1. ' The above petition has been filed by the petitioner against the order by the learned Settlement Commissioner (Land), Sind, Hyderabad on 31-1-1974 in Revision No, 2/77/Reh/71, confirming the order passed by the learned Additional Deputy Commissioner and Additional Settlement Commissioner (Lands) Hyderabad dated 15th March, 1971, whereby the permanent settlement of land in favour of the petitioner in respect of 4.21 acres of land out of Survey No, 314 of Deh Bhambri Taluka Hala, District Hyderabad has been cancelled and the subsequent allotment/permanent settlement in favour of respondent No, 3 has been upheld, inter alia on the following facts and grounds :- ' The petitioner and his real brother Talib Ali Khan are claimants displaced persons holding small verified claims for Agricultural lands left behind in India. The entitlement of the petitioner as well as of his brother Talib All was verified each for 2.29 acres of agricultural land. Under the West Pakistan Rehabilitation Scheme minimum area to be allotted to the claimant was acres under the said scheme, the petitioner and his brother Talib Ali Khan were both allotted survey No, 314 measuring 9.1 acres under the minimum scheme, 2.29 acres being given to each against their claim and the remaining area about 1.30 acres was allotted to each of them as excess area and consequently the petitioner was issued Parchi Taqsim Khatooni on 8-9-1959 by which he was allotted 4.21 acres out of survey No, 314 of Deh Bhambri Taluka and district Hala, 2.29 acres being in lieu of his claim and the remaining 1.31 acres being given to him as excess land to bring him under the scheme for minimum area. Similarly his brother Talib Ali was given 2 29 acres against his claim' and 1.32 acres as excess land in the same survey number, under the said Scheme. In this manner the entire survey No, 314 was allotted to both the brotheRs, ' The Khatoonies of both the brothers were confirmed and both of them were also handed over possession of the land according to petitioner, which subsequently they leased out for their benefit.
2. ' The petitioner as well as his brother were required to pay price of excess area allotted to them in 30 instalments. All these payments were made by the petitoneRs, ' On 1-4-1969 after the full payment had been made by the petitioners of the excess land, the Additional Settlement Commissioner (Land), Hyderabad ordered the Mukhtiarkar, Hala by his letter No, DC/Reh/835 to effect the mution in favour of the petitioner in respect of 1.3 acres of the excess land allotted to the petitioner out of the above survey No, 314. This was complied with by the Mukhtiarkar, Hala and the name of the petitioner was mutated as ordered. It is pertinent to note that no objection was raised by the Mukhtiarkar, Hala or any other Revenue Authority in respect of this order of mutation.
3. ' On 1-4-1969 the Assistant Settlement and Rehabilitation Commissioner (Land), Hala passed an order under rule 7 (1) of the Rules framed under section 34 of the Displaced Persons (Land Settlement) Act XLVII of 1958 wherby the mutation was effected in the Revenue Records in favour of the petitioner in respect of the remaining 2.29 acres out of the above survey No, 314 allotted to him in satisfaction of his claim.
4. ' Certificate under section 14 of the Rehabilitation and Settlement Scheme. Part II, Chapter I was also issued on 1-4.1969 by the Assistant Settlement Commissioner (Land), Hyderabad in favour of the petitioner in respect of the 2.29 acres out of the above survey No, 314, permanently settled upon him. This Certificate clearly shows that 2.29 acres out of the above survey No, 314 had been allotted to the petitioner "under Permanent Settlement Scheme" vide confirmed Khatooni No, 21 dated 8.9- 1959 in satisfaction of his verified MRV No, 4314.
5. ' In May, 1969 the petitioner came to know that 3.23 acres out of the area permanently settled upon the petitioner had been illegally allotted in favour of respondent No, 3 on 25-6-1961, long after the Parchi Taqsim Koatooni was issued in favour of the petitioner on 8-9-1959. The petitioner moved an application before the Rehabilitation Mukhtiarkar, Hala, pointing out his prior allotment and permanent settlement and requested for the removal of the illegal duplication of allotment/permanent settlement. The Rehabilitation Mukhtiarkar submitted his detailed report on 25-8-1969 to the Additional Deputy Commissioner and Settlement Commissioner (Lands), Hyderabad recommending cancellation of the subsequent allotment/permanent settlement in favour of the respondent No, 3 Jan Mohomed s/o Khairuddin.
6. ' The Additional Settlement Commissioner (Lands) Hyderabad issued notice to the petitioner and to respondents Nos. 3 and 4 and after hearing all the parties by his order dated 15-3-1971 cancelled the permanent settlement in favour of the petitioner in respect of.4.21 acres out of the above survey No, 314.
7. ' The petitioner filed a Revision under section 19 of the Act before the Settlement Commissioner (Lands) Hyderabad on 6-5-1971 which revision was also dismissed by respondent No, 1 by his order dated 31-1-1974..
8. ' The petitioner in view of above alleged facts mentioned in his petition has challenged the impugned orders of respondents Nos. 1 and 2 dated 31-1-1974 and 15th May, 1971 respectively by this petition on the following grounds :-
1. That respondents Nos. 1 and 2 have committed a grave error in law in cancelling the permanent settlement in favour of the petitioner as iio jurisdiction was left in the Settlement Authorities to cancel the permanent settlement made under the Act, That the allotment in favour of the petitioner of the land in question was admittedly prior in time by Parchi Taqsim Khatooni dated 8- 9-1959 (Exh. 3) while the allotment in favour of the respondent No, 3 was admittedly made on 26th May, 1961. In view of this it is submitted that under the provisions of the Act and the Rehabilitation Settlement Scheme, a prior allottee has preferential title over others and this important aspect has not been considered by respondents Nos. 1 and 2 which has resulted in miscarriage of justice.
2. That respondents Nos. 1 and 2 failed to see that the subsequent allotment made on 26th May, 1961 in favour of respondent No, 3 was clearly illegal, without jurisdiction and void ab initio and in violation of the principles of natural justice.
3. That respondent No, 4, as a transferee from respondent No, 3 could not claim or possess better title than the title possessed by respondent No, 3, and as such the title of respondent No, 3 being defective and of no legal effect (on the above-mentioned grounds),.Respondent No, 4 could not claim a better title and could not be given any benefit as has been done by the two impugned ordeRs,
4. That both the impugned orders of respondents Nos. 1 and 2 are illegal and totally against the weight of evidence on record.
9. ' The learned counsel for the petitioner urged before me that the respondents Nos. 1 and 2 have failed to take into consideration the provisions of section 15 (3) of Displaced Persons (Land Settlement) Act, 1959, which reads as follows displaced person to whom any land has been allotted by a Rehabilitation authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such tees as may be prescribed by the Central Government."
10. ' The learned counsel for the petitioner urged that on the basis of above-mentioned section 15 (3) the petitioner is entitled to permanent settlement of the land in question in view of his allotment order dated 8-9-1959 and this right of the petitioner is a vested right which cannot be taken away by subsequent allotment in favour of respondent No, 3 and for this purpose the learned counsel for the petitioner relied upon case reported in PLD 1964 Kar.
11. 450.
12. ' The learned counsel for the petitioner further relied upon principles of allotment as laid down at page 187 of the Displaced Persons (Land Settlement) Act, 1958, 1973 Revised Edition, and submitted that the allotment of the petitioner could not be cancelled without his consent.
13. ' The learned counsel for the petitioner further submitted that allotment dated 26th May, 1961 made in favour of respondent No, 3 could not have been made without cancellation of the previous allotment of petitioner after show-cause notice but in the present case, he submitted that neither the petitioner's previous allotment, order dated 8-9-1959 was cancelled before the allotment dated 26th May, 1981 in favour of respondent nor any show cause notice for said cancellation was given to the petitioner. The learned counsel for On petitioner further urged that although no evidence of possession was produced by the petitioner before respondent No, 2 but the petitioner before respondent No, 1 produced copy of the lease in respect of the said land with one Muhammad Umer, but the learned respondent No, 1 did not apply his mind to the question of possession and as such the case should be remanded back for consideration of this question. The learned counsel for the petitioner further submitted that the prior allottee has preferential claim to settlement of land as against fresh entrant and for this purpose he relied upon PLD 1974 Note 43 at page 81.
14. ' The learned counsel for the petitioner further submitted that original respondent No, 4 was not a bona fide purchaser without notice as he had not produced allotment, PTD and other documents in favour of respondent No, 3 which he ought to have checked and obtained from respondent No, 3 at the time of purchase, in order to claim protection as a bona fide purchaser and for this purpose relied upon authority reported in A 1 R 1915 P C 103.
15. ' In view of the above submissions made by the learned counsel for the petitioner he urged that this is a fit case for remand to enable respondents Nos. 1 and 2 to consider the question of possession of the land acquired by the petitioner on the basis of the documents produced by the petitioner before respondent -No, 1 and he further submitted in the alternative that acquiring possession was not necessary ingredient under the Settlement Act to perfect the title.
16. ' The learned counsel for L. Rs, of respondent No, 4 on the other hand submitted that allotment in favour of petitioner was not allotment within the eye of law and for this purpose he relied upon clause 12. Chapter IV of Part I of Rehabilitation Settlement Scheme (page 157 of 1958 M. A. Latif, 1973 Revised Edition) and as such land in question was available for allotment on 26-3-1961 and consequently it was legally allotted to respondent No, 3 and as such question of giving show- cause notice for cancellation of petitioner's allotment dated 8-5-1959 did not arise at all. He further submitted mere allegation of petitioner that original respondent No, 4 was in possession of the land in question as lessee in the absence of full details and documentary evidence cannot be taken into consideration at all.
17. ' The learned counsel for respondent further submitted that if petitioner was aggrieved by allotment dated 26-5-1961 in favour of respondent No, 3, he had a right of appeal under section 18 of the Land Settlement Act, 1958 which he could have filed within 60 days of the said order or from the date of the knowledge of said allotment, but petitioner failed to exercise this remedy which was available to him and as such present petition is not maintainable.
18. ' The learned counsel for respondent further submitted that petitioner after allotment dated 8-9- 1959 was sleeping, he failed to take possession of the land as prescribed by the Scheme mentioned above, he made payments of excess area by three instalments on 3-1-1963, 24-2-1965 and 21-3-1969, after the allotment dated 26-5-1961 in favour of respondent No,
3. He further submitted that Annexures Exh. 3, Exh. 4, and Exh. 5 and Exh. 6 produced by . The petitioner with the petition are subsequent to the allotment of original respondent No, 4 and sale by registered sale- deed made by respondent No, 3 in favour of original respondent No, 4 and as such these documents are of no effect and do not in any way affect the title of respondent No, 3 acquired by him under allotment dated 26-5-1961 and the rights acquired by original respondent No, 4 under registered sale deed dated 19-2-1969 as bona fide purchaser for consideration without notice. In this connection, learned Advocate for the L. Rs, of original respondent No, 4 relied upon PLD 1976 Lab. 132 and PLD 1978 SC 270.
19. ' The learned counsel for the L. Rs, of respondent No, 4 further urged before me that Settlement Authority was competent to dispose of claim of original respondent No, 4 as bona fide purchaser and further submitted that petitioner had not challenged this authority of the Settlement Department either before tespondents Nos. 1 and 2 or by this petition.
20. I have carefully considered the submissions made by both the learned counsel of the parties and reasonings mentioned by respondents Nos. 1 and 2 in their respective orders and have taken into consideration the authorities cited by both the parties. The contention of the learned counsel for the petitioner that allotment in favour of original respondent No, 4, without cancellation of petitioner's prior allotment and in the absence of show-cause notice to the petitioner before issuance of allotment order dated 26-5-1961 is illegal, and void ab initio has no force. In my opinion, as the petitioner failed to produce before respondent No, 2 any evidence to show that in A pursuance of the allotment order he acquired possession of the land in question and as such it has been rightly urged by learned Advocate of respondent that the allotment in favour of petitioner was no allotment in the eye of law due to clause 12 of Chapter IV of the Displaced Persons Act XLVII of 195$ and consequently the land in question was available for allotment on 26-3-1951 when it was allotted to respondent No, 3 without cancellation of the allotment in favour of petitioner, as there was no legal allotment in the eye of law in favour of the petitioner.
21. The second contention of the learned counsel for petitioner that document produced by petitioner before respondent No, 1 about the possession of petitioner in respect of the land in question was not considered by him also has no force as respondent No, 1 was acting as Revisional Authority under section 19 of the Act and hence could not take into consideration fresh evidence produced before him and had to confine his decision on the basis of evidence already on record, which was before respondent No, 2.
22. ' The third contention of the learned counsel for the petitioner that original respondent No, 4 was not bona fide purchaser without notice also has no force, as the findings of, respondent No, 2 on this point were neither challenged by petitioner before respondent No, 1 nor the same have been challenged in this petition and as such petitioner cannot be allowed to agitate this point for the first time in his arguments in the fact of concurrent findings of both the .Lower Courts. Further, it is admitted position that the name of respondent No 3 was mutated in record of rights on the basis of allotment order dated 26-5-1961 and he was in possession of the land in question at the time when he transferred the same for valuable consideration in favour of original respondent No, 4 by registered sale-deed dated 19-2-1969 and as such original respondent No, 4 was a bona fide purchaser for valuable consideration without notice of petitioner's alleged claim, from respondent c No, 3 and as such in view of the law as laid down by PLD 1976 Lab. 132 and PLD 1978 SC 270, rights acquired by him cannot be interfered with in view of section 41 of the Transfer of Property Act.
23. ' In view of my above conclusions and findings, I see no merit in the contentions raised by the learned counsel for the petitioner and dismiss the above petition with no orders as to costs, in view of the circumstances and facts of the above petition.