' The validity of the order, dated 11-12-1983 passed by the learned Collector Gujranwala, is, under challenge in this writ petition.
2. The facts are that the land in dispute measuring 698 Kanals 9 Merles, situated in Kot Harrat, Tehsil Wazirabad, District Gujranwala as per Khata No.17 of RL-II register, was,, allotted to respondents Nos.2 to 4. The allotment was made under the signatures of Mr. Muhammad Yousaf Khan the then Assistant Commissioner Wazirabad and was procured by one Muhammad Bashir, acting as attorney for the allottees who later on sold the land to respondents Nos.13 to 15 vide Mutation No. 111, dated 27-11-1974. These vendees further alienated the land by way of sale, to respondents Nos.5 to 12 by means of registered sale-deed, dated 18-4-1975. It appears that when on the basis of this sale-deed, the subsequent vendees, approached the Revenue authorities for sanction of the Mutation in their favour, they took the view that Mutation No. 111 was, violative of M.L.R. 115 and cancelled the same through review.
3. After cancellation of Mutation No.111, one Siraj Din and others appeared on the scene, and claiming as vendees of the land in dispute brought a suit for possession against the allottees, wherein Muhammad Bashir in his capacity as attorney for the latter confessed judgment.
Consequently, the suit was decreed. On the strength of the Civil Court's decree, on 5-5-1976 Mutation No.126 was sanctioned in the names of the decree-holders.
4. The decree-holders aforesaid disposed of the land in favour of Shah Muhammad, Sher Muhammad and Muhammad Tufail sons of Muhammad Bakhsh and Abid Hussain son of Ghulam Haider, under two separate transactions Mutation Nos. 130 and 131, dated 30-6-1977, were attested in this behalf. During the pendency of the proceedings against Shah Muhammad, etc. culminating in the impugned orders, they sold the land to the writ petitioner for a consideration of Rs.650,000.
Mutation No.203, dated 26-1-1981 covers this sale.
5. The proceedings which led to the passing of the impugned order, were commenced on the complaint filed by respondents Nos. 5 to 12, before the Martial Law Authorities, which was sent to the Deputy Commissioner/Collector Gujranwala for further action in the matter. The latter assigned the enquiry to the Assistant Commissioner Wazirabad. It is unnecessary to burden this judgment with the details of the enquiry proceedings and it is sufficient to observe that the Collector recorded the statement of Muhammad Yousaf Khan, who denied his signatures on RL-II register and controverted to have made any allotment to respondents Nos. 2 to 4. In view of the material before him, the learned Collector maintained that the allotment in the names of respondents Nos.2 to 4, was, obtained by Muhammad Bashir by fraud and under forged signatures. He also held that the land shown to have been allotted to them at Khata No.17, was, never allotted to them and was still "baqaya sarkar" and that the subsequent alienations on the strength of this allotment were without any legal sanction.
6. Mahmood Anwar petitioner claimed to have purchased the land in dispute from Shah Muhammad and others for a consideration of Rs.6,50,000. This sale is evidenced by Mutation No. 203 sanctioned on 26-1-1981. I have heard his learned counsel and examined the available record.
He has raised the following points:-
(a) The petitioner is a bona fide purchaser for valuable consideration and thus, had the right to be heard. The impugned order which was passed without hearing him, is, a nullity in the eye of law;
(b) the Collector Gujranwala was not the officer notified under section 2 (2) of Act XIV of 1975. He acted without jurisdiction in cancelling the allotment of the petitioner's predecessor-in-interest;
(c) the land was allotted to respondents Nos. 2 to 4, way back in the year 1971. The allotment attained finality and more so, for the reasons that earlier, a Mukhbari application was filed by one Khan Bahadur against respondents Nos.13, 14 and 15, regarding the same land, which was dismissed by the Additional Settlement Commissioner, Gujranwala with powers of Chief Settlement Commissioner by his order, dated 5-2-1976 (Annexure 'G')
7. It is evident from the record that the petitioner purchased the property from Sher Muhammad and others during the pendency of the proceedings against them as well as the allottees. The principle governing the doctrine of pendente lite will be attracted. Thus, the transaction in the petitioner's favour, is, hit by the rule of lispendens. The A allotment having been found to be a forgery, Shah Muhammad, etc. did not acquire any title in the property to pass it on to the petitioner. In this connection, the following observations figuring in Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489 aptly apply to the instant case:- "As to the argument that the petitioners are bona finde purchasers for value it is clear that no protection be afforded to them when it has been found that their vendor had no right, title or interest in the demised property.
8. As to the right of hearing, it may be observed that in law, no such right independent of the vendors, against whom the enquiry was pending, was, available to the petitioner. This view finds support from Munawar Hussain, etc. v. Messrs Nisar & Co. 1976 SCMR 239, the petitioner "bought litigation" and was bound by the result of such litigation. It is noteworthy that the allottees themselves have not come forward to assail the cancellation of the allotment.
9. As regards the jurisdictional defect, it is well settled that order procured from a Tribunal, by practising fraud and forgery stands vitiated and such an order can be disregarded and treated as a nullity. In Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan PLD 1975 SC 331 at page 345 it has been observed:- "It seems to us that while there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud."
' In the instant case, what the Collector has done, is, that he ignored the allotment founded on the forged signatures of Mr. Yousaf Ali Khan.
Consequently, the land came to bear its true character i.e. "baqaya sarkar". As the basic transaction was a forgery, the mutations in question, including the one attested in favour of the petitioner, sanctioned by the revenue authorities, were liable to be rescinded. The fraud having come to the notice of the learned Collector it became necessary for him to determine the validity of the mutations. The argument rested on section 2 (2) of Act XIV of 1975, therefore, has no merit.
This disposes of the second contention of the petitioner.
10. Only the third argument is to be discussed. It is discernible from the copy of the order Annexure 'G' that the Mukhbari application was not pressed by the attorney of the applicant therein. The question of playing fraud in procuring the allotment, in favour of respondents Nos. 2 to 4, was, thus not decided on merits. Under the circumstances of the case, the argument, that earlier the fraud was not unearthed and the order allotting the land to respondents Nos.2 to 4, was, not subject to appeal or revision does not lend a valid basis to hold that the allotment attained finality, resulting in condonation of the fraud.
11. As all the contentions raised by the learned counsel for the petitioner have failed, this writ petition is found without any merit and is dismissed but with no order as to costs.
Writ refused.