IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the judgment dated 11-12-1991 passed by the Lahore High Court in Writ Petition No.121-R/1984.
2. The relevant facts are that one Abdul Shabbir son of Abdul Ghafoor, a refugee from Ajmer Sharif of non-agreed area filed his UR Form No.2326/1980 and on 27-11-1959 obtained URV Entitlement Certificate of 352 units from the Central Record Office for District Hyderabad. After the promulgation of Martial Law Regulation No.84/89 a revised Entitlement Certificate for the same units was also issued on 8-11-1961 in favour of Abdul Shabbir for District Hyderabad.
3. Land measuring 32 Kanals 14 Marlas situated within the Municipal limits of Kasur was allotted to Abdul Shabbir on 10-5-1965 against Khata No. 14 of RL-II Kasur Urban. The allotment was confirmed on 27-7-1965. Out of his allotment, he sold an area measuring 6 Kanals 15 Marlas in favour of Rahim Bakhsh who sold the same to the appellant by a registered sale-deed dated 25-1-1967. This was followed by Mutation No.2338 sanctioned on 31-5-1969. The Border Area Committee (hereinafter called the Committee) cancelled the area in dispute from the name of the said Abdul Shabbir and allotted the same to Colonel Manzir Hussain respondent No.3 herein vide order dated 28-7-1971, who sold, out of it, an area measuring 6 Kanals to respondent No. l in the year 1972. The appellant challenged the aforesaid order by means of Writ Petition No.30-R/1973 which was accented on 30- 6-1979 on the ground that the order of the Committee was passed without notice to the appellant.
Respondent No. l filed review petition which was disposed of with the observation that the order of the Committee had not been set aside on merits but there was no bar on the Committee to hold fresh enquiry if they -were properly moved in the matter. Respondent No. l approached the Committee and, in consequence, whereof it cancelled the allotment of Abdul Shabbir by order dated 28-2-1984, inter alia, on the grounds that the Entitlement Certificate of Abdul Shabbir was verified by the Central Record Office for the first the in 1959 for Hyderabad (Sind Province) which was outside the Border Belt, therefore, no question arose of transfer of Entitlement Certificate in the Border Belt of Kasur after the crucial date of 24-12-1952 as contemplated by paragraph 1 of Schedule 1 of Martial Law Regulation No.9 hereinafter called the Regulation. It was also found that respondent Fazal Ahmad had raised construction on the land by spending huge amount and Muhammad Saleem appellant who claimed to be the vendee from Abdul Shabbir never bothered to take possession of the land after purchasing the same and it was in 1982 that he tried to get the possession of the land when respondent No. l had raised construction on it after having purchased from Colonel Manzir Hussain respondent No.3 herein. It was further found that the allotment of Abdul Shabbir was secured by fraudulent means by Muhammad Saleem appellant himself and that the allotment of Colonel Manzir Hussain respondent No.3 made by the Committee was in accordance with law and the same was also upheld by the Member Colonies; Board of Revenue, vide order dated 27-3-1976 which having not been challenged had attained finality. The Assistant Commissioner, Kasur was also directed to cancel the Mutation No.5270 sanctioned in favour of Muhammad Saleem appellant on the basis of the bogus allotment of Abdul Shabbir.
4. The appellant filed Writ Petition No. 121-R of 1984 in the Lahore High Court, which was dismissed vide order dated 21-12-1991.
5. Leave to appeal was granted by this Court to consider:--- "Contention of the learned counsel for the petitioner is that he was bona fide purchaser for value and the cancellation of allotment on the ground that the claim form did not reach the estate by a specified date was hardly sufficient to cancel the allotment after more than half a decade."
6. Raja Abdul Razzaque learned counsel for the appellant vehemently contended that the Border Area Committee had no jurisdiction either to allot agricultural land within the Municipal limits though falling within the Border Belt or to cancel the allotment made by Settlement and Rehabilitation Authorities and that the allotment of urban agricultural land had to be regulated by Supplementary Scheme No.2 and Scheme for temporary allotment of urban land to claimants under Schedule V to the Registration of Claims (Displaced Persons) Act, 1956. In support of his contention the learned counsel for the appellant, relied on various provisions of Supplementary Scheme No.2 with particular reference to paras. 2, 3 and 4 etc., paras. 55 and 55-A of the Rehabilitation Settlement Scheme, the Border Area Scheme, 1952, Scheme for Temporary Allotment of Urban Land to Claimants Under Schedule V to the Registration of Claims (Displaced Persons)
Act, 1956 and Ordinance III of 1981.
Learned counsel for the respondents contended that the impugned judgment does not suffer from any legal flaw and that the appellant is not entitled to seek protection under section 41 of the Transfer of Property Act, IV of 1882), in view of a finding of fact recorded by the Border Area'
Committee that the appellant was not a bona fide purchaser for value.
7. We find no force in the submission of the learned counsel for the appellant. The judgment of this Court in Muhammad Rafique v. The Border Area Committee, Lahore 1990 SCM R 817, is a complete answer to the contention of the learned counsel for the appellant. In the precedent case, it was held that the Border Area Committee had jurisdiction to scrutinise all evacuee property within any Border Area and Urban Agricultural Land is not excluded from its purview. It would be advantageous to reproduce the following passages from the above-quoted decision:--- "6. Land as originally defined in the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act) and the Rehabilitation Settlement Scheme, 1956 (hereinafter referred to as the Rehabilitation Scheme) included the urban agricultural land as well. The definition of 'land' in clause (3) of section 2 of the Act is as hereunder:--- 'Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land, but does not include---
(a) property as defined in sub-clause (b) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956) or in sub-clause (d) thereof; or
(b) such evacuee land as may be declared by the Chief Settlement Commissioner as a building site. "
In the Rehabilitation Scheme "land" was defined as hereunder:------ "'Land' means all evacuee land held for agricultural purposes or for purposes subservient to agriculture or for pasture, including unsurveyed land, trees or buildings and other structures standing on it and which the Rehabilitation Commissioner, West Pakistan, has been authorised to pool and allot under section 6(1) of the Pakistan Rehabilitation Act, 1956 and section 7(1) of the Baluchistan Rehabilitation Regulation. "
7. The notification of acquisition under section 4, subsection (2) of the Act related to acquisition of all land as defined in clause (3) of section 2 and included in West Pakistan Rehabilitation Scheme prepared by the Rehabilitation Commissioner, West Pakistan, under section 6 of the Pakistan Rehabilitation Act, 1956. In the year 1952 Border Area Scheme was prepared by the Rehabilitation Commissioner and engrafted in the Rehabilitation Scheme, Part II. Paragraph 55 introduced in 1952 provided that claimants other than those eligible for allotment of land under the Border Scheme prescribed in paragraph 55-A will be allotted land under the Rehabilitation Settlement Scheme on the basis of their verified claim in the Border Area provided that they had registered their claim for this area. None of the provisions of the Border Scheme was to apply in such cases and no increase over the actual claim under the Rehabilitation Settlement Scheme was to be allowed.
8. Paragraph 55-A related to allotment of evacuee land without making any distinction between urban or rural for that purpose. It was paragraph 4-A of the Rehabilitation Scheme which excluded urban agricultural land from the purview of the Rehabilitation Scheme. Martial Law Regulation 9, which was enforced on the 20th of March, 1959 conferred a new jurisdiction and incorporated a part of the Rehabilitation Scheme for the exercise of that jurisdiction in the following words of paragraph 10:
10. (a) The committee shall scrutinize all allotments of evacuee property within any Border Area and may, if after such scrutiny it is satisfied that any allotment was made to a person not eligible for allotment under the West Pakistan Rehabilitation Settlement Scheme including the Border Scheme, cancel the allotment and direct the allottee to surrender forthwith the property to the Deputy Rehabilitation Commissioner within whose jurisdiction the property is situated and the decision of the committee in this regard shall be final.
(b) When any allotment has been cancelled and direction issued under sub-- paragraph----
(a) the allottee or the person in possession of such property shall surrender the property accordingly, failing which the Deputy Rehabilitation Commissioner concerned or the Committee may take possession of the property by evicting any person to possession thereof with such force as may be necessary for the purpose.'
9. In terms of this paragraph the jurisdiction of the Border Area Committee extended to all evacuee property within any Border Area, and the provisions of the Rehabilitation Scheme including the Border Area Scheme were to be applied for the purposes of such a scrutiny to all evacuee property within the border belt. By such incorporation of the Border Areas Scheme the provisions of the Rehabilitation Scheme notwithstanding paragraph 4-A stood incorporated on the strength of Martial Law Regulation No.9 conferring a jurisdiction and also a test for all allotments made. The limitations and inhibitions contained in the Rehabilitation Scheme itself could not control the provisions of the Martial Law Regulation No.9. On the contrary, the provisions of Martial Law Regulation No.9 subordinated the provisions of the Rehabilitation Scheme by its incorporation in Martial Law Regulation No.9. On this view of the matter it is clear that the Border Area Committee had the jurisdiction and it is not the case of the appellants that the requirements of the Border Area Scheme were satisfied when the allotment was made in favour of Mst. Quresha Khatoon. On the legal jurisdictional plane the finding of the High Court having been reversed, the relief sought by the appellants on the strength of the leave granting order cannot be granted."
When faced with this, the learned counsel for the appellant attempted to argue that the case of Muhammad Rafique (supra) needs review. This point was also raised in the petition for leave to appeal but the leave was not granted on this question, therefore, the appellant cannot be allowed to raise this plea. Even otherwise, the judgment has been rendered in the case of Muhammad Rafique (supra) by a Full Bench of this Court comprising five honourable Judges including the then honourable Chief Justice, therefore, it is binding on this Bench which comprises three Judges.
8. The sole question which needs consideration is whether the appellant is a bona fide purchaser for value and the sale in his favour should have been protected on the principle of section 41 of the Transfer or Property Act (hereinafter referred to as the Act IV of 1882). Learned counsel for the appellant strenuously argued that the appellant was a transferee for value froth the original allottee. He was not privy to any fraud or misrepresentation. He purchased the property in good faith for valuable consideration, therefore, transfer of the land in dispute was protected under section 41 of the Act IV of 1882. In support of his proposition, reliance was placed on Officer on Special Duty, Central Record Office v. Bashir Ahmad (1977 SCM R 208). This case is distinguishable wherein the question of protection on the principle of section 41 of the Act IV of 1882, was not in controversy as is the case in hand.
9. Section 41 of the Act IV of 1882 statutory application of law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section, as highlighted by this Court in Kanwal Nain v. Fateh Khan (PLD 1983 SC 53), is "whenever one of the to innocent persons had to suffer by the at of a third person he who has enabled the third person to occasion the loss must sustain it". The following conditions are necessary for application of the section, namely:-- "(i) the transferor is the ostensible owner;
(ii) he is so by the consent, express or implied, of the real owner; (i.e) the transfer is for consideration;
(iv) the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer."
Even if the appellant satisfies the first three conditions, the fourth condition is not satisfied, inasmusch as, the Border Area Committee had recorded a finding of fact that the appellant had not acted in good faith and obtained the allotment through under-hand means. The learned Judges of the Division Bench in the High Court refused to interfere with the order of the Border Area Committee and dismissed the writ petition of the appellant. The appellant, therefore, cannot be allowed to press section 41 of the Act IV of 1882.
Be that as it may, the principle embodied in section 41 of the Act IV of 1882, is the principle of natural equity. Here the equities are not in favour of the appellant, inasmuch as, the respondent No. l had admittedly raised shops anti godowns on the land in dispute without any objection by the appellant and that the latter Was in the exclusive enjoyment of the property in dispute as an owner for the last so many years. The High Court was, therefore, right in not interfering with the order of the Border Area Committee. Additionally, the plea of protection on the principle of section 41 of the Act IV of 1882 is not available in Settlement matters. Refer Muhammad Yamin v. Settlement Commissioner (1976 SCM R 489) wherein 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 Act IV of 1882. The same view was reiterated in Maryam Begun v. Ch. Shah Muhammad (1976 SCM R 342). In the case of Bashir Ahmad v. Additional Commissioner (1983 SCM R 1199), it was held that the transfer of purchase was subject to the incidence of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 and the purchaser is not protected even though the sale was bona fide and for value: The same view was followed in. Manzoor Hussain v. Fazal Hussain (1984 SCM R 1027). Needless to add that the case of Sher Muhammad v. Border Area Committee 1988 M LD 826 relied by the appellant is also distinguishable. In the last-.Mentioned case, it was found that the order of allotment of the house in dispute therein was made by one Member of the Border Area Committee acting singly. The house was also found to be in continuous possession of the appellants therein at the the of commencement of the Settlement Scheme, 1961.
On these facts, it was held that the order passed by the Border Area Committee for eviction of the occupants of the house, on the basis of its earlier transfer order made by one Member of the Committee singly, was without lawful authority. The application of section 41 of the Act of 1882 was not in controversy in the aforementioned case.
10. In view of the foregoing discussion, the appeal fails and is hereby dismissed with no order as to costs.