' SARDAR MUHAMMAD ASLAM, J.--- Rasheed Ahmad and others have called in question the judgment dated 19-9-2001 passed by a learned Single Judge in Chambers whereby while accepting the writ petition, it was held that Abdul Sattar respondent will be entitled to retain the excess land on payment of price to be determined by the Notified Officer in accordance with law.
2. Briefly the facts of the appeal are that the land in dispute was originally allotted to Abdul Baqi Khan, a displaced claimant, on 20-2-1954. Abdul Sattar claimed to be a vendee from Abdul Baqi through registered sale deed dated 30-1-1962 and Mutation No,334 was attested on 17-3-1962. On 15-2-1973, appellants filed a Mukhbari application under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 that the allottee had obtained excess land by making wrong and fraudulent calculation concerning his produce index units. The allotment was cancelled by Additional Settlement Commissioner (Land) Gujranwala on 25-7-1977 without notice to the allottee or the vendee. It was challenged through Writ Petition No,347/R of 1977 which was accepted on 4- 6-1986 and the matter was remitted to the Notified Officer for decision afresh in accordance with law. This time the Notified Officer vide order. Dated 23-1-1988 cancelled the allotment to the extent of 1424 units and ordered the same to be allotted to the informers/petitioners. This again was challenged through Writ Petition No,34-R of 1988 which was accepted through the impugned order.
3. Learned counsel for the appellants contends that application of the appellants under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 was pending disposal at the time of repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975; hence the land in dispute was not available for disposal under section 3(i) of the Act and the respondents-vendees were not entitled to protection under section 41 of the Transfer of Property Act, once a finding has been recorded that the vendor has obtained the land through a bogus claim fraudulently. He relied on the case of Hakim Ali and 2 others v. Ghulam Muhammad and 2 others 1995 SCM R 459.
4. On the other hand, learned counsel for the respondents argued that the respondents, being bona fide purchasers without notice of defect of title, could not be deprived of the land purchased by them on payment of prevailing market price.
5. We have heard the learned counsel for the parties and have perused the record with their able assistance.
6. Learned Judge in Chambers placed reliance on the cases of Inayat Ullah v. Additional Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner Gujranwala and 21 others 1991 M LD 2549, and Muhammad Shafiq Khan and others v. Settlement Commissioner (Land) and others 1992 CLC 372, in holding that informers are not entitled to allotment of land found in excess of the entitlement of the allottee and a bona fide purchaser was entitled to protection under section 41 of Transfer of Property Act.
7. Judgment rendered in Muhammad Shafiq Khan's case 1992 CLC 372, was assailed before the Honourable Supreme Court. The view taken by High Court was not approved in the case of Abdul Sattar through Legal Heirs and others v. Muhammad Shafiq Khan and others 1994 SCM R 2021, wherein it was held that excess allotment was rightly cancelled by the Settlement Commissioner and directed its allotment to informant under sections 10 and 11 of the Act for adjustment of their outstanding valid claim. The protection under section 41 of the Transfer of Property Act was found not available in the case of fraudulent allotment. Vendees were held to survive or sink with the vendor as fraudulent transaction vitiates the most solemn proceedings. Reference can be had to the case of Talib Hussain and others v. Member, Board of Revenue and others 2003 SCM R 549.
8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under section 41 of the Transfer of Property Act. We respectfully follow the above view. After holding so, the next question which crops us as to whether allotment of the land can be made in favour of informants against their un-utilized produce index units. The Honourable Supreme Court in the case of Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCM R 1635, held as under:-- "It may be seen that after repeal of evacuee laws, no provisions were made for allotment of land against any pending verified P.I.Us. Therefore, this Court while examining effect of above referred notification and repealing Act ruled that any allotment order for adjustment against P.I.U. Procured by private persons was completely devoid of lawful authority. Relevant observation supporting this view appears in case of Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others 1991 SCM R 1255, and are reproduced here under:-- "(8) With the repeal of the Evacuee Laws in 1975, the un-allotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.
(9) We find, therefore, though for reasons somewhat different recorded by the High Court that the dismissal of the two writ petitions and the acceptance of the revision petition was the requirement of law and justified in the circumstances of the case. The appeals have no merit and are dismissed with no order as to costs."
10.(sic) Reference can also be had to the observations recorded by the Honourable Supreme Court in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner Punjab, Lahore v. Muhammad Mustafa and 74 others 1993 SCM R 732. It was held that informer having not succeeded at any stage have been able to secure a direction from the High Court for settlement of the pending units from anywhere in the Province. Such direction was manifestly against law, it cannot be allowed to remain. Reliance can also be Placed on the case of Ali Muhammad (deceased) through legal representatives and others v. Chief Settlement Commissioner and others 2001 SCM R 1822, wherein provision of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was considered. It was held that claimants who had not succeeded in getting evacuee agricultural land confirmed/satisfied in their favour in terms of sections 10 and 11 of the Act till first of July, 1974, when Evacuee Laws and Regulations were repealed, their cases could not be deemed to be pending for the reasons that produce index units possessed by them had not been adjusted. Such claimants could however, invoke other remedy if available under law for claiming compensation from the Government against their unutilized produce index units.
11. In view of above, we are fortified in our view that appellants/ informers cannot press their claim for allotment after repeal of evacuee laws.
12. Now, when the sale in favour of respondents is not protected, whether the respondents-vendees were entitled to transfer of land in their favour in view of section 3(i) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. We notice that section 3 provides that all properties both urban and rural including agricultural, which may be available for disposal immediately before the repeal of aforesaid Acts and Regulations or which may become available for disposal after such repeal shall stand transferred to the Provincial Government. The words 'immediately before the repeal' of the aforesaid Acts and Regulations are meaningful. The land vests with the Provincial Government. It shall dispose of the same in terms of section 3.
13. For what has been discussed above, with profound respect, we are not persuaded to follow the view expressed in the judgment of learned Judge in Chambers giving protection to sale secured by their vendor through fraudulent and bogus claim. At the same time appellants who are applicants under sections 10 and 11 of the Displaced and Settlement Act against their unutilized claim, having not succeeded in securing the land before the repeal of Act, are not entitled to claim relief. The land in dispute vests with the Provincial Government which may see its disposal in accordance with provision of section 3 of the Repeal Act. The respondents may approach the concerned authority under section 3 of the Evacuee Displaced Persons Laws (Repeal) Act, 1975, if so advised.
14. The appeal is disposed of in the above terms.