Petitioner Haji Muhammad Ali son of Haji Noor Muhammad, who had earlier filed Petition No. 220 of 1974, which was withdrawn with permission to file a fresh Petition on 14-1-1978 and who had filed the instant petition on 8-2-1979 died on 27-10-1979 and his L. Rs. Who figure as petitioners Nos. 1 to 11 were brought on record.
2. The petition is with respect to agricultural land bearing Surveys Nos. 552, 553, 554, 586, 587, 588, 525 (out of No. 35, area 8 acres) in all measuring 28.25 acres, situated in Deh Tando Adam, Taluka Tando Adam, District Sanghar. It is the case of the petitioners that the land was an evacuee property and was shown in the record of Rehabilitation Authorities in the name of Sultan Khan son of Mabboob Khan and Muhammad son of Ismail. Respondents Nos. 1 and 2 had filed application against Muhammad son of Ismail, before Deputy Commissioner and _ Additional Settlement Commissioner (Cell), Sanghar disputing the status of the land but it was held that the land was evacuee property and had been rightly allotted. The appeal filed by respondents Nos. 1 and 2 before the Settlement and Re--habilitation Commissioner (Cell), Hyderabad, was dismissed on 29- 5-1965 and therefore the order not having been challenged further had attained finality.
3. On 28-6-1965, Sultan Khan and Muhammad sold the land to one Raja Ghulam Muhammad son of Wali Muhammad by a registered sale-- deed and the record-of-rights was accordingly changed in favour of Raja Ghulam Muhammad. Raja Ghulam Muhammad filed Suit No. 15 of 1966, in the Court of Civil Judge, Shahdadpur against respondents Nos. 1 and 2 and one Kandero, Sultan Khan and Muhammad, which was decreed in favour of Raja Ghulam Muhammad on 20- 12-1967.
Since the suit was for mesne profits and possession and the judgment and decree was not set aside the possession of the land was given to Raja Ghulam Muhammad. The appeal filed by respondents Nos. 1 and 2 was dismissed by the Additional District Judge, Sanghar on 16-5-1959.
Petitioner Muhammad Ali purchased the land from Raja Ghulam Muhammad by a registered sale- deed on 16-10-1969 and the record-of-rights was mutated in his favour accordingly. It is the case of the petitioner that respondents Nos. 1 and .2 moved the Barrage Department and in the year 1971 got lease of the land in their favour and in favour of Kandero and Rano who are now dead, representing that the land was Barrage land and not evacuee property, and got lease of the land for 10 years from the Barrage Mukhtiarkar. Since Barrage Department was adamant and the private respondents wanted to forcibly eject the petitioner, he filed C. P. No. 220 of 1974 which was withdrawn with permission to file a fresh petition and hence the instant petition has been filed.
4, Respondents Nos, 1 and 2 in their counter-affidavit have stated that the land in question is Barrage land, Survey No. 35 was unsurveyed till 1971. And its total area was 341 acres. The petitioners had failed to give the Survey number of the land out of Survey No. 35 in C. P. No. 220 of 1974 and in the instant petition he had mentioned S. No. 545 (8 acres) out of Survey No. 35. It is their case that Survey Nos. 586, 587, 588, 545 and 35 are all Barrage land and were not evacuee property. Survey No. 586 alongwith 4.0 acres of land from Survey No. 545 had been allotted to claimants for the first time in 1964 while the same were on lease with them. The allottees had sold out the same to Raja Ghulam Muhammad rnala fide. They had filed Civil Suit No. 70 of 1967 in the Court of Additional D. J.
Sanghar for declaration that the land was Barrage land on lease with them. The suit was ultimately withdrawn by them when Additional Commissioner, Hyderabad Division, held the land to be Barrage land and cancelled the illegal allotment.
5. With regard to Suit No. 15 of 1966 filed against them by Raja Ghulam Muhammad they state that the same was filed behind their back and no notice was served upon them. They had therefore filed Suit No. 92 of 1974 in the Court of Civil Judge, Shahdadpur, seeking declaration that judgment and decree passed in Civil Suit No. .15 of 19b6 was obtained by fraud and misrepresentation and as such was not binding on them. The suit was decreed as prayed for on 31-5-1977.
6. With regard to the allegation that the land was evacuee property they produced Form No. VII in which the land is shown as Nakabuli land. It is their case that they had been in possession of the land since 1950 on `yaksala' lease. The allotment to claimants was through mistake and the Additional Settlement Commissioner, Sanghar by order dated 14-2-1972 cancelled the same on the report dated 12-3-1971 by the Colonization Officer, Sukkur Barrage. It is further contended by them that the land in dispute was never treated or declared as evacuee before 1-1-1957 and the same could not be considered or declared as evacuee thereafter in view of section 3 of Act XII of 1957 as it was not hidden evacuee property. It is therefore, argued that the allotment to claimants was ab initio void and unlawful and therefore it was not necessary to obtain declaration under section 22 of Act XII of 1957.
7. It is further their case that they were dispossessed forcibly from land in dispute in the year 1973 and on their representation to D. C., Sanghar he ordered on 20-3-1974 directing Mukhtiarkar, Shahdadpur to put them in possession but they could not get possession due to order of status quo passed by this Court.
8. The Colonization Officer, Sukkur Barrage, Hyderabad who is respon--dent No. 3, has confirmed that ten years lease of Survey Nos. 285, 586, 587 (area 15-16 acres) from U. R. No. 545 (area 18-28 acres); 628/1; 626/2; 625/2; 609/3; 609/4; 35/1; 626/1; 462/3 total area 67-33 acres in Deh Tando Adam, was granted under his Order No. LG/SR/133-A dated 19-6-1973 to respon--dent Yar Muhammad and three others who had paid six installments out of 10. He has further stated that Yar Muhammad and others were also taking `yaksala' leases of the aforesaid land from 1956-57 to 1961-62, 1965-66 and 1966-67.
9. Referring to the previous history of the land it is stated that accord--ing to classification total area of U. A. No. 35 is 367-32 acres out of which an area of 353-15 acres alongwith other land was leased out to Messrs Bhagwandas (0.75) paisa and Tahiram (0.25) paisa for ten years from Kharif 1942-43 vide R. O.'s Order No. CG/411, dated 3-3-1942 but out of the area an area of 19-0 acres and 263-15 acres respectively were revoked from the lease, being duplicate and uncultivable land as no assurance of water was made and therefore only 71.0 acres remained on lease with the two Hindu lessees who had paid lease money up to 1946.
10. On behalf of respondent No. 3 it has been made clear that Survey Nos. 586, 587, 588 and 589 stand formed out of U. A. No. 35 and the same is Government Nakabuli land. It is further clarified that S. No. 545 area 15 acres along with other land had been granted to Messrs Bhagwandas and Tahilram on full rate conditions from Kharif 1941-42 on 15 installments basis under R. O.'s Order No. I G/-411. Dated 3-3-1942. The Hindu grantees paid initial deposit and 4 installments and therefore the grant stood cancelled from Rabi 1947-48 under R. O.'s No. 2133 dated 2-8-1948.
11. Coming to the merits of the case, therefore, it is admitted position that the land in dispute is Sukkur Barrage land and the cancellation of the grant in favour of the aforementioned Hindu grantees by order of Barrage Authorities Nos. 2138 dated 2-8-1948, the land was again Nakabuli Govern--ment land, which was being given on Yaksala lease to respondent Yar. Muhammad and others.
12. The claimants, namely Muhammad and Sultan Khan had been granted the land in 1964 whereas respondent Yar Muhammad and others had been taking lease of the land since 1956-57.
According to C. O.'s Order No. GB/SR/3824 dated 12-7-1.971, the land was cancelled from the Khatas of the aforesaid claimants as the same was Government Nakabuli land.
13. The impugned order with regard to cancellation of the allotment, in favour of the claimants is in accordance with the provisions of the Federal Act titled to the Sukkur Barrage (Validation of Orders)
Act, 1974, which in section 2 thereof provides as under:- "2. Validation.-Notwithstanding anything contained in the Pakistar. Rehabilitation Act, 1956 (XIII of 1956), the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958); or any decree or order of any Court or other authority, any order passed by the. Sukkur Barrage Authorities canceling the grant of land made to I non-Muslim who migrated to India granting such land to any other person shall be deemed to have been validly made and shall have: and shall be deemed always to have had effect accordingly."
14. Since the case of the petitioners is based on title of the land of the, claimants from whom the land was bought by Raja Ghulam Muhammad,4 and since the grant in favour of Bhagwandas and Tahilram, non-Muslim stood cancelled by the orders of the Sukkur Barrage Authorities in the year 1948 already referred to, the claimants who had no right in the land could not have given Raja Ghulam Muhammad any title to the property.
15. Mr. Muhammad Ali Shaikh, learned counsel for the petitioners, had quoted a number of authorities, in support of his contention that the order in appeal passed by the Settlement Commissioner dated 29-5-1965 had become final as no petition was filed in the High Court. The contention cannot be seriously considered in view of the Act of 1974, which leas been quoted above. Mr. Niaz Ahmed Khan, the learned counsel for the respon--dents Nos. 1 and 2, has referred to decision of C. P. No. 830 of 1975 which was filed by Muhammad Malhar against the official respondents and respon--dents Nos. 3 and 4 in this petition besides Kandero soil Of Yar Muhammad and Rano son of Lounge, which was given by a learned Single Judge of this Court on 10-5-1979. In that case the land in dispute was 12 acres in U. A. No. 545 situated in Deh Tando Adam, Taluka Shahdadpur, which initially had been granted to Bhagwandas and Tahilram on 10 years lease which had been deleted from their lease on 3-3-1942 under circumstances already referred to in this petition. The petitioner in the present case too has alleged to have purchased the land through Ghulam Muhammad, who had purchased the same in turn from Sultan Khan and Muhammad son of Ismail who were stated to be allottees of land of the same Hindu owners Bagwandas and Tahilram. It was held that the provision in the Sukkur Barrage (Validation of Orders) Act, 1974, gives complete protection to the orders passed by Sukkur Barrage Authorities canceling the grant of land made to non-Muslims, who migrated to India or granting of land to any other person and that the provision has retrospective effect. With respect, 1 would agree with the views of my learned brother as the wording "shall be deemed to have been validly made and shall have and shall be deemed always to have had effect accordingly" in section 2 of the Act provide expressly for giving retrospective effect to the provision.
16. The only contention, which had to be considered, is whether the petitioners can invoke the protection of section 41 of the Transfer of Property Act, 1882. The facts pleaded in the precedent decision of this Court are n doubt similar but no such plea would appear to have been raised in that case and there is no reference to any such plea.
17. It is clear from the facts already stated that there was litigation in respect of the land in question and the respondents Nos. 1 and 2 among others were challenging the fact about the land being evacuee property and were contending that it was Barrage Land. It is admitted position the Raja Ghulam Muhammad got the possession even, through litigation when he filed suit for possession and mesne profits. The mere fact that it was verified by the petitioner Muhammad Ali that the land had been allotted to claimants and was in their names in the register of Settlement Authorities did not relieve the petitioner from finding out the position from Barrag Authorities. In Shukri etc. v. Ch. Muhammad Shafi Zaffar and 2 others(PLD 1975 Lab. 619) an decision of Writ Petition No. 462/R/69 of the Lahore High Court, it was inter alias observed that a mere entry of the name as owner in the Government record or in private papers did not relieve the purchaser from such owner, from the duty and the responsibility of making an inquiry into the title of the owner. In the instant case it cannot be overlooked that the dispute over the land wars in existence when the alleged purchase through registered sale-deed took place and on behalf of the respondents Nos. 1 and 2 a pie of male fide transfer has been taken.
18. The belated contention that the Sukkur Barrage (Validation of Orders) Act, 1974, is ultra vires in view of Article 24 of the Constitution, does not help the petitioner as the Fundamental Right under the Article stands suspended and all proceedings pending in any Court, in so far as they are for the enforcement of the right stand suspended under the Laws (Continuance in Force) Order, 1977.
19. Under the circumstances no case for interference of this Court in exercise of discretionary powers is made out and the petition is dismissed with costs. The order with regard to observance of the land in dispute shall stand revoked with immediate effect.