1986 PLP 552 (MLD)

Ch. Muhammad Nazir Ahmad for Respondents Nos.1 and

2. Ch. Bashir Ahmad for Respondents Nos.3 to

11. Respondents Nos. 12 and 13: Ex parte. Rana Abdur Rahim for the Remaining Respondents. Date of hearing: 1st March, 1986. This order will dispose of Writ Petition No.1162‑R/7& and Writ Petition No.1219‑R/78 as these challenge the same impugned order.

2. Petitioners claim to be bona fide purchasers for value of land at Khata No.74 of Kot Karam Chand, Tehsil and District Gujranwala, of an area measuring 620 Kanals 16 Marlas equivalent to 1590 P.I. Units and at Khata No.224 of village Mahesian, Tehsil and District Gujranwala of an area measuring 928 Kanals 15 Marlas equivalent to 2322 P.I. Units allotted in the names of Muhammad Ismail and Inayatullah, respondents Nos.12 and 13, claimant displaced persons from Jammu & Kashmir on their Q.P.R. verified for 3700 Units on 25‑9‑62 and mutations were sanctioned in due course. They also claim to have purchased land at Khata No.225 of village Mahesian, Tehsil and District Gujranwala, of an area equivalent to 1407 P.I. Units allotted in the name of one Fateh Din and mutation was accordingly sanctioned.

3. On a Mukhbari application proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 ended in the dismissal of the application on the grounds of non‑prosecution and lack of proof, vide order of the Settlement Commissioner (L)/Chief Settlement Commissioner, dated 29‑1‑1977. However, restoration application, dated 12‑2‑77 was allowed the same day. The petitioners were impleaded as party to the proceedings on the application of the Mukhbars fled on 25‑9‑

77. Agha Hassan Raza, Settlement Commissioner/ Chief Settlement Commissioner, vide order, dated 29‑11‑1977 cancelled all the three allotments and directed the allotment of the cancelled area in favour, of the then petitioners according to their entitlement. This has been challenged by the petitioners through this Constitutional petition.

4. Learned counsel for the petitioners has contended that a perusal of the Mukhbari application (Annexure 'G') would show that although it is marked by the Chief Settlement Commissioner on 29‑6‑1974 but the power of attorney attached with the application shows that even the stamp paper affixed on the power of attorney was purchased on 3‑7‑1974. It was, therefore, contended that the order, dated 29‑6‑1974 on the application under the designation of C.S. C. is a forged matter. In any case, it was submitted that the application could not have been filed without the power of attorney which was filed on 3‑7‑1974 and the application could not be entertained because the law under which it was filed had been repealed from 1‑7‑1974, vide Act XIV of 1975. It is, next, contended that the petitioners who were bona fide purchasers for value and in whose favour mutations of sale were sanctioned, were not impleaded as party during the survival of law and after the repeal thereof they could not be impleaded as party. Reliance was placed on Mat. Shatabi and others v. A.C./Collector, Kasur and another P L D 1984 C L C 1418 and 1983 C L C 2550. It was, next, contended that the statement of Muhammad Ismail on his own behalf and on behalf of his brother Inayatullah that they had not procured the allotment, is neither here nor there because they having sold the land could say anything. The petitioners were purchasers for value since 1962‑63 and for full one decade nobody had complained thereabout.

5. Learned counsel for the Settlement Department has submitted that the case may be sent back to the Notified Officer for ascertainment of facts and fresh decision.

6. Learned counsel appearing for the purchasers from the subsequent allottees who have got themselves impleaded as a party submitted that after the cancellation of the area from the names of the predecessor‑in- interest of the petitioners, it was allotted to the respondents Nos.3 to 11 who, in turn had sold the same in favour of the contesting respondents through registered sale‑deed, dated 15‑11‑1978 for a sum of Rs.9,00,000 and therefore, these persons being bona fide purchasers for value are entitled to retain the land.

7. In reply, the learned counsel for the petitioners has stated that the new purchasers from the subsequent allottee have no right whatsoever because their purchase is of during the pendency of the writ petition which was filed on 7‑11‑1978 and under the doctrine of lis pendens, they are bound by the result of the litigation.

8. I have heard the learned counsel for the parties at length and perused the record with their assistance. Mukhbari application (Annexure 'G') although appears to have been endorsed by the Chief Settlement Commissioner on 29‑6‑1974, yet, undeniably no proceedings had commenced until 1‑7‑1974, on which date the law under which such applications could proceed had been repealed, vide Act XIV of 1975. The application was by a large number of persons through a Mukhtar who had filed the power of attorney as per stamp‑paper purchased on 3‑7‑1914. Now on 3‑7‑1974, of course, no proceedings could commence as the law had already been repealed two days earlier, vide the aforementioned Act. The proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 are not above‑board and not in accordance with law. Moreover; the petitioners were impleaded as party on 25‑9‑1977. They could not be impleaded as a party because the law under which the proceedings could be taken against them had already been repealed five years earlier. Most important is the consideration that the allotments were made and mutations were sanctioned in favour of the petitioners some time in the year 1963. More than two decades later to unearth the fraud as alleged by the learned counsel for the newly‑impleaded respondents would only amount to unsettle settled transactions on the basis of public record by authorities of competent exclusive jurisdictions. As regards the allotment at Khata No.225 of village Mahesian, Tehsil and District Gujranwala, made in favour of Fateh Din stated to have been purchased by the petitioners, it may be noted that it has been pointed out by the learned counsel for the Settlement Department that this Khata was cancelled on a reference of the Director, Enforcement by the Chief Settlement Commissioner, (Sardar Hidayatullah) on 14‑9‑1970. Learned counsel for the petitioners stated that against this order, the petitioners had filed Writ Petition No.326‑R/74 which had been allowed and case remanded and the remand proceedings are still pending. Therefore so far as the cancellation of allotment of this Khata, vide the impugned order is concerned, that is of no effect and the matter is yet to be determined by the Officer to whom the case in relation to the allotment of this area stands remanded and is pending adjudication. As regards the cancellation of the allotments from the other two Khatas, that is to say, Khata No.74 of Kot Karam Chand and Khata No.224 of village Mahesian, Tehsil and District Gujranwala, allotted in favour of Muhammad Ismail and Inayatullah and stated to have been purchased by the petitioners are concerned, their cancellation as stated above is without lawful authority because the proceedings under which the action was taken were neither well‑based nor could commence against the petitioners after the repeal of the law as mentioned above. The newly‑impleaded respondents did not act according to the principle of caveat emptor otherwise they would have known, if had looked at the record, that the land was not free for purchaser and was pitched under the dark clouds of contentious litigation. Doctrine of lis pendens clearly knocks them out.

9. In view of what has been stated above, the two petitions are allowed but, in the circumstances, the parties are left to bear their own costs. A.A. Petitions allowed.