' CH. MUHAMMAD TARIQ, J.---This writ petition has been directed against the order dated 20-2-2010 passed by learned Member Board of Revenue (J-V)/CSC.
2. The cause of action as given in the writ petition is that the petitioners are owners of land measuring 313. Kanals 11 marlas bearing Khewat No,409, Khatoni No,1213, 1214 according to the jambandi for the year 2007-08 of revenue estate Dhingsha, Tehsil and District Kasur. The petitioners are owners in possession of land as reflected from entries of jamabandi for the year 2007-08 and khasra girdawri. The chequered history of this litigation is that vendor of petitioners was Hussain son of Somaar, a refugee of Junagarh state, India. He submitted and got registered his claim before Claim Officer South Zone, West Pakistan, Karachi. The verification of claim was carried out by Deputy Claim Commissioner, Karachi Mr. Aitmad-ud-Din Siddiqi, who after hearing the claimant and perusing the gazette record which came from India, passed a judicial order dated 31-1-1960 by giving details of Urban and Rural properties of claimant abandoned in India. The entitlement certificate was issued at Serial No,49651. QPR, regarding 12512 Produce Index Units. The other entitlement certificate was issued at Serial No,16382 (UR V) regarding 10556 PIU's dated 3-1-1972, in compliance of order dated 30-12-1971 of Settlement Comniissioner Land/OSD, issued for District Sheikhupura and Lahore.
3. Hussain son of Somaar filed a Mukhbari application before the AC/ Additional Settlement Commissioner Land, Kasur, under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 against Wallah son of Kamala caste Dogar, whereupon the report was requisitioned. It was reported by the concerned staff that claim form of Wallah was submitted after target date, i,e, 5-1- 1952, therefore, he was not entitled of 25% Peshi but he was allotted more thap his entitlement, land measuring 313 Kanals 11 Marlas at RL II Khata No,168/131. The Assistant Commissioner/ Additional Settlement Commissioner Land passed detailed order dated 16-4-1976 and cancelled land measuring 313 kanals-11 marlas from khata of Wallah Dogar and further ordered for allotment in favour of Hussain son of Somaar as informer.
4. The land was accordingly allotted in favour of Hussain son of Somaar, who further alienated the land measuring 313 kanals 11 marlas vide registered Sale-deed No,1441 dated 26-4-1976 against consideration of Rs,400,000 in favour of Muhammad Yousaf and Nisar Ahmed petitioners Nos.1 and
2. Accordingly, Mutation No,1236 was sanctioned on 4-6-1985. The sale-deed and mutation in favour of petitioners are intact uptill now.
5. Wallah son of Kamala filed a Writ Petition No,556-R of 1976 against the order of AC/ASC, Kasur dated 16-4-1976 before this Court which was rejected on 22-4-1976. He filed a Review Application No,36 of 1976 before this Court which was also rejected after hearing both the parties vide order dated 22-5-1985. These two orders were challenged through filing of I.C.A. No,122 of 1985 before the Division Bench of this Court which was also rejected on 10-6-1985. The relevant portion of the order is reproduced as under:-- "We find that the chief ground urged by the learned counsel for the appellant before the learned Single Judge which went to the root of the jurisdiction was based on the plea that the Mukhbari application had been filed on 17-9-1975 after the repeal of the Displaced Persons Land Settlement Act, 1958. This stands fully belied by the report of the notified officer with the powers of Addl.
Settlement Commissioner which clearly brings out that the Mukhbari application had been moved against him on 7-6-1973 before the repeal of Act and the appellant had actually participated in the proceedings on 23-11-1973 and he personally appeared and presented an application which is Annex-A to the report. This shows that the chief ground urged by the appellant as to want of jurisdiction in the notified officer from taking the impugned proceedings factually has no basis."
6. All the above said orders were challenged before the Hon'ble Supreme Court through C.P.L.A.
No,804 of 1985. The petitioner Wallah before the Hon'ble Supreme Court raised several objections including that Hussain son of Somaar is a fictitious person and posture. Another objection was taken that at the time of passing of order dated 16-4-1976, the settlement laws had been repealed, hence AC/ASC passed the order without having any jurisdiction. But the Hon'ble Supreme Court while passing the detailed order dated 11-12-1985 upheld the allotment order dated 16-4-1976 in favour of Hussain son of Somaar. The above said all orders have attained finality.
7. Thereafter, the legal heirs of Wallah son of Kamala filed several miscellaneous applications before different forums but they could not succeed to get any order in their favour and against the petitioners. However, the petitioners aggrieved by the proceedings of District Revenue Authorities filed a Writ Petition No,18148 of 1995 before this Court, which was accepted vide order dated 2-11- 2001. The relevant portion of order dated 2-11-2001 is reproduced as under:- "1 have gone through the copies of the documents placed on record of this writ petition. The factual statement made in the writ petition and stated by the learned counsel is borne out. I do find in the said state of affairs when apex Court of the country has upheld the order of Chief Settlement Commissioner which is basis of the said mutation, the Commissioner and Board of Revenue have dismissed the applications for cancellation of mutation and District Collector has dismissed the application of respondent No,4 for same relief, the proceedings commenced by the AC-II Grade on the said application of respondent No,4 are wholly without lawful authority. This writ petition is accordingly allowed and the impugned proceedings are declared to be without lawful authority. The Member (Revenue) Board of Revenue shall institute an inquiry as to how in the said circumstances AC-II, Kasur, has commenced proceedings. In case it is found that despite knowledge of the said orders passed by the Supreme Court as also High Court, Board of Revenue, Commissioner Lahore Division and District Collector Kasur, AC-II Grade has commenced proceedings, he should be issued a show-cause notice to explain as to how he commenced the proceedings and in case he is unable to explain, further disciplinary proceedings be taken against the said officer. Copy of this order be immediately remitted to the learned Member Board of Revenue, Lahore.
8. The Chief Settlement Commissioner and District Revenue Authorities again started inquiry for cancellation of land of petitioners. The petitioners filed another Writ Petition No,6434 of 2005 which was decided vide order dated 16-5-2005. In result whereof, the inquiry was dropped giving the reason that the matter has already been settled upto the level of the Hon'ble Supreme Court.. The relevant portion of order dated 16-5-2005 is reproduced as under:-- "Respondents Nos.1 to 4 have filed the report and para-wise comments.
(2) Latter stated that both the enquiries pending before him as well as before DCO, have since been dropped, when the respondents No,1 to 4 were appraised that the matter has already been settled upto the level of the Hon'ble Supreme Court of Pakistan.
(3) Face with this statement, former has not much to say.
(4) In view whereof, the present petition has become infructuous and no live issues are left to be decided by this Court.
' Petition stands dismissed having become infructuous."
9. Another round of litigation was started when allotment order was passed by Additional Settlement Commissioner in favour of Hussain son of Somaar. Aggrieved by the order of Additional Settlement Commissioner, Ghulam Rasool filed appeal before ACR/Settlement Commissioner Land, Lahore Division which was rejected vide order dated 29-5-1972 which attained finality.
10. The present round of litigation was started due to filing a Mukhbari application dated 19-6-1972 by Ghulam Rasool against Hussain son of Somaar. Aggrieved by the proceedings, Hussain son of Somaar filed a Writ Petition No,173-R of 1973 against Mian Waheed-ud-Din Rathore Additional SC/CSC to stop the proceedings. This Court issued notice to the parties and finally disposed of the writ petition vide order dated 21-12-1973. This Court directed Hussain to raise the preliminary objections regarding the maintainability of Mukhbari application as the matter has been already decided between the parties by Mr. Zaka Ullah Naik Settlement Commissioner Lahore vide order dated 29-5-1972. Mr. Waheed-ud-Din, Additional SC/CSC rejected the Mukhbari application vide order dated. 11-8-1977.
11. Ghulam Rasool etc. Informers filed a Writ Petition No,1388-R/1977 before this Court which was rejected on 28-10-1977. The informers filed I.C.As. Nos.118 and 119 of 1977 which too were rejected on 15-6-1981. Ghulam Rasool filed a Civil Appeal No, 135 of 1984 before the Hon'ble Supreme Court which was remanded vide order dated 25-5-1991 to the Board of Revenue, Punjab giving direction to the MBR. The relevant portion of order dated 25-5-1991 is reproduced hereunder:-- "As the allegations made by the appellants in the Mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for a proper inquiry. The. Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka-ud-Din Naik before recording its findings on the Mukhbari application. The appellants shall also have the costs of these appeals."
12. The CSC/MBR (J-V) passed his order dated 20-2-2010 by cancelling the land measuring 313 kanals and 11 marlas of petitioners situated in Mauza Dhingsha, Tehsil and District Kasur and also the allotment of Revenue Estate of Mauza Charar and Ajodhia Pur of District Lahore from the name of Hussain son of Somaar etc. Hence this writ petition.
13. Learned counsel for the petitioner inter alia contends that the petitioners are 'owners in possession of the land measuring 313 kanals and 11 marlas since 1976 which they purchased through registered sale-deed and it was later on incorporated in the Revenue Record through mutations. The ownership is reflected in the current entries of Revenue Record but while passing the impugned order, the petitioners were never impleaded as party to the proceedings and no summons or proclamation was made for the attendance of the petitioners. Learned counsel contends that while passing the order dated 20-2-2010, the learned Member Board of Revenue has given reasons in para. 16 of the judgment that settlement laws were repealed at the time of passing of order dated 16-4-1976 by the AC/ASC, hence he was not competent to cancel or allot the land. Learned counsel further contends that the principle of audi alteram partem has been violated. The petitioners are absolute owners in possession of the suit property which in no way falls within the definition of pending cases, so respondent No,1 had no jurisdiction to pass the impugned order.
14. Learned counsel for the petitioners has further contended that the petitioners purchased the suit-land from Hussain son of Somaar on 3-1-1972, legal entitlement certificate was issued which was 'never challenged. The petitioner purchased the suit land on 26-4-1976. Before that on 16-4- 1976, a mukhbari application was allowed. Wallah filed a writ petition which was dismissed on 22- 4-1976. He assailed the said order in review petition which was also dismissed on 22-5-1985.
Learned counsel further argues that in compliance of the order of the Hon'ble Supreme Court, the learned Settlement Commissioner also called Mr. Zaka Ullah Naik, Addl. Commissioner Revenue, with the powers of Settlement Commissioner Lahore Division, for recording his statement regarding the authenticity of order passed upon the Appeal No,7 of 1972 titled "Hussain v. Settlement Department". Mr. Zaka Ullah Naik categorically admitted that it is correct that Letter No,322 dated 5- 2-1972 written and signed by him giving the reply regarding the above said appeal. He again said that Letter No,322 was signed by him, as reveals from the record dated 7-2-1972. He further stated the order dated 8-2-1972. Signed by me the interim order dated 16-5-1972 and initial signature dated 11-5-1972 are also same as I was doing and do now-a-days.
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19. Learned counsel for the petitioners further argues that the claim of Hussain son of Somaar was .Passed through verification order dated 31-1-1960 by the Deputy Claim Commissioner Mr. Aitmad- ul-Haq through a judicial order, which is intact uptill now,. Hence the CSC/MBR was not competent and had no jurisdiction to declare the claim of Hussain son of Somaar as bogus and fictitious. The observation of CSC/MBR carries no weight in presence of order dated 31-1-1960 of Deputy Claims Commissioner. Learned counsel for the petitioners points out that the matter has been decided in favour of the petitioners upto the level of the Hon'ble Supreme Court of Pakistan but the learned Member Board of Revenue has ignored all the documentary evidence and has passed the impugned order which is not sustainable in the eye of law, therefore, the writ petition be allowed and the impugned order be set aside.
16. Conversely, learned counsel for respondents have vehemently opposed this writ petition.
Learned counsel for respondent No,1 has vehemently opposed this writ petition and has pointed out that Hussain son of Wallah is a fictitious person, he does not figure anywhere. Learned counsel has pointed out the judgment of the Hon'ble Supreme Court of Pakistan dated 11-12-1998 whereby the Hon'ble Supreme Court has observed as under:-- "Finally, it is contended by the learned counsel for the petitioner that in any case the respondent No,3 who had moved the mukhbari application under sections 10 and 11 and for whose benefit the order has been passed has been adjudged to be an imposter and proceedings at his instance could not deprive the petitioner of his proper allotment."
"It is not very material whether the hands of the respondent No,3 are clean or not: because the land resumed from the petitioners will only go to those who are entitled to it. Leave to appeal is, therefore, refused."
17. Learned counsel for respondent - No,1 has pointed out the observation made by the Hon'ble Supreme Court of Pakistan in judgment passed in Civil Appeal No,135 Of 1985 dated 25-5-1991 that the claim against which allottees/respondents obtained allotment were bogus. Learned counsel has further argued that as per direction of the Hon'ble Supreme Court of Pakistan, Mr.Zaka Ullah Naik was examined who categorically denied the version of the " petitioners. The writ petition is without any merit as the vendee does not get a better title than the vendor.
18. Similarly, learned counsel for other respondents have also controverted this writ petition and has contended that Hussain son of Somaar does not have any title and the allotment shown in the name of Hussain son of Somaar was obtained on the basis of bogus documents. Learned counsel for the respondents pray that the writ petition be dismissed.
19. Arguments advanced from all corners have been heard and the record to the extent available on file has also been perused.
20. Learned counsel for respondent No,1 has brought the original register of claim which was perused/inspected by this Court. One Ibrahim was allowed Machine No,229482 in the claim register and underneath the same machine number i,e, 229482 was allowed to Ibrahim along with cost of land and in between, this column since the space was available, the name of Hussain son of Somaar was written without any machine number. Similarly, there was a cutting in front of Hussain son of Somaar which was a clear proof of manipulation that the department in connivance with somebody has inserted the name of Hassan son of Somaar by manipulation because no spot detail is available in the original claim of register. Record further reveals that vide judgment dated 11-12-1985, the Hon'ble Supreme Court of Pakistan has held that: "Finally, it is contended by the learned counsel for the petitioner that in, any case the respondent No,3 who had moved the mukhbari application under sections 10 and 11 and for whose benefit the order has been passed has been adjudged to be an imposter and proceedings at his instance could not deprive the petitioner of his proper allotment."
21. The Hon'ble Supreme Court of Pakistan has further held that it is not very material whether the' hands of respondent No,3 are clean or not because the land resumed from the petitioners will only go to those who are entitled to it.
22. The contention of learned counsel for the petitioners is further not tenable in the light of the judgment of the Hon'ble Supreme Court of Pakistan dated 25-5-1991 whereby the Hon'ble Apex Court has observed that As stated above the case of the appellants was that the claims against which the allottee-respondents had ubtained allotment were bogus". In concluding paragraph of the said judgment, the Hon'ble Apex Court has held as under:-- "7. As the allegations made by the appellants in the Mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for a proper inquiry. The Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka-ud-Din Naik before recording its finding on the, Mukhbari application. The appellants shall also have the costs of these appeals."
23. Further the matter was agitated by the competent authority as observed, by the Hon'ble Supreme Court of Pakistan. Mr. Zaka Ullah Naik was examined who made the statement in provincial assembly of Punjab. In the light of the statements made by Mr. Zaka Ullah Naik and others, the Punjab Assembly recommended the following:- "(I) On the basis of the information made available to the Committee, it has been found that bogus allotments of evacuee land in the Urban Area of Lahore have been going on a. Very large scale with the connivance of the Rehabilitation staff and the staff of the Revenue Departments.
' The Committee has observed that the record of the two Departments had been tampered with, pages of the registers have been replaced, figures have been interpolated, fictitious allotment orders have been produced, multiple allotments have been made against bogus claims, and allotments have been made in spite of stay orders of courts. According to the Statement made by Minister for Revenue and Colonies, Punjab such bogus allotments were being made in other districts of Province as well. After a brief preliminary inquiry area of about 14,000 kanals worth more than rupees 10 crores had been detected, only in the Urban Area of Lahore. The loss of evacuee property in the province may amount to many more crores of rupees. The Committee found that there was a group of racketeers who indulge in these bogus allotments and unfortunately this group had the backing of very influential persons. The Committee recommends that immediate action should be taken to unearth this group and immediate deterrent action should be taken against them.
(2) Since the law relating to the allotment of evacuee property has been repealed, no action can be taken against the persons responsible for bogus allotments. The Committee understands that Federal Government has agreed to enact a law to enable the cancellation of bogus allotments and to take action against the persons involved in such illegal transactions that the Provincial Government has sent a draft of the requisite legislation to the Federal Government. The Committee recommends that the Federal Government may be approached to pass the legislation in question as early as possible.
(3) The Committee recommends to request the Chief Minister to kindly direct his Inspection Team to conduct a proper detailed enquiry into the bogus allotments and prepare a list of the officers and officials of various departments of government involved in these shady transactions so that effective departmental action may be taken against them.
(4) The Minister for Revenue and Colonies, Punjab has stopped further allotment of evacuee land in Lahore Urban Area until the enactment of law by the Federal Government. The- Committee recommends- that similar instructions should be issued by Government to the District Authorities in the Province.
(5) The record of the Rehabilitation Department relating to evacuee property in Lahore Urban Area has been sealed and put under a Police Guard by the Minister for Revenue & Colonies, Punjab. The Committee recommends that district authorities all over the Province should be asked to do likewise."
24. Learned Assistant Advocate-General Punjab could not inform this Court about the fate of above recommendations yet from the perusal of record and arguments of learned counsel for the parties, it stands fully established that all the above said previous transactions are based on fraud and forgery. This Court is of the considered view that no party should be allowed to take advantage of his fraud. There can be no rationale or basis for discrimination between powers endowed to this Court, to a court of general jurisdiction or to a tribunal of special or limited jurisdiction to probe into the matters of fraud. However, whatsoever the case be, the effect of fraud will be the same and the duty to undo that effect must lie on the authority in whose jurisdiction the fraud was practices.
Similarly, allotment in favour of vendor not being based on mukhbari was found to be fraudulent and was liable to be cancelled. The vendee, who was ostensible owner, claiming protection of section 41 of the Transfer of Property Act for having purchased land from the vendor is not warranted under the law when the title of vendor was based on fraud and in such like matters vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to the vendor because a transferee simply steps into the shoes of transferor so a defective title could not become a perfect title simply because it was further transferred. At the same time, it is important to point out that protection of section 41 of Transfer of Property Act is not applicable to evacuee lands because following are the necessary ingredients for protection under section 41 of Transfer of Property Act, 1882:
(a) The Transferor is an ostensible owner;
(b) he is so by the consent, express or implied, of the real owner;
(c) the transfer is for consideration; and
(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
' Therefore, the contentions raised by the learned counsel for the petitioners is without any substance in the light of law laid down in case titled, "Farhat Ullah Khan and others v. Additional Commissioner Revenue and others" reported as 2002 SCM R 1507.
25. This Court is also of the considered view that a court or a tribunal of special or limited jurisdiction has powers of suo moto, recall or review an order obtained from it by fraud. The preponderance of judicial authority is in favour of 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 benefit of his fraud.
26. This Court further considers that the Additional Settlement Commissioner on mukhbari application under sections 10 and 11, Displaced Persons Land Settlement Act, 1958 cancelled allotment of land when he found that the suit-land had been obtained fraudulently while the petitioners' claim that they are the bona fide purchasers of the suit land is not acceptable being contrary to the decision of the Hon'ble Supreme. Court of Pakistan (1984 SCM R 1027). The impugned judgment is based on cogent reasons. Learned counsel for the petitioners has also failed to point out any illegality or infirmity in the impugned judgment. No interference is called for.
27. The outcome of the whole discussion is that this writ petition does not have any force. The law relied upon by learned counsel for the petitioners is not applicable in the matter in hand. Hence the writ petition is dismissed and as a consequence, C.M. No,3 of 2010 under Order I, Rule 10, C.P.C. Also stands dismissed.