This petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, calls in question a portion, of order dated 13-1-1977 of the Additional Settlement Commissioner (Lands), Gujranwala, with powers of the Chief Settlement Commissioner, whereby an area of land measuring 431 Kanals 15 Marlas, confirmed in the name of Suba, predecessor-in-interest of the petitioners on the basis of Claim Form No. 3630 m village Gobindpura, Tehsil and District Gujranwala, was cancelled being bogus and fraudulent and ordered to be allotted to respondents Nos. 2 to 17 as informers against their entitlement.
2. Briefly, facts of the case are that one Jani was a displaced person. He obtained allotment of land against his claim in different villages in Gujranwala District. He also inherited land from his brother Suba son of Karim Bakhsh, the predecessor-in-interest of the petitioners. Suba had abandoned agricultural land in India. He filed Claim Form No. 3630 on which about 1110 P.I. Units were verified and land measuring 431 Kanals 15 Marlas was allotted to him against Khata No. 114 of the Register RL-11 of village Gobindpura, Tehsil and District Gujranwala; on 22-11-1963. On the death of Suba, the land was inherited by his brother Jam son of Karim Bakhsh. Jani made a number of alienations. A part of the land which is the subject-matter of this writ petition, was alienated to Abdul Haq respondent, who made further alienation to the petitioners Nos. 13 to 22. Another alienation was made in favour of A.I Bakhsh son of Fateh Muhammad, who made further alienation to one Muhammad Suba son of Muhammad Hussain on 26-7-1976. The sale in favour of the petitioners Ghulam Nabi and Hasan Muhammad were made on 16-4-1965 and the mutations were accordingly sanctioned.
3. One Habib Ahmed, who is not party to this writ petition, filed a Mukhbari application against Jani, who obtained allotment of land in different villages in Gujranwala under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act), alleging that Mst.
Habiban daughter of Karim Bakhsh (not party to this writ petition) and Jani, the predecessor-in- interest of the petitioners, were in possession of some agricultural land in excess of their entitlement. That application was rejected on 28-3-1966. On review, the Mukhbari application was accepted, but vide Settlement Revision No. 45 of 1966, this Court set aside the order of cancellation of the land in question inter alia on the ground that there was no allegation in the petition that a fraud had been committed by Jani nor any such finding was given.
4. Another Mukhbari application was filed by respondents Nos. 2 to 4 and the predecessor-in- interest of respondents Nos. 5 to 16. This application was accepted by the Additional Settlement Commissioner (Lands), Gujranwala, by his order dated 13-1-1977, who recorded a finding of fact, after taking into consideration the report of the Central Record Office and providing an opportunity of being heard to Jani, the predecessor-in-interest of the petitioners, that no area was verified on Claim Form No. 3630. The counsel for Jani conceded that the allotment was bogus and the same be cancelled. He, however, prayed that the area allotted to Jani under Claim Form No. 266, whist was verified for an area of 33 bigas allotted in village Durgapur against RL-11 Khata No. 259 may be allowed to remain intact. The Additional Settlement Commissioner accepted the prayer of Jani's counsel by holding that Khata No. 259 be kept intact and allotment in village Gobindpura and Tolayke, Tehsil and District Gujranwala, be cancelled. He also allotted the disputed land to the respondents according to their seniority and entitlement. The impugned order is, therefore, in the nature of a consent order, in so far as it relates to the petitioners.
5. Learned counsel for the petitioners contends that the adjudication by the High Court in Settlement Revision No. 45 of 1966 has attained finality under section 22 of the Act and, therefore, no second adjudication on the point could be made. Be that as it may, the impugned order is based on admission and consent of the learned counsel for the predecessor-in-interest of the petitioners to which no exception can be taken in law. Additionally, the petitioners' predecessor-in- --interest never took this plea before the Additional Settlement Commissioner, and therefore, they cannot be permitted to take a stand at variance with their, predecessor-in-interest in a matter which is past and closed.
6. Learned counsel for the petitioners next contended that proper inquiry was not made before passing the impugned order by the Additional Settlement Commissioner, inasmuch as, he did not inquire into the genuineness or otherwise of all the claim forms of Suba. The contention is again devoid of any force, inasmuch as, in the instant case, the learned Additional Settlement Commissioner sent the Robkar for verification of the disputed claim forms and recorded al finding of fact and no area was verified on Claim Form No. 3630. The mere fact that no inquiry was allegedly made in respect of Claim Form No. 3656 would not improve the case of the petitioners, particularly, when the counsel appearing on I behalf of Jani conceded before the Additional Settlement 'Commissioner that the disputed area was bogus and in excess of his entitlement. The petitioners having stepped into the shoes of their predecessor-in-interest, statement on facts made by their counsel is binding on the petitioners.
7. Learned counsel for the petitioners next contended that the Mukhbari application was ante- dated and no valid petition was pending on 1-7-1974 and, therefore, after the repeal of the Evacuee Laws by Act XIV of 1975, the learned Additional Settlement Commissioner was not empowered to entertain or adjudicate upon the Mukhbari application, on the basis of which the impugned order was passed. This is a disputed question of fact which has been specifically denied by the contesting respondents in the written statement, and therefore, the same cannot be examined in these proceedings.
8. It is further contended by the petitioners' counsel that the statement made by the counsel for Jani before the Additional Settlement Commissioner was mala fide, inasmuch as, to protect the land left with him, Jani surrendered the land which had already been sold to the petitioners and, in any case, the allotment which was covered by valid units was to be protected and the balance was to be cancelled. The contention is again devoid of any force. It is well-settled that burden to prove mala fides lies on the persons alleging it. The petitioners have failed to discharge this burden. Furthermore, mala fides must be pleaded with particularity in the petition. In the instant case, no allegation whatsoever as to mala fides has been raised in the writ petition and, therefore, the petitioners cannot be permitted to raise this disputed question of fact for the first time in this Court.
9. It is next contended by Mr. Saeed-ur-Rahman Farrukh that the reports of the Central Record Office were obtained at the back of the petitioners and, therefore, the same are not binding on them. This plea is again untenable, inasmuch as, the statement of fact made by a counsel is binding on the party. Here, the predecessor-in-interest of the petitioners was admittedly Jani associated with the impugned proceedings and, therefore, the petitioners cannot take up the plea that the impugned proceedings were ex parte.
10. Finally, it is contended by the learned counsel for the petitioners that the land in dispute at the time of purchase was banjar in toto and the petitioner having developed it are entitled to purchase the same in terms of section 3(i)(b) of the Repealing Act, There is no cavil with the proposition of law advanced by the learned counsel for the petitioners that in terms of the first proviso to clause b of section 3 of Act XIV of 1975, agricultural land occupied by any person continuously for four harvests immediately preceding Kharif, 1973, should first be offered for sale to such person unless order of ejectment has been passed against him in respect of such land: Be that as it may, the petitioners' predecessor-in-interest never availed this opportunity nor made any statement before the Additional Settlement Commissioner expressing his willingness to purchase the disputed land.
On the contrary, as pointed out earlier, he himself requested the Additional Settlement Commissioner to cancel the disputed land and, therefore, the provisions of section 3 of the said Act cannot be attracted at this belated stage. Also refer Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027, wherein it was held that the provisions of section 41 of the Transfer of Property Act (No. IV of 1882) are not attracted to proceedings under sections 10 F and 11 of the Act. Here, the proceedings were pending when the Act No. XIV of 1975 was enforced and, therefore, the allotment made in favour of the informer---respondents suffered from no legal infirmity.
11. In view of the above, the writ petition fails and is hereby dismissed, but there shall be no order as to costs.