1. ANWARUL HAQ, J.--This order will dispose of Civil Petitions Nos. 42 and 45 of 1973, which concern the same subject-matter, viz., certain evacuee agricultural lands, situate in four villages in the Rahimyar Khan district.
2. On 5-2-1955 Haji Ghulam Hussain, petitioner in C. P. No. 45 of 1973, and respondent No. 6 in C. P. No. 42 of 1973, filed four separate applica--tions before the Deputy Custodian, Evacuee Property, Bahawalpur, for a declaration under section 18 of the Pakistan (Administration of Evacuee Property)
3. Ordinance XV of 1949 to the effect that the lands in dispute were not evacuee property but belonged to him. He alleged that he had obtained these lands from their evacuee owners in 1946 after executing agreements for sale and paying the entire consideration money to the owners. He went on to state that he could not obtain attestation of the relevant mutations in his favour before the evacuee owners migrated to India but he asserted that he had throughout remained in possession of the lands. All these applications were accepted by the learned Deputy Custodian by his order dated 14-7-1955, and the necessary declarations were granted. After obtaining these declarations Haji Ghulam Hussain, since deceased and represented in these proceedings by his legal representatives, sold these lands to various persons including Barkat A.I etc. Who are petitioners in one of the petitions before us.
4. On 16-3-1959 one of the evacuee owners wrote to the President of Pakistan complaining that Haji Ghulam Hussain had prepared fictitious documents regarding the sale of his lands. Thereupon, the Director of Enforcement held a preliminary enquiry and reported the matter to the Custodian of Evacuee Property. Under the orders of the Custodian, the Deputy Custodian, Lahore, held a thorough enquiry into the matter, afford--ing full opportunity to all the interested parties to produce evidence. In his report dated 10-12-1966, the Deputy Custodian reached the conclusion that the lands in dispute had remained in the temporary allotment and possession of refugees from 1948 to 1955, that the evacuee owners had never sold them to Haji Ghulam Hussain, and the latter had not come into possession of these lands in 1946 as alleged by him. On these findings, he recommended that the earlier order of the Deputy Custodian dated the 14th of July 1955, be set aside in revision, and the lands be declared as evacuee property. This recommendation was accepted by the learned Custodian of Evacuee Property by his order dated the 23rd of January 1971.
5. Simultaneously with the proceedings before the Custodian officials, action was also taken under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, by the Additional Settlement Commissioner, who, by his order dated the 20th of April 1970, resumed the lands from Haji Ghulam Hussain. Aggrieved by these actions, Haji Ghulam Hussain filed writ petition No. 97-R of 1971 to challenge the order of the Custodian, and Settlement Revision No. 159 of 1970 against the order of the Additional Settlement Commissioner. Besides joining Haji Ghulam Hussain in his Settlement revision, the vendees Barkat A.I etc. Also filed a separate Writ Petition No. 98-R of 19 % 1.
6. All these three matters have been disposed of by the High Court by a consolidated order dated the 12th of December 1972, The learned Judges of the Division Bench have upheld the view taken by the learned Custodian of Evacuee Property to the effect that the alleged agree--ments for sale, relied upon by Haji Ghulam Hussain, were unenforceable in law, that no title in the lands ever passed to Baji Ghulam Hussain as the Transfer of Property Act being applicable to Bahawalpur State, the sale transactions could not take effect without registration. Finally, they have observed that in any case the writ jurisdiction of the high Court could not be exercised in aid of injustice, vi z., to perpetuate the fraudulent claim of Haji Ghulam Hussain over lands which were admittedly evacuee property.
7. On this view of the matter both the writ petitions as well as the settlement revision have been dismissed by the High Court.
8. Special leave to appeal is sought mainly on the ground that the lands in dispute having been declared to be non-evacuee property immediately before the 1st of January 1957, they could not be treated as evacuee property after that date in view of the bar contained in section 3 of the Administration of Evacuee Property Act XII of 1957. On behalf of the vendees an additional argument is advanced to the effect that they being bona fide purchasers, their possession should be protected.
9. It is not necessary for us to embark upon any detailed examination of the point raised by the learned counsel for the petitioners, as the same was considered at some length by a Full Bench of this Court in The Custodian of Evacuee Property, West Pakistan, Lahore v. Rats Ghazi Muhammad (1). That case also related to the former Bahawalpur State and it was held that on account of non- registration of the sale-deed the transaction could not be lawfully confirmed by the Custodian, and, therefore, the except--petition contained in section 3(2)(b) of Act XII of 1957, would apply. The same situation obtains in the instant case. There being no registered sale-deeds in favour of Haji Ghulam Hussain, the title never passed to him and, accordingly, the declaration obtained by him from the Deputy Custodian on 14-1-55 was without lawful authority and of no legal consequence.
10. As a result Haji Ghulam Hussain's possession over these lands was unauthorised, and was not protected by subsection (PLD 1973 SC 537.) of section 3 of the Act. It was accordingly open to the Custodian to treat the properties as evacuee even after the 1st o January 1957.
11. As regards the vendees, it is clear that they cannot be allowed to benefit from, the fraud perpetrated by the late Haji Ghulam Hussain. If they hail exercised due care and diligence, they would have found that their vendor did not possess any valid title to the lands in dispute. If they failed to exercise such diligence, they are themselves to blame.
12. For the foregoing reasons, both the petitions fail and are hereby dismissed.