The facts giving rise to this petition are that petitioner No. 1, Mst. Latifan inherited the property left by her deceased brother namely Muhammad Hanif, as his successor-in-interest of Khata No. 45 of R.
L. 11, village Qila Raie Singh, Tehsil and District Gujranwala. Claim No. 10328 with regard to the landed property abandoned in District Karnal (India) was verified in the name of Muhammad Hanif deceased for land equivalent to 1401 units measuring 186 kanals I I marlas. He was allotted and confirmed land in lieu of this verified claim in the said village in Gujranwala on 14-3-1953 and 14-12- 1953, respectively.
2. According to petitioner No. I after the land was inherited by her she sold it on 19-5-l967 through a registered sale deed for an amount of Rs. 50,000.00 to petitioners Nos. 2 to 8. According to petitioner No. 1, petitioners Nos. 2 to 8 were delivered the possession of the land after sale in their favour and since then they have been in possession of the same.
3. An application was filed under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 before the Deputy Commissioner with powers of the Chief Settlement Commissioner (Land), Gujranwala, on 23-8-1967 by one Shamas-ud-Din to the effect that petitioner No. I was holding land in excess of her entitlement. Respondent No. 4 Rukan--ud-Din appeared before the Chief Settlement Commissioner on behalf of petitioner No I contending that he was her brother in relation and he was her general attorney as well. The said respondent made a statement in connection with the said application that he had no objection if the excess area was cancelled from the name of petitioner No. I with her consent. .The Deputy Commissioner/Chief Settlement Commissioner, Gujranwala, thereupon passed his order for cancellation of excess area equivalent to 497 units with the consent of petitioner No. 1. Thereafter respondent No. 4 appeared before the Additional Settlement Commissioner (Land), Gujranwala, and gave his consent on behalf of petitioner No. I as her general attorney for cancellation of some specified area equivalent to the petitioner.
4. This order was challenged by the petitioner before the High Court under section 21 of the Act in Settlement Revision No. 161 of 1967, on the ground that respondent No. 4, Rukan-ud-Din was not the attorney of petitioner No. I at the time when he made his statement on 4th of September 1967, before the Chief Settlement Commissioner showing his willingness for the cancellation of the excess area. It was alleged therein that the power of attorney executed in his favour by petitioner No. 1 had been cancelled ten years before the said date and as such he was not authorised in any manner to appear and pursue the case on her behalf. It was contended therein that such order was passed ex parte against petitioner No. 1. It was also contended that any area alleged to be in excess of entitlement could not be cancelled without the consent of petitioners Nos. 2 to 8 as they were owners of the property at the time when the impugned order was passed. The revision petition was dismissed in limine with certain observations by a Division Bench of this Court on 20th December 1967. The relevant portion of the judgment is reproduced below--- "Plainly, no legal question is made out for our decision to warrant interference in our revisional jurisdiction under section 21 of the Act. It is entirely a question of facts whether Rukan-ud-Din was or was not an attorney of Mst. Latifan. Dr. Javed lqbal, the learned counsel for the petitioners, has stated before us that Mst. Latifan had rescinded the power of attorney which she had executed in favour of Rukan--ud-Din about ten years ago. This again is a matter of proof. If the petitioner feels that the order of the Chief Settlement Commissioner is not based on correct facts and that Rukan- ud-Din had falsely represented himself to be the attorney of petitioner No. 1, Tehsil and District although he was not so, the matter can be brought to the notice of the Chief Settlement Commissioner by a regular application. If the impugned order has resulted from misrepresentation or fraud, it will certainly be open to the Chief Settlement Commissioner to look into it and revise it if the circumstances justify, as fraud vitiates all pro--ceedings.
With these observations, we dismiss this revision petition."
The observation as made by the learned Judge was to the effect that if the impugned order dated 4-9-1967 made by Deputy Commissioner/Chief Settle--ment Commissioner, Gujranwala, was the result of misrepresentation or fraud then it would be open to the Chief Settlement Commissioner to look into the matter and revise the order if the circumstances so justified, as fraud vitiates all the proceedings. The implication of the said observation of the High Court was that if fraud had been played upon the Chief Settlement Commissioner by Rukan-ud-Din by falsely general attorney of petitioner No. I whereas he was not so, and if the Chief Settlement conclusion after inquiry on the application representing himself to be according to the petitioner Commissioner comes to the of the petitioners that such fraud had been committed then his said order could be revised as according to law any order based on' fraud cannot sustain because the fraud vitiates all proceedings.
5. The petitioners in compliance with the said order of the High Court submitted an application before the Chief Settlement Commissioner, Gujran--wala, which was rejected by him on 25-11-1968 on the ground that Shamash--ud-Din, the respondent, in that application bad since died on 3-10- 1967 and as such the application was not maintainable against a dead person. Another application was filed on Ist January 1969, which was again dismissed by the said authority on 20-1- 1969. Annexure 'D', on the ground that it was a second review application which was not maintainable in law. The petitioners have now come up to the High Court and have challenged all the impugned orders including the initial one dated 14-9-1967 whereby the excess land was cancelled, by the Chief Settlement Commissioner.
6. The learned counsel for the contesting respondents has argued that after the rejection of the settlement revision by the High Court, the present petition is not maintainable under the principle of res judicaia. He has further submitted that Rukan-ud-Din, respondent No. 4 was actually the general attorney of petitioner No. I at the time when he appeared before the Chief Settlement Commissioner and made his statement in connection with the application filed under sections 10 and 11 of the Act. According to him his power of attorney was cancelled by petitioner No. I in February 1969 (vide Annex. R/3) and till then he was competent to pursue the matter and act on her behalf. He has further argued the case on merits and has tried to show that the land which was cancelled from the name of petitioner No. I was held by her in excess of her entitlement and had been rightly taken away by the Chief Settlement Commissioner.
7. He has further contended that the petitioners cannot be allowed to argue the points which were not raised before the High Court in the Settlement revision. The learned counsel for the petitioners has inter alis argued that petitioners Nos. 2 to 8 being the vendees and really interested in the matter were condemned unheard by the Chief Settlement Commissioner while passing the impugned order dated 4-9-1967. He has referred to some ,of the authorities in order to show that no order can be passed without notice and in the absence of an interested party adversely affecting his rights,
8. The order dated 20-12-1967 passed by a Division Bench of this Court dismissing the settlement revision filed by the petitioners does not show that the point that the petitioners Nos. 2 to 8 being the vendees of the land in question and having vested interest therein were condemned unheard and as such the order dated 4-9-1967 of the Chief Settlement Commissioner was liable to be set aside, was ever raised during the argu--ments. Even in the grounds of the revision petition, this point has been raised in a causal manner. It is true that the revision petition was dismissed in limine, without any notice to the respondents and as such the decision thereon cannot be called on merits. The argument of the learned counsel for the petitioners that since the decision was not on merits, therefore, principle of res judicata will not be applicable in the present case, may have some force but this is not the question involved for determining the fate of the present petition.
9. The petitioner never raised the plea before the High Court in the settlement revision that since petitioners Nos. 2 to 8 being vendees and having vested interest in the property had been condemned unheard, there--fore, the impugned order dated 4-9-1967 passed by the Chief Settlement Commissioner was not maintainable. The main argument which was advanced on their behalf was that Rukan-ud-Din, respondent No. 4, was not the attorney of petitioner No. 1, at the time when the said order was passed and as such he could not appear and pursue the matter on her behalf. Since it was a matter of proof and no inquiry or probe could be held in the proceed-- ings of the settlement revision before the High Court, therefore, the petitioners were directed to approach the Chief Settlement Commissioner through an application in this regard. The plea of having been condemned unheard was very much available to the petitioners at the time when they filed the settlement revision but the same was never raised by them. They merely relied upon one ground that respondent No. 4, Rukan-ud-Din was not the general attorney of petitioner No. 1, therefore, he was not competent to make any statement on her behalf before the Chief Settlement Commissioner. According to law a litigant cannot be allowed to split up his grounds to seek relief in respect of same cause of action and make different petitions at different times. Reliance in this respect can be placed upon Abdul Ghafoor v. The Settlement and Rehabilitation Commissioner, Karachi etc. (1971 SCMR 602). The dispute in that case pertained to flat No. 171 in the building known as Dayaram Jessumal Building, Blenkins Street, Karachi. It was jointly trans--feered to the petitioner as well as the respondent before the Supreme Court. On appeal by the petitioner, the case was remanded by the Additional Settlement Commissioner for fresh decision. The Deputy Settlement Com--missioner, thereupon divided the entire building vertically, and transferred the flat in dispute situated on the first floor alongwith another flat on the ground floor to the respondent. This order was challenged by the petitioner and the matter went up to the level of Supreme Court but he did not succeed. Thereafter be again sought to revive the dispute by another round of litigation before the settlement authorities, on the ground that the respondent had never applied for the transfer of the flat in dispute. He failed before the settlement authorities as well as before the High Court in Writ Petition and L. P. A. Thereafter he filed petition for special leave to appeal before the Supreme Court. It was held as follows by their Lordships ,of the Supreme Court:- "The High Court has rightly declined to entertain the fresh writ petition by the petitioner on the well- settled principle that a litigant cannot be allowed to split up his ground to seek his relief in respect of the same cause of action and to make different petitions at different times. It has been observed in the orders of the High Court that there was no excuse for the petitioner to omit to agitate this fresh ground in the previous litigation relating to this very flat. The fact that the respondent, Nabijan Khan, had misdescribed the number of the property in his C. H. Form was known to the petitioner and if he wanted to derive any benefit from it, he should have agitated it in the previous litigation There is no substance in this petitlon, which is dismissed."
Respectfully following the law laid down in the authority cited above, it is held that the petitioners cannot at this stage be allowed to raise the plea which they had not raised in spite of being available in the settlement revision before the High Court. There cannot be any possible excuse for the petitioner to omit to agitate the said plea in the previous litigation relating to the very land in question.
10. The observation of the High Court, as mentioned above, while discussing the settlement revision filed by the petitioners clearly implies that the Chief Settlement Commissioner will look into the matter as to whether any fraud has been played upon him or not by respondent No. 4, Rukan--ud- Din. If on the basis of the inquiry he comes to the conclusion that Rukan-ud-Din was not the general attorney of petitioner No. I at the time when he appeared before him on 4-9-1967 and as such he misrepresented himself then the order and the proceedings taken by the Chief Settlement Commissioner on the application of Shamash-ud-Din would be vitiated as no order based on fraud can sustain in law. It is the inherent jurisdiction of every Court or authority, irrespective of any statutory provision in that regard, to see if brought to its notice as to whether any fraud has been committed or not during the proceedings. The learned Chief Settlement Commissioner, Gujranwala, while dealing with the application filed by the petitioners took an erroneous view in the first instance by dismissing the application on the ground that Shamash-ud-Din, respondent had died and his legal representatives had not been brought on record within time and subsequently by treating the application as second review petition. It is admitted that Shamash-ud-Din was an informer and a, such had no vested right in the property. His function as informer ended with die decision of the application by the Chief Settlement Commissioner. Having no vested rights he cannot be even a proper party not to speak of being a necessary party in any appeal or revision filed by an aggrieved party against the order of the delegate of the Chief Settlement Commissioner, made under sections 10 and 11 of the Act. According to law an informer having no interest in, the property cannot even file an appeal or revision or enter into any further! Litigation after the dismissal of his application as such. This being t e position in law, Shamash-ud-Din was not a necessary party in the application filed by the petitioners before the Chief Settlement Commissioner in compliance with the order of the High Court. After his death the pro--ceedings started by the petitioners could not abate as he had no vested right in the property The real question before the Chief Settlement Commissioner in both the petitions was as to whether any fraud had been committed upon him in securing the order dated 4th September 1967, or not, He certainly had the jurisdiction in this regard which he failed to exercise in deciding the matter. His both orders dated 25-li-1968 and 20-11-1969 passed on the applications of the petitioners are not therefore, maintainable and the same are hereby set aside being illegal, without jurisdiction and of-- no legal effect. The result would be that the first application filed by the petitioners in compliance with the order of the High Court having not been disposed of by the Chief Settlement Commissioner lawfully would be deemed to be still pending adjudication.
The petition is, therefore, accepted and the case is remanded to the-- delegatee of the Chief Settlement Commissioner (Land), Gujranwala, for deciding the same afresh, in accordance with law, and in the light of they observations made above. There will, however, be no order as to costs.