2001 PLP 2502 (YLR)

Agricultural land measuring 48 Kanlas, 6 Marlas in Mouza Qaimpur. Tehsil Hasilpur. District Bahawalpur was confirmed in favour of one Faiz Bakhsh son of Sonday Khan vide RL. 11 No.174, dated 16-10-1958 under the provisions of Displaced Persons (Land Settlement) Act, 1958. This allotment was in lieu of satisfaction -of his Claim No.119257.

2. The said Faiz Bakhsh through his attorney Muhammad Yousaf alienated the said land by sale in favour of Muhammad Ali for a consideration of Rs.5,000 through Mutation No. 1057, dated 17-6--1965. Possession was also delivered to the said vendee.

3. Vide mutation of sale, dated 1-4-1968 the said Muhammad Ali alienated the said property in favour of Abdul Ghafoor respondent No.2 for a sale consideration of Rs.6,

000. The necessary Mutation No. 1213, dated 8-4-1968 was attested. Said Abdul Ghafoor (respondent No.2) executed a registered sale-deed on 20-2-1976 in favour of the petitioner who thus, became the sole owner of the said plot. Possession was delivered to the petitioner and Mutation No. 1886, dated 2-3-1976 was attested. It was also incorporated in the Jamabandi for the year 1972-73. Respondent No.3 Sufi Alauddin now represented by his legal representatives filed a suit for specific performance on the basis of an agreement to sell which was allegedly made by respondent No.2 in his favour. The said suit was withdrawn by respondent No.3 vide order of the Civil Judge, ,dated 24-3-1976.

4. It is contended in writ petition that at the time of purchase of the land in question by petitioner, respondent No.2 was in possession of the said land without the payment of any rent. The petitioner moved for ejectment, of respondent No.3 before an Extra-Assistant Commissioner, Hasilpur which was decided in favour of the petitioner vide order, dated 16-12-1976. Despite the consent order respondent No.3 preferred an appeal before the Additional Commissioner, Bahawalpur which was also rejected by the said Court on 12-1-1977. Respondent No.3 in the meanwhile moved an application before Chief Settlement Commissioner, Punjab, Lahore in which a reference was made to some Mukhbari application which was allegedly pending in the Court of A,.C., Bahawalpur and in respect of, which a direction was sought that A. C., Bahawalpur should decide the matter expeditiously.

5. It appears that the said application was despatched to the Assistant Commissioner, Hasilpur. According to the report of the Ahlmad of the said A.C. no Mukhbari application was pending in this Court. Upon this respondent No.3 moved another application before A.C. in which he claimed that Abdul Ghafoor had. made a sale of the land in question in his favour on 25-1-1976 for a consideration of Rs.5,000 only. No content with this, respondent No.3 made another application before A.D.C. (G), Bahawalpur in which he made a reference to a Mukhbari Application No. 21f.)i, dated 20-2-1974 which he claimed to have moved before Tehsildar vide order, dated 23-12-1976, the learned Additional Settlement Commissioner (Lands); Bahawalpur with powers of Chief Settlement Commissioner, Punjab condoned the delay and decided to deal with the so-called Mukhbari Applications on merits.

6. During the course of proceedings before the Additional Settlement Commissioner (Lands), Bahawalpur (respondent No.1) the evidence was recorded on 28-4-1977 in which respondent No.3 also appeared as a witness, it is further evident from the record that a notice was published in the press by respondent No.1 in daily issue of 8-5-1977 of Roznama "DASTUR". Finally on the basis of evidence record by respondent No. 1, he proceeded to pass an order, dated 10-9-1981 by virtue of which the allotment in the name of original allottee namely Faiz Bakhsh was cancelled. Simultaneously Sufi Alauddin respondent No.3 was also not found entitled to the allotment of the said land which was ultimately declared as State Land under the control of the Chief Settlement Commissioner, Punjab.

7. Mr. M. Rahim, Advocate, for the petitioner and Mr. M.M. Bhatti, Advocate for respondent No.3 have been heard.

8. The learned counsel for the petitioner has raised the following contentions:

(i) That respondent No.3 was estopped to challenge the allotment in favour of Faiz Bakhsh the original allottee from the Settlement Department; (ii) that respondent No.3 was also estopped to claim any right against Abdul Ghafoor respondent No.2; (iii) that no Mukhbari application was filed by respondent No.3. In fact, no such application is available on the record; (iv) that the Mukhbari application is to be filed before authority which is competent under the Displaced Persons (Land Settlement) Act, 1958 and the alleged application before the Tehsildar, Hasilpur; was totally coram non judice; (v) that conduct of respondent No. 3 was most objectionable. His act of filing a suit for specific performance was totally contradictory to the statement he made before respondent No.1 during the proceedings of the so -called Mukhbari application.

9. In support of this contention, the learned counsel has relied upon Qutab Muhammad v. Settlement Commissioner (Lands) and another 1993 CLC 1840, Muhammad Sadiq v. Settlement Commissioner and another 1983 CLC 2550 to contend that a Mukhbari application has to be filed before a competent authority failing which the Mukhbari application shall be considered to be void, he further relied upon Iqbal Ahmad and another v. Settlement Commissioner (Lands) and others 1992 CLC 1719, Badlu v. Revenue Assistant/A.S.C. etc. 1989 CLC 144 and Mst. Attari through her Legal Heirs v. Badlu (through his Legal Heirs) and another 1985 CLC 780 to submit that A.D.C. (G) had no jurisdiction to deal with any matter which was not actively pending at the time of the Evacuee Property Repeal Act of 1975. He further submitted that the allotment was made in favour of Faiz Bakhsh in satisfaction of his verified claim. Neither the claim could be cancelled by respondent No.1 nor he could deal with the matter as the property had been allotted vide RL. II much before the Repeal of the Evacuee Laws.

10. On the other hand, Mr. M.M. Bhatti, Advocate learned counsel for respondent No.3 submitted that Faiz Bakhsh in whose favour the RL.II was issued was a fictitious person, in fact Faiz Bakhsh has died in the wake of the partition of sub-continent and had in fact never come to Pakistan. His power of attorney in favour of Yousaf was fake and his act of alienating the property in question in favour of Muhammad Ali his own son was for ulterior motives. He further stated that the petitioner was not protected under section 1 of the Transfer of Property Act, 1882. In this connection he relied upon Babu Khan v. Barkat Bibi and others 1983 SCMR 1098 and Muhammad Akbar and others v. The State 1986 SCMR 489.

11. Arguments have been heard and record perused.

12. It is a fact, that the land in question was confirmed in favour of Faiz Bakhsh vide R.L. II No.174, dated 16-10-1958 in lieu of satisfaction of his Claim No.119257. It is also not denied that the alienation of sale was made by the said Faiz Bakhsh through his attorney Muhammad Yousaf in favour of Muhammad Ali. The said Muhammad Ali further made a sale of the said land in favour of Abdul Ghafoor who continued to be the owner of the said land till he executed the registered sale-deed, dated 20-2-1976 in favour of the petitioner.

13. Respondent No.3 admitted that he filed a suit for specific performance against Abdul Ghafoor in which he admitted Abdul Ghafoor respondent No.2 (herein) to be the owner of the property but with whom he claimed to have entered into an agreement to sell, dated 25-1-1976. Although, he later withdrew the said suit, the mere, fact of having filed the suit for specific performance would conclusively show that respondent No.3 had unequivocally admitted the ownership of Abdul Ghafoor who was the predecessor-in-interest of the petitioner. It is further noticed that the petitioner filed a suit for possession in the Court of Extra-Assistant Commissioner Hasilpur against respondent No.3, on 16-12-1976 respondent Nb.3 entered into a compromise with the petitioner before the said Court. However, instead of handing over possession of land in question respondent No.3 preferred an appeal before the Additional Commissioner, Bahawalpur against the said consent order, dated 16-12-1976. On 12-1-1977 the said appeal was also dismissed. It was during those proceedings that respondent No.3 took recourse to the proceedings before Chief Settlement Commissioner, Punjab, Lahore in what was considered to be Mukhbari application. The proceedings went back and forth between Court of respondent No.1, the Assistant Commissioner, Hasilpur, the Tehsildar, Hasilpur and finally respondent No.1 proceeded to record evidence on 28-4-1977, on the alleged Mukhbari application in the absence of the petitioner. It was on the basis of the said evidence that respondent No.1 passed the order, dated 10-9-1981 which was impugned in this writ petition. The entire proceedings mentioned above would lead to the inescapable conclusion that the conduct of respondent No.3 had been most mala fide. His act of filing a suit for specific performance against Abdul Ghafoor on the basis of agreement to sell clearly proves that he had acknowledged the title of Abdul Ghafoor respondent No.2 who was the predecessor-in-interest of the petitioner. The said suit as stated above, was withdrawn. Again in the suit for ejectment filed by the petitioner against him, respondent No.3 entered into a compromise and undertook to hand over possession to the petitioner. This was yet another acknowledgement of the title of the petitioner. Notwithstanding, the respondent No.3 filed an appeal and failed.

14. As regards, the Mukhbari application suffice it to say that no such application has been placed on the record. In fact no such application is found to exist. In any event the application allegedly filed before the Tehsildar is without authority and the reliance placed on Muhammad Din and 3 others v. O.S.D. General Record Office, Board of Revenue 1986 MLD 432, Muhammad Rafiq v. Nasir Farooq 1986 MLD 155 is .correct. Further, as per the case of Badlu v. Revenue Assistant/A.S.C. 1989 CLC 144, a Mukhbari application before an authority who is not invested with powers under, sections 10/11 of Displaced Persons (Land Settlement) Act, 1958 was without authority. The R.L. II No. 174, dated 16-10-1958 was a past and closed transaction and did not amount to a pending proceedings to invoke the jurisdiction of respondent No.1 under the Evacuee Property and Laws Repeal Act, 1975. -Reference is also made to Tharag v. A.C. 1985 CLC 1871 for the proposition that a Mukhabri application was not competent after the. Repeal of the Settlement Laws by Act XIV of 1975. It was also held in this judgment that rights of bona fide purchaser for value are protected under section 41 of Transfer of property Act, 1882.

15. The next contention of the learned counsel for the petitioner that original claimant had not migrated to Pakistan and the claim was verified through fraud, could not have been questioned under sections 10 and 11 of Displaced Persons (Land Settlement) Act 1958. This matter exclusively related to registration of claim under the Registration of Claims (Displaced Persons) Act, 1956. Reliance is placed on Muhammad Yaqoob and others v. Nazar Khan and others 1983 SCMR 1252.

16. It is also noticed that besides suffering from the abovesaid legal defects, the mode of investigation carried out by respondent No.1 was also illegal. Before the petitioner could be served or appear before respondent No.1, evidence on behalf of the Mukhbari application had already been recorded. The petitioner had no opportunity, of participating in the proceedings adequately as he could not cross-examine the witnesses produced before respondent No.1. The conduct of proceedings was even otherwise in violation of principle of natural justice.

17. The case put up by respondent No.3 is not at all confidence-inspiring. In fact it discloses a mala fide approach of respondent No.3'. By acknowledgment of the title of Abdul Ghafoor and then of the petitioner himself, respondent No.3 had no lotus standi to take a somersault and deny the very existence of Faiz Bakhsh. He had also no locus standi to challenge the verified claim of the said Faiz Bakhsh on any ground. Respondent No.1 also had no jurisdiction to entertain any such application.

18. The upshot of above discussion is that the writ petition succeeds and the order, dated 10-9-1981 passed by respondent No.1 is set aside. Parties to bear their own costs. Q.M.H./M.A.K./N-115/L Petition allowed.