' This judgment will dispose of Writ Petition No,237-R/90 entitled Mst. Ibqal Begum etc. v. Assistant Commissioner/Notified Officer, Sheikhupura, etc. And Writ Petition No, 243-R/90 entitled Umer Draz v. Assistant Commissioner, Sheikhupura/Notified Officer, as the two are directed against the same impugned order.
2. The facts which can be said to be undisputed or reasonably established are that one Muhammad, Abdul Khaliq Siddiqui, predecessor-in-interest of petitioners Nos.1 to 9 was a displaced person. He filed his claim form No,3708/2333 on 4-8-1960 and the same was verified for 6676 Produce Index Units (hereinafter referred to as PIUs). Since the claim could not be satisfied in District Sanghar, it was transferred to District Mianwali. A part of it was satisfied there and claim to the extent of 3874 PIUs was transferred to District Sheikhupura. It was on 14-11-1963 that the said Siddiqui was allotted land measuring 750 Kanals 15 Marlas in Chak No,12/RB, Tehsil and District Sheikhupura at Khata No,904 of Register RL-II. Some, about 31 Kanals of land is also stated to . Be allotted to him in village Kanugoi, Tehsil and District Sheikhupura. With the enforcement of Martial Law Regulation, 1964, the said Mr. Siddiqui was required to comply with the press-note of Chief Settlement Commissioner by a given date. Admittedly Mr. Siddiqui failed to furnish the requisite information by the due date which resulted in the cancellation of the verification as well as resumption of land. Mr. Siddiqui contested this and on 12-5-1976 succeeded in the Supreme Court.
The Supreme Court set aside the order of resumption etc. And remanded the case for verification of claim, in spite of the delayed compliance of the press-note issued under Martial law Regulation, 1964.
3. While Mr. Siddiqui was so involved, one Imam Din son of Budha alias Bhag claimed to have been allotted the same land in satisfaction of his claim. This was done at Khata No, 834 of Register RL-II.
The land is shown to have been proposed in favour of Imam Din in the year 1961 and confirmed in the year 1967. On 15-11-1971 Qudrat Ullah etc. Filed application under sections 10 and 11 of the erstwhile Displaced Persons (Land Settlement) Act, 1958, seeking cancellation of allotment in favour of Imam Din on the ground that Imam Din was a fictitious person and the allotment was bogus and fraudulent. On 5-9-1972 (Annex 'B'), the application was allowed on the ground that no such person as Imam Din existed, the proposal and confirmation of land was all fictitious and fraudulent and it was further ordered that one Ramzan, seemingly responsible for all this mischief and fraud, should be proceeded with under section 28 of the Land Settlement Act. Imam Din is shown to have filed revision against the order of cancellation, which revision was dismissed on 13-2-1974 by the Settlement Commissioner. Imam Din filed Writ Petition No,380-R/74 calling in question the orders of cancellation. This petition was dismissed by a learned Single Bench of this Court on 10-7-1974. It was held that the officer passing the order dated 5-9-1972 was fully competent and further it was held in para.3:-- "3. Even otherwise the impugned order is self-explanatory and every necessary point involved has been discussed therein. I, therefore, do not feel inclined to interfere with the same. The writ petition having no force is hereby dismissed in limine."
' This order attained finality. It seems pursuant to the direction of the Supreme Court, the entitlement/claim of Mr. Siddiqui was examined and found correct. All the counsel appearing in this case agreed that Mr. Siddiqui was found entitled to 6676 PIUs. On 26-4-1978, Siddiqui filed application before Notified Officer (respondent No,1) for delivery of possession of allotted land to him.
4. It was in 1987 that one Umar Draz (petitioner in connected Writ Petition No,243-R/90) filed Writ Petition No, 151-R/87 once again calling in question the cancellation of land from the name of Imam Din, the original allottee. His claim as made in the petition was that he was a purchaser of a part of the disputed land from one Said Muhammad, who in turn had purchased it from Imam Din, the original allottee. The basis of his claim in this petition was that he being a vendee, ought to have been heard before passing the order of cancellation dated 5-9-1972 and this having not been done, according to Umar Draz, the order called for being set aside. It may be noted that Mr. Siddiqui or the legal representatives were not party in this writ petition. Apart from the Additional Settlement Commissioner and the Settlement Commissioner, Qudrat Ullah informant, the alleged vendees from Imam. Din were parties to the writ petition. On 27-3-1988 Mr. Iqbal Ahmad Qureshi, Advocate for Umar Draz petitioner, made a statement which was duly recorded by this Court, asserting that petitioner (Umar Draz) was the bona fide purchaser in the land in question. A similar statement was made by Mr. A.K. Dogar, Advocate appearing for Fazal Muhammad etc. (respondents Nos.4 to 8 herein). According to Mr. A.K. Dogar's statement, he had heard the statement of Mr. Iqbal Ahmad Qureshi, Advocate, and that contesting respondents (his clients) too were the bona fide purchasers of the land in question. After recording the statements on the same date, viz. 27-3-1988, the learned Single Judge, passed, what can be described as a consent order, to the effect that since learned A.C./Notified Officer, Ferozewala has talcen cognizance of the matter, the questions of both sets of vendees being bona fide had to be thrashed by the aforesaid competent Notified Officer after collecting the necessary evidence to be produced by both the parties. The learned Bench, therefore, ordered as under:-- "Without expressing any opinion on the merits of the case lest it may prejudice either party, the Notified Officer is directed to hear the parties and to dispose of the matter within four weeks' time.
Whatever has been stated above will not stand in the way of Notified Officer in deciding the matter finally on merits of the case.
4. The upshot of the above discussion is that the impugned order is set aside with the observation that the matter will go back to the learned Notified Officer."
5. On getting knowledge of the order dated 27-3-1988 passed in Writ Petition No,151-R/87, the heirs of Mr. Siddiqui (present petitioners) filed Application No,3605/88 under section 12(2) of the Code of Civil Procedure, 1908, seeking recall of the order dated 27-3-1988 on the ground that the same was obtained from the Court through fraud, misrepresentation and suppression of material facts. It was urged that the earlier order of this Court dated 10-7-1974 passed in Writ Petition No,380-R/74 by which the cancellation of allotment from the name of Imam Din was upheld, had not been brought to the notice of the learned Judge at the time of hearing. It was further urged that Umar Draz and Fazal Muhammad etc., the two sets of vendees cannot claim better title then Imam Din, their vendor, and therefore, had no independent status to call in question the order of cancellation. This application was disposed of on 25-3-1990. The order being relevant is reproduced in extenso:-- "Muhammad Ashfaq Bajwa, a representative of A.C./Notified Officer, Sheikhupura, is present with record. He has made a statement disclosing that as many as 6674 PIUs have been verified in favour of the applicants vide letter No, 205/RK dated 13-9-1977. In the circumstances, the applicants are a necessary party and shall be impleaded as such. It has been brought to my notice by the learned counsel for the parties that the controversy between the parties is pending adjudicating before the A.C./Notified Officer, Sheikhupura. The parties both in C.M. No, 3605 of 1988 and Writ Petition No,151- R/87 shall be heard by the learned A.C./Notified Officer irrespective of the order dated 27-3-1988 passed by me in the Constitutional Petition No, 151/R-1987. The Notified Officer shall dispose of the matter within next two months without fail. The parties shall appear before him on 2-4-1990. With these observations, C.M. No, 3605/88 and C.M. No, 4441/89 stand disposed of."
6. Thereafter the proceedings were conducted by the Notified Officer who, on 9-9-1990, after hearing every interested party, namely the informers, the two sets of vendees from Imam Din as well as Mr. Siddiqui/his legal heirs, ordered that nobody was entitled to the disputed land which was directed to be resumed in favour of the Government. Various applications asserting respective claims including that of Mr. Siddiqui, for restoration of his Khata, were dismissed.
' Against this impugned order Writ Petition No,237-R/90 has been filed by the legal heirs of Mr. Siddiqui, while Writ Petition No,243-R/90 has been filed by Umar Draz, one of the transferee from Imam Din. The various sets of informers and other vendees have not called in question the above order and seemingly have disappeared from the scene. However, respondents Nos.4 to 8 (Fazal Muhammad etc.) represented by Mr. A.K. Dogar, Advocate, got themselves impleaded on 18-5-.1991 in Writ Petition No,237-R/90.
7. In support of this petition Mr. Muhammad Ghani, Advocate, learned counsel for the petitioners, has vehemently questioned the findings recorded by the Notified Officer as regards the transfer of Siddiqui's claim Entitlement Certificate to Sheikhupura District and the allotment made to him in 1963. It is urged that this finding has been arrived at in utter disregard of the material available on the file and noted by the Notified Officer in the impugned judgment. It is further contended that the reasons for holding the Khata as bogus are too weak and, in any case, the land being available, ought to have been ordered to be transferred to the petitioners, the bona fide claimants as well, awaiting settlement. As regards the claim of Umar Draz, the learned counsel has stressed that his predecessor-in-interest, Imam Din, having been knocked out by this Court on 10-7-1974, Umar Draz or for that matter any purchaser from Imam Din or any other person deriving his title through him has no independent right. It is asserted that any right which such persons may have, is against their vendor-allottee who, it is contended, has been rightly held to be a non-existent and fictitious person. Similar is the argument addressed against Fazal Muhammad etc., respondents Nos.4 to 8.
On the other hand, Mr. Iqbal Ahmad Qureshi, Advocate, for Umar Draz, petitioner in connected Writ Petition No, 243-R/90 has contended that the order cancelling the allotment in favour of Imam Din having been set aside by this Court in 1988 in Writ Petition No, 151 R/87, the findings recorded in that order cannot be used against Imam Din and for that matter against Umar Draz claiming through Imam Din. In this connection, learned counsel has challenged the view of the Notified Officer that by the subsequent order dated 25-3-1990, the learned Single Judge, while disposing of application under section 12 (2), C.P.C. Nullified the effect of the order dated 27-3-1988 disposing of the main Writ Petition No, 151-R/87. The allotment made in favour of Siddiqui in 1963 has been challenged by pointing out that the Tehsildar allegedly signing the confirmation has stated that signatures on Register RL-II are not his and as such the view of the Notified Officer on this question is correct. The validity of allotment of land in favour of Siddiqui is also challenged by asserting that in the presence of proposal in favour of Imam Din in the year 1961, the same land,' in law could not have been allotted to Siddiqui in 1963, notwithstanding that the confirmation in favour of Imam Din was made in 1967. Learned counsel has partly supported the impugned order in so far as it goes against Siddiqui and his legal heirs.
8. Mr. A.K. Dogar, Advocate, appearing for respondents Nos.4 to 8, claiming to derive the title from Imam Din, has supported the impugned order in its entirety: According to the learned counsel neither Siddiqui nor Umar Draz nor for that matter any other person is entitled to this land and that after its reversion to the Provincial Government, his clients as actual occupiers/titllers are entitled to its proprietary rights for which his clients will take necessary steps if the litigation comes to an end. Apart from attacking the claim of Siddiqui on the grounds urged by Mr. Iqbal Ahmad Qureshi, Advocate, Mr. A.K. Dogar also urged that the findings recorded by the tribunal of exclusive jurisdiction, like the Notified Officer, cannot be interfered with by this Court. He relied on Sardar Muhammad Umar Khan v. Raja Gul Zaman Khan and others (1981 SCM R 375) for this purpose. He also asserted that what has been accepted by Board of Revenue and High Court is the entitlement of Siddiqui and not the allotment of land in question. He has reiterated that since there is no proof of Siddiqui's claim ever coming to Sheikhupura, the allotment made in his favour in 1963 is bogus.
9. As will be clear from the above resume, two controversies are arising in this case. One is the claim of Mr. Siddiqui and his allotment and the other is the allotment made in favour of Imam Din and, therefore, the claim of Umar Draz and Fazal Muhammad etc. To be entitled to this land as transferees from Imam Din. It is also clear that if the case of Siddiqui is upheld, the rivals like Umar Drarz are automatically knocked out.
10. I will take up the case of Imam din/Umar Draz first. By an order dated 5-9-1972, he was held to be a fictitious person and the allotment made in his favour was found bogus. This order was upheld by Settlement Commissioner on 3-2-1974. Imam Din's Writ Petition No,380-R/74 was dismissed by this Court on 10-7-1974. As noted, this Court approved the order of cancellation of allotment on merits by observing that:- "3. Even otherwise the impugned order is self-explanatory and every necessary point involved has been discussed therein. I, therefore, do not feel inclined to interfere with the same. The writ petition having no force is hereby dismissed in limine."
' Apart from the fact whether Imam Din is/was a fictitious person or not, it is a fact that after 10-7- 1974 he does not remain in the field. For unexplained reasons he has disappeared. His cause, however, is taken up by Umar Draz and Fazal Muhammad etc. Respondents Nos.4 to 8 claiming to be deriving their title through him It is well settled that a vendee/transferee has no better title in law than the vendor/transferor. It is also equally settled that in the event of the title of vendor's disappearing or it being found that he had no title at all, the vendee also sinks with him. It is in this line that it is said that the vendee has his remedy against the vendor. He has not independent right to espouse the cause of his vendor or to take his own case at a higher pedestal than that of the vendor. Particularly in the field of rehabilitation and settlement, this principle has been upheld by the Supreme Court in number of cases including Manzoor Hussain v. Fazal Hussain and others (1984 SCM R 1027) and Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491).
11. This being the legal position Umar Draz could not have filed petition in 1987 direct against the cancellation of allotment from the name of his vendor/transferee. It can only be said that this aspect of the case was not brought to the notice of the Court at the time of hearing. One reason for this is that neither Siddiqui nor his legal heirs were impleaded in that writ petition. Both the vendees from Imam Din seemingly colluded and obtained an order for rehearing of the case by the Notified Officer. However, in the subsequent order dated 25-3-1990, while disposing of the application under section 12(2), C.P.C. Filed by the present petitioners for recall of the order dated 27-3-1988, this Court did clarify that nothing said in the order dated 27-3-1988 will be deemed to decide anything on merits or prejudice the case of the one or the other party.
12. While this Court did direct the Notified Officer to redecide the question after hearing all the parties, it did not in any manner debar from applying the law and, I venture to add, this Court cannot undo or modify the principle of law laid down by the Supreme Court that a vendee from the original allottee has no independent rights. In the circumstances, the Notified Officer was well within his right to non-suit Umar Draz as well as Fazal Ahmad etc. By applying this principle, particularly when the writ petition filed by Imam Din, their transferor, was dismissed in 1974 by this Court and on a general principle of res judicata, the question decided by judgment dated 10-7- 1974, could not be reopened at the behest of Umar Draz or for that matter anybody deriving title from Imam Din. For this reason, the impugned order, in so far as it knocks out Umar Draz from the field is perfectly with lawful authority and is upheld, on this legal ground as well.
13. On factual plane also I have examined the impugned order in detail and the reasons advanced for disallowing the claim of Imam Din/Umar Draz etc. Are very sound. Mr. Iqbal Ahmad Qureshi, Advocate, learned counsel for Umar Draz, was not able to satisfactorily explain the disappearance of Imam Din from the field since 1974. All that he stated and that also is the position of Mr. A.K.
Dogar, Advocate, that after selling the land, Imam Din lost interest and did not prosecute his cause.
This explanation is not sufficient and in fact fails to inspire any confidence whatsoever. The reason is that Fazal Muhammad etc., respondents Nos.4 to 8 claim to have purchased the land from Imam Din in the year 1968, while Umar Draz claims to have purchased it from him in 1971. This shows that at the time of passing the order of cancellation of allotment on 5-9-1972 and subsequent orders of Settlement Commissioner on 13-2-1974 and then the order of this Court on 10-7-1974, these vendees had allegedlyacquired the right but in spite of it, it was Imam Din who was pursuing the case. If the sale of the land in favour of these persons was the cause of disappearance of Imam Din, then there is no explanation as to why he would defend his allotment before the Additional Settlement Commissioner and in the High Court. If the learned counsel be correct, Imam Din would have left the defence to Umar Draz etc. His vendees. It is again queer that Umar Draz wakes up in 1987 while Fazal Muhammad etc., the other set of vendees never launched direct proceedings against order of cancellation dated 5-9-1972. I have no doubt in may mind that apart from the question of res judicata as well as the locus standi of Umar Draz and other vendees, the finding that Imam Din was a fictitious person is beyond rational challenge. If this be so, then the allotment made to him in 1961/67 is clearly fraudulent. It is relevant to note here that in the Order dated 5-9- 1972 passed by Additional Settlement Commissioner cancelling the land from the name of Imam Din, Ramzan, his attorney was held to be the culprit and was directed to be prosecuted under section 28 of the erstwhile Displaced Persons (Land Settlement) Act, 1958. For the above reasons, in so far as the case of Umar Draz and other vendees from Imam Din is concerned, the impugned order is with lawful authority and is hereby upheld. Writ Petition No,243-R/90 is accordingly dismissed with costs.
14. Coming to the case of the petitioners, the reasons for non-suiting them have been stated by the Notified Officer at page 18 of the impugned judgment. According to these, there is no proof of the receipt arrival of Siddiqui's claim in District Sheikhupura and as such the Khatas Nos.904 to 908 at Register RL-II is rendered bogus. The additional reason given is that page 904 has been added after 908 and that the ink at page 904 is relatively brighter. The finding that the claim did not come to Sheikhupura has been arrived at in disregard of overwhelming evidence indicating the arrival of the non-satisfied portion of Siddiqui's claim in District Sheikhupura. In his statement before Mian Wahidud-Din, Officer Incharge, Central Record Office (Annex 'H') in connection with the remand proceedings of the Supreme Court, Siddiqui did explain, after narrating the relevant facts, that he had his claim transferred from District Sangarh to District Mianwali for allotment. He stated that part of the claim was satisfied in District Mianwali and the balance PIUs amounting to 3800 were transferred from Mianwali to Distiict Sheikhupura in 1963, Endorsement to this effect also appears on the order passed at Khata No,904 of Register RL-II (Annex 'A'). The endorsement states that the balance of units 3874 have come from. Tehsil Shandadpur, District Sangarh, the original District.
Then and more importantly one Muhammad Ishfaq, Reader to Assistant Commissioner, Revenue, Sheikhupura (Notified Officer) appeared in this Court in connection with application under section 12(2), C.P.C. And on 25-3-1990, made a statement duly recorded by this Court that on 4-6-1977 a revised entitlement certificate was issued by the Officer on Special Duty, Central Record Room, Lahore, containing 6674 PIUs vide Memo. No,205/RK, dated 13-9-1977 in favour of Abdul Khaliq Siddiqui, the predecessor-in-interest of the applicants in C.M. No, 3605/88. Even in the impugned order at page 6, while noting the events, the learned Notified Officer himself records that at various stages the entitlement of Siddiqui was verified and the Board of Revenue vide letter dated 20-10- 1986, also verified the correctness of Memorandum No,205/RK, dated 13-9-1977, from Officer Incharge, Central Record Room for the District Sheikhupura. This, the impugned judgment records, was reverified in the year 1987. In the face of the overwhelming evidence, the finding of the learned Notified Officer that the arrival of the claim/entitlement certificate of Siddiqui for satisfaction in the District Sheikhupura in the year 1963 is not proved, is without lawful authority and thus liable to be interfered with by this Court on the ground of disregard of the material evidence. See Federal Land Commission v. Mst. Gul Bibi and others (1983 SCM R 818). The reasons for holding the Khatas of Siddiqui as bogus are equally whimsical and too weak. Merely because page 904 has been added after 908 would not lead to the conclusion that the Khata was bogus. There can be many a good explanations for this addition and unless an enquiry is held, it cannot be held that appearance of page 904 after 908 leads to the only rational conclusion that the allotment is bogus. I am clear in may mind that this alone is not sufficient for this inference. Same is the case with the reason that writing on a page being relatively bright, would lead to the conclusion that the Khata was bogus.
17. However, all this controversy is meaningless in the year 1995. The established facts are that the petitioners are displaced persons. They have a claim to the extent of 3800 PIUs still left unsatisfied.
There is evacuee land available for allotment, inasmuch as, the allotment of Imam Din has been held to be bogus. There is no other refugee-claimant to this land, all the informants and vendees from Imam Din having either disappeared or having been knocked out. The case of entitlement and allotment of land in favour of Siddiqui his legal heirs is a pending case within the meaning of section 2(3) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. In these circumstances, even if the allotment to Siddiqui in 1963 is held to be bogus, there is no earthly reason why the petitioners should be denied the allotment of land now.
18. Accordingly, I would allow Writ Petition No,237-R/90 by holding that the disputed land stood allotted to the petitioners in 1963 and the same should be restored to these petitioners. In the alternative, I would declare them to be entitled to this land and direct the respondent-Notified Officer to permanently allot them the suit land and take all other steps necessary for their rehabilitation and settlement. Parties are left to bear their own costs.