1982 PLP 2202 (CLC)

In May, 1969 the petitioner came to know that 3.23 acres out of the area permanently settled upon the petitioner had been illegally allotted in favour of respondent No. 3 on 25‑6‑1961, long after the Parchi Taqsim Koatooni was issued in favour of the petitioner on 8‑9‑1959. The petitioner moved an application before the Rehabilitation Mukhtiarkar, Hala, pointing out his prior allotment and permanent settlement and requested for the removal of the illegal duplication of allotment /permanent settlement. The Rehabilitation Mukhtiarkar submitted his detailed report on 25‑8‑1969 to the Additional Deputy Commissioner and Settlement Commissioner (Lands), Hyderabad recommending cancellation of the subsequent allotment/permanent settlement in favour of the respondent No. 3 Jan Mohomed s/o Khairuddin. The Additional Settlement Commissioner (Lands) Hyderabad issued notice to the petitioner and to respondents Nos. 3 and 4 and after hearing all the parties by his order dated 15‑3‑1971 cancelled the permanent settle ment in favour of the petitioner in respect of.4.21 acres out of the above survey No. 314, The petitioner filed a Revision under section 19 of the Act before the Settlement Commissioner (.Lands) Hyderabad on 6‑5‑1971 which revision was also dismissed by respondent No. 1 by his order dated 31‑1‑1974. The petitioner in view of above alleged facts mentioned in his petition has challenged the impugned orders of respondents Nos. 1 and 2 dated 31‑1‑1974 and 15th May, 1971 respectively by this petition on the following grounds :‑

1. That respondents Nos. 1 and 2 have committed grave error in law in cancelling the permanent settlement in favour of the petitioner as no jurisdiction was left in the Settlement Authorities to cancel settlement made under the Act.

2. That the allotment in favour of the petitioner of the land in question was admittedly prior in time by Parchi Taqsim Khatooni dated 8‑9‑1959 (Exh. 3) while the allotment in favour of the respondent No. 3 was admittedly made on 26th May, 1961. In view of this it is submitted that under the provisions of the Act and the Rehabilitation Settlement Scheme, a prior allottee has preferential title over others and this important aspect has not been considered by respondents Nos. 1 and 2 which has resulted in miscarriage of justice.

3. That respondents Nos. I and 2 failed to see that the subsequent allotment made on 26th May, 1961 in favour of respondent No. 3 was clearly illegal, without jurisdiction and void ab initio and in violation of the principles of natural justice.

4. That respondent No. 4, as a transferee from respondent No. 3 could not claim or possess better title than the title possessed by respon dent No. 3, and as such the title of respondent No. 3 being defective and of no legal effect (on the above‑mentioned grounds), respondent No. 4 could not clam a better title and could not be given any benefit as has been done by the two impugned orders.

5. That both the impugned orders of respondents Nos, 1 and 2 are illegal and totally against the weight of evidence on record. The learned counsel for the petitioner urged before me that the respondents Nos. 1 and 2 have failed to take into consideration the provisions of section 15 (3) of Displaced Persons (Land Settlement) Act, 1959, which reads as follows :‑ A displaced person to whom any land has been allotted by a Rehabilitation authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such lees as may be prescribed by the Central Government." The learned counsel for the petitioner urged that on the basis of above‑mentioned section 15 (3) the petitioner is entitled to permanent settlement of the land in question in view of his allotment order dated 8‑9‑1959 and this right of the petitioner is a vested right which cannot be taken away by subsequent, allotment in favour of respondent No. 3 and for this purpose the learned counsel for the petitioner relied upon case reported in P L D 1964 Kar.

450. The learned counsel for the petitioner further relied upon principles of allotment as laid down at page 187 of the Displaced Persons (Land Settlement) Act, 1958, 1973 Revised Edition, and submitted that the allotment of the petitioner could not be cancelled without his consent. The learned counsel for the petitioner further submitted that allotment dated 26th May, 1961 made in favour of respondent No. 3 could not have been made without cancellation of the previous allotment of petitioner after show‑cause notice but in the present case, he submitted that neither the petitioner's previous allotment order dated 8‑9‑1959 was cancelled before the allotment dated 26th May, 1981 in favour of respondent nor any show‑cause notice for said cancellation was given to the petitioner, The learned counsel for the petitioner further urged that although no evidence of possession was produced by the petitioner before respondent No. 2 but the petitioner before respondent No. 1 produced copy of the lease in respect of the said land with one Muhammad Umer, but the learned respondent No. 1 did not apply his mind to the question of possession and as such the case should be remanded back for consideration of this question. The learned counsel for the petitioner further submitted that the prior allottee has preferential claim to settlement of land as against fresh entrant and for this purpose he relied upon P L D 1974 Note 43 at page

81. The learned counsel for the petitioner further submitted that original respondent No. 4 was not a bans fide purchaser without notice as he had not produced allotment, P T D and other documents in favour of respondent No. 3 which he ought to have checked and obtained from respondent No. 3 at the time of purchase, in order to claim protection as a bona fide purchaser and for this purpose relied upon authority reported in A 1 R 1915 P C 103. ' In view of the above submissions made by the learned counsel for the petitioner he urged that this is a fit case for remand to enable respondents Nos. 1 and 2 to consider the question of possession of the land acquired by the petitioner on the basis of the documents produced by the petitioner before respondent ‑No. I and he further submitted in the alternative that acquiring possession was not necessary ingredient under the Settlement Act to perfect the title. The learned counsel for L. Rs. of respondent No. 4 on the other hand submitted that allotment in favour of petitioner was not allotment within the eye of law and for this purpose he relied upon clause

12. Chapter IV of Part I of Rehabilitation Settlement Scheme (page 157 of 1958 M. A. Latif, 1973 Revised Edition) and as such land in question was available for allotment on 26‑3‑1961 and consequently it was legally allotted to respondent No. 3 and as such question of giving show‑cause notice for cancellation of petitioner's allotment dated 8‑5‑1959 did not arise at all. He further submitted mere allegation of petitioner that original respondent No. 4 was in possession of the land in question as lessee in the absence of full details and documentary evidence cannot be taken into consideration at all. The learned counsel for respondent further submitted that if petitioner wag aggrieved by allotment dated 26‑5‑1961 in favour of respondent No. 3, be had a right of appeal under section 18 of the Land Settlement Act, 1958 which he could have filed within 60 days of the said order or from the date of the knowledge of said allotment, but petitioner failed to exercise this remedy which was available to him and as such present petition is not maintainable. The learned counsel for respondent further submitted that petitioner after allotment dated 8‑9‑1959 was sleeping, he failed to take possession of the land as prescribed by the Scheme mentioned above, he made payments of excess area by three instalments on 3‑1‑1963, 24‑2‑1965 and 21‑3‑1969, after the allotment dated 26‑5‑1961 in favour of respondent No.

3. He further submitted that Annexures Exh. 3, Exh. 4, and Exh. 5 and Exh. 6 produced by the petitioner with the petition are subsequent to the allotment of original respondent No. 4 and Sale by registered sale‑deed made by respondent No. 3 in favour of original respondent No. 4 and as such these documents are of no effect and do not in any way affect the title of respondent No. 3 acquired by him under allotment dated 26‑5‑1961 and the rights acquired by original respondent No. 4 under registered sale deed dated 19‑2‑1969 as bona fide purchaser for consideration without notice. In this connection, learned Advocate for the L. Rs. of original respondent No. 4 relied upon P L D 1976 Lah. 132 and P L D 1978 S C

270. The learned counsel for the L. Rs. of respondent No. 4 further urged before me that Settlement Authority was competent to dispose of claim of original respondent No. 4 as bona fide purchaser and Further submitted that petitioner had not challenged this authority of the Settlement Department either before respondents Nos. 1 and 2 or by this petition. I have carefully considered the submissions made by both the learned counsel of the parties and reasoning mentioned by respondent Nos. 1 and 2 in their respective orders and have taken into consideration the authorities cited by both the parties. The contention of the learned counsel for the petitioner that allotment in favour of original respondent No. 4, without cancellation of petitioner's prior allotment and in the absence of show‑cause notice to the petitioner before issuance of allotment order dated 26‑5‑1961 is illegal, and void ab initio has no force. In my opinion, as the petitioner failed to produce before respondent No. 2 any evidence to show that in pursuance of the allotment order he acquired possession of the land in question and as such it has been rightly urged by learned Advocate of respondent that the allotment in favour of petitioner was no allotment in the eye of law due to clause 12 of Chapter IV of the Displaces Persons Act XLVII of 1958 and consequently the land, in question was available for allotment on 2C‑3‑1951 when it was allotted to respondent No. 3 without cancellation of the allotment in favour of petitioner, as there was no 'legal allotment in the eye of law in favour of the petitioner. The second contention of the learned counsel for petitioner that document produced by petitioner before respondent No. 1 about the possession of petitioner in respect of the and in question was not considered by him also has no force as respondent No. 1 was acting as Revisional Authority under section 19 of the Act and hence could not take into consideration fresh evidence produced before hits and had to confine his decision on the basis of evidence already on record, which was before respondent No.

2. The third contention of the learned counsel for the petitioner that original respondent No. 4 was not bona fide purchaser without notice also has no force, as the findings of respondent No. 2 on this point were neither challenged by petitioner before respondent No. 1 nor the same have been challenged in this petition and as such petitioner cannot be allowed to agitate this point for the first time in his argu ments in the fact of concurrent findings of both the lower Courts. Further, it is admitted position that the name of respondent No. 3 was mutated in record of rights on the basis of allotment order dated 26‑5‑1961 and he was in possession of the land in question at the time when‑ he transferred the same for valuable consideration in favour of original respondent No. 4 by registered sale‑deed dated 19‑2‑1969 and as such original respondent No. 4 was a bona fide purchaser for valuable consideration without notice of petitioner's alleged claim, from respondent C No. 3 and as such in view of the law as laid down by P L D 1976 Lab. 132 and P L D 1978 S C 270, rights acquired by him cannot be interfered with in view of section 41 of the Transfer of Property Act. In view of my above conclusions and findings, I see no merit in the contentions raised by the learned counsel for the petitioner and dismiss the above petition with no orders as to costs, in view of the circumstances and facts of the above petition. M.Y.M. Petition dismissed.