One Mst. Bhagee filed two claims bearing Nos. 4058 and 4059 for land abandoned in India in Chak No. 130/NB, Tehsil and District Sargodha. She was confirmed land on 22-2-1952 in lieu of her entitlement, and on her death the said property devolved upon her legal heirs, inclusive of Ghulam Muhammad and Ghulam Nabi.
2. Aforesaid Ghulam Muhammad and Ghulam Nabi, despite the fact that the entitlement of Mst.
Bhagee stood satisfied in Chak No. 130/NB, filed claim form in Chak No.124/JB, Faislabad, regarding the entitlement of Mst. Bhagee. On 9-1-1953 the land in, dispute was got confirmed by them in the name of Mst. Bhagee fraudulently.
3. Taj Muhammad and Barkat Ullah, predecessors-in-interest of the petitioners, filed a Mukhbari application which was accepted by the DSC on 19-8-1963 and certain directions were given.
Feeling dissatisfied, they filed a revision petition which was accepted by the Settlement Commissioner on 26-6-1965 and the order of the DSC was set aside, directing the confirmation of the land in question in the names of the revision petitioners. Consequently, the land was allotted in their names vide Khata RL-11, placed on the record as Annexures C, D and E. The land was in due course occupied by them and this is reflected in the Khasra Girdwari (Annexure E/1). Subsequently one Professor Rashid Ahmad Anwar filed a petition before the Chief Settlement Commissioner against the order dated 26-6-1965, which was rejected on 16-3-1970. His prayer was that the allotmants in the name of Mst. Bhagee in Chak Nos. 124/JB and 84/JB be cancelled and the land allotted to him. Since the petitioners felt aggrieved of certain observations made by the Additional Settlement Commissioner in the order dated 16-3-1970, they filed W.F. No.138-R of 1972 which was accepted by this Curt vide judgment dated 11-3-1980. The petitioners were held entitled to retain the allotments of the property in question.
4For all intents and purposes that should have been the end of the matter. However, that was not so. The petitioners put in an application for implemention of the judgment of the High Court dated 11-3-1980 before the A.C. who submitted a report in this regard on 26-12-1979. It is only then that they came to know that Bakhsha respondent had succeeded in obtaining the transfer of the property in question by depositing the sale price thereof to the tune of. Rs.11,800, in pursuance of the order of the A.C./Addl. Settlement Commissioner dated 7-11-1979. This order was passed purportedly in pursuance of the judgment dated 17-1-1977 in W.P. No. 102-R of 1976. In these circumstances, the application of the petitioners for implemention, of the decision of this Court dated i1-3-1980 was dismissed by the Additional Settlement Commissioner on 27-1-1982. Hence this writ petition.
5.It is contended by the learned counsel for the petitioners that the Mukhbari application filed by the predecessors-in-interest of the petitioners having been, accepted and the land having been allotted in their names way back in 1965, the same could not be touched/interfered with. It is also submitted that the allotment of the land in dispute had been obtained by Bakhsha respondent fraudulently by suppressing the facts. Despite the fact that the names of the petitioners stood entered in the revenue record as owners of the disputed land and they were in actual physical possession thereof, as reflected by Khasra Girdawari (Annexure E/1), Bakhsha respondent deliberately avoided to implead them as party in Writ Petition No: 102-R of 1976, and in the circumstances, the judgment delivered in the said writ petition is not binding on the petitioners. It is also submitted that the land being not available, could not be given to Bakhsha respondent.
6. On the contrary Ch. Qadir Bakhsh, Advocate, has argued with good deal of vehemence that the direction of the Settlement Commissioner vide order dated 26-1-1976 for putting the disputed property in auction pool was challenged by Bakhsa respondent through W.P. No.102-R, of 1976 and his plea was that it should be sold to him in terms of the Scheme framed under Act XIII of 1975. This plea was well-based and was ultimately allowed. It is also submitted that at the relevant time there was no provision in law for grapt/transfer of land to a particular informer, inasmuch as section 14 (1) (a) came into force in year 1970. The orders passed in favour of the predecessors -- in-interest of the petitioners holding them to be entitled to the allotment of the land in question as informers were coram non judice. The land in dispute was thus legally available for disposal under section 3 of Act XIV of 1975 and had been rightly ordered to be sold to Bakhsha respondent, who had paid the sale price and had become full owner thereof.
7.In my view, this writ petition must succeed. It is true that prior to the Introduction of section 14 (1- A) a Mukhbar did not have a statutory right for transfer of the land unearthed through his Mukhbari application. However, there was no bar in the way of the Chief Settlement Commissioners to pass a specific order in a given case that the land cancelled as a result, of the Mukhbari be given to the Mukhbar in lieu of his outstanding units. This is exactly what has happened in the instant case. The predecessors-in-interest of the petitioners having been adjudged to be entitled to the allotment of the land in question, after acceptance of their Mukhbari application had earned a vested right to its allotment, which in due course, was made in their names vide Annexures C, D and E (copies of relevant Khata RL-II). Thus, the land stood finally settled upon the predecessors-in-interest of the petitioners and was not available for auction. The fact that the petitioners had become owner of the land in question was well within the knowledge of Bakhsha respondent, a resident of the same village, and yet he chose to conceal this from the Settlement Authorities and agitated for an order for disposal of the said land through auction. Having failed to achieve his object, he filed a writ petition in which he again suppressed the relevant facts. He also deliberately failed to implead the petitioners as party and thus succeeded in obtaining a favourable order. The petitioners not being party to the said writ petition are not bound by the judgment rendered therein. Bakhsha respondent cannot be permitted to take benefit of his own fraud and misrepresentation. Be that as it may, the land in question was not available for transfer in his name through sale and the order directing 'such transfer in his favour is, therefore, coram non judice.
8. The result is that this writ petition is accepted and the action of the departmental authorities in selling the land in question to Bakhsha respondent and consequential implementation thereof in the relevant record, is declared to be without lawful authority. The petitioners shall be considered to be the lawful owners of the property in dispute. There shall be no order as to costs.