1. The petitioner seeks to challenge the order of the Deputy Commissioner and Settlement Commissioner (Land), Sanghar dated 21-11-1973 holding that respondent No. 2, being bona fide purchaser of Survey No. 317/1 & 2 in Deh Abadi Junejo, Taluka Shahdadpur, D1strict Sanghar, was legal transferee of the land in dispute.
2. It is the case of the petitioner that he as a claimant displaced person from agreed area was alloted Survey Nos. 286, 317/1, 2 and 318/13 measuring 14-24 acres in Deh Abadi Junejo, Taluka Shahdadpur, D1strict Sanghar, under prevail--ing scheme and his claim was finally verified on 18-5-1951 and permanent allot--ment was made in his favour on 11-5-1954 and his name was duly mutated in the Reg1ster of permanent allotment after due confirmation on 4-3-1957. The land in dispute was being leased out by him to cultivators from time to time. It is further his case that in 1966 he came to know that one Muhammad Qadir son of Amir was claiming Survey Nos. 317/1 and 2 and therefore he made a representation to the Deputy Commissioner who directed the Ass1stant Rehabilitation, Mukhtiarkar to make enquiry in the matter and report. The petitioner on 2-1-1967 was informed by the aforesaid Officer that action was being taken. On 6-6-1967 the requisite report was made to the Deputy Commissioner and it was shown that the allotment of the land in dispute was made to petitioner earlier and it was recommended that later allotment in favour of Muhammad Qadir be cancelled.
3. The matter was decided by the Additional Deputy Commissioner and Additional Settlement Commissioner (Land), Sanghar on 18-3-1972 after hearing the Advocate of respondent No. 2. No appeal or revision was filed against the aforesaid .Order within the prescribed period and therefore it is contended on behalf of the petitioner that the order acquired finality. The petitioner who had obtained the permanent allotment also obtained a permanent settlement under, the Displaced Persons (Land Settlement) Act, 1958.
4. The petitioner further alleges that during the pendency of proceedings claimant Muhammad Qadir sold the Survey No. 317/1 and 2 to respondent No. 2, who claims to have purchased the same by a reg1stered sale deed on 15-4-1971. He had filed an appeal on 21-4-1973 against the order of the Additional Deputy Commissioner/Additional Settlement Commissioner (Land) dated 18-3-1972 after more than a year with no application under section 5 of the Limitation Act. It is argued that no affidavit in support of assertion about coming to know about the order late was even filed.
5. The impugned order dated 21-11-1973 of respondent No. 1 is assailed on the following grounds
(1) That the Serial No. 317/1 & 2 measuring 4 acres in Deh Abadi Junejo, Taluka Shahdadpur, D1strict Sanghar having been permanently allotted in favour of petitioner on 11-5-1954 and confirmed under the scheme on 4-3-1957 was not available for subsequent allotment on 16-6-1959 to Muhammad Qadir and therefore the entry in R. L. 11 was illegal ab initio and void.
(2) That the appeal filed by respondent No. 2 was entertained after lapse of period of over one year and respondent No. 1 failed to consider the question of limitation and laches.
(3) That the appeal was entertained without an application for con--donation of delay under section 5 of Limitation Act and respondent No. 1 did not give any cogent reasons for condoning the delay.
(4) The respondent No. 1 failed to consider that the alleged purchase by respondent No. 2 of the disputed land was during the pendency of proceedings and the transfer being pendente lite, the respondent No. 2 was neither a necessary nor proper party in the presence of original transferee and Muhammad Qadir did not disclose the fact of sale.
(5) That 1'he sale deed executed during the pendency of proceedings cannot confer superior title as against that of the petitioner.
6. There can be no doubt about the fact that Survey No. 317/1 & 2 in Deb Abadi Junejo Tapo Suhyari, Taluka Shahdadpur, D1strict Sanghar, along with other survey numbers was permanently allotted to the petitioner on 11-5-1934 after verification of his claim on 18-5-1951. The aforesaid allot--ment was confirmed on 4-3-1957 according to him the petitioner came to know about Muhammad Qadir claiming allotment of the disputed survey number later that is in the year 1966 he therefore made representation to the Deputy Commissioner who sent it for report to Rehabilitation Mukhtiarkar on 10-12-1966: The petitioner was informed by the Mukhtiarkar under his communication No. Rehabilitation 6 of 1966 dated 2-1-1967 that action was being taken on his representation. It is also clear from the report of the Ass1stant Rehabilitation Mukhtiarkar under his memo. No. Reh--abilitation 882/67 dated 6-6-1967 that the petitioner was given permanent allotment. He further reported that allotment of the same Survey No. 317/1 & 2 was also made in favour of Muhammad Qadir on 16-6-1959 on a basis of entry in R. L. II and it was recommended that since the allotment in favour of the petitioner was earlier the subsequent allotment in favour of Muhammad Qadir be cancelled. On receipt of the report the Deputy Commissioner, gave notice to the parties and 'Muhammad Qadir was represented before him by Pir Sharif Ahmad, Advocate who was heard. The Additional Deputy Commissioner and Additional Settlement Commis--sioner (Land), Sanghar by his order dated i8-3-1972 cancelled the subsequent allotment of the; land in dispute in favour of Muhammad Qadir and main--tained the allotment in favour of the petitioner and thus rectified the double allotment. The; record shows that no appeal was filed against the aforesaid order dated 18-a-1972 and as a matter of fact Muhammad Qadir did not challenge the aforesaid order. It is further argued that the order of allotment in favour of Muhammad Qadir made no reference to cancellation of prior allotment in favour of the petitioner and therefore the land dispute was not available for transfer to Muhammad Qadir. In Muhammad Bashir v. Muhammad Khan and another (1975SCMR173), it was observed that there could be no question of fresh allotment of land without a previous order of its cancellation from the name of person to whom the same already stood allotted.
7. The impugned order of the Deputy Commissioner, Sanghar, dated 21-11-1973, recognizing transfer in favour of respondent No. 2, and the PTD issued to him is of no effect as the same follows from assumption that the land in dispute was available for transfer. With regard to ground No. 2, res-- pondent No. 2 filed appeal against the order of the Additional Deputy Com--missioner/Additional Settlement Commissioner, dated 18-3-1972 on 21-4-1973 the appeal was filed before the coming into effect of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 and therefore, the provisions in substituted section 19 subsection (5) making the provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), applicable to the computing of the period of 15 days referred to in subsection (1) did not apply. The only effect of the Amendment Act was that appeal filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958 which was pending, had to be transferred to be disposed of by the Settlement Commis--sioner as revision petition under substituted section 19(2) of the Act as section 18 was omitted. Section 18(2) which was applicable at the time of filing of the appeal, provided that the appeal shall be presented within sixty days of the date of the order appealed against. Section 5 of the Limition Act, 1908 was not applicable to appeals filed under the Displaced Persons (Land Settlement) Act, 1958. In a case where section 5 of the Limitation Act is not applicable the power of the appellate authority, to decide it on merits is not hinged by consideration of limitation only if the order appealed is found to be a nullity. The order in the instant case not being even alleged to be based on a fraud or misrepresentation, the principle underlying section 18 of the Limitation Act, 1908 does not apply.
8. "The vendor shall always keep the vendee fully secured harmless and (1) indemnified against all losses, detriments, charges etc. And if the vendee is deprived of the said property due to any defect in title or for any other default on the part of the said vendor the vendor shall pay the entire amount of sale consideration and all other losses and charges and damages as are sustained under this deed to the said vendee on demand which if not paid shall be recovered from his movable and or immovable property through Court of law at his cost, risk and expenses."
9. It is quite clear that although the appeal was filed after the period of limitation provided by the special law and it was not even pleaded that the late filing of appeal was due to late coming to know of the order, this aspect of the case was never even discussed in the impugned order.
10. With regard to ground No. 4, it is apparent that respondent No. 2 purchased the land in dispute and executed the sale deed on 15th of April, 1971 from Muhammad Qadir, while the dispute with regard to double allotment of the land was pending before the Additional Deputy Commis--sioner and Additional Settlement Commissioner (Land), Sanghar, which was ultimately decided in favour of the petitioner on 18-3-1972. The sale was, therefore, pendente lite and is governed by section 52 of the Transfer of Property Act, 1882. The transfer in favour of respondent No. 2 by Muhammad Qadir who was incidentally found to have no right or title in land should not have been considered by the learned Settlement Commis--sioner, in the impugned order. The' sale-deed executed during the pendency of proceedings could not possibly confer superior title inasmuch as Muhammad Qadir himself was found not to have any right or title to the transfer of the land which he had sold to respondent No. 2. If at all the contesting respondent has any right it would be under the clause of the sale--deed against Muhammad Qadir.
11. For the reasons stated therefore, the order passed by the Deputy Commissioner/Settlement Commissioner (Land), Sanghar, dated 21-11-1973 is declared to be one without jurisdiction and nullity and the order of Additional Deputy Commissioner and Additional Settlement Commissioner
(Land) dated 18=3-1972 which was set aside by the aforesaid order stands maintained.