MOHAMMAD DIN Vs. IMAM DIN

JUDGEMENT

(1.) This appeal from a judgment and decree of the High Court of Judicature at Lahore affirming a decree and judgment of the Senior Subordinate Judge at Lyallpur raises questions of some importance in regard to the powers of the executive authorities under the Colonisation of Government Lands Act of 1912.

(2.) The facts are simple and not in dispute. The lands in question in the case, which are situated in the district of Lyallpur, were at some date not made known to their Lordships granted under the Colony Act, 1893, to one Mokham on what is described as the usual colony tenancy. He died and was succeeded by a son named Jhanda who died without issue and was in turn succeeded by his mother Mt. Hayat Bibi, the widow of Mokham. At some date, which also does not clearly appear, the widow made an oral gift of the land to her son Imam Din. If she had full proprietary rights, she was competent to do so. Her competence has been challenged by the appellants all of whom are collaterals of Mokham under the circumstances which will now be stated.

(3.) On 27 - 11 - 1940, the widow being then the tenant of the land in dispute upon the terms of the tenancy grant applied in accordance with its conditions in the Court of the Collector Lyallpur for the acquisition of proprietary rights therein on payment of the zar - i - milkiat or proper purchase money. The Collector who must be regarded as having acted as a Deputy Commissioner made the order asked for and the widow paid the purchase money. The appellants, though it has not been made clear to their Lordships what right they had to be present, appear to have attended before the Collector and opposed the application. And being dissatisfied with his order they appealed to the Commissioner of Multa Division who on 29 - 5 - 1941, varied the order by imposing the condition that the land should not be alienated during the tenure of the widow "without the concurrence of the reversioners" i. e. the appellants. From this order the respondents in turn appealed to the Financial Commissioner of the Punjab, who on 4 - 3 - 1942, affirmed the Commissioner's order and rejected the appeal. He observed that the Deputy Commissioner (i. e. the Collector who acted as Deputy Commissioner) ought not to have given permission to acquire proprietary rights but he agreed with the Commissioner that, as the proprietary rights had actually been paid for and the transaction was complete, its repudiation at that stage might involve unnecessary complications. He further said that in the grounds of appeal it had been urged that the Commissioner had acted ultra vires in attaching the condition in regard to alienation but that this point had not been argued before him. He thought however that as the Government was not under any obligation to grant proprietary rights it was equally competent to grant proprietary rights subject to conditions and under the Crown Lands Grants Act such conditions were binding on the grantee.