' This judgment will dispose of eight Civil Revisions Nos. 149/81, 150/81, 151/81, 152/81, 153/81, 154/81, 155/81 and 156/81 inasmuch as they involve same question of facts and law.
2. Briefly stated facts of the case out of which these eight civil revisions have arisen are that evacuee landed property was allotted to Inayat Ullah son of Muhammad Khan. Petitioners in all these petitions are the purchasers of the land for consideration from one Ghulam Hussain a subsequent purchaser from the allottee. The land allotted to Inayat Ullah was cancelled under the provisions of Displaced Persons (Land Settlement) Act, 1958, on the ground that it stands already allotted to Messrs Sobat Ali etc. as Jammu and Kashmir refugees. On coming to know of the aforementioned cancellation of allotment all the petitioners filed eight civil suits seeking perpetual injunction against the defendants-respondents to the effect that Sobat All, etc. be restrained from interfering in the land owned and possessed by the petitioners who are bona fide purchasers for value and that the defendants may be restrained from transferring the land in dispute and making any alterations in the revenue papers with mandatory injunction that if the respondents have got their names entered in the Revenue Record, then the said entries be cancelled and declared as void. The suits were contested. On the basis of the pleadings of the parties, learned trial Court settled various issues and vide judgment and decree dated 28-5-1980 dismissed all the suits referred to above. It was held that the plaintiffs have not been able to prove that they are bona fide purchasers for value. Contention of the plaintiffs to the effect that the land has illegally been cancelled from the name of Inayat Ullah inasmuch as Jammu and Kashmir refugees to whom the land is said to have been allotted prior to the allotment of Inayat Ullah allottee in fact never existed and therefore the order of allotment in their favour being void ab initio, order of cancellation of allotment of Inayat Ullah is illegal. The judgment and decree rendered by the learned Civil Judge in all the eight suits was challenged in eight independent appeals referred below:---
(1) Civil Appeal No, 180 of 1980 Ghulam Hussain v. Sobat Ali etc.
(2) Civil Appeal No, 181 of 1980 Ghulam Hussain v. Din Muhammad.
(3) Civil Appeal No,182 of 1980 Ghulam Hussain v. Sobat Ali etc.
(4) Civil Appeal No, 183 of 1980 Bashir Hussain etc. v. Sobat Ali etc.
(5) Civil Appeal No, 184 of 1980 Bashir Hussain v. Faiz Muhammad etc.
(6) Civil Appeal No, 185 of 1980 Muhammad Sadiq, etc. v. Faiz Muhammad etc.
(7) Civil Appeal No, 186 of 1980 Bashir Hussain v. Sobat Ali etc.
(8) Civil Appeal No, 187 of 1980 Ghulam Hussain etc v. Nawab Ali etc. ' All the appeals were taken up together and the learned District Judge, Jhelum vide judgment and decree dated 2-4-1981 in a consolidated judgment dismissed the same and the judgments and decrees rendered by the learned trial Courts were affirmed. Hence these eight revisions petitions have been filed by the plaintiffs who are petitioners before this Court. As the appeals have been decided by a consolidated judgment and the same question of facts and law involves determination 'in these eight petitions, I have decided to dispose of these civil revisions through this single judgment.
3. Raja Muhammad Bashir, Advocate has appeared on behalf of the petitioners in all these petitions. None has appeared on behalf of the respondents in spite of service. They are, therefore, proceeded against ex parte.
' Learned counsel for the petitioners has argued that the findings rendered by the two Courts below to the effect that the petitioners are not bona fide purchasers for value is erroneous in law and that the plaintiffs have purchased the property in question after holding an inquiry from the Revenue Record wherein Inayat Ullah was recorded as owner, hence title of the petitioners shall be protected under the provisions of section 41 of Transfer of Property Act. In support of his contentions, learned counsel has placed reliance on Sardar Shaukat Ali, Advocate and 2 others v.
Shamim Ahmed Beg, Advocate and 8 others, 1982 CLC 1877 and Officer on Special Duty, Central Record Office and others v. Bashir Ahmed and others 1977 SCMR 208. Learned counsel has further contended that in fact the allottees in whose favours land is shown to have been allotted as Jammu and Kashmir refugees prior to the allotment in favour of Inayat Ullah do not exist, and, therefore, the allotment in favour of J&K refugees being bogus, the allotment in favour of Inayat Ullah could not have been cancelled and hence the allotment in his favour being valid, the petitioners are entitled to the grant of decree as prayed for as being bona fide purchasers for value.
4. I have considered the arguments addressed by the learned counsel for the petitioners and have gone through the record. The judgments referred to by the learned counsel for the petitioners do not support his contentions inasmuch as they are distinguishable on facts. The case in hand is fully covered by law declared in various judgments rendered by their Lordships of the Supreme Court. In case of Mst. Maryam Begurn v. Ch. Shah Muhammad and others 1976 SCMR 342 at pages 343 to 344 of the report, it has been held as under:--- "In our view no legitimate exception can be taken to the finding that Ghulam Rasul had obtained a bogus allotment of land for such conclusion is based on consideration of the evidence which stands unrebutted. Section 10 of the Displaced Persons (Land Settlement) Act, 1958 gives power to annul an allotment which is obtained by fraud and the confirmation of allotment is subject to it.
The allotment being in the nature of a grant, we do not see how the counsel for the petitioner can press section 41 of the Transfer of Property Act to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement) Act, 1958 that is, it could be cancelled on fraud being established. This being the essential condition of the grant, it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Crown Grants Act, 1895."
' In case of Mapzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027 at pages 1029-1030, it has been held as under:--- "Here we may point out that the principle incorporated in section 41 of the Transfer of Property Act is an equitable doctrine of estoppel and in the context of the fraudulent allotment could it be said that the owner, i.e. the Government had consented to the ostensible ownership of the allottee which being a question of fact had to be determined upon the particular facts of each case. The observation, accordingly, is the enunciation of the principle laid down in section 41 where there is no dispute in regard to this aspect of the case.
' In Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489, it was held that where it was found that the vendor had no right, title or interest in the demised property, no protection can be given to him on the basis of section 41 of the Transfer of Property Act. Similarly in Maryam Begum v. Shah Muhammad 1976 SCMR 342 again it was reiterated that the allotment being in the nature of a grant was subject to the provision of section 10 of the Displaced Persons (Land Settlement) Act, and this being so it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Grants Act, 1895. In Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others 1983 SCMR 1190, both these decisions were followed and it was held that the transaction of purchase was subject to the incidence of sections 10 and 11 and the purchaser is not protected even though the sale was bona fide and for value. Officer on Special Duty's case was referred, but it was distinguished on the ground: `However, the question of protection on the principle of section 41 of the Transfer of Property Act to the purchaser for value had itself not been in controversy there. Nor was the observation essential to or made the basis of the decision in that case.'
' Accordingly there is no room for the argument that the sale should be protected in terms of section 41 of the Transfer of Property Act as sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, govern the confirmation of allotment."
' In case of Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491 at page 493-494, it has been held as under:--- "It being a case of double allotment, the appellants cannot claim protection for it. Their reliance on the decision in case of Officer-on Special Duty, is misplaced. That decision has been distinguished and the right of such a purchaser not recognised in Manzoor Hussain v. Fazal Hussain 1984 SCMR 1027.
' As reg -ds the general principle that the discretionary Constitutional jurisdiction cannot be exercised in aid of injustice, one of the earlier decisions on the subject is that of Tuffail Muhammad v. Raja Muhammad Zia Ullah Khan and another PLD 1965 SC 269 and a more recent case is that of Begum Shamas-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 wherein it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all the circumstances and it would have been proper exercise of its discretion if it had not interfered with the order of the Chief Settlement Commissioner in that case, even if it felt that the order of the Chief Settlement Commissioner as null and void was not strictly legal."
' In case of Bashir Ahmad and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others 1983 SCMR 1199 at pages 1200/1201 it has been held as under:--- ' Aggrieved, the petitioners have sought leave to apeal. The contention raised on their behalf is that they being bona fide purchasers for value, the sale in their favour should not have been effected and they should have been protected on the principle of section 41 of the Transfer of Property Act.
Such a plea had been held by this Court as not available in Settlement matters, In Muhammad Yamin v. Settlement Commissioner 1976 SCMR 389, decided on 1-3-1974, it had been held: ' As to the argument that the petitioners are bona fide 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 dismissed property."
In another case, subsequently decided on 18-12-1975, that is, Maryam Begum v. Shah Muhammad appearing in the same report at page 342, the view taken was: `The allotment being in the nature of a grant, we do not see how the counsel for the petitioner can press section 41 of the Transfer of Property Act to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement) Act, 1958, that is, it could be cancelled on fraud being established. This being the essential condition of the grant it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Crown Grants Act, 1895.'
3. We notice that in Officer on Special Duty v. Bashir Ahmad 1977 SCMR 208, where the basic question was whether after an allegation as to the genuineness of the claim had been examined under sections 10 and 11 of the Act and a final order passed, a fresh inquiry could be made, this Court had while holding that it would not be made, because finality attaches to the earlier order in view of section 22 of the Displaced Persons (Land Settlement) Act and there being no power of review available, further observed in that context that the argument in favour of the reopening of the matter overlooks the fact that there was no discoverable principle for penalizing the purchasers for value who were not privy to any fraud or misrepresentation alleged against their predecessors-in-title, the original right-holders, However, the question of protection on the principle of section 41 of the Transfer of Property Act to the purchaser for value had itself not been in controversy there. Nor was the observation essential to or made the basis of the decision in that case. Since an allotment of land is subject to the provision of sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchaser is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us."
A resume of the case-law referred to above establishes beyond doubt that purchasers from allottee of land which allotment is subsequently found to be bogus and cancelled cannot claim protection of title under the provisions of section 41 of the Transfer of Property Act nor can claim any right of hearing before passing the order of cancellation of allotment, as they step into the shoes of the allottee whose own title does not exist, and hence cannot acquire a better title. Their remedy is not against the department and the allottees to whom the allotment has been made prior to the allotment in favour of their predecessor-in-interest or subsequent to the cancellation of his allotment, but is against the vendor. The judgment referred by the learned counsel reported as 1977 SCMR 208 has been held to be distinguishable on facts in cases referred to above and has not been followed, for the proposition that the title of the subsequent purchaser is protected under the provisions of section 41 of Transfer of Property Act. Consequently, the judgments rendered by the two learned Courts below on this point are unexceptionable and are upheld. Contention of the learned counsel for the petitioners to the effect that as the allottees in whose favour the land in question was recorded to be allotted as Jammu and Kashmir refugees did not actually exist and it was a bogus allotment and therefore, the very basis whereon the allotment in favour of Inayat Ullah has been cancelled did not exist is misconceived and at any rate the plea is not available before the Civil Court. The objection could have been raised in the hierarchy provided in the settlement laws and for the purpose of these civil suits, the order of cancellation of allotment of the predecessor-in interest of the petitioners having been passed by the competent authority and being intact is final and has a binding effect for the purpose of decision of these suits.
Consequently, the fact remains that the allotment in favour of Inayat Ullah, predecessor-in-interest of the petitioners stands cancelled and does not exist and as such no right or interest vests in the suitors in all these cases and hence the two Courts below have rightly non-suited them. Civil revision is a discretionary jurisdiction and the exercise of discretion is almost akin to the discretionary jurisdiction exercised in writ. Discretionary jurisdiction cannot be exercised in aid of injustice as per law declared in case of M/s. Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore PLD 1954 Lah. 575 as well as in case of Begum Shams-un- Nisa. v. Said Akbar Abbasi and another PLD 1982 SC 413. The concurrent findings of fact rendered by the two learned Courts below have been rendered in proper exercise of jurisdiction and, therefore, no interference is called for in the judgments rendered by the two Courts below.
' In view of the above, I see no force in these revision petitions, the same are dismissed. As none has appeared to oppose these revision petitions, I direct that the parties shall bear their own costs.