'ALI AKBAR QURESHI, J.--- This judgment will dispose of this as well as the connected Writ Petition No,96-R of 2007, as common questions of law and facts are involved in both these matters.
2. This Constitutional petition assails the validity of a judgment dated 8-6-2007 passed by the learned (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab whereby on an application filed by one Noor Muhammad, the allotment of suit-land in the name of one Phool Khan son of Tajju has been declared fake, fabricated and based on bogus order.
3. The synopsis of the fact as stated in the petition, is that the land measuring 392 Kalnals was allotted to one Phool Khan son of Tajju against Khata RL-II No,118 as a refugee from India in village Tahtti Autar, Tehsil Chunian, District Kasur; the suit-land was subsequently alienated by Phool Khan in favour of Muhammad Ismail son of Muhammad Din through mutation No,477 dated 12-12-1973; that Noor Muhammad, respondent No,2 herein, filed an application on 9-6-1962 to the effect that the land in question was a surrendered land under MLR 89/91; the said land found to be in access of the QPR entitled of one Agha Muhammad Hussain, to whom the land was initially allotted; the respondent No,2 Noor Muhammad claimed in the application that land be allotted to him being a sitting tenant; the said application dated 9-6-19E2 could not succeed because of two legal infirmities i.e, it was made after the target date on 30-4-1962 and second the application was made to SDM, Kasur instead of the competent authority Deputy Commissioner; the application of the respondent No,2 Noor Muhammad was dismissed and being aggrieved thereof he instituted a constitutional petition Writ Petition No,112-R/1967 before this Court; that the writ petition was disposed of with the direction to the Member Board of Revenue to ascertain and determine the right of Noor Muhammad, if any accrued in his favour as Noor Muhammad has deposited some instalments in result of order passed by the Government functionaries. In compliance of the direction passed by this Court in Writ Petition No,112-R of 1967, the matter was heard by Member Colony, who ultimately decided, that the land in dispute is evacuee and not a surrendered land and its allotment in the name of Phool Khan and subsequently sale in the name of Muhammad Ismail is valid and the respondent No,2 NOQ' Muhammad was not entitled to purchase the same.
Respondent No,2 being dissatisfied of the order passed by the Member Colony, filed a Writ Petition No,1212-R-1977, wherein Noor Muhammad respondent No,2 levelled allegations of fraud against Phool Khan son of Tajju and Muhammad Ismail son of Muhammad Din. It was specifically mentioned in the aforesaid writ that no person by the name of Phool Khan son of Tajju ever came to Pakistan from India as refugee and no allotment in his name was made and further the allotment in Khata RLII No 118 was forged, fictitious and bogus and mutation in the name of Muhammad Ismail by way of transfer from said Phool Khan was illegal and result of connivance of the revenue staff which was in fact procured by one Muhammad Ali Naib Tehsildar, who was real brother of said Muhammad Ismail, the alleged purchaser of land from Phool Khan. In the aforesaid writ petition filed by respondent No,2, an order dated 7-7-1981 passed in Writ Petition No,1509- R/1977, was also referred wherein it was held that no such person by the name of Phool Khan son of Tajju is existed and thereafter a contempt notice was issued by this Court to Phool Khan and other person Ibrahim who was his attorney and on the basis of the aforesaid facts, it was claimed, that the allotment in the name of Phool Khan is fraudulent. The writ petition was accepted partially and respondent No,2 was given 8-1/2 Acres land by Muhammad Ismail to make up his suit of 12-1/2 Acres as earlier one it was claimed, that he only owned 4 Acres of land, but while disposing of the aforesaid writ petition, it was observed that the question of fraud may be agitated by the writ petitioner/respondent No,2, before the Member Board of Revenue. The order dated 24-11-1992 passed in Writ Petition No, 1212-R/1977 was challenged by respondent No,2 before the honourable Supreme Court of Pakistan wherein the leave was granted but the same was dismissed in default on 3-12-1998. An application for restoration of the same was filed which was dismissed being barred by time; thereafter review petition was filed by the respondent to review the order which was also dismissed but while dismissing the review application on 8-12-2003; it was observed that as per the order, dated 3-12-1976 passed by the Member Board of Revenue land stood allotted to Phool Khan and confirmed in the name of subsequent purchaser but on the question of fraud in the allotment of land in the name of Phool Khan, the obserVation of the single Judge of this Court in his judgment dated 24-11-1992 in Writ Petition No,1212-R of 1997 was reiterated whereby respondent No,2 was allowed to approach to the Board of Revenue.
4. The respondent No,2 after passing the order of the honourable Supreme Court of Pakistan again started filing applications to different concerned authorities including to the Member Board Of Revenue/ Chief Settlement Commissioner, the Chief Settlement Commissioner heard the application/ complaint of respondent No,2 as case No,12 of 2005 and finally passed the order, impugned herein.
5. Learned counsel for the petitioner contends that the allotment made in favour of Phool Khan son of Tajju was valid, therefore, the alienation of the land in question in favour of the petitioner is in accordance with law and no fraud has been committed by the petitioner. Next contended, that the allotment made in favour of Phool Khan is very much mentioned in RL-H and the effect of the same was too given in the Revenue Record. Further, that the matter stands decided up to the honourable Supreme Court of Pakistan, therefore, the learned Member Board of Revenue/Chief Settlement Commissioner had no jurisdiction to reopen the matter or the cancel the land from the name of Phool Khan on the basis of alleged fraud and misrepresentation. Learned counsel in support of his arguments referred to the judgments/orders passed by this Court as well as the honourable Supreme Court of Pakistan in different cases filed by the parties to the case. As regards, the certificate issued by the revenue authorities of India and attested by the office of Consulate General of Pakistan, in India that the same is not in accordance with law. As the said document was brought privately by the respondent, therefore, does not fall in the definition of public documents as given in Article 89(5) of the Qanun-e-Shahadat Ordinance, 1984. Further stated, that the original copy of certificate regarding Ali Gohar who allegedly surrendered his access land and subsequently transferred to Phool Khan has not been submitted and further, the same has not been certified by the legal keeper. Reliance is placed on 1991 CLC 1201. The aforesaid copy has not been produced before any forum except before the Chief Settlement Commissioner, therefore, the copies are fictitious one. Also argued that the Member Board of Revenue/Chief Settlement Commissioner was not a notified Officer as required by law, therefore, the order passed by the aforesaid official is without jurisdiction and lastly that no right of hearing has been provided to the petitioner by the Member Board of Revenue/Chief Settlement Commissioner. RL-II is 30 years old documents and presumption of truth is attached and further the death certificate of Phool Khan dated 30-11-1997 is permissible in evidence. Reliance is placed on Abdul Majid and another v. Qaazi Abbas Hussain Shah 1995 SCMR 429, Muhammad Shafiq, etc v. Atta Muhammad, etc 1985 SCMR 1272, Messrs Rizwan Cooperative Society Ltd. v. Lahore Development Authority and others 1990 SCMR 1660, Masihullah and another v. The Deputy Settlement Commissioner-II, Board of Revenue Punjab 1995 SCMR 914, Mrs. KP Boga and others v. Ejaz Ahmad Khan, Deputy Settlement Commissioner, Lahore 1991 MLD 835, Shah Nawaz (deceased) through Mst. Rashidan and others v.
Muhammad Sharif and another 1991 CLC 342, Bashir Ahmad and 5 others v. Mst. Hamida Begum and 5 others 2003 CLC Lah. 374, Abdur Rashid and 12 others v. Chief Settlement Commissioner/Deputy Commissioner, D.I. Khan and 5 others 2000 MLD 1726 Pesh. Din Muhammad and 6 others v. Member, Board of Revenue Punjab/Chief Settlement Commissioner, Lahore 2006 CLC 168 Lah., Muhammad Tahir and others v. Nazeer Ahmad 2008 SCMR 541, Mst. Badshah Begum and others v. The Additional Commissioner (R) Lahore Division and others 2003 SCMR 629, Ussama Tariq v. Administrator (Residual Properties)/Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others 2003 SCMR 616, Abdul Qadir and 14 others v. Member (Revenue) Board of Revenue, Punjab, Lahore 2002 YLR 2105, Maulana Atta-ur-Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663, Mst. Khalida v. Raja Muhammad Khurshid Khan 2008 CLC 1570 High Court AJ&K; Glaxo Laboratories Ltd. v. Inspecting Assistant Commissioner of Income tax and others PLD 1992 SC 549; Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others 1991 CLC 1201 Lah., Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gul and 7 others 1999 CLC 106 Pesh.
And Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704.
6. Conversely, Mr. Mehmood A. Sheikh, learned counsel for Settlement Department, submitted that the Chief Settlement Commissioner had suo motu jurisdiction to cancel any allotment if the same has been procured by playing fraud and misrepresentation; the petitioner who is vendee has no right to prosecute his case, if the allotment from the name to the original allottee is cancelled after the Repealed Laws. Reliance is placed on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, 1993 CLC 1943, Khair Din v. Mst. Salman and others PLD 2002 SC 677 and Waheed Ahmad and others v. Additional Commissioner (Revenue)/ Settlement Commissioner, Rawalpindi Division, Rawalpindi and others 1990 CLC 220. No claim was filed in the name of Ali Gohar; neither any allotment was made in the name of All Gohar from whom the Phool Khan claims title of the property in question.
7. As regards the exercise of jurisdiction to re-open the case by the Chief Settlement Commissioner, the learned counsel urged that the case can be reopened if the fraud is proved. Reliance is placed on Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801. On facts, learned counsel submitted, that it is proved form the record, that the person namely Ali Gohar never came to Pakistan as refugee; no allotment was made in his favour; the person by the name of Phool Khan son of Tajju is not in existence; the mutation of the land in dispute was entered on the same day in the name of Phool Khan and Ismail and this all was managed by one Muhammad Ali, Naib Tehsildar, who was real brother of Muhammad Ismail, the alleged purchaser of land from Phool Khan. As regards, to pass an order for investigation in the matter, learned counsel relied upon the following judgments Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691, Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819, Muhammad Baqir v. Haji Shokat Ali and 3 others 2005 CLC 1106 and Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901.
8. Sh. Abdul Aziz, Advocate, learned counsel for the respondents argued on the line of Mr. Mahmood A. Sheikh, Advocate and further submitted that the RL-II has already been declared bogus and further, the petitioner could not prove the existence of Phool Khan son of Tajju, therefore, all the transactions in the name of Phool Khan are result of fraud and misrepresentation.
9. Mr. Muhammad Zafar Chaudhry, learned counsel submitted that the fraud committed by the petitioner has been proved from the documentary evidence and the findings recorded by the learned Member Board of Revenue, therefore. The petitioner is not entitled for any relief.
10. Heard.
11. From the perusal of the record, it is found that the petitioner is claiming title on the ground that originally the land in question was allotted to one Phool Khan son of Tajju in lieu of claim of his predecessor namely Ali Gohar son of Shadi Khan and the petitioner purchased the land against consideration from the aforesaid allottee after consulting the record of the Settlement Department particularly RL-H of village Thjathi Otar, wherein the allotment in the name of Phool Khan son of Tajju is A entered at Serial No,118. The respondent to rebut the claim of the petitioner has placed on record certain copies of the Revenue Record issued by the Indian Revenue Authorities, which shows that Ali Gohar never migrated to Pakistan and died in India on 26-12-1991. The aforesaid document has also been attested by the office of High Commission for Pakistan New Dehli. The document mentioned abOve has already been evaluated and appreciated by the learned Member Board of Revenue/Chief Settlement Commissioner and concluded that the claim of the petitioner is based on bogus and fabricated orders. The learned Member, Board of Revenue also consulted complete record pertaining to the alleged claim of the petitioner including RL-II No,118, inquiry conducted by the subordinate revenue officer and the order/judgments passed by this Court including the honourable Supreme Court of Pakistan and finally concluded, that no person by the name of Phool Khan is existed, Ali Gohar and the person by the name of Phool Khan never migrated to Pakistan and the alleged I allotments shown in the name of Phool Khan are based on bogus and fabricated orders. It is pertinent to mentionhere, that the learned Member has specifically referred the mutation No,477 Dated 2-1-1973 and mutation No,478 dated 12-12-1973 which was in fact result of a false note recorded by the Revenue Authorities in connivance with Muhammad Ali, Naib Tehsildar who was brother of Muhammad Isma il, one of the vendee of Phool Khan son of Tajju. As regards the existence of Phool Khan, the learned Member bas specifically referred Writ Petition No,1509-R of 1977 filed by said Phool Khan. During the proceedings of the aforesaid writ petition, despite direction, Phool Khan and Ibrahim did not appear and contempt notices were also issued in their name.
12. The aforesaid factual aspect has already been dealt with after consulting the Revenue and Settlement Department's record by the learned Member Board of Revenue/Chief Settlement Commissioner in detail, therefore, there is no need to further discuss the same. Even otherwise Constitutional jurisdiction can only be exercised, if the order or action is against the law.
13. The learned counsel for the petitioner mainly argued the case on two points; firstly no opportunity of hearing has been provided to the petitioner by the respondent-department and secondly the matter cannot be reopened or inquired by Member Board of Revenue/Chief Settlement Commissioner being past and closed transaction.
14. As regards the right of hearing, the teamed Member has specifically mentioned in his judgment, impugned herein, that the notices were issued in the name of the petitioner but they deliberately avoided to appear before the Member with ulterior motive. Even otherwise, Mr. Talat Farooq Sheikh, learned counsel fro the petitioner stated at the bar that despite the fact, no notice was issued in the name of the petitioner, he will argue the case on merits before this Court. The case was argued at length by Mr. Talat Farooq Sheikh, learned Advocate on two occasions and thereafter Mr. Saleem Sheikh, Senior Advocate filed his power of attorney on behalf of the petitioner and sought time to further argue the case, the time was given and the learned Senior Counsel made his submissions on three consecutive dates, therefore the petitioner has been given ample opportunity to argue this case before this Court on his request.
15. The learned counsel for the petitioner on the strength of a judgment passed by the honourable Supreme Court of Pakistan in Civil Review Petition No,61/1000(sic) and Criminal Original No,45 of 1999 has argued that the allotment in favour of the petitioner has already been confirmed by the honourable Supreme Court of Pakistan, therefore, the respondent-department had no authority in law to reopen or re-inquire the matter. It is better to refer the litigation remained pending in different Courts pertaining to this case, the detail is as under:---
(i) A Writ Petition No,1509-R of 1977 was filed by Phool Khan, vendor of the petitioner through Mr. Talat Farooq Sheikh, Advocate wherein at one stage, a direction was given to Phool Khan, deceased to appear in person but he did not appear and it was observed by this Court in Paras 2, 3 and 4 of the aforesaid judgment:---
(2) The evidence on record shows that Phool Khan who filed the application is in fact not the same person as Phool Khan son of Tajjoo. According to the Electoral Roll P W.1/1 and other statements on record, he is Phool Khan son of Phannsu. One Ibrahim who had appeared as P.W.3 stated that he was appointed as attorney by Phool Khan and that he came to the office of Mr. Tallat Farooq, Advocate to get this petition filed.
(3) In view of the statements on record as well as Exh.P.W.1/1 it is clear that Phool Khan impersonated to file this petition. It was done prima facie at the instance of Muhammad Ibrahim.
This petition filed on behalf of a person other than the claimant it consequently dismissed with costs in the sum of Rs,1000.
(4) As it is a case of impersonation and as neither Ibrahim nor Phool Khan has appeared despite a direction by this Court, let notices under the Contempt of Court Act issue to them along with bailable warrants in the sum of Rs,10,000 (ten thousand) each with one surety each in the like amount to the satisfaction of the S.H.O Bhai Pherru. The office shall fix a date after the vocations.
(ii) Writ Petition No,1212-R of 1977 was filed by Noor Muhammad respondent No,2 which was disposed of on 30-11-1992 wherein it was observed as under:--- "In view of the above, the writ petition is accepted to the extent that respondent No,8 will surrender 8-1/2 Acres land out of disputed land in favour of petitioner before Assistant Commissioner, Kasur.
As to the question of fraudulent allotment, it is for the petitioner to approach the Chief Settlement Commissioner/member Colonies Board of Revenue, Lahore. No relief can be granted in this regard being disputed question of fact. There is no order as to costs."
'The said order was assailed by respondent No,2 before the honourable Supreme Court of Pakistan wherein in para 4 of the judgment, the observations recorded by this Court in Writ Petition No,1212-R of 1977 whereby the respondent No,2 (Noor Muhammad) regarding the fraudulent allotment was allowed to approach the Member (Colonies) Board of Revenue, was reiterated.
'As revealed from the record, thereafter the respondent No,2 filed different applications to different concerned authorities wherein it was alleged that the allotment of the land in question in the name of the petitioner is result of fraud and misrepresentation, the matter was inquired by the revenue authorities, which was assailed by the petitioner through a Constitutional Writ Petition No,16285 of 2004 which was disposed of and the action of the respondent-authorities were declared without lawful authority but while concluding the judgment, it was observed as under:--- "It is, however, observed that pursuant to the judgment dated 24-11-1992 passed in Writ Petition No,1212-R/1977, if any proceedings are pending before the learned Member Board of Revenue/ Chief Settlement commissioner, the same will be conducted in accordance with law by associating all concerned in the matter."
16. In the above background, the learned Member Board of Revenue started the proceedings on the application filed by respondent No,2 (Noor Muhammad) and reached to a conclusion that the allotment of the property in question allegedly claimed by the petitioner in the name of Phool Khan son of Tajju is fake, fabricated, result of fraud and misrepresentation and also based on bogus order.
17. Much stress has been laid down during the course of arguments, that the Settlement Authorities have no jurisdiction to reopen the matter for investigation or to rescind the allotment. On this proposition, reference may be placed on the following judgments, wherein it is observed, that the Settlement Authority can deal with the matters, if the allotment order has been procured by playing fraud and misrepresentation:--- 'Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801:- 'Generally speaking, Settlement authorities become bereft of jurisdiction to deal with the property after the issuance of a valid P.T.D. But this principle is subject to a rider clause that the transfer of the property must have been made within jurisdiction by conscious application of mind and without any element of fraud or misrepresentation in obtaining the transfer of evacuee property.
'Muhammad Baqir v. Haji Shokat Ali and 3 others 2005 CLC 1106 (Lahore). ---Ss.2 & 3---Forged transfer Order---Initiation of Inquiry by Notified officer to find out, whether such order existed and was issued by a competent authority--Validity---Notified Officer could deal with only pending matters after repeal of Displaced Persons and Evacuee Property Laws-- Present question could be gone into by Notified Officer for the reason that in case, Transfer Order was found to have not been issued and did not exist or same had not been issued by any competent authority, then property would revert back to Provincial Government to be dealt with in accordance with law---Question of nature or availability of property or entitlement of respondent to transfer of property would not be decided---If such order upon due inquiry was found that same was forged and had not been issued at all, then same would be a non existent order and would not need to be set aside and would have to be ignored.
'Custodian of Evacuee Property, Lahore v. Syed Saif Uddin Shah (Represented by his heirs) PLD 1981 SC 565. ---S. 36(5)---Pakistan (Administration of Evacuee Property Act (XII of 1957), S. 43(6) (as amended by Pakistan (Administration of Evacuee Property) (Amendment) Ordinance (LXIII of 1962), S.3)--- Review---Confirmed allottees under Rehabilitation Scheme---Held: Could maintain review petition before Custodian of Evacuee Property and Custodian could also act suo motu in matter even though allottees possessed no locus standi---Review rightly granted on ground of suppression of material facts and misrepresentation amount to fraud.
'Khair Din v. Mst. Salman and others PLD 2002 SC 677.
(c) Fraud--- ---No benefit can be derived by a person claiming proprietary rights in a particular property based on fraudulent transaction---Fraud if established on record, is sufficient to vitiate most solemn proceedings. Waheed Ahmad and others v. Additional Commission (Revenue)/ Settlement Commissioner Rawalpindi Division Rawalpindi and others 1990 CLC 220.
(c) Fraud--- ---Duly to undo the effect of fraud---Fraud vitiates, the most solemn proceedings---No party should be allowed to take advantage of his fraud---There can be no rational basis for discriminating between the powers available, in this regard to a Court of general jurisdiction and a Court or Tribunal of special or limited jurisdiction, for in either case the effect of fraud would be the same, and the duty to undo that effect must lie on the authority on which fraud was practised. Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221.
(c) Review--- ---Right of a party to claim a review of final judgment or order of a Court, judicial or a quasi judicial Tribunal, in a substantive matter, was not available in the absence of a provision in the relevant statute---Cases of fraud, mala fides and defect of jurisdiction generally stood on a different footing as fraud vitiate the most solemn proceedings.
(d) Constitution of Pakistan (1973)--- ---Arts. 185(3) & 199---Jurisdiction of Supreme Court and High Court under Arts. 185(3) and 199 of the Constitution respectively--- Scope-- Superior Court may decline to intervene, in the exercise of discretionary and equitable jurisdiction under Art.185(3) of 199 of the Constitution where grant of relief would amount to retention of ill-gotten gains or would otherwise lead to injustice.
18. It has also been observed by the honourable Supreme Court of Pakistan that the order procured by fraud, can simply be D ignored when pressed into service. Reference is placed on:-- 'Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901:--- ---Order passed by the Authority which was in excess of jurisdiction or which the Authority had no jurisdiction to pass under the law, could not be defined as final order---Orders falling in such categories conferred no title and did not require to be set aside and could be simply ignored when pressed into service.
19. While dealing with the principle of locus poenitentiae it has been observed by the honourable Supreme Court of Pakistan in the following judgment that the Authority E which can pass an order is entitled to vary, amend, add to or to rescind that order.
'The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207:--- ---S.21---Authority which can pass an order, is entitled to vary, amend, add to or to rescind that order.
'Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal, order. In the present case the appellants when came to know that on the basis of incorrect letter, the respondent was granted. Grade-II, they withdrew the said letter.
20. In the following judgment, the honourable Supreme Court of Pakistan had discussed the suo mom powers/jurisdiction treated to recall or review the order by a Court or Tribunal:-- 'The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
'While there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practiced. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained form it by fraud.
'Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819. ---S.2---Constitution of Pakistan (1973), Art. 199---Tribunal's power to adjudicate matter within its jurisdiction.--Settlement authority issued notice to respondent for adjudication of appellant's complaint wherein he had complained that respondent had secured order of transfer in his favour on basis of forged and nonexistent documents---Said notice was set aside by High Court on respondent's constitutional petition, conceding therein, Settlement Authority's jurisdiction to examine question of forgery and fabrication in his own record---On no principle, known to Constitutional jurisdiction, power of Tribunal to adjudicate a matter within its jurisdiction could be pre-empted by High Court in the words in which it was done---Custodian of record is the best Judge, in first place, to determine about veracity, correctness ness and genuineness of its own record---Such Tribunal should have been given opportunity to discharge its duty in that respect-- -Review of adjudication could have taken place in High Court only after adjudication of same by Tribunal/ Settlement Authority---Impugned judgment of High Court was set aside and case was remanded to Settlement Authority to proceed with determination of allegation relating to forgery of its record.
21. As regards the right of hearing to the vendee or the successor in interest, the honourable Supreme Court of Pakistan has laid down the principle in the following judgments:--- 'Yar Muhammad and 3 others v. Settlement Commissioner (L), Lahore and 5 others 1985 SCMR 1346. ---Art. 18(3)---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11---Cancellation of allotment of land obtained by impersonation/fraud-Successorsirk-interest challenging order on ground that they were neither issued notice nor heard before cancellation---Rights said to have been acquired by petitioners on the basis of such allotment having no value, failure to hear them was of no consequence---Said point not having been raised in High Court, Supreme Court declined to interfere---Leave to appeal refused.
'Misri Khan v. Settlement Commissioner 1994 CLC 2225 (Lahore). ---Ss 10 & 11---Constitution of Pakistan (1973), Art. 199---Cancellation of allotment of land in the name of original allottee--Rights of vendees from such allottee---Petitioners being vendees had to suffer along with the original allottee, they having no independent title of their own qua the disputed property---Petitioners in their capacity as vendees of evacuee land were not entitled as of right to be heard before the allotment from the name of original allottee was cancelled--- Petitioners (vendees) never became owners of land in ' question, they having purchased the same from a person who himself was not to be treated as its owner---Petitioners were, thus, not entitled to any relief in circumstances.
22. In this case, the petitioner has claimed, that he has purchased the land in question from the alleged original allottee and is the bona fide purchaser. On this proposition, I am fortified by the Principle laid down in the judgment as under:--- 'Nazir Ahmad v. Commissioner Gujranwala Division, Gujranwala 1993 CLC 1943.
(a) Transfer of Property Act (IV of 1882)--- ---S.41---Displaced persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11---Cancellation of allotment of land---Allotter's verified claim found to be bogus--- Cancellation order of allotment was upheld up to the High Court--- Despite cancellation of allotment of land, order of cancellation, was not implemented in Revenue Record and allotted land remained recorded in the name of allottee---Allottee's successors-in-interest sold the land in question, in favour of petitioner--- Revenue Record was subsequently rectified in terms of Cancellation of allotment-- Petitioner (Purchaser) claiming to be bona fide purchased for value and claiming protection under S.41.
Transfer of Property Act, 1882---Petitioner could not be termed as bona fide purchaser for value of land in question---Inaction of revenue officials to implement the order of cancellation of allotment of land could not sanctify and infuse life into the non-existent acts---Long before the sale of land in favour of petitioner, allottee was divested of his entitlement to hold the land in question--- Allottee being himself not entitled to hold the land in question, his successors could not confer better title on petitioner--- Fraud and misrepresentation nullify the whole basis and any superstructure built on it must fall to the ground and crumble to pieces--- No law can sanctify fraud, forgery and fabrication for building up civil frights on them---In equitable jurisdiction, it would not be appropriate to protect the product of fraud and forgery---Petitioner was, thus, not entitled to protection under S.41, Transfer of Property Act 1882.
'Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549.
(a) Evacuee Property and Displaced Persons Laws (Repeal Act (XIV of 1975)--- ---Ss.2, 3 & 4---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11---Transfer of Property Act (IV of 1882, S.41---Evacuee Land---Allotment in favour of vendor not being a Mukhbar was found to be fraudulent and was cancelled--Vendees claimed protection of S.41 of Transfer of Property Act, 1882, for having purchased land from vendor, who was its ostensible owner--- Validity---Entitlement of vendees was based upon entitlement of vendor---Vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to vendor---Vendor having failed to keep his entitlement alive, vendees claim was bound to be rejected.
(a) Fraud--- ---Fraudulent transaction---Effect--Fraudulent transaction vitiates even most solemn proceedings---Such transactions has no foundation to stand upon---Whenever such transaction is declared null and void, then whole series of such order along with superstructure built upon same is bound to collapse.
23. From the above discussion and the law laid down by the honourable Supreme Court of Pakistan, it can safely be held, that the alleged allotment of land in question in the name of one Phool Khan is a result of fraud and misrepresentation, and based on bogus and fabricated orders; no person by the name of All Gohar or Phool Khan migrated to Pakistan, therefore, all the transactions of the land in question in the name of Phool Khan or the petitioner, have no sanctity in law, therefore, the learned Member, Board of Revenue/Chief Settlement Commissioner has not committed any irregularity, legal infirmity or jurisdictional defect while cancelling the allotment of land in the name of the petitioner.
24. Learned counsel for the petitioner, although, argued the case at length but has failed to point out anything contrary to the H record or the law with the findings recorded by the learned Member while delivering the judgment, impugned herein. The law cited by the learned counsel for the petitioner is not applicable on the facts of instant case, therefore, is not helpful to the petitioner.
25. Resultantly, both these writ petitions have no force and are dismissed I with no order as to costs.