' This judgment shall dispose of Writ Petitions Nos. 471-R/77, 495-R/77, 1489-R/77, 917-R/77, 1169-R/77 and 717-R/77 as the entitlement of Muhammad Siddique son of Allah Bakhsh and the land allotted in various villages in lieu of the verified claims is under question in all these petitions. The petitioners are purchasers of the land allotted to aforesaid Muhammad Siddique is satisfaction of Claims Nos. 780, 3672 and 3673 filed by him in respect of the land abandoned by him in India. The factual aspects of the purchases made by the petitioners may first be summarised:- W.F. Nos. 471-R/77 and 495-R/77 (Sher Muhammad v. Additional Settlement Commissioner and others).
2. Muhammad Siddique was allotted 194 Kanals 12 Marlas of land at Khata No. 19 of RL-II of village Toleki, Tehsil and District Gujranwala against 400 Produce Index Units of Claim No. 780 received on transfer from village Kot Dhanpat vide order, dated 4-3-1963. Muhammad Siddique sold this land vide Mutation No. 370, dated 9-4-1963 to Mst. Habiban daughter of Karim Bakhsh who after about 6 years sold this very land to Tufail Hussain vide Mutation No. 431, dated 2-6-1969. Thereafter, 178 Kanals 12 Marlas out of this land was sold by Tufail Hussain to Muhammad Siddique son of Muhammad Ramzan. This sale was pre-empted by Sher Muhammad petitioner by instituting on 14-5-1973 a suit for possession through pre-emption vide judgment and decree, dated' 10-12-1974 of the Administrative Civil Judge, Gujranwala. After depositing the total sale price amounting to Rs.
64,000 the petitioner obtained possession of the land in question and Mutation No. 471, dated 14-2- 1976 was sanctioned in his favour. This mutation was duly incorporated in Register Haq Daran Zamin for the year 1973-74. This is how Sher Muhammad petitioner became owner of the land measuring 178 Kanals 12 Marlas out of the land originally received in allotment by Muhammad Siddique the claimant/allottee. The necessity to file two constitution petitions arose as on two separate applications of different sets of informers orders, dated 13-1-1977 and 18-1-1977 were passed by the two Additional Settlement Commissioners (Land) the delegatees of the Chief Settlement Commissioner.
' W.P. No. 1169-R/177 (Karam Dad v. Mst. Taju and others).
3. The petitioner purchased land measuring 39 Kanals 5 Marlas situated in village Attawa, Tehsil and District Gujranwala vide registered sale-deed, dated 22-12-1963 from Muhammad Siddque who was allotted this land at Khata No. 165 of the RL-II of the said village. The sale was incorporated in the Revenue record since purchase and during consolidation proceedings this land was amalgamated with the other land of the petitioner. The allotment was cancelled and the land was ordered to be resumed vide order, dated 18-1-1977 on the Mukhbari application filed in the names of respondents Nos. 1 to 5 by the alleged Attorney though the said persons did not exist or were not alive then. It was asserted that by making an interpolation, allotment obtained in village Attawa was mentioned as in the application originally filed allotment obtained in village Attawa was not mentioned. It was also contended that in the order, dated 18-1-1977 Khata No. 195 of RL-II of village Attawa was not cancelled. The Khata was, however, cancelled vide order, dated 11-5-1977 on a review application allegedly submitted by the so-called Attorney. The Additional Settlement Commissioner (Land) Gujranwala, respondent No. 7, it was asserted again without issuing any notice and without hearing the petitioner, allowed the review application and directed cancellation of Khata No. 165 of RL-II though at that time the said officer was neither the Additional Settlement Commissioner nor the delegatee of the Chief Settlement Commissioner nor he was possessed of review powers. It was also averred that the application seeking review was ante-dated and this ante-dating of the application was apparent from the court-fee stamp affixed thereon and the note of the official appended thereto which was still available on record.
' W.P. No. 717-R/77 (Shah Muhammad and others v. Ch. Muhammad Zafrullah Khan and others).
4. The petitioners purchased land measuring 637 Kanals by means of three separate registered sale-deeds in the year 1963 from Muhammad Siddique respondent-original allottee. This land situated in village Lureeki, District Gujranwala was allotted to Muhammad Siddique respondent on 9-3-1963 at Khatas Nos. 89 to 92 against Claim Form No. 3673. It is asserted that the purchase was incorporated in the Jamabandi of the relevant year and that huge amount was invested making the Banjar land cultivable by installing two tube--wells, constructing three houses and planting large number of trees. This land purchased by the petitioner was cancelled vide impugned order, dated 18-1-1977 on the Mukhbari application submitted by respondents Nos. 2 to 6.
' W.P. No. 1489-R/77 (Mst. Iqbal Begum and others v. Mst. Taju and others).
5. The petitioners purchased land measuring 60 Kanals 19 Marlas of Khata No. 166, village Attawa, Tehsil and District Gujrawala from its allottee Muhammad Siddique vide registered sale-deed, dated 17-3-1963. In consolidation proceedings held in 1971 the area pruchased by the petitioners was reduced from 60 Kanals 19 Marlas to about 53 Kanals. The petitioners sold land measuring 26 Kanals 10 Marlas out of aforesaid land alongwith some other land originally owned by them to Regal Ceramic Limited, respondent No.
7. The remaining half of the land purchased from Muhammad Siddique allottee alongwith some other land was sold to M/s. Muhammad Aslam and Muhammad Akram, Proprietors of Martial Ceramic Ltd. , respondent No.
8. The allotment of land at Khata No. 166 of RL-II of village Attawa purchased by the petitioners was cancelled by the Additional Settlement Commissioner (Land) vide order, dated 18-1-1977 impugned in this petition on the Mukhbari application of Mst. Taju and others respondents Nos. 1 to 5.
' W.P. No. 917-R/77 (Regal Ceramics Ltd. v. Mst. Taju and others).
6. The petitioner-company purchased 30 Kanals 94 Marlas of land from Mst. lqbal Begum, etc. (petitioners in W.P. 1489-R/77) and constructed thereon Ceramics factory at a cost. of Rupees one and a half crore. According to the petitioner the installation of machinery costed another crore and by cancelling the land vide order, dated 18-1-1977 from the name of Muhammad Siddique without notice the petitioners have been made to suffer immensely. The order, dated 18-1-1977 impugned in this petition to the extent of cancelling allotment made at Khata No. 166 of RI.-II of village Attawa, District Gujrawala has also been assailed by the vendors in W.P. No. 1489-R/77.
7. After narrating the facts which were particular to each petition, the facts and the assertions which are common in all these petitions may now be summed up.
8. The petitioners who are admittedly bona fide purchasers for value were neither impleaded as a party in the Mukhbari application nor were given any notice of hearing nor were associated with the inquiry held before passing the impugned orders. The case of the petitioner is that the names of the bona fide purchasers/petitioners stand duly recorded in the Register Haqdaran Zamin since the time that each one of the petitioners purchased the land in question. It was also not controverted that a Mukhbari application earlier filed by one Habib Ahmad under sections 10 and 11 of the Displaced Persons (Land Settlement) Act against Muhammad Siddique the claimant/allottee was rejected by the then Additional Settlement Commissioners vested with powers of Chief Settlement Commissioner vide order, dated 28-3-1966 with the observations that despite giving of a number of opportunities the allegations made were not substantiated and that it was quite evident that the said applicants were not in a position to produce any evidence to prove that there has been any fraud. The operative part of the order, dated 28-3-1966 reads: "The best course for the respondent in the present case is to surrender excess Produce Index Units, if any, allotted to him. Ordinarily, I have been given allowance of 10 to 20% of the excess allotment if this was proved that this excess was not taken by fraudulent means. In this case also this allowance can be given. However, if the area is more than 20% then it is for the respondent either to surrender the excess area voluntarily or to pay the prescribed price of the area of Government. If he chooses the latter course, then he should appear before the Assistant Settlement Commissioner
(L) Gujranwala and get the matter decided once for all. He should himself disclose the facts before the A.S.C. (1), Tehsildar, Gujranwala who may look into the papers and ask the respondent to pay the price of the excess area in his possession."
' Thereafter, the Additional Settlement Commissioner, delegatee of the Chief Settlement Commissioner passed another order, dated 25-4-1966. This order may be reproduced in extenso:- "I have passed orders on 28-3-1966, in Miscellaneous Rehabilitation petition of 1966 as detailed above filed under section 10 of the Displaced Persons (Land Settlement) Act, 1958, but I am informed that there is some confusion about the implementation of my orders. What I meant was that as the full facts had not been brought to my notice by the petitioner, the Assistant Settlement Commissioner (Land) Tehsildar, Gujranwala should go into the merits and demerits of the case and after it is proved that there is no fraud and that the excess allotment was not more than 10% then the present allotment should stay as it is and no action is necessary but if it transpires that the excess allotment was largest than 10% then by no stretch of imagination the respondent can keep that land as the instructions contained in Deputy Secretary to Chief Settlement Commissioner, West Pakistan's letter No. 7511-65/894-R (L), dated 24-2-1966, addressed to all Deputy Commissioners are very clear. I have further been informed that there are no provisions to allow the purchase of any excess area against payment of Rs.8 per produce Index Unit although I have definitely seen certain orders passed by the Additional Commissioner wherein such a purchase was allowed. Anyhow, in the absence of any instructions no action should be taken so far as the payment of the price of the excess area is concerned even if it is proved that the excess area was not obtained by any forgery or fraud. I am making a separate reference to the Chief Settlement Commissioner, to clarify the position in respect of such type of cases and after I receive the instructions from the Chief Settlement Commissioner, further action would be taken accordingly. It will be read as a part of my order, dated 28-3-1966."
' This order, dated 25-4-1966 was challenged by Muhammad Siddique the original allottee/respondent by filing Settlement Revision No. 43 of 1966 in the erstwhile High Court of West Pakistan, Lahore. In this revision petition Muhammad Siddique gave detail of the land abandoned by him in India, the three claims filed in respect of the abandoned land, the Produce Index Units verified in lieu of the said claims and the allotments obtained by him. It was further disclosed that all the land obtained in allotment had been sold by him and that the said vendees were not impleaded in the Mukhbari application filed by Habib Ahmad the then informer. During the pendency of the revision petition C.M. 8 of 1969 was filed by Abdul Ghafoor and others for being impleaded as a party to the Revision petition and the same was allowed subject to all just exceptions vide order, dated 5-3-1969. It is important to mention that on another application made for summoning the Claim Forms Nos. 780, 3672 and 3673 of Muhammad Siddique, from the Central Record Room it was ordered that at that stage the summoning of the claim forms was not necessary but if at the time of argument it was felt necessary to do so the same could be done.
The Settlement Revision was accepted vide judgment, dated 19-3-1969 by a Division Bench of the High Court of West Pakistan, Lahore after hearing the learned counsel for the parties. Sardar Hidayat Ullah Moakal; Settlement Commissioner (Land) appeared under direction of the Bench.
The learned Judges while narrating the facts in the judgment noted that Mukhabri application was rejected on 28-3-1966 with direction that the property be sold to the petitioner and that in compliance with this order the petitioner made necessary payments. The learned Judges also observed that "the order of the learned Additional Settlement Commissioner was without jurisdiction so far as it purports to have been passed under section 10 of the Act because not only did he not come to the conclusion that the petitiondr had been guilty of fraud but there was not even an allegation in the petition before him that a fraud had been committed by the petitioner."
The other relevant observation made is that the petitioner having been permanently setteld on the land in dispute the same had vested absolutely in him and the Chief Settlement Commissioner had no power whatsoever to proceed against it under section 11 of the Act.
9. It is also pertinent to note that after the aforesaid order passed in the Settlement Revision No. 43/65, two Mukhbari petitions filed under sections 10 and 11 of the Act by Abdul Ghani and Abdul Ghafoor Khan were dismissed vide order, dated 6-11-1969 and 20 11-1969 by the then Settlement Commissioner (Land), Gujranwala with the observations that there was no force in the application in the light of the order of the High Court and that the best course for the petitioner was to pursue the case in the Court of competent jurisdiction. It was also not disputed that order, dated 19-3-1969 passed by a Division Bench of the West Pakistan High Court, Lahore was not assailed any further and that the said judgment has attained finality and still holds the field. The contention of the learned counsel for the petitioners was that in the presence of judgment, dated 19-3-1969 and in view of the finality attaching to it under section 22 of the Displaced Persons (Land Settlement) Act the Chief Settlement Commissioner or his delegatee was left with no power to interfere in the allotments of land made in the name of the original claimant. It was also submitted that Mukhbari application on the basis of which the impugned order was passed was barred under the principle of constructive res judicata and that the bona fide purchasers for value cannot be deprived of the land purchased by them.
' No one appeared to contest these petitions on behalf of the Settlement Authorities. Sh. Abdul Aziz, Advocate appeared on behalf of Mst. Amir Begum respondent No. 4 in W.P. No. 493-R/77 the allottee of the land in village Toleki in pursuant to the impugned order. Mr. Muhammad Yaqoob Sidhu, Advocate appeared for Muhammad Boots, respondent. Major Waheed-ud-Din Virk, Advocate appeared on behalf of Qutba, respondent No. 4, one of the informers and stated that Mst.
Taju and Bahadur respondents were dead since long and even prior to the institution of the Mukhbari application and that Qutba the living respondent is not interested to contest these petitions. These petitions were thus contested by Sh. Abdul Aziz, Advocate and Muhammad Yaqoob Sidhu, Advocate on behalf of the aforenoted respondents. They contended that purchasers from allottee cannot seek protection of the principle contained in section 41 of the Transfer of Property Act. Every purchaser from allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence and the provisions of sections 10 and 11 of the Act and as such any settlement obtained by fraud or misrepresentation was liable to be cancelled under the said sections. In support of the submission cases of Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others 1983 SCMR 1199 and Sher Muhammad v. The Chief Settlement Commissioner and others 1971 SCMR 339 were cited.
11. I have given serious consideration to the respective submissions of the learned counsel for the parties. It is appropriate to recapitulate at this stage that the impugned order, dated 13-1-1977 was passed on the Mukhbari application of Hidayat Begum, Nawab Hassan Yar Ring, Mst. Amir Begum, Abbas Ali Beg and Mehrban-ud-Din against Muhammad Siddique and 6 others claimants- allottees. Writ Petition No. 495-R/77 assails the order, dated 13-1-1977 to the extent of cancellation of allotment obtained by Muhammad Siddique in village Durgapur, RL-lI, Khata No.
261. Village Wandho, RL-II, Khata No. 421 and village Toleki Khata No.
19. The other impugned order, dated 18-1-1977 was passed cancelling allotments obtained by Muhammad Siddique against Claim No. 780 Khata No. 261 village Durgapur, Khata No. 19 village Toleki, Khata No. 167 village Attawa and land allotted against Claim No. 3672 at Khata No. 33 Kot Dhanpat, Khata No. 166 village Attawa, Khata Nos. 86 to 92 and 95 of Lurrike, Khata No. 421 of Wandho, Khata No. 262 of Datewali, Tehsil Gujranwala. The third order under challenge was passed in review whereby the land allotted at Khata No. 165 village Attawa was also cancelled. These two orders were passed on the Mukhbari applications filed by Mst. Taju, Bahadur, Qutba, Muhammad Boots, Khan Bahadur Khan. These orders are under challenge in all other petitions except Writ Petition No. 495-R/1977.
12. It will also be recalled that none of the purchasers-petitioners were admittedly impleaded as a party to Mukhbari application and they were also not associated with the inquiry held and as such were not provided with any opportunity of hearing. Moreover, the order, dated 18-1-1977 and the order, dated 11-5-1977 passed in review were passed by the delegatee of the Chief Settlement Commissioner without knowleged A of the fact that on another Mukhbari application the land allotted against Claim Form No. 780 in villages Durgapur, Wandho and Toleki had been cancelled by another delegatee of the Chief Settlement Commissioner vide order, dated 13-1-1977. Both these officers were also not made aware that the Settlement Commissioner (Land) another delegatee of the Chief Settlement Commissioner had refused to interfere in the allotments obtained by Muhammad Siddique and had rejected the Mukhbari petitions earlier filed by other informers vide orders, dated 6-11-1969 and 20-11-1969. It was. also not brought to the notice of these officers that yet on another Mukhbari application filed prior in time to the aforesaid two Mukhbari applications the then learned Settlement Commissioner had passed orders, dated 28-3-1966 and 25-4-1966 and the latter order, dated 25-4-1966 was assailed by Muhammad Siddique by filing Settlement Revision No. 43 of 1966 and that the said revision petition was accepted by the High Court of West Pakistan, Lahore vide order, dated 19-3-1969 whereby the allotments obtained by Muhammad Siddique the original allottee were upheld. The questions that require determination in view of the aforesaid admitted factual position are, whether in the present- of the final order, dated 19-3-1969 of the High Court passed under section 21 of the Displaced Persons (Land Settlement) Act, the Chie Settlement Commissioner or his delegates were left with any legal authority to interfere in the matter under sections 10 and 11 of the Act and whether in the facts and circumstances of this case the petitioners can invoke the protection of the principle enshrined in section 41 of th Transfer of Property Act.
13. I have examined these-questions in the light of the pronouncement of the High Courts and the Supreme Court. In Sher Muhammad's cas (Supra) it was observed that 'settlement' under section 15 of the Act means "a lawful settlement or settlement in accordance with law and that settlement obtained by fraud or misrepresentation cannot be treated a lawful settlement and remains an allotment liable to cancellation unde sections 10 and 11 of the Act". In the latest pronouncement of the Supreme Court in Bashir Ahmad's case (Supra) the view expressed in the case of Officer on Special Duty, General. Record Office and other v. Bashir Ahmed and 9 others 1977 SCMR 208 was explained by observing that the question of protection on the principle of section 41 of the Transfer of Property Act to the purchasers for value had itself not been in controversy in the case of Officer on Special Duty v. Bashir Ahmed nor was the observation essential to or made the basis of the decision in the said case. It was reiterated that an allotment obtained remains subject to the incidence of sections 10 and 11 of the Act. It is also pertinent to note that in the case of Bashir Ahmed (Supra) there existed no final order passed under earlier sections 1 and 11 of the Act as such the plea that fresh inquiry could not b made because of the finality attaching to any earlier order passed in view of the provisions contained in section 22 of the Act was no available there. This is the distinguishing feature of the case of Bashi Ahmed and others. The other case of Officer on Special Duty v. Bashi Ahmed applies fully to the instant case as here also the allotment obtained by Muhammad Siddique were scrutinized in exercise of power, vesting under sections 10 and 11 of the Act, the allegations of fraud were levelled and vide order, dated 25-4-1966 the question of examination of fraud was kept open and any excess allotment obtained was ordered to be worked out and to be paid for. This order was challenged under section 21 of the Act in the High Court and the order passed under sections 10 and 11 of the Act was set aside and it was held tha Muhammad Siddique claimant-allottee was entitled to hold the allotment obtained by him. During the proceedings held by the High Court' Muhammad Siddique allottee gave details of the claims filed by him and the allotments obtained in satisfaction of the verified Produce Index Units. A request to summon the claims from the Central Record Office was made but later on it appears not to have been pursued. The then Settlement Commissioner (Legal) appeared under the direction of the Court but failed to challenge either the genuineness of the claims or the allotments obtained or the payment made by the allottee, in respect of the excess land if any. This order cannot be denuded of the finality attaching thereto under section 22 of the Displaced Persons (Land Settlement) Act and there being no power of review available the matter could not be reopened. This is what was precisely held in the case of Officer on Special Duty v. Bashir Ahmed (Supra). The view expressed in this case came up for reconsideration in the review petition filed by Officer on Special Duty and the same was disposed of by the learned Jugdes of the Supreme Court by incorporating the observations in the judgment earlier passed as follows. "that if the Chief Settlement Commissioner who passed the said order wanted to reopen the case on the ground of 'a fresh fraud' and not on the ground of correctness of the entitlement of respondent No. 8 or 9 then he was free to do so".
"See Officer on Special Duty Central Record Office and others v. Bashir Ahmad and others 1981 SCMR 1198". It is, therefore, apparent that only on the ground of "fresh fraud" the matter can be reopened and not on the question of entitlement of Muhammad Siddique respondent as it was open to the parties to raise the said question in the earlier proceedings which culminated into the final order passed by the High Court in revision jurisdiction. In the present case it is not the case of the respondents that the impugned orders were passed on the basis of "fresh fraud" or that any fraud was played by Muhammad Siddique allottee in procuring the final order passed by the High Court of West Pakistan, Lahore or that the present petitioners-purchasers were party or privy to any fraud whatsoever. There is also some force in the plea that the Mukhbari applications subsequently filed were hit by the bar of general res judicata. The application of this principle was also accepted in the case of Bashir Ahmed v. Kamaluddin, etc. 1981 SCMR 1180.
14. In addition to the above, other reasons exist for holding that the impugned orders are not maintainable and merit to be quashed. The cancellation of the land allotted against Claim No. 3672 proceeded on the premises that as per report of the Central Record Office no land was verified in both the villages in favour of Muhammad Siddique son of Allah Bakhsh though in village Bhamna Hadbast No. 88 and in village Samana Hadbast No. 87 of Tehsil Bahwani Garh, Patiala State, India land was verified for one Siddique son of Aloo, caste Arain but no effort was made to verify whether Siddique son of Aloo and Siddique son of Allah Bakhsh was one and the same person. The plea of the petitioners was that Allah Bakhsh father of Muhammad Siddique was described as Aloo as is common in the villages and that the said entitlement verified was in fact that of Siddique the allottee. It was conceded that by making a little effort and by examining the revenue record received from India e.g. pedigree table and the Jamabandis which contain Khewats and details of owners, this could be known and verified that Muhammad Siddique son of Allah Bakhsh and Muhammad Siddique son of Aloo was one and the same person. It is apparent that non-application of the mind and non-examination of this crucial question by the officers renders the impugned orders arbitrary and illegal. Moreover, the excess allotment obtained if any, against Claim No. 780 also becomes inconsequential as in the order passed by the High Court of West Pakistan, Lahore in Revision Petition No. 43 of 1966 it was noted that Muhammad Siddique allottee had paid for the excess allotment obtained by him under the orders of the Settlement Commissioner. This assertion remained unchallenged before the High Court and as such has to be accepted with the consequence that the excess, if any, cannot be withdrawn in the year 1977. Again the officers while passing the impugned orders were not even conscious that the third Claim Form No. 3673 filed by Muhammad Siddique was also verified. Though nothing was said about this claim yet the land allotted in village Lureeki Khatas Nos. 89 to 92 of the RL-lI was cancelled (see W.P.717- R/77). Moreover, the petitioners who have purchased the land in dispute in bona fide manlier placing implicit reliance on the order passed by the High Court of West Pakistan, are entitled to retain the same because every citizen has a right to place implicit faith on the final order passed and to regulate his conduct according to the entitlement and rights declared by the superior Courts. The petitioners having regulated their affairs in a bona fide manner are entitled to remain in peace as there is no allegation of fraud even remotely suggested as against them.
15. For all these reasons the impugned order dated 13-1-1977 to the extent that it cancelled the land obtained in allotment by Muhammad Siddique and the order, dated 18-1-1977 and the order dated 11-5-1977 are hereby declared to have been passed without lawful authority and hence of no legal effect.. These petitions thus stand accepted. The parties are, however, left to bear their own costs.