IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE AMIR HANI MUSLIM 
MR. JUSTICE IJAZ AHMED CHAUDHRY 
 
CIVIL APPEAL NO. 794 OF 2006 
(On appeal against the judgment dated 
2.6.2005 passed by the Lahore High Court, 
Lahore in Civil Revision No. 1340/1994) 
 
Syed Hussain Naqvi and others 
… Appellants 
VERSUS 
Mst. Begum Zakara Chatha (decd) through her LRs and others 
… Respondents 
 
For the Appellants: 
Mr. Abid Hassan Minto, Sr. ASC 
 
For Respondents (1(a,b): Syed Ali Zafar, ASC 
 
For Respondents (1(c,d): Malik Muhammad Qayyum, Sr. ASC 
 
For the Applicants: 
Mr. M.A. Ghaffar ul Haq, ASC 
 
 
 
 
(In CMA No. 3420/2010) 
 
Date of Hearing:  
14.04.2015 
 
JUDGMENT 
 
 
 
IJAZ AHMED CHAUDHRY, J.- Through this appeal by 
leave of the Court the appellants have challenged the judgment of 
the Lahore High Court whereby the Civil Revision filed by them 
was dismissed and the judgments of the two courts below 
decreeing the suit filed by the predecessor-in-interest of the 
respondents No. 1 (a to d) were affirmed.  
2. 
 
Brief facts / background of the case as mentioned in 
the judgment of Lahore High Court are as under:- 
“On 25.11.1987, respondent No. 1 (Mst. Zakara Chatha) 
filed a suit against respondent No. 2 (Muhammad 
Hussain Shah) and the petitioners (appellants herein). In 
the plaint it was stated that the suit land described in the 
plaint was allotted to respondent No. 2 in the year 1961 
under Tubewell Scheme. He agreed to sell the suit land to 
Civil Appeal No. 794/2006 
2 
respondent No. 1 for a consideration of Rs.22000/-. He 
received a sum of Rs.105000/- and executed an 
agreement dated 11.5.1967. Balance was to be paid upto 
30.6.1967. Possession was delivered and a general 
power of attorney was executed in her favour and 
registered on 16.5.1967. The balance amount was paid 
and on 27.7.1967, respondent No. 2 executed another 
agreement 
acknowledging 
the 
entire 
amount 
of 
consideration, delivery of possession and promising to 
transfer the land upon conferment of proprietary rights. 
Respondent No. 2 changed his mind soon thereafter. He 
cancelled the power of attorney by means of an ‘Abtaal 
Nama’ registered on 4.11.1968. He also served a notice 
on the same date. She replied on 18.11.1968 informing 
that the authority is coupled with interest and he is not 
competent to cancel the power of attorney. She took 
possession of the land which was Banjar. She then 
stated that she is highly educated lady and retired from 
government service. She was holding high offices in the 
education department. She left her abode in Model town, 
Lahore and with a lot of efforts and expenses made the 
land cultivable. Means of irrigation were arranged. She 
remained so in possession for about 11 years. When the 
land stood improved respondent No. 2 started making 
attempts to disposes her. She resisted the attempts. 
Litigation started. Respondent No. 2 filed a suit against 
her. His application for grant of temporary injunction was 
dismissed on 1.2.1978. His appeal was dismissed by 
learned District Judge on 19.2.1978. He was, however, 
granted injunction by the Lahore High Court in Civil 
Revision on 21.10.1978. In the garb of the said injunction 
he dispossessed her tenant namely Muhammad Ayyub 
on 28.12.1978. A criminal case was registered. However, 
respondent 
No. 
2 
managed 
to 
take 
possession. 
Proprietary rights have been conferred and a sale deed 
has been executed by the Provincial Government in 
favour of respondent No. 2 on 9.10.1985 and registered 
Civil Appeal No. 794/2006 
3 
on 21.12.1985. However, it contains a condition that 
respondent No. 2 will not be able to transfer the land 
without prior permission of the government till five years 
after the date of execution. However, instead of 
performing his part of contract, respondent No. 2 
proceeded to transfer the land to the present petitioners 
(appellants herein) through his general attorney Syed Al-
e-Hassan vide sale deed registered on 30.7.1986. 
Mutation No. 52 was rejected on 12.6.1986. Thereafter 
permission was obtained from Board of Revenue and it 
was attested on 28.7.1987. She stated that the 
petitioners were fully aware of the agreement in her 
favour as she had been in possession and litigating with 
respondent No. 2 and in the entire area the said lot is 
known as lot of Begum Zakira. According to her litigation 
was being sponsored and perused by the petitioners. 
With these averments she sought a decree for specific 
performance of the said agreement. Respondent No. 2 
filed written statement on 14.6.1986, stating that he has 
not agreed to transfer the land to the respondent No. 1 
and had not received any consideration. He denied all 
the contents of the plaint. The petitioners filed written 
statement on 28.5.1988. Their contention was that they 
are bonafide purchasers for consideration and without 
notice having purchased the land after checking the 
revenue records. Agreement was stated to be illegal. The 
suit was stated to be collusive. The factum of litigation as 
detailed in the plaint, however, was admitted. It was 
further stated that Syed Al-e-Hassan was lawfully 
appointed as attorney by respondent No. 2 and it was the 
attorney who executed the sale deed and got it registered 
and then obtained post fecto sanction on 28.7.1987. 
Issues were framed. Evidence of the parties was 
recorded. Learned Trial Court decreed the suit vide 
judgment 
and 
decree 
dated 
1.10.1992. 
Learned 
Additional District Judge, Lodhran dismissed the first 
appeal filed by the petitioners on 11.10.1994. The Civil 
Civil Appeal No. 794/2006 
4 
Revision was dismissed by the Lahore High Court vide 
judgment and decree dated 7.2.2000. The petitioners 
(appellants) filed C.P. No. 524-L/2000 before this Court 
(Supreme Court), which was converted into appeal and 
allowed vide judgment dated 21.12.2004 and the case 
was remanded back to the learned High Court. Hence 
this appeal by leave of the Court.  
 
3. 
 
Learned counsel for the appellants contends that the 
agreement to sell relied upon by the predecessor-in-interest of the 
respondent Nos. 1 (a to d) was void as the pre-conditions for 
entering into sale, gift etcetera required the consent of the 
Commissioner and Section 19 of the Colonization of Government 
Lands (Punjab) Act, 1912, clearly prohibits the sale of the land by a 
tenant when he had not attained proprietary rights; that as 
respondent No. 2 was allottee of the land he could not have entered 
into agreement to sell and the same could not create any kind of 
encumbrance on the said property. He added that the two 
documents i.e. Ex.P1 and Ex.P3 are violative of Section 19 and are 
void and the decree could not have been passed on the basis of the 
said documents against the appellants; that the respondent No. 2 
could only sell the land after the proprietary rights are conferred 
upon him; that the power of attorney was cancelled in the year 
1968 by means of an ‘Abtaal Nama’ and the same has attained 
finality as it was never challenged; that mala fide on the part of 
respondent No. 1 has been borne out; that possession of the 
property was admittedly taken back by respondent No. 2 from 
predecessor-in-interest of respondent Nos. 1 (a to d) and when she 
filed suit, she was not in possession. Learned counsel further 
added that the plaint itself discloses that respondent No. 2 by his 
Civil Appeal No. 794/2006 
5 
acts refused the performance, firstly by cancelling power of 
attorney on 4.11.1968, thereafter by filing a suit on 15.12.1977 
and then by dispossessing the respondent No. 1 on 28.12.1978 
and according to him the suit having not been brought within 
three years of any of the said dates, is barred by time; that the 
judgments and decrees of the Courts below are based on surmises 
and conjectures. He further added that the appellants are bona 
fide purchasers in terms of Section 27-B of the Specific Relief Act, 
1877, and they were not aware of the sale of the property. In 
support of the contentions raised, learned counsel relied on 
Ghulam Rasul Vs. Muhammad Anwar (1969 SCMR 254), Hakim 
Ali vs. Ali Muhammad (1981 SCMR 993 at 996) 
4. 
 
Syed Ali Zafar, learned counsel for the respondent Nos. 
1(a & b) contended that the documents Ex.P1 and Ex.P3 are not 
void under Section 19 of the Colonization of Governments Land Act 
as it was a contingent agreement and could only be executed after 
the respondent No. 2 attained proprietary rights; that this fact has 
been mentioned in the agreement to sell and when respondent No. 
2 had obtained the proprietary rights and permission for sale of the 
property from the concerned authorities, the respondent filed the 
suit immediately thereafter; that Ex.P3 is not sale but agreement to 
sell; that these types of documents do not fall under Section 19 of 
the Colonization Act; that the respondent No. 1 was dispossessed 
by the respondent No. 2 in the year 1978 whereafter a suit was 
filed by the respondent No. 2 and his application for grant of 
temporary injunction was dismissed on 1.2.1978; that there is 
sufficient evidence brought on record by respondent No. 1 as she 
had produced Khasra Girdawries from the year 1967-68 which 
Civil Appeal No. 794/2006 
6 
showed that she was in possession of the suit land during the said 
period and the said Khasra Girdawries were never challenged by 
the respondent No. 2; that though respondent No. 2 had denied 
the execution of the said document but the said document has 
been proved on record; that the appellants were not bona fide 
purchasers as in the written statement submitted by them they 
had admitted the factum of entering into agreement in para 6 and 
para 9 of the written statement and they were aware of the fact 
that respondent No. 1 was litigating with respondent No. 2; that 
issue No. 10 has consistently been decided by all the courts below 
in favour of respondent No. 1. Learned counsel in support of his 
contentions has relied upon Abdul Jabbar Vs. Mst. Maqbool Jan 
(2012 SCMR 947) & Muhammad Anwar Vs. Muhammad Aslam 
(2012 SCMR 345) 
5. 
 
Mr. Malik Muhammad Qayyum, learned Sr. ASC for 
respondent Nos. 1 (c & d) has contended that the case relied upon 
by learned counsel for the appellants i.e. 1969 SCMR 254 was 
considered by this Court and this Court has overruled the same. 
Learned counsel relied upon Shamir Vs. Faiz Elahi (1993 SCMR 
145) in support of his contention that the agreement was not a sale 
and mere entering into first agreement to sell was not prohibited 
under Section 19 of the Colonization Act. He further contended 
that under Section 54 of the Transfer of Property Act agreement to 
sell does not confer any right. Learned counsel also relied upon 
Commissioner Multan Division vs. Muhammad Hussain (2015 
SCMR 58).  
Civil Appeal No. 794/2006 
7 
6. 
 
We have heard learned counsel for the appellants as 
also learned counsel for the respondents and have gone through 
the available record.  
7. 
 
The issues involved in this appeal are four fold. Firstly, 
whether there was any agreement to sell between respondent No. 1 
and respondent No. 2. Secondly, whether the suit filed by 
predecessor-in-interest of respondent Nos. 1 (a to d) was barred by 
time. Thirdly, whether the appellants were bona fide purchasers 
and fourthly, whether the transaction in question was hit by 
Section 19 of the Colonization of Government Lands Act, 1912 or 
not? 
8. 
 
To prove the first issue as to whether there was any 
agreement to sell or not, respondent / plaintiff had produced 
agreement dated 16.5.1967 Ex.P1, registered power of attorney 
Ex.P2 and agreement dated 27.7.1967 Ex.P3. These documents 
were scribed by one Abdul Hameed PW-1 and were attested by 
Muhammad Ishfaq PW-2 and Muhammad Rafiq Lamberdar. PW-1 
had candidly stated that he wrote agreement Ex.P1 on the 
instructions of respondent No. 2 Muhammad Hussain Shah in 
favour of predecessor-in-interest of respondent Nos. 1 (a to d) Mst. 
Zakara in respondent No. 2’s presence. He also stated that amount 
was paid in his presence. General power of attorney Ex.P2 was also 
scribed on the same day by him and on 27.7.1967 Ex.P-3 
agreement was scribed. According to PW-1 the witnesses had 
signed in his presence and respondent No. 2 received an amount of 
Rs.11500/-. Muhammad Ishaq PW-2 had also admitted that all the 
three documents were attested by him and respondent No. 2 had 
signed in his presence. PW-1 and PW-2 were cross-examined at 
Civil Appeal No. 794/2006 
8 
length but nothing favourable to the appellants could be brought 
on record. Muhammad Hussain respondent No. 2 though denied 
the execution of these documents but he never got his signatures 
verified by hand writing expert. On the other hand, Mst. Zakara 
had applied for comparison of his signatures before the learned 
Trial Court. The said application was admitted on 2.10.1990 but 
the signatures could not be verified because the attendance of 
respondent No. 2 could not be procured. The learned High Court 
has rightly relied upon the entries made in register khasra girdawri 
Ex.P15 and observed that the possession of predecessor-in-interest 
of respondent Nos. 1 remained till the year 1977. The learned High 
Court has also rightly relied upon Ex.P10 and Ex.P11 i.e. suit filed 
by the respondent No. 1 for ejectment of tenant from a portion of 
the suit land which was decreed on 23.12.1976, Ex.P12 which is 
copy of an order whereby the suit filed by Muhammad Hussain 
respondent No. 2 against A.C. and the respondent No. 1 was 
dismissed for non-prosecution on 16.9.1979, Ex.P13 which is copy 
of an order whereby the suit for declaration filed by respondent No. 
2 against respondent No. 1 regarding the suit land was dismissed 
as withdrawn and Ex.P14 which is copy of judgment of this Court 
dated 11.11.1980 in the matter of temporary injunction in the suit 
land and has held that the respondent No. 2 had agreed to sell the 
land to respondent No. 1 and agreed amount of consideration was 
paid, possession was delivered and change of possession took 
place in Rabi 1978. In view of the above, it is established that there 
was an agreement to sell and payment of consideration was paid to 
respondent No. 2.  
Civil Appeal No. 794/2006 
9 
9. 
 
The next issue is as to whether the suit filed by the 
predecessor-in-interest of the respondents No. 1 was barred by 
time or not. A bare perusal of Ex.P1 and Ex.P3 i.e. ‘Iqrar Nama’ 
clearly indicates that the alleged amount of consideration had been 
paid to the respondent No. 2, possession had been delivered and 
land was to be transferred in favour of the respondent No. 1 by 
respondent No. 2 upon execution of sale deed or attestation of 
mutation in his favour by the Provincial Government. No specific 
date for the performance of the contract was mentioned in the 
agreements. It is on record that respondent No. 2 acquired 
proprietary rights through sale deed Ex.P6 which was executed in 
his favour on 9.10.1985 and was registered on 21.12.1985. 
According to condition No. 27(A) the vendee was debarred from 
alienating the land by sale or otherwise within a period of five years 
from the said date without previous consent in writing of the 
Government. The land was subsequently alienated in favour of the 
appellants through registered sale deed dated 30.6.1986 Ex.D3. It 
was incumbent upon the allottee to perform his part of contract 
after acquiring the proprietary rights but he failed and thereafter 
the cause of action accrued to the plaintiff Mst. Zakara and as 
such the suit instituted by her was well within time.  
10. 
 
So far as the question regarding the bona fide of the 
appellants is concerned, we have noted that the appellants were 
aware of the litigation between respondent No. 1 and respondent 
No. 2, as in reply to para 9 of the plaint, they had admitted the 
litigation. As the appellants were aware of the earlier contract, they 
should have restrained themselves from entering into subsequent 
Civil Appeal No. 794/2006 
10 
agreement with respondent No. 2. In such circumstances, they are 
not bona fide purchasers.  
11. 
 
The last question and the point on which leave was 
granted in the main petition is as to whether the transaction in 
question is hit by Section 19 of the Colonization of Government 
Lands (Punjab) Act, 1912 or not? To appreciate the issue, it would 
be in order to reproduce the said Section 19, which reads as 
follows:- 
“19. Transfers of rights to be void.---Except as provided in 
section 17, none of the right or interest vested in a tenant 
by or under the Government Tenants (Punjab) Act, 1893, or 
this Act, shall, without the consent in writing of the 
(Executive District Officer (Revenue), or of such officer as 
he may by written order empower in this behalf, be 
transferred or charged by any sale, exchange, gift, will, 
mortgage or other private contract, other than a sub-lease 
for not more than one year in the case of a tenant who has 
not acquired a right of occupancy, and seven years in the 
case of a tenant who has acquired a right of occupancy, 
any such transfer or charge made without such consent in 
writing shall be void, and if (after the commencement of 
this Act) the transferee has possession, he shall be ejected 
under the orders of the Collector: 
 
Provided that the right of sub-letting conferred by 
this section shall not release any tenant from a condition 
requiring him to reside in the estate in which his tenancy is 
situated." 
 
12. 
 
In Sher Muhammad Khan Vs. Ilam Din (1994 SCMR 
470) land in question was situated in Colony area and the 
transferor had agreed to sell the corpus of land in question and 
had received full amount and had also delivered possession of the 
property. Dealing with the question as to whether the transfer in 
question was in violation of Section 19 of the Colonization of 
Government Lands (Punjab) Act, 1912, this Court, while 
discussing the earlier case law, has specifically held as follows:- 
“Now, if the document Exh.P3 is read in the light of the above 
definition coupled with the express words of section 19 of 
Colonization of Government Lands (Punjab) Act of 1912, by 
no stretch of imagination it can be termed as a sale deed. Its 
very recital starts with the words and concludes with. 
Civil Appeal No. 794/2006 
11 
Though Jiwan had received the full sale consideration in 
respect of the suit land and its possession delivered to 
respondent No.l but still its contents do not give an inkling 
that the document Exh.P3 is a sale-deed. Through the said 
document Jiwan did not transfer his tenancy rights but had 
only agreed to sell the corpus at the hands of respondent 
No.l. Therefore, the said transfer was not in violation of 
section 19 of Act of 1912. A similar question came for 
consideration before the Full Bench of this Court in Civil 
Appeal No.216 of 1978 decided on 16-6-1981 where in para 
12 it was held:-- 
  
"On the facts of the case we are clear that the 
document was merely an agreement to sell the 
specific performance of which was postponed 
to a date when the grantee had acquired 
proprietary rights. Such a reservation in- the 
deed itself showed the awareness of the 
prohibition and recognition of its legal effect 
and effort op the part of contracting parties to 
keep this sale within the confines of the law 
and to act in accordance with the requirements 
of the law. Such an agreement to sell cannot be 
said to be violative of either the express 
provision of section 19 of the Act or of the public 
policy behind such a statutory provision." 
  
 
This view has been followed in the case of 
Muhammad Iqbal and others v. Mirza Muhammad Hussain 
and others (PLD 1986 SC 70) relied upon by the " learned 
counsel for the respondents and we respectfully follow the 
same view. The authorities cited by the learned counsel for 
the appellants -are clearly distinguishable and thus not 
relied upon.” 
 
13. 
 
In Muhammad Anwar Vs. Muhammad Aslam (2012 
SCMR 345) in similar facts, this Court has held as under:- 
“13. In the present proceedings, it is an admitted fact that 
the respondent No.2 had acquired the proprietary rights on 
12-8-1979. Prior to acquiring such rights, he had agreed 
under an oral agreement to sell the land to respondents Nos. 
1, 3 and Haitam. The terms of oral sale agreement were 
affirmed by the parties by executing the Iqrarname (Exh.P/1) 
in 1976. The contents of Exh.P/1 were merely an agreement 
to sell, specific performance of which was postponed to a 
date when the respondent No.2 was to acquire the 
proprietary rights. Such a reservation in the deed itself 
showed the awareness of the prohibition, the recognition of 
its legal effect and the effort on the part of the contracting 
parties to keep themselves well within the confines of law to 
act in accordance with requirements of law. Such an 
agreement to sell cannot be said to be violative of either the 
express provisions of section 19 of the Act or of the public 
policy behind such a statutory provision. We, for the 
aforesaid reasons, hold that oral agreement of sale and 
Iqrarnama are not hit by the provisions of section 19 of the 
Act.” 
Civil Appeal No. 794/2006 
12 
 
14. 
 
In Abdul Jabbar vs. Mabqool Jan (2012 SCMR 947) 
this Court while relying upon the earlier case law reported at Mst. 
Rehmat Bibi and others Vs. Mst. Jhando Bibi and others (1992 
SCMR 1510) and Abdul Jabbar Vs. Abdullah (2006 SCMR 1541) 
has specifically held that “Section 19 of the Act bar “sale” and not to 
an agreement of sale.” In Nasir Ali Shah Vs. Ahmad Yar (2011 CLC 
1566) the learned Lahore High Court in similar circumstances 
where vendor in prior agreement had undertaken to execute sale-
deed in favour of plaintiff (prior purchaser) on grant of proprietary 
rights and had agreed to sell corpus of property to plaintiff, which 
would come into operation after grant of proprietary rights, has 
held that “according to terms of such prior agreement, plaintiff was 
carrying a risk to loose his money, if proprietary rights were not 
granted to vendor. According to such prior agreement, in case of 
failure of vendor to execute sale-deed after grant of proprietary 
rights, he was bound to pay to plaintiff amount specified therein in 
addition to earnest money already paid. Such prior agreement did 
not necessitate obtaining of prior permission under Section 19 of 
Colonization of Government Lands (Punjab) Act, 1912.” Same was 
the view of the learned Lahore High Court in Muhammad Aslam 
Vs. Muhammad Anwar (2006 YLR 2607) & Muhammad Aslam Vs. 
Ghulam Aslam (2002 MLD 1860) that such an agreement to sell 
did not fall within the mischief of Section 19 of the Colonization of 
Government Lands (Punjab Act), 1912 and that Provisions of 
Section 19 of the said Act do not debar vendors to execute 
agreement to sell with vendees. 
15. 
 
There are concurrent findings of fact recorded by the 
learned courts below against the appellants. This Court in 
Civil Appeal No. 794/2006 
13 
Muhammad Shafi and others Vs. Sultan (2007 SCMR 1602) while 
relying on case law from Indian jurisdiction as well as from the 
Pakistani jurisdiction has candidly held that this Court could not 
go behind concurrent findings of fact “unless it can be shown that 
the finding is on the face of it against the evidence or so patently 
improbable, or perverse that to accept it could amount to 
perpetuating a grave miscarriage of justice, or if there has been any 
misapplication of principle relating to appreciation of evidence or 
finally, if the finding could be demonstrated to be physically 
impossible.” No such thing could be brought on record to warrant 
interference by this Court.  
16. 
 
For what has been discussed above, we do not find 
any merit in this appeal, which is dismissed with no order as to 
costs.  
 
JUDGE 
 
JUDGE 
Islamabad, the  
14th of April, 2015 
Approved For Reporting 
Khurram 
 
