KHADIM HUSSAIN RAJPAR vs MUHAMMAD IBRAHIM RAJPAR Ss — 2024 CLC 215 KARACHI-HIGH-COURT-SINDH

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KHADIM HUSSAIN RAJPAR VS MUHAMMAD IBRAHIM RAJPAR Ss. 17 & 19---Specific Relief act (I of 877), Ss.42 & 39 ---Rights of occupancy, transfer of---Sale-agreement between the allottee/tenant and the (proposed) buyer---Conditions---Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners---Suit-land was allotted, as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands act, 1912 ("the act 1912")---Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar---Validity---In terms of S. 19 of the act, 1912, which stipulated that no such sale between a tenant and a buyer could be held to be absolute and immediate until the mandatory period as prescribed therein had been completed and the entire instalments had been paid and right of occupancy had been made absolute in the name of the tenant by concerned authority and the same could only be materialized after the allottee had acquired a permanent right of occupancy---Though such a sale could be entered into by two private parties and there was no legal bar on such a sale; however, the same could only be a deferred sale and as and when the owner / seller had become its absolute owner first by making payment of all instalments and then by completing the minimum mandatory period as a tenant, only then the property could be sold and a transfer could be affected---any transfer before acquiring of such right would be void and could not be acted upon---any sale entered into by a tenant who had been allotted a land under the act, 1912, to a proposed buyer, would not ipso facto be void or hit by S. 19 of the act, 1912, if two basic conditions were met; first being, it had to be admitted by the parties that the same was merely a private sale, though possession was being handed over; however, it was a deferred sale and land could not be conveyed or transferred; and second, the sale would only be complete or performed when the tenant / seller had acquired his rights of occupation after payment of instalments and completion of period as provided therein---For a sale to be valid of such a land, these two conditions were to be met and had to be part of the agreement between the parties---In the present case, the question was not that whether the sale by itself was void for having been entered into by violating the express terms of S. 19 of the act, 1912; but the real question was as to how on the same date when land was allotted to the predecessor an oral sale was entered into as claimed; and even if so how and in what manner the land could have been conveyed or transferred by way of a mutation entry by the concerned Mukhtiarkar---at the most it could have remained as an agreement of sale; but in no manner it could have materialized into a sale deed or for that matter transfer of the same by way of a mutation entry---When considered that from day one the father of respondent (buyer) had denied the petitioners being legal heirs of his brother (predecessor) and the manner in which he had claimed sale of the land and its subsequent transfer in his name, all appeared to be a sham---It was but a managed transaction with no legal basis as the Mukhtiarkar was not authorized to record the mutation entry---Even otherwise, a mutation entry by itself was not a title document and was merely a record of fiscal purpose, which by itself did not confer any right, title or interest and the burden of proof lay upon the person, in whose favor it was mutated to establish the validity and genuineness of transfer in his/her favor---If the foundation was illegal and defective then entire structure built on such foundation, having no value in the eyes of law, would fall on the ground---Mutation confered no title, whereas, once a mutation was challenged, the party that relied on such mutation(s) was bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation in dispute---High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners as decreed---Revision was allowed, in circumstances.

KHADIM HUSSAIN RAJPAR vs MUHAMMAD IBRAHIM RAJPAR Ss — 2024 CLC 215 KARACHI-HIGH-COURT-SINDH

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