' WAHEED AKHTAR ANSARI, MEMBER JUDICIAL-III.---The proceedings of the instant case were initiated with reference to the application of the petitioner dated 22-11-2011 submitted before the Chief Settlement Commissioner, Punjab for issuance of certified copy of PTD dated 28-6.1962 in respect of property No,S-42-R-3/1, area measuring 5-kanals out of an area measuring 9-kanals 18-marlas 36-sq.Ft. Situated at Racecourse Road, (Aiwan-e-Tijarat Road) Lahore. The said application was marked to Secretary (S&R), Board of Revenue, Punjab for placing it before the Provincial Verification Committee. The case was processed on executive side of Settlement and Rehabilitation Wing but the same was forwarded to the then learned Chief Settlement Commissioner Punjab without any decision of the PVC. During the proceedings, the then Chief Settlement Commissioner, Punjab, observed that the cast was remitted to him without any order of PVC. Meanwhile the petitioner presented a certified copy of judgment of Hon'ble Court dated 28-11-2012 passed in Writ Petition No,29311/2012. The operative part of the order is as under:-- "The request of the learned counsel is tenable. Therefore, the respondent is directed to decide the pending application of the petitioner bearing diary No,5637/11 dated 22-11-2011 in accordance with law through a speaking order after giving him an opportunity of hearing within one 'month of receipt of certified copy of this order. Compliance report shall be submitted to Deputy Registrar (Judicial) of this court."
2. On receipt of above direction and hearing the petitioner, the Learned Chief Settlement Commissioner remitted the case to PVC by way of order dated 11-3-2013 with the following observations:-- "After perusal of the case the predecessor of this court passed the order on 22-11-2011 with the direction to the Secretary (S&R) to place the case before the Provincial Verification Committee meeting on 29-11-2011. In compliance of the order of Hon'ble High Court, I direct the Secretary (S&R) to place the case before the Provincial Verification Committee and decide the matter as per record/policy. The case is disposed of".
3. In pursuance of the above order, the case was processed and the same was disposed of by the Provincial Verification Committee Board of Revenue, Punjab in its meeting held on 27-12-2013 and sent the case to this court with the following observations:-- Messrs Rupali Polyester through its Executive made their submissions during the meeting held on 20-12-2013. The Hon'ble Lahore High Court, Lahore vide judgment dated 28-11-2012 passed in Writ Petition No,29311 of 2012 has directed to decide the pending application for verification of their PTD by the Provincial Verification Committee. The case was being delayed for want of property file, CH-Form and compensation book. The case was considered on 12-12-2013 with reference to letter written to Chairman by Messrs Rupali Polyester. It was decided to offer opportunity to the petitioner to explain about certain observations. They appeared on 20-12-2013 through their counsel and submitted their written reply to the queries raised by the PVC through Chairman PVC.
The case was fixed for 27-12-2013 for orders.
2. The case was considered in the PVC meeting and it was decided that is PTD cannot be verified owing to the following reasons:-
(i) The PTD is not incorporated in the revenue record for the last 50 years. The page number of the PTD has been over written and certain entries were added later on with different pen which makes it doubtful even the name of evacuee land holder is different on PTD as compared with the revenue record.
(ii) No property file is available and some photo copies of documents which were attached with the application of the petitioner containing official record and noting which are not secured (Erectly from the S&R staff but were reportedly came in possession of the present petitioner from the previous claimant. This PTD was apparently issued under Scheme No,1 for which CS form was admittedly filed by the original claimants. The excess land could have been secured by adopting certain procedure/process through different mode of payment. The same is not evident from the available record. The proof of 'payment is not established through the compensation book as the same is not available. The purpose of PVC is to screen out the fraudulent Settlement and Rehabilitation documents issued in connivance with the officers/officials which had not been incorporated in the revenue record.
(iii) In the present form, the PVC considers it doubtful case. Therefore, declines to verify, the same.
However, as a matter of legal dispensation, the Notified Officer of the area i,e, Lahore District, is competent to take cognizance of the issue. The Notified Officer can gather evidence, investigate the issues and summon the record and on the basis of documentary evidence can re-construct the file and decide the matter through order confirming the genuineness or otherwise of the pending proceedings by virtue of which this document can be proved. This case is, therefore, referred to the appropriate forum i,e, Notified Officer where the petitioner company, can produce evidence in support of their contention before deciding the matter according to Scheme No,1 read with Displaced Persons Repeal Act, 1975.
4. On receipt of case file, the same was fixed in 'peshi and the counsel who appeared on behalf of the applicant was directed to place on record power of attorney on the next date of hearing. On We said date, Mian Asghar Ali, Advocate entered his appearance and filed power of attorney.
5. During preliminary arguments, it was asked to the learned counsel for the applicant to identify the relevant Scheme under which his case falls. Then he stated that the instant case falls under Settlement Scheme No,
1. Hence, the applicant was provided a checklist performa prepared for scrutinizing the cases falling under such scheme to have his input. Following is the detail of information provided:-- {{TABLE}} Sr. # Requirements Answers with documentary proof Name of transferee with parentage, caste and permanent address. Mst.Mumtaz Sultana widow of Mr. Maqbool Mehmood and daughter of Muhammad Ghulam Sadiq, resident of 1-A, Golf Road, Lahore.
Particulars of house/ shop/building site, which the transferee applied for by mentioning., property No, constructed area, open space with exact measurement. Out of Property No,S-42-R-3 Racecourse Road, Lahore measuring 9 kanals 18 marlas 36 sq.Ft., the applicant owned and possessed an area measuring 5 kanals Detail of revenue record including khasra, khatuni and Khata No, with proof of relevant revenue record of the name of mauza concerned. Khasra No,207, Mouza Mazang, Tehsil and District Lahore.
Name of evacuee owner. Mrs. Thapar Whether the house is situated within the limit of a cantonment. No Whether the house or part thereof is in the occupation of any person other No the applicant company is sole. Owner of the area measuring 5-kanals. than the transferee and his family? If so, state the name of such person.
Gross annual rent and gross monthly rent prevailing in the year 1946 (if known to the applicant.)
Not known Whether he has already obtained any other evacuee property? If so, the number and date of order of competent authority relating to the transfer of such property should be quoted. No Whether the transferee was-entitled for filing of CH Form? Yes Whether PTO was issued or not? Yes P.T.O. No,2157/DSC1/107 dated 20-11960 Whether the transferee (s) filed CH Form within prescribed period as provided under the scheme?
Yes Receipt No,LHR-1-CH-130- Centre-LHR-1 dated 10.06.1959 Whether the property in question is resumed one, if so, what is the date for submission of CH Form?
No, 10-6-1959 Whether the applicant(s) holds possession of the property in question as required under the scheme? Please mention the date of possession of the house/shop applied for. Yes. In possession from 22-10-1947.
Whether the property was attached or reserve for any charitable, religious or Educational Trust?. No Whether the transferee (s) held any other evacuee property at the time of transfer of the property in question? If so, the detail of the said property is available or not? No Whether the transfer price was paid as required under the scheme? Yes Whether transfer price, rent and public dues has been paid by the transferee (s) ?
Compensation Book No, and detail of payments through C.B. Yes No,72,000 through Compensation Book No,296252/LHR 15487 and through cash challan dated 15-9-1961 Whether the above Government dues were deposited by the transferee (s) within time? Yes Whether relevant registers contain the entries regarding the transfer of the subject property? Yes Whether the transfer order was passed by the competent authority? An attested copy of the allotment order to be attached. Yes. Copy attached.
Whether the above transfer order in favour of transferee (s) No was challenged by anyone? If so, whether the case was decided in favour of the applicant(s)?
Whether any title document was issued or not? Yes PTD issued Whether the present applicant(s) has direct or indirect relation with the original transferee (s)? No, Applicant is subsequent purchaser of 5-kanals out of the kothi.
Whether the gardens and grounds attached or appurtenant to evacuee residential premises do not exceed approximately three times the plinth area of the house including gardens, garages outhouses? No {{TABLE}}
7. Along with the check list, following documents were presented:-
(1) Copy of CH. Form No,Lhr-1-CH130 dated 10-6-1959 (at page-A/96).
(ii) Copy of receipt dated 10-6-1959 for submission of CH. From (at page-A/91).
(iii) Copy of Provisional Transfer Order No,2157 dated 20-1-1960 (at page-A/99).
(iv) CSC-F (at page-A/87).
(v) Copy of Appendix-X issued in the name of Mst.Mumtaz Sultana (at page-A/93).
(vi) Copy of account sheet showing the payment of Rs,72,000 made by the transferee (at page- A/95).
(vii) Copy of letter regarding issuance of sanctioned plan dated 18-8-1976 (at page-B/18) by Town Planner, Lahore Improvement Trust in favour of applicant Company.
(viii) Copy of letter No,5306-G dated 10-8-1933 addressed to Sub-Divisional Officer Irrigation Deptt.
From Secretary M.C.L. (at page-4/238).
(ix) Copy of Letter No,5308-G dated 10-8-1933 addressed to Deputy Commissioner, Lahore from Secretary MCL, Lahore.
(x) Copy of letter No,792 dated 18-8-1993 addressed to Secretary M.C.L. From Sub-Divisional Officer Irrigation Deptt. (at page-A/240).
(xi) Attested copy of registered sale deed bearing document No,12208, behi No,1.Jild No, 671 dated 29-5-1974 (at page-B/112) executed in favour of Abdul Hameed Chaudhry and Abdul Majeed.
Chaudhry.
(xii) Attested copy of conveyance deed No,35940 dated 16-10-1976 executed in favour of Messrs Panorama Enterprises Ltd. (at page-A/157).
(xiii) Attested copy of registered sale deed No,7619 behi No,1 jild No,194 dated 8-4-1979 (at pages- A/ 169-186) executed in favour of Messrs Industrial and Commercial Finance Limited (I.C.F) at page-A/169.
(xiv) Attested copy of registered sale deed No,29302 dated 21-10-1984 (at pages-A/113-155) in favour of the applicant company i,e, Messrs Rupali Polyester Ltd.
(xv)Copy of the order dated 15-2-1984 passed by Hon'ble Lahore High Court, Lahore (at page- B/39).
(xvi) Copy of the order dated 10-10-1984 passed by Hon'ble Lahore High Court, Lahore (at page- B/41).
(xvii) Copy of authority letter dated 3-11-2009 (at page-B/13) in favour of Mr. Ahmed Zaheer Qureshi, Manager Administration.
(xviii) Copy of electricity bills for the months of August, October, 2013 and December, 2005 (at pages/A/105-110).
(xix) Copy of bills issued by Water and Sanitation Agency, L.D.A for the months of May, June, July and September, 2013 (at pages-A/ 99-103).
(xx)Copy of Form PT-I dated 26-7-1984 (at page-A/111).
(xxi) Attested copy of site Map dated 24-5-1933 in favour of K.B. Thapar for main bungalow (at page-A/205).
(xxii) Attested copy of site Map dated 24-5-1933 in favour of K.B. Thapar for rear elevation from Racecourse Road and Golf Road (at page-A/207).
(xxiii) Attested copy of site map dated 24-5-1933 showing the servant quarters (at-pages-A/209) area measuring 10-kanals, 10-marlas and 200-sq.Ft.
(xxiv) Attested copy of site map dated 6-9-1933 showing the boundary wall (at pages A/213-215).
6. On receipt of requisite information from the applicant in annotated form, then the case was fixed for arguments and scrutiny of record.
7. Learned counsel for the applicant argued the case stating that originally the suit property was transferred bearing No, S-42-R-3 area measuring 9-kanals 18-marlas 36-Sq ft bearing khasra No,207 situated at Recourse Road, Mauza Mozang Lahore was transferred in favour of Mst. Mumtaz Sultana widow of Mir Maqbool Mehmood vide PTD dated 28-6-1962 under Settlement Scheme No,1 being claimant Displaced Person. Out of the above allotted property, she sold an area measuring 5-kanals to Abdul Majeed Ch. And Abdul Hameed Ch. Both sons of Ch. Fateh Din vide registered sale deed bearing document No, 12208 dated 29-5-1974. Thereafter, the purchasers got approved the construction plan for residential building over the suit property but before implementing the construction plan, they sold the said purchased area to Messrs Panorama Enterprises Limited vide sale deed bearing document No,35940 dated 2310-1976. Messrs Panorama Enterprises Limited further sold the suit property to Messrs Industrial and Commercial Finance Corporation Limited vide registered sale deed bearing document No, 7619 dated 16-4-1979. Thereafter, on detection of scandal by Cooperative Finance Companies, the property in question was released by the Hon'ble Lahore High Court, Lahore vide orders dated 15-2-1984 and 10-10-1984. The applicant purchased the suit property from Industrial and Commercial Finance Limited (through Haji Safdar Naseer son of Ch. Fateh Muhammad) vide sale deed No,29302 dated 21-10-1984 and the same was got commercialized from the concerned government department. Besides the construction plan was approved on 27-6-1993 for construction of the commercial building on the suit property. The mentioned construction plan was revalidated in year 2002 after requisite approval.
8. Learned counsel further stated that, Messrs Panorama Enterprises Limited filed a C.M. In the above writ petition for seeking permission to alienate the suit property which was allowed by the Hon'ble High Court vide order dated 10-10-1984. Messrs Industrial and Commercial Finance (Pvt.)
Ltd. (through Haji Ch. Safdar Naseer Chairman/Managing Director), who alienated the property measuring 5-kanals in favour of Messrs Panorama Enterprises Limited alienated the suit property in favour of Messrs Rupali Polyester Limited vide registered sale deed dated 21-10-1984 and the same was got commercialized from the concerned department by the applicant. Besides the construction plan was got approved on 27-6-1993 for construction of commercial building on the suit property. He stated that after issuance of PTD, the Settlement Department has ceased jurisdiction to deal with the evacuee property. He further contended that the ownership of the applicant company is based on registered sale deed. Being bona fide purchaser, the applicant's company is fully entitled for issuance of certified copy of PTD in question.
9. Learned counsel for the department advanced his arguments stating therein that according to the entries of relevant record, the provincial government is owner of suit property. The Provincial Verification Committee, vide its minutes of meeting dated 27-12-2013 rightly refused to issue the certified copy of alleged PTD. The name of evacuee owner (non-muslim) existed in the revenue record did not match with the name entered on the PTD. He also stated that the plinth area of the main bungalow exceeds from the constructed area and the applicant failed to prove this crucial issue in his arguments. He contended that the Notified Officer is fully competent to re-examine the record relevant to the evacuee properties. He relied upon judgments of superior courts reported as PLD 2004 SC 801, 2010 M LD 741. He further relied upon 2007 SCM R 459, in which it was held that government functionaries are not bound to implement the void orders. On the point of jurisdiction, the learned counsel for the department further relied upon PLD 1991 SC 691 (known as Baraan Case). The alleged entitlement of the applicant's company based on fraud. The whole superstructure built on such void and defective title, would collapse.. Lastly, he prayed for dismissal of instant application.
10. I have considered the arguments advanced by learned counsel for the parties, perused the documents produced by the applicant, reports submitted by the department and other relevant material available on file. Brief of the matter is that the present applicant purchased the suit property from M/s Panorama Enterprises Limited vide registered sale deed dated 21-10.1984 (certified copy at pages-A113- 155). As per documents produced by the applicant, he is successor- in-interest of alleged transferee namely Mst. Mumtaz Sultana widow of Mir Maqbool Mehmood. In support of such allotment, he produced copy of CSC-F showing the alleged transfer in favour of said transferee dated 28-6-1962 (at page A/87). Now he wants verification of such document. The Department reported that the property file of the suit property is not available. As per produced by the applicant, the name of evacuee owner is Thaper, whereas, the report of Revenue Department as well as "Khasra Imarti" for year 1946-47 bearing Khasra No,207, Mauza Mozang, shows that the name of owner of such property is Gurdevi. Learned counsel for the applicant contended that as per CSC-F and approved site plan of MCL, the property is to be identified as per property number, instead of khasra number. The partwari present in the court responded that the superimposition of "Massavi' over site plan reveals that the land claimed by the applicant falls under khasra No,207 and such land belonged to Gurdevi at the time of partition as per record of rights for the year 1946- 47 onwards. Regarding possession and title, the applicant produced documents pertaining to period from 2005 to onward in support of his title and possession, whereas as per entries of Khasra Imarti" for year 1946-47, it was established that Rakhgir Singh etc. Sold an area measuring 9-kanals 18-marlas 36-sq ft. In favour of Goor Devi d/o Rai Bahadar Dewan Kunj (the evacuee owner) at page A/10. The same entries continued and were given effect in the next "Register Khasra Imarti" for year 1962-63 (at page-A/ 11). The name of K.B.Thaper shown as evacuee owner in the CSC-F produced by the applicant is not established in any of the relevant revenue record prior to and after partition of Sub-Continent. Subsequently, the suit land was mutated in favour of Central Government from non-Muslim by way of Mutation No,3581 (at page No,11) and the name of Central Government was incorporated in subsequent revenue record and entries are intact upto this day and possession is also with the Chief Settlement Commissioner.
11. The property file is not available in the record room. Regarding the examination of entries of registers CSC-V and CSC-F, the office reported that there is over writing in the entries making the document doubtful. Upon physical checking of such record overwriting was found. Regarding the payment of transfer price, the CBs relied upon by the applicant, neither available with him nor available in the office record. Moreover the challan regarding payments were not verified by the treasury Office Lahore (vide report at page 40). The applicant was given ample opportunity to provide requisite record in support of his version, but he could not produce the same.
12. The contention of the learned counsel, for the applicant is that after issuance of PTD, the Settlement Department became "funtus officio" has no weight because the dictum laid down by august Supreme Court of Pakistan reported as PLD 2004 SC 801 is fully applicable in this case. The relevant part of the judgment reads as under:-- "if the transfer was obtained by a person by practicing fraud, maneuvering and manipulating the facts or in connivance with the officials of the Settlement Organization the order of transfer; being void would remain open to scrutiny by the forums concerned, and on their failure, such orders and actions would always be subjected to judicial review by courts of law. Blanket protection would not extend to the transfers made in violation of law, in excess of power or without jurisdiction.
13. The main contention of the applicant before this court is that he is bona fide purchaser on the basis of registered sale deeds. In circumstances, where the credentials of the original transferee of the suit property are not verifiable and so lead 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 become perfect with its transfer. Reliance is placed upon 2012 YLR 403, 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 a defective title could not become a perfect title because it was further transferred".
14. Hence, in the backdrop of the above, where the contention of the applicant that his predecessor was the transferee of the impugned property is even to the extent of allotment is accepted, the suit land is not the one as allotted to the predecessor of the applicant as per revenue record. The payments made have not been verified and the contention of the applicant has not been established as per available official record. Hence, the request of present applicant for issuance of certified copy regarding impugned property is dismissed. The suit property is already exists in the name of Central Government and possession as well. Secretary (Settlement and Rehabilitation) is directed to take appropriate steps for disposal of suit property as provided under the Repeal Act
(XIV) of 1975.