P L D 1975 Lahore 1423 (PLP)

One Mst. Mahmooda Begum, respondent No. 1, was allotted, in lieu of her verified claim for 8096 Produce Index Units, an area of 1297 kanals and 6 marlas in Chak Noor Shah, Tehsil and District Jbang on 3‑9‑1.959. She sold an area of 193 kanals 8 marlas to the petitioners Nos. 1 to 12 on 26‑3‑1960, an area of 91 kanals 19 marlas to the respondent No. 2 on 22‑9‑1960, an area of 130 kanals 18 marlas to the petitioners 1 to 5, 8 and 12 to 17 on 23‑9‑1960, an area of 13 kanals 3 marlas to the respondent No. 3 and exchanged an area of 313 kanals 10 marlas with the respondent No. 4 and 5 on 3‑2‑1961. The areas were told to the petitioners and the respondents by means of registered sale deeds. These areas in terms of Produce Index Units amounted to 6728. Under Martial Law Regulation No. 84 read with 89, claim of Mst. Mahmooda Begum was reduced and she was left with an entitlement of 3089 units only. Hence, excess allotment bad to be cancelled, with the result that the sales in favour of the petitioner and the respondents could remain intact to the extent of 3089 Produce Index Units only and excess was to go The Assistant Rehabilitation Commissioner on 30th November 1961, while dealing with the application of the general attorney of Mst. Mahmooda Begum for allotment etc. and having declined the same, took up the matter regarding the reduction of the area sold by Mst. Mahmooda Begum to the petitioners and the respondents to bring it within her reduced entitlement of 3089 Produce Index Units. He held that each set of the vendees should lose land proportionately. The petitioners filed an application on 23‑10‑1965 that the order passed by the Assistant Rehabilitation Commissioner for proportionate reduction from the lands with the vendees was incorrect and that the correct principle to be followed should have been "first come first served". The matter was enquired into and the Deputy Settlement Commissioner submitted the case to the Additional Settlement Commissioner. The Additional Settlement Commissioner directed the petitioners to seek their remedy in civil Court. It is vide order dated 9‑4‑1966. The petitioners filed a review application on 11‑5‑1966 which, too, was rejected on 29‑11‑1967. The petitioners, therefore, moved the Settlement Commissioner who found that the order in the circumstances was fair between the parties as all the alienees should lose land proportionately. This is vide order dated 28‑11‑1969. The petitioners have challenged these orders by means of this petition under Article 98 of the late Constitution of 1962.

2. Learned counsel appearing for the petitioners has submitted that the order dated 30‑11‑1961 is void altogether for having been passed without proper proceedings. It is added that the proceedings which were‑ going on had been initiated on the application of the attorney of Mst. Mehmooda Begum who was seeking fresh allotment. These could have not resulted in adverse order against the vendees, the petitioners and the respondents. It is next, contended that the order is otherwise illegal for having been passed without jurisdiction and notice to the petitioners. Lastly, it is contended that there were no proceedings for reduction of excess allotment under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, the only provisions applicable to the case. On merits, the learned counsel contends that the application of proportionate reduction in the land purchased by the petitioners and the respondents was not applicable in the circumstances of the case. The correct principle applicable in such circumstances, it is submitted, is that the first vendee gets the land to the extent of the entitlement of the vendor, and subsequent vendee can only get what is left with the vendor at the time of sale in his favour.

3. Learned counsel for the respondents has contended that against the order dated 30‑11‑1961, the petitioners did avail of alternate remedy of appeal and revision, therefore, they are not entitled to relief. Reliance is placed on Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service, Sargodha and another (P L D 1958 S C (Pak.) 437). It is, next contended that no injustice had been done to the petitioners but fair principle had peen applied by the Settlement authorities for proportionate reduction, therefore, the petitioners are not entitled to itself. Reliance is placed on Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (P L D 1973 S C 236). Lastly, it is contended that the petition suffers from laches as it seeks to annul the order of the Assistant Rehabilitation Commissioner dated 30‑11‑1961 having been filed in 1970.

4. Proceedings before the Assistant Rehabilitation Commissioner culminating in the order dated 30‑11‑1961 had been initiated on the application of the general attorney of Mst. Mehmooda Begum for allotment. It was found that she was not entitled to fresh allotment. Her previous Khata was cancelled and a fresh one No. 258/200 was confirmed by reducing the sales in favour of the vendees proportionately. The proceedings were, of course, unorthodox. Before the various vendees were to be affected, regular proceedings in this behalf, with ascertainment of facts and hearing the affected parties by a competent authority, were essential. Nothing of the kind was done. When the petitioners approached the Additional Settlement Commissioner, who bad the power to order reduction of excess allotment, the petitioners were directed to approach the civil Courts. But the civil Courts have no jurisdiction in the matter of allotment or reduction thereof. Review application also failed and so did the revision petition. Therefore, the petitioners were within their rights to move this Court. In the circumstances, the question of alternate remedy or delay does not really arise. As regards the contention that no injustice bad been done to the petitioners, it need only be said that if the formula of proportionate reduction were not to be applicable, then, clearly the petitioners had been deprived of their proprietary rights which they bad acquired under registered sale deed and, this does injustice to them.

5. Thus, coming to the merits of the case, the question that arises for consideration is that the petitioners and the respondents, who had purchased various pieces of land through registered sale deeds, are to be affected hues and to what extent, on failure of the title of their vendor. There are four principles for such like situations. The first is from the English Common Law, as stated in the Broom's Legal Maxims at page 227, that "qui prior eat tempore potior est jure. He has the better title who was first in point of time". The second finds statutory recognition under English Law in Land Registration Act, 1925 which provides for registration of what are called `head lease' and `sub lease' etc. Applications for registration of `head lease' and `sub lease' were filed in registry in the case of Strand Securities, Ltd. v. Caswall and another ((1964) 2 All E R 957). These were. taken up together. The question arose which one shall have precedence. In the circumstances, it was held by the Chancery Division that `head lease' shall have precedence. However it was assumed and taken for granted that if either of these had been registered earlier, that would have had precedence. Thus, it follows that in case of registered documents, other things being equal, the one in time prior to another shall have precedence over the subsequent one Similarly, in Pakistan, section 48 of the Transfer of Property Act, 1882 lays down that "where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together each later right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created". The third is discernable from the provisions of the Registration Act, 1908 that a prior registered document shall have precedence over a subsequent registered document, if other things are equal. Lastly, paras. 7 of the Martial Law Regulation No. 84 and 14 of the Martial Law Regulation No 89 may be referred to, as these deal with situations like the present one. Martial Law Regulation 84, para. 7 lays down that. "Order passed on verification or reverification under the Scheme shall be the basis of fresh allotment and on such fresh allotment any earlier allotment shall stand cancelled or modified as may be directed in the fresh allotment." Para. 14 of the Martial Law Regulation 89 provides as under :‑ "The transfer of any land in respect of which an allotment has been made or the creation of any right or interest in, or encumbrance on, such land, made in any manner whatsoever before or after the commencement of this Regulation by or on behalf of an allottee shall be void to the extent to which the area is in excess of the area to which he is entitled under the fresh allotment under paragraph 7." The idea underlying these provisions is that any transfer will remain valid only upto the reverified entitlement. Therefore, it would follow that if a transfer had been effected up to the fresh entitlement, then, that would be valid, but, if it or any subsequent transfer, is in excess of the fresh entitlement, the latter shall be void to that extent. These provisions also point to the principle of priority of transfer and validity thereof upto the extent of the fresh allotment. All these principles, therefore, lead to the conclusion that prior sales shall have precedence over the subsequent sales. Thus, the orders to the contrary are not in accordance with law. These have also been made in proceedings and circumstances which render these as coram non judice. Consequently, these are declared to be without lawful authority and of no legal effect.

6. Submission of the learned counsel for the respondents, alternatively made, may now be adverted to. That is that the respondents are in possession of the land sold to them by Mst. Mehmooda Begum and on account of her loss of title the respondents, too, are liable to lose the title, even then, they would, at the worst, be holding land without entitlement or allotment, and under the latest policy decision of the Chief Settlement Commissioner which allows sale to unauthorised occupants of land who had held possession for the last five years, the respondents. are entitled to purchase the land in their possession. That may, be so. But for this purpose, the respondents have to approach the relevant Settlement authority and to point out that they, being bona fide purchasers for value of land allotted by it to Mst. Mehmooda Begum, of which they are in possession for so many years, are entitled for relief under the law and the policy decision. The Settlement authority would, of course, consider their request in accordance with law.

7. With the above observations, this petition is accepted and the Settlement Commissioner is directed to determine the rights of the parties in respect of the sales in accordance with the principle pointed out in the penultimate paragraph. In the circumstances of the case, parties are left to bear their own costs. s. A. H. Petition accepted.