1984 PLP 1000 (MLD)

MUHAMMAD ZAHOORUL HAQ, J.--The petitioner in these three petitions, namely, Mst. Saleem Khatoon, Ali Muhammad and Imtiaz Ali, in Petitions Nos.91/78, 96/78 and 102/78 respectively, have challenged the orders of Deputy Commissioner and Authorised Officer, Nawabshah, who had allowed the application of Imam Bux (respondent No.3 in all the three petitions) and cancelled the allotment of agricultural land in Deh Kaka, Taluka Sakrand, which had been made in favour of Syed Ishtiaq Ali, the predecessor of the two petitioners, in Petition No.91/78 and of claimant Abdul Hamid the predecessor-of-petitioners in Petitions Nos.96/78 and 1021.78 respectively, as the allotments were held to have been obtained by fraudulent means and were based upon forgery committed in the record of rights. The judgments of all the cases are almost identical hence they are being decided by this common judgment. The relevant facts of the three petitions are briefly stated as follows: - Constitutional Petition No. 91 of 1978.

2. Respondent Imam Bux applied to the Chief Minister of Sind, in 1974 alleging that 373 Acres of Government Naqabuli land have been allotted to the claimants fraudulently. Thereupon enquiries were made and the allotment mere on 4-2-1976 in favour of Syed Ishtiaq Ali was cancelled. However, Mat. Saleem Khatoon, petitioner filed Writ Petition No.133/76 in the High Court on the ground that she had not been heard although she had purchased the land from the said claimant Syed Ishtiaq Ali. The High Court set aside the order of cancellation of allotment, on 20th October, 1977, and remanded the case to the Deputy Commissioner, Nawabshah, for decision on merits.

3. Before the Deputy Commissioner a reference was made to a partnership deed between Syed Mansoorul Hasan and Ali Muhammad Rahu attorney of Mst. Saleem Khatoon, dated 30th June, 1968 where the parties had agreed to acquire agricultural land on lease from Government and other private parties to start food and fodder growing agricultural farm. In the said partnership deed Ali Muhammad Rahu was shown to be in possession of agricultural land by way of lease measuring 345 Acres situated in Deh Kaka, Taluka Sakrand, which was declared as Naqabuli.

4. On 15-6-1972 the land measuring 173.32 Acres in dispute was allotted by the Chairman Allotment Committee, Moro, in favour of claimant Syed Ishtiaq Ali vide Parchi Taqseem Khatooni, dated 15-6-1972 and later on 11-1-1973 Dhani Bux attorney of Syed Ishtiaq Ali secured mutation order in respect of the said land.

5. Imam Bux, respondent, had claimed that land had been lying barren since last 40 years and that he had developed the land after the same had been allotted to him as Naqabuli land in 1968.

6. The matter was argued before the Deputy Commissioner and he held that the allotment of the land by the Chairman Allotment Committee had not been correctly made as the said Chairman Mr. Imdadullah Unar had certified by a letter, dated 22-1-1975 that the allotment did not bear his signature and that it was bogus and forged. He further held that Ali Muhammad Rahu the husband of the Petitioner Mst. Saleem Khatoon who is also the father of petitioner Ali Bux had clearly admitted in the partnership deed entered into by him with Manzoorul Hassan that it was Naqabuli land and it had been leased out on long terms. The Deputy Commissioner also took note of the fact that there was interpolation in V.F.VII A and that the Assistant Commissioner, Sakrand, had given the details of the interpolation made in V.F.VII, A at entry No.87/2 where S.Nos. 212 to 236 had been added later on whereas originally there was only S.No.'64' written in the name of Asanmal and 3 others. It was also noted that at entry No.68 of V.F. VII-A. S. Nos.237 to 240 and 261 to 272 were added to the original S. No.459 in the name of Naval Rai and 7 others and Survey Nos. 606 and 610 were over lined with different ink. At entry No.87/2 of V.F.VII B, S. No.459, was original but other 18 survey numbers were added by forgery and S. Nos.606 and 610 had been cut by putting a line across them and some were shown in the name of the Central Government. The report had further stated that entry No.99 of V.F.VII-A originally S. No.303 was in the name of Hindu Khatedars Mooranmal Tekchand and 5 others but 23 other survey numbers including S. No.274 were added to this entry. It was also pointed out that in other entries Survey No.297 had been shown at 2 entries to be the property of Mooranmal and others. The Deputy Commissioner also found that V.F.VI of Deh Kaka for 1957 shows that the survey numbers allotted to the claimant Syed Ishtiaq Ali were actually Naqabuli land belonging to Government and that V.F.VII-A of Deh Kaka showed that the land has been fraudulently changed in the name of the Central Government as the entries made in V.F.VII are in different ink and in different handwriting. The Deputy Commissioner took note of `the fact that one of the 2 copies of V.F.VII-B in respect of entry N0.87/2 produced on behalf of Mst. Saleem A Khatoon in the High Court had actually not been signed by Abdul Qadir Ansari whose signature it allegedly bore because Abdul Qadir Ansari had clearly stated in his statement on 20-3-1978 that he had not signed that certified copy on 14-1-1975. The Deputy Commissioner finally came to the conclusion that Survey Nos.227 to 240 and 261 to 267. measuring 106.16 Acres in Deh Kaka, Taluka Sakrand, are Government Naqabuli land and the allotment thereto was obtained by .fraudulent means, misrepresentation of facts and forgery was committed in the record of rights and, therefore the allotment made in favour of the claimant Syed Ishtiaq Ali was ab initio, wrong, illegal and, therefore it was cancelled and since Mst. Saleem Khatoon had obtained land through claimant whose title was void, therefore, her title was also null and void and the mutation made in favour of the claimant and subsequent, purchasers should be cancelled. Constitutional Petition No. 96 of 1978:

7. Survey Nos. 274 to 277, 276 to 289, 294, 298, 300, 301, 606, 610 and 494 of Deh Kaka Taluka Sakrand were allotted to claimant Abdul Hamid on 5-5-1973 measuring 163.07 Acres. On the other hand in the year 1967 the Government of West Pakistan had published a schedule of Naqabuli Government land for disposal situated in the same Deh Kaka. The same included S. Nos.261 to 263, 279 to 282, 274 to 277, 279, 286 to 288, 292 to 294, 298, 300, 301, 534, 562, 587, 658,

659. Out of these 128.17 Acres was granted to Imam Bux, respondent for 10 years and 103.5 Acres were granted to Petitioner Ali Muhammad Rahu for the same period and possession was delivered to the lessee. Petitioner Ali Muhammad Rahu entered into a partnership with Syed Manzoorul Hasan dated 30-6-1968 where Ali Muhammad Rahu had shown that he was in possession of land measuring 345 Acres situated in the same Deh. Respondent Imam Bux moved an application in 1974 for cancellation of allotment of Abdul Hamid and Syed Ishtiaq Ali on the basis that the allotments of Naqabuli survey numbers as an evacuee property could not have been made, that the same had been procured by making interpolations with V.F.VII of Deh Kaka and that forged power of attorney in the names of claimants Abdul Hamid and Syed Ishtiq Ali had been procured and 105.25 Acres of land were sold to Imtiaz Ali son of Ghulam Muhammad Tapedar and 157.22 Acres to Ali Muhammad Rahu and that since the land had been treated as Naqabuli Government land in 1947 and had never been treated as evacuee property, therefore it could not be allotted as evacuee property. The Deputy Commissioner had originally decided the said application on 16-1-1975 and had allowed the same but only Abdul Hamid and Imtiaz Ali had been made as opponents. Ali Muhammad Petitioner filed C.P.140/76 in the High Court which was allowed on 6-10-1977 on the ground of breach of principle of natural justice and the case was remanded to Deputy Commissioner for disposal. The impugned order was passed by the Deputy Commissioner on 27-7-1978 after hearing Imam Bux, Ali Muhammad Rahu and Imtiaz Ali and claimant Abdul Hamid through Dhani Bux, attorney. The Deputy Commissioner again held that the allotment in favour of Abdul Hamid had been obtained by fraudulent means and forgery is committed in the record of rights and, therefore, it was ab initio wrong and was, therefore, cancelled. Since Abdul Hamid had disposed of the lands to Imtiaz Ali and Ali Muhammad Rahu therefore the same was also held as null and void and entries made in favour of the claimants and subsequent purchasers were ordered to be cancelled.

8. The order of the Deputy Commissioner shows that it was passed A after perusing the Rehabilitation Record. The finding is that the land in question is not entered in the Land Register as evacuee property. The Deputy Commissioner also took into consideration the fact that Abdul Hamid who claimed to be a direct claimant had given a power-of -attorney to Dhani Bux on 19-3-1973 where the age of Abdul Hamid is shown as 26 years but it was not explained as to why it was so. He took note of the fact that the claimant Abdul Hamid had been summoned to Appear before him on the address given in the claim filed but he had failed to appear. This finding of the Deputy Commissioner shows that claimant Abdul Hamid had just been born in 1947 as he was 26 years on 19-3-1973 and, therefore, direct claim of Abdul Hamid appears to be rather suspicious.

9. The Deputy Commissioner had come to the finding after perusal V.F.VI and VII that there were interpolation cuttings and over writings in the record-of-rights and that different ink and handwriting had been used while making forgeries in the record. The Deputy Commis sioner also took note of the fact that the land in question had been declared as Naqabuli in the year 1968 and allotted to Ali Muhammad Rahu petitioner as such and, therefore, it proved that this land was Naqabuli land. The Deputy Commissioner in his findings about the interpolations in V.F.VII relied upon the report of the Assistant Commis sioner, Sakrand, dated 30th Match, 1978, where it is shown:- "That entry No.65 of V.F.VII-A, S. No. 64 was originally written in the name of Assanmal and 3 others but subsequently S. Nos. 212 to 236 have been interpolated while at entry No.87/2 of V.F.VII-B; S. No.64 is original, but other 25 survey numbers have forgedly been added in the name of Nawalrai and 7 others. While S. Nos.237 to 240, 261 to 272(1) have been included and S. Nos.606 and 610 which were written, have been overlined with different ink. While in the names of Nawalrai and others, but other 18 S. Nos. have been added forgedly. S. Nos. 606 and 610 have now been out and put a line across the same and shown in the name of Central Government. He has further reported in V.F.VII-A vide entry No.99 S. No.303 (Original) seems to rye entered in the names of Hindu Khatedars Moranmal s/o Techand and 5 others but S. Nos.274 and others in all 23 have beer added. In other entries S. No.297 has been shown at two entries that is of Moranmal and others and Gopandram and others respectively." The Deputy Commissioner took further note of the fact that the true copy of entry No.87/2 of V.F.VII-B in respect of land in Deh Kaka in the name of Central Government which had been produced by Ali Muhammad Rahu petitioner in the High Court had been denied to have been signed by Abdul Qadir Ansari in his statement of 20-3-1978 who had stated that his signature shown on the true copy was a forged one.

10. The village Form VI of Deh Kaka was also relied upon by the Deputy Commissioner and the same showed that the survey numbers allotted to claimant Abdul Hamid were actually Naqabuli lands belonging to the Government whilst V.F.VIII of the same Deh showed that the land had been fraudulently changed in the name of evacuee as the entries made therein were in different ink and different handwriting and hence the impugned order. C. P. No. 102 of 1978:

11. The position of Imtiaz Ali petitioner in C.P. No.102/78 is that on 19-5-1973, he purchased 275, 276, 286 to 288, 292, 297, 298, 300 and 301, measuring a total area of 105.25 Acres from claimant Abdul Hamid through the attorney, Dhani Bux. He has, however, not taken any allotment of Naqabuli land from Government. However, since the allotment in favour of Abdul Hamid is the basis of his entitlement and the same has been cancelled by the Deputy Commissioner, Nawabshah, on 27-7-1978 hence the transfer, by Abdul Hamid of the property in favour of Imtiaz Ali is at par with that of Ali Muhammad Rahu.

12. In respect of Petition No.91/78, Mr. Imam Ali Kazi had submitted that the application of Imam Bux having been made only on 24-8-1974, the same was barred under section 2(2), of the Repealing Act, 1975 which had been given retrospective effect from 1-7-1974. However, in this respect it would be useful to refer to paragraph 8 of counter affidavit of Imam Bux dated 26-1-1984 where he has produced photostat copies of letter of Deputy Commissioner, Nawabshah to Mukhtiarkar, Sakrand where it is shown that application was presented by Imam Bux before Prime Minister on 8-1-1971 and another letter is also produced which is dated 20-1-1974 and, therefore, it is obvious that Imam Bux had moved his application on 18-1-1974 before the Prime Minister. It is, therefore, obvious that his application dated 24-8-1974 moved before the Chief Minister was merely in continuation of his old application and, therefore, the proceedings in respect of this property should be deemed to have continued pending from 18-1-1974 hence this objection is over ruled. In this respect of the objection about the jurisdiction of Deputy Commissioner it would be pertinent to point out that the case of Imam Bux had been remanded by the High Court for consideration to the Deputy Commissioner by order, dated 16-10-1977 and therefore, the order of the Deputy Commissioner dated' 27-7-1978 w6s passed in pursuance of a direction of the High Court and was, thereto", competently passed by it. I am clearly of the view that the petitioners before me had never raised the question of the application by Imam Bux before the Deputy Commissioner to be without jurisdiction till 16-10-1977 and that even if they had raised the same then the High Court has disallowed that objection and the petitioners having never challenged the order of the High Court for remand of the case to the Deputy Commissioner the petitioners are not entitled to raise that issue now.

13. Mr. Imam Ali Kazi also contended that the V.F.VII produced by the petitioner should have been relied upon as the same showed that the disputed land belonged to the Central Government. However, in this respect we have a definite finding of fact from the Deputy Commis sioner who has come to the conclusion that there was interpolation in V.F.VII in respect of various entries which have been noted above and this finding of the Deputy commissioner, is supported by a report from Assistant Commissioner, Sakrand. The finding is also supported by entries in V.F.VI and, therefore, it is not possible for this court to go into the disputed questions of fact which have been gone into at length by the Deputy Commissioner and he has arrived at a particular finding in respect of that.

14. I may here observe that the disputed land is a Katcha land and, therefore, the finding that it was shown as Naqabuli land in 1957 and was allotted as such in 1968 cannot be seriously questioned. It is an admitted position that this land was allotted in 1968, as Naqabuli land to Imam Bux respondent as well as to Ali Muhammad Rahu, who is himself petitioner in Petition No.96/78 and is also the husband and father respectively of the two petitioners in Petition No.91/78 and also their attorney. Since Ali Muhammad Rahu has himself taken lease of these lands as Naqabuli land from Government, therefore, petitioners in Petitions Nos.91/78 and 96/78 are really estopped from challenging the position that the land was a Naqabuli land. It has been found as a fact that this land was not shown in the R.L.2 register as an evacuee land and its character in 1957 was of a Naqabuli land as shown in Village Form VI, therefore, it could not be an evacuee property and it could not have been acquired by the Central Government in 1959 as an evacuee property. The finding that it was a Naqabuli land in 1957 is again a finding of fact arrived at by the Deputy Commissioner upon reasonable evidence and hence it is binding upon all the petitioners.

15. Moreover, the Deputy Commissioner having clearly held that the allotment of land in favour of Syed Ishtiaq Ali had not been signed by Imdadullah Unar the then Chairman of the Allotment Committee and that his signature was forged is a finding of fact which has not even been challenged by the petitioner except that it had been stated that Imdadullah Unar made his statement about the forgery of his signatures under influence of the then thief Minister. Therefore, the factum of Imdadullah Unar having denied his signatures on the allotment which is the basis of the case of the petitioners in Petition No.91/78, the very allotment vanishes, and hence the finding that the allotment had been obtained by bogus means is a finding of unexceptionable nature and this alone is a complete answer to Petition No.91/78.

16. In respect of C.P.96/78, the learned counsel for the petitioner, submitted that the Authorised Officer had no jurisdiction to take up the application of Imam Bux as Act XIV of 1975, Evacuee Property and Displaced Persons Laws Repeal Act, 1975 which had been made retrospective from 1st July, 1974 had merely provided the transfer o proceedings pending on 1-7-1974 but the application of Imam Bux was made on 24-8-1974 and hence it was not covered by section 22 of the said Act, XIV of 1975. This submission is not justified in view of the fact that Imam Bux respondent in his affidavit presented on 29-1-1984 in this Court has stated in para. 11 that he had filed a revision application much before the repeal of the Displaced Persons Land Settlement Act, 1958 and the said revision application was pending before the Settlement Commissioner at the time of the repeal of the act and that he had laid information before the respondent No.1 as Additional Settlement Commissioner, Land, as a delegatee of Chief Settlement Commissioner, regarding bogus and fraudulent allotment. Since this position adopted by the respondent Imam Bux appears to be correct hence the respondent No.1 had the jurisdiction to decide the case as an Authorised Officer. Moreover, the Supreme Court has assumed the jurisdiction on remand of the case from the High Court which was made on a petition of this petitioner himself and it was never challenged before the Supreme Court, therefore, the Settlement Commissioner ha the authority to proceed with the case and pass the impugned order. The learned counsel then contended that no person had been examined by the Deputy Commissioner and hence there was no evidence before him. This contention has no force. The Deputy Commissioner has taken into consideration the R.L.2 register which did not show that the land in question was an evacuee property and he has further taken into consideration the report submitted by the Assistant Commis sioner, Sakrand, showing interpolations in V.F.VII and he has also perused the records before him namely V.F.VI and V.F.VII and he has found that there were in fact interpolations in the record and, therefore, the said finding is not open to question before me as the Deputy Commissioner was the competent person who could come to a conclusion in respect of the interpolations in the record of 'rights. Moreover, he has taken into consideration V.F.VI which he had the right and privilege to consider and he had found discrepancies between V.F.VI and V.F.VII and, therefore, he was entitled to reach the conclusion that he had reached.

17. I find that the finding that it was a Naqabuli land is based upon V.F.VI as well as the implied admission on the part of Ali Muhammad Rahu which he made when he accepted the lease of the disputed land in 1968 from the Government as Naqabuli land. I am, therefore, of the view that the petitioners in Petitions Nos. 91/78 and 96/78 are estopped frown challenging the said position as Ali Muhammad Rahu had himself taken the lease of the Raqabuli land and, therefore, it was not open to him to challenge that position and to claim that it was an evacuee property.

18. The land in question being a Katcha land its nature was liable to change in different times and, therefore, the finding that it was a' Naqabuli land in 1957 and continued as such till 1968 when it was leased out by the Government as Naqabuli land makes it probable that it was Naqabuli land and hence it could not be acquired by the Central Government. The counsel then contended that documents I-1 to I-3 of the Petition No. 96/78, had been left out of consideration. This submission is not correct. The Deputy Commissioner has taken into consideration the deed of 1906 and has come to the conclusion that it is too old and in respect of record of .1912 he has observed that these copies were of 1912 and the petitioners had failed to prove their case by producing the subsequent changes in the record of rights. Therefore, the submission that the Deputy Commissioner has not taken these documents into consideration is not entirely correct. The Deputy Commissioner had the jurisdiction to make a decision and he has done so. This Court cannot interfere with that order merely because it was not correct or that another view of the evidence could be taken. In any case even if documents referred to by the learned counsel which are three sale-deeds of 1906 and 1914 had been taken into consideration the position would not have been any different because the petitioners had to prove that the land was actually not Naqabuli in 1947 and that the same position had continued in 1957 to .1959 but the petitioners, failed to prove these contentions and, therefore, the order of the respondent No.1 appears to be justified in circumstances of the case. Moreover, the factum that claimant Abdul Hamid was shown as 26 years of age in the power-of- attorney given by him to Dhani Bux makes it rather doubtful that he could be a direct claimant of agricultural land left in India in 1947 and he was likely to have been born only in 1947, because the power-of -attorney was given in 1973 and the same showed his age to be 26 years. Moreover, the Deputy Commissioner had issued a district notice to Abdul Hamid claimant but he did not appear before him nor has that claimant Abdul Hamid appeared before me in this petition in spite of the fact that the Deputy Commissioner had expressed himself strongly on this aspect of the case. Even in this Court an affidavit on behalf of Abdul Hamid has been sworn only by his attorney Dhani Bux without giving any explanation about the age of Abdul Hamid. This position makes the allotment in favour of Abdul Hamid very suspicious and hence the order of the Deputy Commissioner appears to be justified on this ground as well.

19. In regard to Petition No.102/78 I may add that the case of Imtiaz is rather worse than that of Ali Muhammad Rahu inasmuch as the Deputy Commissioner, Nawabshah, on 16-1-1975 had cancelled the allotment of Abdul Hamid after notice to Abdul Hamid and further held that the claimant could not have disposed off the land to Imtiaz. Imtiaz was represented before the Deputy Commissioner Nawabshah, on 16-1-1975, but he had never challenged that order of 16-1-1975, before the High Court in any writ petition while Ali Muhammad Rahu had challenged the same in Petition No.140/78 and, therefore, that order of Deputy Commissioner, dated 16-1-1975 had attained finality as against Imtiaz. Of course he had not taken any Naqabuli land on lease from the Government. But otherwise on facts the findings in. respect of interpolation in record of rights are equally binding against him and are not open to challenge before me. Mr. Niazi A. Khaliq could not show any reason as to why transfer of land in his favour by Abdul Hamid should be treated differently than the transfers in favour of Ali Muhammad Rahu and Mst. Saleem Khatoon. The order of 27-7-1978 shows Imtiaz to have been impleaded as a respondent before the Deputy Commissioner and, therefore, Imtiaz could have filed the petition. But even Imtiaz is a transferee from Abdul Hamid whose allotment is found to have been improperly made and even his personality is not above suspicion as he has failed to appear before the Deputy Commissioner and even before me in this petition to explain as to how he was 26 years of age in 1973 and still can claim to be a direct claimant.

20. For the foregoing reasons these petitions are dismissed. M.Y.H. Petitions dismissed