2009 PLP 1012 (CLC)

UMAR ATA BANDIAL, J.

This Intra-Court Appeal has been filed against the judgment of the learned single Judge, dated 2-5-2000 dismissing Writ Petition No.263/R of 1983 that had been filed by the appellants to assail the order, dated 28-6-1983 passed by respondent No. 1 Settlement Commissioner (Land)/Chief Settlement Commissioner, Punjab.

2. It is contended by the learned counsel for the appellants that the judgment of the learned single Judge incorrectly treats an order dated 28-2-1982 by respondent No.1 to be the impugned order rather than his order, dated 28-6-1983 which is actually the case. On that score, this appeal was admitted to regular hearing on 1-6-2000.

3. The learned counsel for the appellants and for respondents Nos.2 and 3 have been heard at length today. From the resume of the facts and discussion that follows below, it appears that the learned single Judge has considered the substantive points raised by the appellants but has done so with reference to an order by, the respondent No.1 that is not impugned.

4. The appellants claim their entitlement to the disputed agricultural land in District Bhakkar under a pre-emption decree passed in their favour on 8-6-1976 in respect of its sale made to vendees by the claimed original allottee thereof, namely, Abdul Ghafoor son of Booray Khan. It is asserted by the appellants that the said Abdul Ghafoor acting through his general attorney, Subedar Noor Muhammad, got the said land allotted on 30-11-1972 and 3-1-1972. Against the said allotment a "Mukhbari" application under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 was filed on 13-2-1974 by one Abdul Aziz son of Rahim Bakhsh (respondent No.2). This "Mukhbari" application was accepted by order, dated 28-2-1982 passed by the respondent Nb.1. Against the said order the appellants approached this Court vide Writ Petition No.315/R of 1982 that was allowed on 14-3-1983 and the matter was remanded to respondent No.1 for decision afresh. The only ground for this Court to direct remand of the matter was the denial of hearing to the appellants in the passing of the aforesaid order, dated 28-2-1982.

5. In the remand proceedings, respondent No.1 once again accepted the "Mukhbari" application on merits and cancelled the allotment made in favour of Abdul Ghafoor. The appellants challenged that decision by the aforenoted Writ Petition No.263/R of 1983 that was dismissed by the learned Single Judge through his judgment that is assailed before us.

6. Before this Court the learned counsel for the appellants has raised the following contentions the first two of which are also echoed in the judgment of the learned Single Judge and the impugned order of the respondent No.1, dated 28-6-1983:

(i) the impugned order is void for being passed against a dead person as Abdul Ghafoor, the original allottee, had died on 9-12-1971; (ii) that the appellants are bona fide purchasers for value without notice and enjoy the protection of section 41 of Transfer of Property Act, 1882; and (iii) the "Mukhbar"/informant participated in the sale of the land to the appellants and cannot subsequently derive benefit from his own silence.

7. In the post remand proceedings, the respondent No.1 heard all parties concerned with the lis, including the appellants and thereby cured the defect based upon the rules of natural justice. With reference to the entitlement of the original claimed allottee, Abdul Ghafoor, the position on record was scrutinized carefully by the respondent No.

1. It transpired that he had obtained allotment of land in District Kasur in full satisfaction of his original claim. After his death on 9-12-1971 further allotment of land is alleged by the appellants to have been made in his name whilst acting through general attorney Subedar Noor Muhammad. These allotments made on 30-11-972 and 3-1-1972 pertain to land situated in District Bhakkar and District Sheikhupura. Due to the prior allotment of land in District Kasur that exhausted the claim of Abdul Ghafoor and the discharge of his alleged power of attorney by his demise, the respondent No.1 concluded the subsequent allotments to Abdul Ghafoor were procured in bogus proceedings. Before us the appellants have hot been able to dispel or disprove that finding at all. We accordingly consider and hold that the subsequent and repeat allotment made on 30-11-1972 and 3-1-1972 in favour of Abdul Ghafoor in respect of land, inter alia, in District Bhakkar were utterly fraudulent and bogus and therefore, liable to cancellation.

8. The second objection raised by the learned counsel for the appellants is that the appellants are bona fide purchasers for value from the original allottee. Section 41 of the Transfer of Property Act, 1882 protects them from the consequences of any defect in the title of Abdul Ghafoor, their vendor. This point has been considered and rejected by the Honourable Supreme Court in several cases and the claimed statutory protection has not been made available in the sale of evacuee property. Reliance is placed on Talib Hussain and others v. Member, Board of~ Revenue and others 2003 SCMR 549.

9. Finally, the contention that the Mukhbar/informant participated in the sale of land to the appellants is also without force because even a party to the transaction, which the informant is not, cannot validate the underlying void allotment of land. Therefore, the appellants' reference at this stage for the first time to some unexplained participation by the informant in the sale transaction carries no weight at all. 9-A. In the light of the foregoing discussion, this appeal is found to have no merit and is dismissed. No order as to costs. M.B.A./G-46/L Appeal dismissed.