Muhammad Nawaz Abbasi, J.--This appeal, by leave of the Court, has been directed against the judgment dated 24.7.1998 passed by Lahore High Court, Lahore, whereby Writ Petition Bearing No, 154-R/1985, filed by the appellant, involving the dispute of land was dismissed. Despite service, no one appeared on behalf of the respondents, therefore, they are proceeded against ex-parte.
2. The facts of the case, in small compass, are that in 1963, land measuring 3 kanals 1 marla which also included land measuring 1 kanal and 6 marlas bearing Khasra No, 281/72-73 Khata No, 11 of the Register RL-II, Sialkot was proposed for allotment in the name of Respondents No, 3 and 4 and Fard Taqseem was accordingly issued to them on 3.1.1963 and 3.10.1963 which was confirmed in their name vide order dated 26.5.1965. The allottees thereafter sold the land measuring 1 kanal 6 marlas to the appellant vide registered sale-deed dated 30.4.1964 with possession and she constructed two rooms at the site. However, Ali Hussain by way of filing an appeal challenged the order of confirmation of land without impleading the appellant as party. The appellate authority allowed the appeal in which case was remanded to the Settlement Officer and on dismissal of revision filed by the appellant against the remand order as time barred vide order dated 21.8.1976, she filed a Writ Petition No, 1905-R/76 which was allowed by the High Court vide order dated 1.6.1981 in which direction was given to the revisional authority for decision of revision afresh. Meanwhile original allottees i,e, Respondents No, 3 and 4, having withdrawn their claim of produce index units from the district in which the land was allotted to them, got the same transferred in another district. The settlement authorities, treating the disputed land measuring. 1 kanal 6 marlas available in the joint khata allotted 17 marlas of land to Respondent No, 2 on 24 6.1974/10.5.1973 without partition. The appellant filed a revision petition against the order of allotment of land in favour of Respondent No, 2 which was dismissed by Additional Commissioner (Rev) exercising the powers of Settlement Commissioner, Gujranwala, vide order dated 20.4.1985. The appellant being aggrieved of the above order, filed a writ petition in the Lahore High Court and on dismissal of the same, she preferred a CPLA before this .Court in which leave was granted vide order dated 4.12.2002 as under:-- "3. It is, inter-alia, contended; (a)That in appeal before the Additional Settlement Commissioner which was decided on 20.5.1965, the petitioner was not made party, therefore, she was condemned unheard;
(b) That the petitioner had purchased the land from the allottee whose claim was never held to be in-genuine through sale-deed as far back as 30.4.1964 therefore, the said allottee could not have got his units transferred to some other village to deprive the petitioner of her valuable, right as owner thereof, though it was possible may be in case of cancellation of the allotment of the allottee on the ground of fraud in obtaining the allotment in excess of verified claim or no claim, therefore, the petitioner could not have been deprived of the land purchased by her before the allotment after confirmation of the same in favour of Muhammad Shafi and he could not in such a case get the units transferred and even if the units were transferred to some other village, the allotment in that village should have been cancelled instead of depriving the petitioner of her valuable rights who had purchased the same with valuable consideration without notice bona fidly.
4. Leave is granted to consider inter-alia the above contentions. Till the disposal of the appeal, possession of the petitioner over the land in dispute shall not be disturbed or interfered with."
3. Mr. Shahzad Shaukat, learned ASC, counsel for the appellant has contended that the appeal filed by Ali Hussain and Muhammad Iqbal (locals) was time barred and was liable to be dismissed alone on the above ground. The learned counsel submitted that order of cancellation of allotment of Respondents No, 3 and 4 by the Additional. Settlement Commissioner was without lawful authority and further the order passed by the revisional authority was not in accordance with the judgment of High Court dated 1.6.1981 passed in Writ Petition No, 1905-R/1976.
4. Having heard the learned counsel for the appellant and peruse& the record with his assistance, we have found that revisional order was not based on sound principles as the revisional authority without considering the material available on record in proper manner passed the order and the legal defect in the order escaped the notice of the High Court. The Settlement Commissioner, in the post remand proceedings, without giving due consideration to the points raised before him rejected the revision petition in a perfunctory manner and similarly, the observation of the High Court that the question relating to the validity of the order passed by the appellate authority in appeal decided in the earlier round attained finality by virtue of the judgment dated 01.04.1981 passed by the High Court in Writ Petition No, 1905-R/76, filed by the appellant was the result of misreading of true facts on record. This may be painted out that in the earlier round of litigation writ petition was accepted by the High Court whereby the order of the Settlement Commissioner was set aside and case was remanded for decision afresh of the revision petition in which appellant had challenged the order dated 26.5.1965 and consequently, the contention of learned counsel for the appellant that in the facts of the present case in the background, Section 41 of the Transfer of Property Act, 1882, would come to the rescue of the purchaser has sufficient force and no exception could be taken to the judgment of the High Court in the earlier round of litigation wherein it was held that order dated 21.8.1976 passed by the Settlement Commissioner (Lands) was without lawful authority. In consequence thereto, notwithstanding the withdrawal of units from the District of original allotment, the right of ownership already accrued in favour of appellant could not be disturbed through the device of transfer of Units and since the subsequent order of allotment passed by the settlement authorities was without lawful authority to the extent of land owned by the appellant, therefore, would have no effect on her right, title and interest in the land subject matter of the dispute. These are the reasons for our short order of even date, which is read as under:-- "For the reasons to be record later, this appeal is allowed, the impugned judgment dated 24.7.1989 passed by the Lahore High Court, Lahore is set aside and in consequence thereto, the appellant is declared to be lawful owner of the property."
5. This appeal is accordingly allowed with no order as to the costs.