1976 PLP 342 (SCMR)

Abid Hassan Minto, Advocate Supreme Court of Pakistan instructed by Ch. Akhtar Ali, Advocate‑on‑Record, Supreme Court of Pakistan for Petitioner. MUHAMMAD HALEEM, J.‑This is a petition for special leave to appeal from the judgment dated 9th of April, 1975 of the learned Single Judge of the Lahore High Court in Writ Petition No 244‑11 of 1975. The facts necessary for the decision of this petition are that the petitioner purchased 486 kanals and 7 marlas of land situate to Chak No. 10 UCC, Tehsil Ferozewala, District Sheikhupura, from an allottee. Ghulam Rasul for its Rs.18000 by registered sale deed dated 26th of November, 1966 which was executed by his general attorney, Muhammad Siddiq, Muhammad Yamin, general attorney of respondents l and 2 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 before the Additional Settlement Commissioner, Sheikhupura, alleging that claim No. 1305 was that of Ghulam Muhammad son of Jalal and not that of Ghulam Rasul against which the land was allotted. Claim No. 1305 already stood satisfied as land has been allotted to Ghulam Muhammad in Village Kambalpur Jatiala Tehsul Lodhran, District Multan. Later on the case was transferred to the Court of Shaikh Ijaz Ahmad, Settlement Commissioner exercising powers of the Chief Settlement Commissioner. Lahore but on the abolishing of that Court, the case was again transferred to the Court of Mian Waheed‑ud‑Din Rathre, Settlement Commissioner, who alter serving Ghulam Rasul and tiffs attorney with a notice published in the issue of daily "Wafaaq", cancelled the land which was sold to the petitioner. The proceedings were ex parse as they failed to appear on the date of hearing that is, 20th of March 1915 which was the date given out in the notice. It was urged before the learned Single Judge that the petitioner had not been allowed sufficient opportunity to contest the matter, though it was admitted that she had not appeared on the date of hearing. Such plea was urged on the assumption teat if she had appeared, she would halve asked for more time in which case she might have been able to contest the case. It was next contended that the allotment having been proposed as far back as 30th July 1964 and confirmed on 18th of September 1964 by the Deputy Settlement Commissioner Land, the petitioner was led away by such confirmation and purchased the property in good faith for valuable con sideration and therefore the transfer of the land was protected under section 41 of the 7 transfer of Property Act. The learned Single Judge repelled both the contentions. The first, on the ground that the petitioner had not placed any material on record from which she could show that the conclusion of Settlement Commissioner nest Ghulam Rasul had no claim was incorrect and the second, on the prance that the record showed that Ghulam Rasul had no claim and that if the petitioner had made an effort to ascertain the fact, she would have protected herself from the consequences of the fraudulent transfer. In seeking protection of the transfer from a bogus allottee the learned counsel for the petitioner was unable to cite any principle. He frankly conceded that there is no binding precedent to support his contention. In this view of the matter we fail to we as to what rights are being claimed and from whom. In our view no legitimate exception can be taken to the finding that Ghulam Rasul had obtained a bogus allotment of land for such a con clusion is based en consideration of the evidence which stands un-rebutted. Section 10 of the Displaced Persons (Land Settlement) Act, 1958 gives power to annul an allotment which is obtained by fraud and the confirmation of allotment is subject to it. The allotment being in the nature of a grant, do not see how the counsel for the petitioner can press section 41 of transfer of Property Act to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement Act, 1958 that is, it could be cancelled on fraud being established. This being the essential condition of the grant, it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Crown Grants Act, 1895. The contention, that if the petitioner had appeared, she would have asked for time to contest the proceedings is also of no consequence for the counsel for the petitioner did not dispute the correctness of the conclusion of the Additional Settlement Commissioner and all that was pressed was that the transfer in favour of the petitioner be protected. The argument is therefore conjectural and needs no consideration. Lastly it was urged that after the consolidation of the lard holdings the allotted land is no longer identifiable. This question concerns the Settle ment Authority but it cannot be a reason for providing justification for giving validity to the transfer. For these reasons we do not see any justification to grant leave to appeal. This petition is accordingly dismissed. Petition dismissed.