2006 PLP 329 (YLR)

ZIA PERWAZ, J.

Defendants Nos.1 to 5 have moved applications under Order VII, rule 11, C.P.C. for rejection of the plaint in Suit Nos. 1492 of 1998 and 689 of 2000. The plaintiffs have instituted Suit No.1492 of 1998 seeking following reliefs:

(a) A declaration be granted to the effect that the plaintiffs having purchased 1.20 acres of land out of 3.0 acres of land bearing Survey No.138, Sheet No.CF-5, situated in Block No.5, near Boating Basin, K.D.A. Scheme No.5, Kehkashan, Clifton, Karachi have acquired a vested right in the same and are true and lawful owners of the same. (b) A declaration be granted to the effect that the plaintiffs being owners of 1.20 acres of land situated in Block 6, near Boating Basin, K.D.A. Scheme No.5, Clifton, Karachi, are legally competent to the use and enjoyment of the same in accordance with law. (c) Permanent injunction restraining defendants Nos. 1 to 4, their agents, servants, employees, subordinates and/or any other person or persons claiming through or under them from canceling/ revoking the entry in respect of mutation of 1.20 acres of land situated in Block 6, near Boating Basin, K.D.A. Scheme No.5, Kehkashan, Clifton, Karachi in the name of the plaintiffs in the record of rights. (d) Permanent injunction restraining defendants Nos. 1 to 4, their agents, servants, employees, subordinates and/or any other person or persons claiming through or under them from dispossessing the plaintiffs from 1.20 acres of land situated in Block 6, near Boating Basin, K.D.A. Scheme No.5, Kehkashan, Clifton, Karachi. (e) Any other relief or reliefs which this Hon'ble Court deems fit and proper. (f) Cost of the suit".

2. The brief facts of the case, as narrated in the plaint, are that defendant No.2 in his capacity as Notified Officer under section 2(2) of the Evacuee .Property and Displaced Persons (Repeal) Laws Act, 1975, passed an order on 11-8-1994 granting 3 (three) acres land, bearing Survey No.138, to defendants 6-8 and the same was later on mutated in the name of the said defendants. The plaintiffs, out of the said area of three acres allotted to defendants Nos. 6 to 8, purchased a piece of land of 1.20 acres from the said defendants for a sale consideration of Rs.12,634,400 through their duly constituted attorney vide registered conveyance deed, dated 26-9-1998. The plaintiff constructed a site office at the said plot. On 21-11-1998, defendant' No. 4, along with police force, came to the site office and started demolishing the same on the ground that the area of three acres land was illegally allotted to defendants Nos.6 to 8 and the same is under consideration of defendants 1 to 4 for cancellation. Therefore, the, plaintiffs filed the present suit with the above prayers.

3. Plaintiffs in Suit No.689/2000 claimed to have derived title from the plaintiff in Suit No.1492 of 1998 and have prayed for declaration and permanent injunction.

4. The defendants have filed their written statement as well as applications under Order VII, rule 11, C.P.C. being C.M.A. No.9245 of 2000 and C.M.A. No.6151 of 2002, for rejection of the plaint in both the suits.

5. Miss Sana Minhas, counsel for the defendants, has contended that the suit is not maintainable, as the plaintiffs, having no right in the property, have no locus standi to file the present suit. She further contended that the suit is barred under Land Revenue Act, 1967. She also contended that the suit is hit by section 11, C.P.C., as the subject-matter already stands decided in Suit No.1017 of 1997, filed by defendants Nos.6, 7 and 8, which was dismissed with special costs and it was held that no land was ever allotted to the plaintiffs, defendants Nos.6, 7 and 8.

6. Learned counsel in support of application has referred to the powers of the Secretary who passed order, dated 11-8-1994 for transfer of the said property in favour of Shoukat Ali, Abdul Majeed and Liaquat, defendants Nos.6, 7 and 8 in Suit No.1492 of 1998, which order is reproduced as follows:

"Subject: Allotment and entry in Record of Rights of area 3.0 acres urban land available in District South Karachi. Under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV 1975. Soliciting orders in the matter: In exercise of the power conferred Notified Authority under section 2(2) of the Evacuee Property and Displaced Person Laws (Repeal) Act XIV of 1975 the Government of Sindh in Secretary (RS&EP) Department hereby accepted on the grounds mentioned in the case referred to above particularly in view of the following facts:

(1) The Claimant/Applicant (1) Mr. Shaukat Ali son of Hashim Ali Khan (2) Mr. Abdul Majeed son of Hashim Ali khan (3) Mr. Liaquat son of Mushtaque Ahmed, is entitled to the grant of area which is not disputed in any manner. (2) The applicant/claimant having been pressing hard for allotment of the entitled area since a long time this case shall be deemed to be "a case pending" in the Department for which there is no objection if the area is allotted to the claimant in satisfaction of this claim. (3) The possession of the claimant/ Applicant over the land since 1901 uptill now. (4) The Affidavit of the applicant is also on record. (5) The evacuee land now totally vests in the Provincial Government. In any case the claimant/applicant should not be deprived of his just claim. Section 2(2) of Repeal Act in fully discussed and present case also falls within the definition of section 2(2) of (Repealed) Act and the Authority is satisfied that the claim of claimant/applicant is a pending claim prior to the year 1974 and hence the claimant is allowed and they are entitled for allotment of 3.0 acres land in District South Karachi on the North; Mai Kolachi Road, on the South Arabian Sea. On the East; 60 feet wide K.D.A. Road, on the West; Railway Line (Sketch attached herewith), total and 3.0 acres whatsoever allottees be transferred and mutated in the records of rights accordingly. That the Deputy Commissioner Karachi South is hereby requested to make compliance of this order in the terms more specifically discussed in above concluding paragraphs. (Sd.) (Gul Hasan Channa) Secretary (RS&BP) Board of Revenue Sindh Notified Authority under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV at Karachi." 7. (sic) The powers conferred upon the Secretary, Evacuee Property Board of Revenue under Notification No.SEP/ Admn/85-291, dated 15th September, 1985 which are restricted as follows:-- S. No. Designation of officers Pending Cases/ Proceedings 1 Secretary (Evacuee Property) Board of Revenue Sindh Appeals or Revisions under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the Registration of Claims (Displaced Persons) Act, 1956 (since repealed) remanded by Court including the Supreme Court and the High Court.

2. Deputy Secretary (Evacuee Property) Board of Revenue Sindh. (i) Such of the aforesaid appeals and revisions as may be assigned to him by the Secretary (Evacuee Property) (ii) Applications under sections 20, 22 or 14 of the Pakistan (Administration of Evacuee Property) Act, 1957 (since repealed) in original jurisdiction.

3. Divisional Commissioners Appeals and Revisions Displaced Persons (Land Settlement) Act, 1958 and the Pakistan Rehabilitation Act 1956 (since repealed).

4. Additional Commissioner, Karachi Division. Cases/proceedings under the Displaced Persons (Land Settlement) Act, 1958, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Pakistan Rehabilitation Act, 1956 (since repealed) in original jurisdiction And the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971 (since repealed).

5. All Deputy Commissioners, Hyderabad/Sukkur Divisions. Cases under the Displaced Persons (Land Settlement) Act, 1958, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Pakistan Rehabilitation Act, 1956 (since repealed) in original jurisdiction and the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971, (since repealed). Admittedly the Secretary has not been conferred with the powers to deal with any pending matter after the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. All properties stood transferred to the Federal Government as the properties in pursuance of the provisions of section 3 of the said Act. In pursuance of the rule making power conferred under section 5 of the said Act, the Government of Sindh promulgated the Sindh (Agricultural Land Claims) Payment or Cash Compensation Rules, 1974 which subsequently superseded by Evacuee Property (Residual Work) Disposal Rules 1978 duly notified in the Gazette, dated 14th June? 1979 whereby it is provided that the Government would pay compensation in respect of the said claim remaining unutilized with the claimants subject to the conditions specified therein which do not entitle the defendants Nos.6, 7 and 8 to any allotment of land with respect to any unsettled units as desired under section 2(u) of these rules read with 8(1) which are reproduced as under:-- Definitions:-- 2(u) Unsettled Units means Produce Index Units out of the Produce Index Units shown in the entitlement certificate issued to a claimant under the Punjab Refugees (Registration of Claim) Act, 1949 (V of 1949) or under the Scrutiny of Claims (Evacuee Property) Regulation of 1961 (MLR 89) of 1961 as amended by MLR 91 of 1961, against which no allotment of evacuee agricultural land or garden has been made; 8(1) The applications for payment of compensation in respect of unsettled units shall be scrutinized by the Deputy Commissioner/ Additional Deputy Commissioner, and the particulars mentioned therein shall be verified from the claimant's file, and relevant registers and in case the claimant has obtained allotment of land in other Districts as well the necessary information shall be obtained from those districts and then the actual number of unsettled units for the purpose of compensation, shall be worked out.

8. On the basis of the above, the contention of learned counsel that as defendants Nos. 6, 7 and 8 could not hold any title with respect to the suit property the same could not be transferred and the alleged transfer in favour of the plaintiffs is hit by the provisions of section 41 of the Transfer of Property Act is in accordance with the settled principles discussed hereunder.

9. The present case appears to be one of the series of several fraudulent transfers made by the same officer namely Gul Hasan Channa who is alleged to have allotted 769 acres of urban land vesting in the Provincial Government in favour of Shaukat Ali, Abdul Majeed and Liaquat, defendants No.6, 7 and 8 respectively. The law laid down in the cases of Muhammad Yamin v. Settlement Commissioner (1976 SCMR 489), Aijaz Mehmood v. Muhammad Jamil (1996 CLC 1027), Industrial Development Bank of Pakistan v. Saadi Asmatullah (1999 SCMR 2874) and Muhammad Saleem v. Administrator, KMC (2000 SCMR 1784) cited on behalf of the defendants is attracted to the facts of the present case.

10. In the case of Muhammad Yamin v. Settlement Commissioner (1976 SCMR 489), it was held that where a vendor has no right, title or interest in the property, subsequent bona fide purchasers for value is not entitled to any protection.

11. In the case of Aijaz Mehmood v. Muhammad Jamil (1996 CLC 1027), a Division Bench of this Court held that a vendor cannot pass better title than he has. It was also held that a vendee must investigate vendor's title before purchasing a property and in case the vendee has without investigating vendor's title he does so at his own risk.

12. On the question of bona fide purchase, the learned counsel relied on the cases of Industrial Development Bank of Pakistan v. Saadi Asmatullah (1999 SCMR 2874) and Muhammad Saleem v. Administrator, K.M.C. (2000 SCMR 1784).

13. In the case of Industrial Development Bank (supra), it was held that all four ingredients must be present i.e. transfer in good faith, act in good faith, done with due care and attention. In the case of Muhammad Saleem (supra), it was held that by not taking care and caution to ascertain title of vendors, buyers at best have acquired defective title and unenforceable right to property at their own risk and cost and plea of bona fide purchaser cannot attract equities.

14. Mr. Ghulam Muhammad Ebrahim, learned counsel for the plaintiff in Suit No.1492 of 1998 was requested to advance his arguments but the learned counsel requested for time to reply the arguments of Ms. Sana Minhas on 27-11-2002 which was allowed, the case was adjourned for 3-12-2002. However, when he did not proceed on 3-12-2002 he was again allowed a last chance and the matter was adjourned but he has failed to advance any substantial arguments against the grant of the application.

15. Mr. Abdul Ghafoor Mangi Advocate for the plaintiff in Suit No.689 of 2000 has admittedly derived title from the defendants Nos.6 to 8 in Suit No.1492 of 1998 and the fate of the suit is rested with the decision in the earlier suit.

16. The circumstances same claimants came under examination in the case of Javed Iqbal v. Province of Sindh and others in Suit No.684 of 1999 decided by my learned brother Shabbir Ahmed, J. (2003 MLD 22) and have been dealt in sufficient detail with particular reference to the pronouncement of the Hon'ble Supreme Court in case of Ali Muhammad v. Chief Settlement Commissioner and others (2001 SCMR 1822) at pages 1419 to 1421 and said judgment with. It is not necessary to repeat the findings or to develop on the same once again. In addition a Division Bench of this Court in case of Mirza Mehmood Baig and others v. Deputy Settlement Commissioner (Land and others (2002 MLD 1512) has also examined the matter of allotment in the light of cases of Nawabdin v. Member, Board of Revenue (PLD 1979 SC 846), Aligarh Muslim University Old Boys Cooperative Housing Society v. Muhammad Hismuddin Ansari and others (1993 SCMR 1062), Syed Saifullah v. Board of Revenue, Balochistan (1991 SCMR 1255), Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCMR 732), Muhammad Ramzan v. Member Revenue, C.S.S. and others (1997 SCMR 1635), Ali Muhammad and others v. Chief Settlement Commissioner and others (2001 SCMR 1822), Member and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCMR 1358).

17. Present suit is similar in all respects, the officer passing the order is the same, the three claimants Shaukat Ali, Abdul Majeed and Liaquat are also the same, the powers have been exercised in similar manner under same notification, as such, the reasoning contained in Suit No.684 of 1999 referred to above, is applicable on all fours of this case as well.

18. In view of the above discussion and the detailed discussion of the matter in the aforesaid Javed Iqbal's case who has also been appearing in the present case with which I am in respectful agreement. I am of the view that the order, dated 11-8-1994 is a void order passed in excess of the powers conferred under the aforesaid notification No. SEP/Admn/85-291, dated 15th September, 1985 constitutes an ultra vires exercise of powers. The plaint seeking enforcement of the same is hit by the aforementioned provisions. All subsequent actions and orders constituted the series of alleged interests leading to the institution of the present suits together with the superstructure of rights and obligations build upon them must collapse as such actions have as little legal foundation as the original order that has been held to be void and on which the whole structure has been raised as held by the Hon'ble Supreme Court in the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104). Accordingly the plaints in Suits Nos.1492 of 1998 and 689 of 2000 are rejected and the suit is dismissed along with listed applications in both the suits. H.B.T./F-31/K???????????????????????????????????????????????????????????????????????? Suit dismissed.