WAHEED AKHTAR ANSARI, MEMBER JUDICIAL-III.--- The applicants applied to Secretary (S&R) by way of application dated 11-2-2014 for issuance of certified copy of title document in respect of property No. NW-III/R-23 area measuring 1-kanal 14-marlas being part of 1-kanal 16-marlas 9-sq.Ft, falling in khasra No.1273, of Mauza Chak Jia Musa, Tehsil City, Lahore. On receipt of application, the same was processed on executive side of (S&R) Wing and necessary reports regarding confirmation of possession etc., were called from the Addl. District Collector, Lahore. Thereafter property file was summoned from the relevant center-II of record room. The necessary reports regarding the entries of relevant registers were called from the concerned quarters. Thereafter the case was placed before the Provincial Verification Committee, Board of Revenue Punjab. The case of the applicants was disposed of by the Provincial Verification Committee vide its meeting held on 10-3-2014 with following observations:-- "Mr. Faisal Maqbool son of Khawaja Maqbool Illahi, has submitted an application for issuance of certified copy of PTD in respect of property bearing No.NW-III-R-23 situated at Ravi Road, Kasurpura, Lahore, on which a CNG station have been installed. Property file is available but necessary orders for issuance of PTD regarding this property have not been found in the property file. The CSC-V register volume No.23 page No.337-340 showing the same property number is blank. It apparently shows that the title holder has not paid the price of the said property, so title document which is not in the purview of PVC, therefore, the Committee has unanimously decided, to refer the case to the Notified Officer for further necessary action."
2. In backdrop of the above, the case was referred to this Court for decision as per law. On receipt of case file, the same was fixed in paishi. The applicants namely Faisal Maqbool appeared in person and argued the case. He stated that Malik Abdul Aziz, the original transferee appointed.
Malik Muhammad Amin son of Malik Din Muhammad as his general attorney regarding the suit property vide registered deed No.467 behi No.4, Jild No.187,. Dated 2-84958 registered with the Sub- Registrar Lahore, City. The property in question was originally transferred in favour of Malik Abdul Aziz son of Malik Feroze Din, being non-claimant Displaced Person by the order of Deputy Settlement Commissioner, Lahore dated 15-6-1961 under Settlement Scheme No.VI. After completing codal formalities, PTO No 122031 was issued on 17-2-1968 in favour of the above transferee. The original property file is available with the judicial file of this Court, wherein original site plan is also available, issued in favour of Adul Aziz son of Malik Feroze Din. The possession of the present applicants and their family members on the suit property was confirmed by the District Revenue Authorities vide their reports available on case file. The property in question falls in khasra No.1273 Mouza Jia Musa, Lahore. The government dues were adjusted through compensation books and nothing is due against the property in question. The applicants are bona fide purchasers against a valuable consideration vide registered sale deeds. They are having raised permanent pucca constructions and have installed C.N.G. Filling Station there, after due approval of competent authorities. The applicants have prima facie a good arguable case and fullfill the criteria for issuance of certified copy of title document. He further prayed that the Site Map was duly approved by the D.C.O. Lahore vide order dated 5-8-2004. The form PT.1 was issued in the names of the present occupants / owners of the suit property. The case of the present applicants has been established as fair. There is not a single point of default on their part. The only hurdle, hindering the issuance of transfer documents in favour of the present applicants is of non-issuance of PTD in favour of the original allottee i.e. Malik Abdul Aziz son of Malik Feroze Din, who after making all Government dues was entitled for issuance of PTD. Lastly, he prayed that the instant application for issuance of certified copy of title document may kindly be allowed in the larger interest of justice.
3. From the perusal of the case file, it appeared that the case pertains to Settlement Scheme No.VI (Notified vide memo No.1043-F & M-Reh/59, dated 13th November, 1959). The requirements of the said scheme have been summarized in the form of a check list, which was supplied to the applicant for giving 'his input. The detail of such check list and information provided by the applicant is reproduced as under:--
1. The Name with percentage and full address of the applicant.Abdul Aziz son of Malik Feroz din r/o 23-Raci Road Lahore through special attorney Muhammad Amin son of Malik Din Muhammad.
2. Nomenclature (if any) and location of Building site Mentioning Khasra No. Khatuni No. and khewat and Mauza also provide measurement of question property.Area measuring 1- kamal 14-Marlas beaing part of 1-Kanal 16-marlas 9-sq.ft property No.SW-III- 23/NW-110-R-71 bearing Khasra No.1273 khatuni No.1039 and Khewat No.622 situated at Ravi Road, Kasurpura, Lahore.
3.Whether the evacuee plot/land was acquired under section 3 of the Act, 1958 (XXVIII of 1958) which was vacant or free from any permanent construction at the time it became evacuee?Yes 4.Whether, on the site, the evacuee owner made a construction upto 1/8th of the site.Yes 5.Whether the building was completely demolished by flood, fire, incendiaries of any natural calamity, whether or not any construction has subsequently been raised on it?No. 6.Whether the building site consists of building constructed under a plan approved by some competent Government concerned?The applicant applied for sanction of commercial construction as well as for installation of CNG Petrol Pump. The said site plan was approved by the District Officer (Co- ordination) on 5-8- 2004 in favour of the applicant.
The relevant documents along with sanction letter, no-objection certificate with site plan are available on case file.
7. Whether the building site consist of a building constructed without such an approved plan, but the Subsequently approved by a competent authority.Yes 8.Whether the building site consists of the area of the relevant building site or 75% of the maximum area allowed for construction under rules of Local Body?Yes 9.Whether the building site comprises a construction or class of constructions having been declared by the Chief Settlement Commissioner as permanent buildings?Not known 10.Whether the prevailing market value calculated on the basis of price in the year 1946 and adding up certain percentage upto 1960 and has become not less than twice and not more than 4 times the prevailed in 1946, the ratio of 2, 3 and 4 times the mentioned value will apply respective of the area which are purely residential, residential-cum- commercial and commercial?Yes 11.Whether the building site is located on primary, secondary and territoryYes road? Further reduction of 1% 2% and 3% on general price will be made?
12.What is the date for submission of CH Form for a claimant? P1. mentioned compensation book number along with date.The original transferee applied for transfer of suit property within time being non-claimant displaced person and the same was entertained by the Settlement authorities.
13.What is the covered area of the permanent construction put up by the applicant?The suit property was acquired by the Government for Ravi Road, Project.
14.Whether the permanent construe- tion is a house, a shop or another type.C.N.G. Station, which was acquired by the government and the applicants are entitled for cash compensation against the acquired property.
15.What is number of rooms, separately for ground and upper floors?Constructed area with open space under CNG Station.
16.Provide No. of garages, out houses etc.Not related to the answering applicant.
17.Whether the building plan was approved by some competent authority?The building plan was approved by the competent authority at the time of transfer of suit property.
Thereafter applicant applied for unction of commercial construction as well as for installtion of CNG Petrol Pump. The said site plan was approved by the District Officer (Coordination) on 5-8-2004 in favour of the applicant. The relevant documents along with sanction letter, no- objection certificate with site plan, are available on case file.
18.What is the approximate amount spent on permanent construction?The applicant and other co-owners have spent a huge amount on the suit property.
19.Whether on receipt, the application was duly registered by the concerned Deputy Settlement Commissioner?Yes. The relevant receipt is not traceable. The original applying forms are available with the department.
20.Whether the applicant has adjusted the transfer price through its com- pensation book and Provisional Transfer Certificate has been issued to him?The Transfer Price, etc. have been adjusted by the transferee out of compensation books, which is available with the department and the remaining amount was paid in cash, which was verified by this Hon' able Court. Initially the total transfer price of Rs.15822 was assessed by the Settlement Inspector and approved by the Deputy Settlement Commissioner, Lahore vide order dated 17-3-1964. The same was reduced by the order of Deputy Settlement Com- missioner dated 6-3- 1965 to the tune of Rs.12658.
In pursuance of the above order, the transferee associated with Muhammad Rafique son of Abdul Razzaque vide Compensation Book No.LHR-II-7851 Adjusted an amount of Rs.6925 through Association deed dated 30-6-1966. The transferee further associated with Saeed Ahmad Bari son of Sheikh Muhammad Yousaf Bari vide compensation book No.294055 LHR/I/5/5155 and adjusted an amount of Rs.2569 vide deed of association dated 30-6-1966. The remaining amount of Rs.3164/50 was paid vide challan dated 27-6-1966. The same was verified from the treasury officer Lahore vide letter dated 6-5- 2014.
21.Whether after adjustment of full price the Deputy Settlement Commissioner issued a title deed?Yes 22.Whether the building site was vacant and was disposed of through open auction?No 23.Whether the applicant purchased the building site in open auction held after due proclamation?No 24.Whether the auction participant was a claimant? Claimant deposits his compensation book and non- claimant earnest money to the auction committee?Does not relate to the answering application.
25.Whether the claimant highest bidder, deposited the required documents?Does not relate to the answering application.
26.Whether the highest bid offered by the bidder was accepted?Does not relate to the answering application.
27.Whether the after highest bid by a local or non-claimant, the whole amount of bid had been paid?Does not relate to the answering application.
28.Whether the highest bidder is a claimant? He is entitled to the benefit of deferred payment?Does not relate to the answering application.
29.Whether after fully payment, the possession of the property was given to the purchaser?Yes 30.Whether after payment of entire purchase money, the building site was transferred to the purchaser/ applicant (in case of local or Non- claimant)?Yes 31.Whether the payment of purchase money was deferred and property was provisionally transferred to the claimant?Yes, Originally property in question was transferred in the name of Abdul Aziz son of Malik Feroz Din vide PTO No.122031 dated 17-2-1968. Malik Abdul Aziz sold the above property in question in favour of Sajjad Amin Malik son of Malik Muhammad Amin through four registered sale deeds. The present applicants are subsequent vendees from the above Sajjad Amin Malik through registered sale. deed No.8090 dated 29-8-2003 registered with the sub-Registrar, Data Ganj Bukhsh Town, Lahore.
32.Whether the property was transferred permanently to the local/non-claimant, the transferred acquired full proprietary rights?Non-Claimant displaced person.
33.Whether the property was transferred provisionally and the proprietary rights do not vest in the transferee?The property in question permanently transferred to the original transferee. The applicant(s) are subsequent purchasers from the original transferee.
34.Whether the present petitioner (s) has direct or indirect relation with the original transferee (s)?The applicant (s) are the subsequent vendees from the orignal vendee from the original transferee.
4. The perusal of above details provided by the applicant and relevant property file reveal that in pursuance of para 13(2) of the schedule to the Act, ibid, one Malik Abdul Aziz son of Feroz Din applied, undated, on a pro forma devised in light of instructions contained in chapter 2 of the scheme ibid, which is available in the judicial file (at page No,A/341 to 345) (duplicate).
Consequently, vide order 15-6-1961, an area measuring 1-kanal 16-marlas 9-sq.Ft, falling in khasra No,1273 of Mauza Chak Jia Musa, Tehsil City, Lahore was allotted on market price to Malik Abdul Aziz son of Malik Feroze Din being non-claimant Displaced Person under Settlement Scheme No,VI (page No,K/45 of Property file). The price of Rs,15,800 was communicated to the said allottee vide letter dated 30-5-1964 (at page No,K/53). The allottee vide application dated 28-9-1962 requested for reduction of price (page No,K/61). Initially the total transfer price of Rs,15822 was assessed by the Settlement Inspector and approved by the Deputy Settlement Commissioner, Lahore vide order dated 17-3-1964.
' The same was reduced by the order of Deputy Settlement Commissioner dated 6-3-1965 to the tune of Rs,12658. The operative part of the order is reproduced.
"As for the contention that the plot was situated far behind the main road, the site plan submitted before me shows it is situated on secondary road, which under the instructions would call for rebate of 20 percent. The same is allowed as is worked out by the learned DSC (Plots)".
5. In pursuance of the above order, allottee Malik Abdul Aziz through attorney, Muhammad Amin adjusted the requisite amount through compensation books by associating with two persons, i,e, Muhammad Rafique son of Abdul Razzaque vide Compensation Book No,LIIR-II-7851 adjusted an amount of Rs,6925 through association deed dated 30-6-1966. The second association is with Saeed Ahmad Bari son of Sheikh Muhammad Yousaf Bari vide compensation book No,294055/LHR/1/5155 and adjusted an amount of Rs,2569 vide deed of association dated 30-6- 1966. The remaining amount of Rs,3164/50 was paid vide challan dated 27-6-1966. Afterwards PTO.
No,122031 was issued on 17-2-1968 in favour of the above transferee. During proceedings, the office reported that CB's are not available, nor the applicant could produce the copies of such CB's, which belonged to the transferee.
6. The above general attorney namely Malik Muhammad Amin son of Malik Din Muhammad sold the suit property to his son namely Sajjad Amin Malik son of Malik Muhammad Amin through four registered sale deeds. The detail of each transaction is given as under:--
(i) Registered sale deed No, 33 behi No, 1 Jild No, 448 dated 4-1-1993.
(ii) Registered sale deed No, 72 behi No, 1 Jild No, 449 dated 5-1-1993.
(iii) Registered sale deed No, 879 behi No, 1 Jild No, 465 dated 8-2-1993.
(iv) Registered sale deed No, 458 behi No, 1 Jild No, 457 dated "24-1-1993.
(Attested copies of above sale deeds are available at pages A/169-269) of judicial file.
7. Subsequently Sajjad Amin Malik son of Malik Muhammad Amin sold the suit property in favour of the present applicants namely Khawaja Faisal Maqbool etc. Vide registered sale deed No,8090 behi No,1, Jild No,212. Dated 29-8-2003. The applicants produced attested copies of above referred registered sale deeds. The applicants also produced, some documents regarding the approval of site plan issued by the office of City District Government, Lahore.
8. The whole of above examination reveals that the application for allotment of impugned property was filed by Abdul Aziz son of Feroz Din and the same was allotted to the said Abdul Aziz son of Feroz Din vide order dated 15-6-1961 (at page K/45 of property file) being Displaced person non claimant. The assessed price of Rs,15822 was conveyed to the said allottee vide letter No,DSC- Plots/Lhr/II/90 dated 30-5-1964 (at page K/65). The request for deduction of assessed price was filed by the said allottee and the reduced price is again in the name of said allottee vide order dated 6-3-1965 (at page K/63 of property file). For the purposes of payment, the said allottee associated with two persons. At this stage, the predecessor of the present applicant namely, Muhammad Amin, appears in year 1966 for the first time, who has been shown as holder of general power of attorney of the transferee in the "Ishtraq Nama" (at page No,K/19). It is important to note here that no detail regarding registration of such general power of attorney has been given in this document "Ishtraq Nama" nor such document was produced before the then Settlement Authorities, which triggers doubts not only about the contents of such "Ishtraq Nama", rather about general power of attorney, as well, if there was any.
9. The interesting fact to' note here is that the general power of attorney in favour of said Malik Muhammad Amin by Malik Abdul Aziz produced by the present applicants is a photocopy, Which shows that certified copy of such document was issued in year 1993, (which is rarely admissible) and said power of attorney was executed by the original allottee (Abdul Aziz) in favour of Malik Amin, in year 1958. It was also noted that in year 1958, the original allottee had not even applied for the allotment of impugned property, what to talk of allotment of the said property. Further perusal shows that in the said general power of attorney there is no mention of any property including the impugned property, for which the said Power of Attorney has been used.
10. In circumstances where the credentials of the vendor of the present applicant have become doubtful, leading to defective title, the present applicant, who has come into the shoes of his vendor cannot be better of and will sink and survive with him. The defective title cannot be perfect.
Reliance is placed upon PLJ 2011 Lahore 202, which read as under:-- "S.41---Title vendor was based on fraud---Defective title could not become a perfect title--- Validity---The vendee, who was ostensible owner, claiming protection of S.41 of Transfer of Property Act, for having purchased land from the vendor was 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 as defective title could not become a perfect title because it was further transferred".
Hence, in the backdrop of the above, the request of present applicant for issuance of certified copy regarding impugned property is not maintainable and dismissed accordingly.