favour from Mst. Bakhat Bhari against the provisions of section 19 of the Colonization of Government Lands Act which prohibited such transfer without the permission of the designated authority. The petitioner's first and second appeals were dismissed. It was held by a learned Single Judge in the High Court that collusion had been established between the plaintiff and the defendant and thus the decree passed in favour of Wali Muhammad in 1935 was void. The petitioner also failed in the Letters Patent Appeal. The findings regarding collusiveness and transfer without permission under section 19 of the Colonization of Government Lands Act, were confirmed. The petitioner has now sought leave to appeal.

His learned counsel has contended that the suit out of which the present proceedings have arisen was time‑barred. He has in this behalf relied on Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others P L D 1974 Lah. 458 and Amir Bakhsh and others v. Allah Yar and others P L D 1974 S C 124; that the lack of permission under section 19, as argued, is not fatal in this case because subsequent to the sale the Government on payment of its dues executed sale deed in favour of Mst. Bakhat Bhari and Wali Muhammad ‑ in support of this contention reliance has been placed on Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan P L D 1966 S C 612; and that if at all the decree passed in 1935 in favour of Wali Muhammad was collusive the same alone could be nullified and not the transfer made in Wali Muhammad's favour by the Government in 1947.

It is noted in the impugned judgment that no serious attempt was made before the Letters Patent Bench to challenge the findings reached by the learned Single Judge on point of limitation. This Court has in a recent judgment Muhammad Ishaq and others v. Shah Muhammad and others 1985 S C M R 799 held that when the point of limitation via‑a‑via the trial Court is not pressed before a lower appellate forum the next higher appellate forum would not be compelled to entertain the same on the plea raised by a party who gave it up before the lower appellate forum. In the present case we do not feel in any way constrained to entertain this plea when the same was not pressed before the Letters Patent Bench.

The effect of the subsequent sale in favour of Mst. Bakhat Bhari and Wali Muhammad by the Government, canvassed by the learned counsel is of no help to the petitioner because the main basis for the sale in favour of Wali Muhammad was the collusive decree passed in 1935. The same having been set aside no basis are left for the same. For this reason and for the reason that the facts of the case cited in this behalf by the learned counsel are distinguishable, the same is no assistance to him. Similarly, it could not be said test if the decree in favour of Wali Muhammad is taken away the sale in his favour by the Government in 1947 would in any way remain intact. Therefore, there is no force in the last argument of the learned counsel either.

As there is no merit in this petition the same is dismissed.

M. I. Petition dismissed.

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