' This petition is directed against the order dated 12th April, 1974 passed by Settlement Commissioner (Lands) Hyderabad whereby he allowed the revision petition filed by Muhammad Khan Solangi (respondent No, 3) and set aside the order passed on 28th March, 1973 of the Deputy Commissioner/ Additional Settlement Commissioner (Land), Dadu. {{TABLE}}
1. The brief facts of the case are that the petitioners who are claimants, were allotted agricultural land as mentioned below : Survey No, Name of Claimant transferee Date of allotment 276/6-14 acres 254-3/4-12 Shafi Muhammad Petitioner No, 1 13-8-.1958 382-1/2-2 f 570/3-8 271/4-0 !, ,, Suleman Dost Muhammad now represented by Mst. 6-2-1958 20-7-1957 Rashidan, his widow/ Petitioner No, 3 {{TABLE}} ' The lands mentioned above are situated in Deh Khariri Taluka and disrict Dadu.
' Besides the petitioners Nos. 1 to 3 it may be mentioned that certain pieces of land were also allotted to one Syed Younus Raza and Noor Ahmed who are not parties to this Petition.
2. According to the case of the petitioners in addition to their entitlement, certain excess areas were transferred to them on payment of price as admissible under the relevant Scheme. Mr. Maroof submitted that the petitioners who have been all along in possession of the lands thus owned by them since the date of allotments and purchases made by them, suddenly after a lapse of more than 10 years learnt that one Muhammad Aslam describing himself to be the attorney of one Noora s/o Bahu, a claimant at Rahimyar Khan, by fraudulent means got the same lands allotted on 14th November, 1969 in the name of said Noora. Learned counsel submitted that the said lands which by this time had been developed by hard labour and considerable investment on the part of the petitioner was no longer available for transfer as the same had already been transferred and purchased by the petitioners and certain other claimants as well.
' It may also be noted here that the said Muhammad Aslam acting on behalf of Noora, got Khatonis prepared and also obtained mutation order on 30th March, 1970 and thereafter by registered sale deed purported to have sold away the said land to respondent No, 3 Muhammad Khan Solangi.
3. On learning about this fraudulent transfer obtained by Muhammad Aslam, the petitioners 1 to 3 filed an application before the Deputy Commissioner and Additional Settlement Commissioner (Land), Dadu for cancellation of the double allotment obtained by Muhammad Aslam in the name of Noora. The said Officer after hearing the parties and on appraisal of the facts held that allotment made in favour of claimant Noora s/o Bahu was a subsequent one and thus liable to be cancelled.
He accordingly in exercise of the powers delegated to him under section 11 of the Displaced Persons (Land Settlement) Act, 1958, and as a delegatee of the Chief Settlement and Rehabilitation Commissioner (Land) cancelled the allotment of the above survey numbers from the claim of Noora s/o Bahu with the further observation that "Noora be compensated with an equal area from the compesation pool".
' Certain other observations were also made but they are not relevant for the purposes of disposal of this case.
4. The respondent No, 3 against the above order filed revision application before the Settlement Commissioner (Land), Hyderabad.
' Before the Settlement Commissioner the power of attorney allegedly given by Noora to Muhammad Aslam was challenged on the ground that the same was forged and fraudulent. It was pointed out that though the said power of attorney was stated to have been executed on 26th October, 1972 by Noora in favour of Muhammad Aslam but long before that, on 27th April, 1972 Noora had already expired. It is also worth mentioning here that at the request of the Advocate for the present Petitioners to ascertain the factual position about the death certificate filed by Muhammad Khan Solangi/respondent No, 3, a letter was written by the respondent No, 1 to the Bahawalnagar Municipality for necessary verification. To the said query a reply was received wherein it was stated that no such certificate (produced by respondent No, 3) was ever issued by the said Municipality about the death of Noora. It was further stated that Noora had died on 27th April, 1972 and not on 24th December, 1972 as claimed by Muhammad Aslam. One Hussain a son of Noora was also produced by the petitioners who deposed that his father Noora had died at Bahawalnagar on 27th April, 1972 and that no power of attorney was executed by Noora in favour of Mohammad Aslam. According to said Hussain s/o Noora, Muhammad Aslam had cheated them by selling away the laid and had destroyed their claim and caused a great financial loss to the entire family ' Mr. Maroof the learned counsel for the Petitioners on these facts submitted that the entire proceedings in obtaining the land in the name of Noora by Mohammad Aslam in Deh Khariro taluka and District Dadu which also had affected the Petitioners adversely, was a fraud upon the authorities and the entire proceedings were vitiated and the purported transfer of the land obtained by Muhammad Aslam in the name of Noora was void.
5. The respondent No, 1 Settlement Commissioner (Lands) during the hearing of revision petition framed the following two issues :
(1) Whether the entitlement of Noora s/o Bahu is correct ?
(2) Whether the power of attorney is bogus or otherwise can be challenged in this Court at this stage ?
' Having framed the above issues the respondent No, 1 on the assumption that so far as the entitlement of Noora was concerned the same was not under dispute, and having thus observed he proceeded to hold that the allotment dated 14th November, 1969 in the name of Noora was legal and was not to be disputed by the lower Court as the survey numbers in dispute in the Khatoni of the present petitioners were wrongly included for which they were not entitled as they had already utilised and consumed their entitlement and thus the Deputy Settlement Commissioner, was not justified to cancel the land of Noora who through his attorney had already sold away the land on 23rd November, 1972 and that mutation had also taken place in favour of the vendee.
' According to the Settlement Commissioner the respondent No, 3 purchaser acquired vested right in the land in dispute having purchased the same by registered deed.
' As regards the second issue regarding the validity of the power of attorney the Settlement Commissioner observed that inquiry under the said issue was beyond the jurisdiction of the respondent No, 1 and that it was a matter of civil nature and the aggrieved party may go for the remedy before the Civil Court, ' Mr. Maroof Ali Khan, the learned counsel for the petitioners submitted that even if it be assumed for the sake of arguments that the entitlement of Noora was not under dispute yet the question which remained to be decided was whether Noora had at all applied for the transfer of land in Deh Kharirio, and if Muhammad Aslam was competent to do so. There is great force in the argument of the learned counsel. The first question in my opinion which ought to have been decided was whether Muhammad Aslam had competently applied for transfer of land in the name of Noora in Deh Kharirio which led to the allotment of the survey numbers in dispute in the name of Noora.
Reference in this connection may be made to the case of Mehdi Hasan v. Ghulam Muhammad where the learned High Court in a case filed before the Rent Controller for ejectment of a tenant and wherein the authority of the person who had filed the case as attorney was challenged, the learned High Court proceeded to observe as follows : "A respondent can always allege that a petition signed and presented by an authorised person for a relief under Ordinance (VI of 1959) is not valid by reason of the petition not having been instituted with the approval and authority of the said petitioner. It is the duty of the Rent Controller to decide this question. Since an objection to the validity of power of attorney was taken, it was for the petitioner to have proved that it had been validly executed by Ali Muhammad. The Rent Controller, under circumstances, could not order the ejectment unless this matter had been decided by him."
6. In view of the above principles laid down by the learned High Court of Lahore, I am of the opinion that the reasoning given by the respondent No, 1 that the issue regarding the determination of the validity of power of the attorney was beyond his jurisdiction and that it was a matter of civil nature and that the aggrieved party had to seek remedy, if any, before the Civil Court are vitiated as being arbitrary and amounts to refusal to exercise jurisdiction. It was indeed obligatory for the respondent No, 1 in order to find out the validity of the transfer of the land obtained in the name of Noora by Muhammad Aslam and the competency of the latter to have applied for the transfer of land on behalf of Noora, to determine if Muhammad Aslam was at all appointed as an attorney by the claimant Noora. It is obvious that in case Muhammad Aslam is found to have had no authority, the transfer of any land in the name of Noora who was already dead would be void particularly in1 view of the fact that Hussain son of Noora had also disowned the acts of Muhammad Aslam and all proceedings, actions and transactions built upon or pursuant to the said void transfer would also fall to the ground as being without any legal foundation.
A perusal of the record shows that there was prima facie evidence before the Settlement Commissioner that Noora died on 27th April, 1972. If this was correct, as contended the alleged power of attorney dated 26th October, 1972 would be a fake document and the transfer of land obtained and its sale thereafter in favour of respondent No, 3 by Muhammad Aslam would also be void and confer no title. Another fact which required consideration was that the Bahawalnagar Municipality wrote to the Settlement Commissioner on inquiry made, that the alleged certificate produced by Muhammad Khan Solangi (Respondent No, 3) showing that Noora had died at Bahawalnagar on 27th December, 1972 was never issued by the said Municipality. Hussain son of Noora had also denied that any power of attorney was executed by his father in favour of Muhammad Aslam.
7. As regards finding on issue No, 1 the respondent No, 1 omitted to consider the fact that the controversy involved was not whether entitlement of Noora was correct. The crucial question before the Settlement Commissioner was Issue No, 2 which is interconnected with Issue No, 1 as to whether Noora had applied for transfer of land in his favour in Deh Kharirio through Muhammad Aslam whose authority to do so was challenged on the plea that the alleged power of attorney produced by him was a fake and forged document. This material issue the Settlement Commissioner has completely omitted to decide.
8. As regards the validity of transfer of land in favour of Muhammad Khan (respondent No, 3) by Muhammad Aslam on behalf of Noora it may be observed that the findings on this question depended upon the legality of the power of Attorney in favour of Muhammad Aslam and validity of transfer of land in favour of the claimant Noora. Obviously the respondent No, 3 cannot claim any right or title in excess to what his predecessor-intitle had himself acquired. It is hardly necessary to, state that in case the allotment/Settlement in favour of Noora is found to have been obtained fraudulently or is vitiated for any other reason. The claim of the respondent No, 3 as the transferee from Noora through Aslam would also fail.
9. Keeping in view the principles that in exercise of jurisdiction under the Constitution the High Court is not expected to substitute its findings in place of the finding given by the authorities, I find that this is a fit case which should be remanded to be decided by the notified officer concerned in accordance with law on the issues which had been framed earlier in the case by the Settlement Commissioner.
10. In the light of the above observations the impugned order is set aside and the case is remanded to the notified officer to decide the issues afresh according to law after giving parties opportunity of leading evidence.
' In the circumstances of the case there shall however be no order as to costs. PLD 1964 Lah. 648