JUDGMENT RAJA MUHAMMAD SABIR, J. -- This petition is directed against the order of Settlement Commissioner (Land) with the powers of Chief Settlement Commissioner, Punjab, Lahore, dated 6,10.198l whereby mukhbari application submitted by Muhammad Iqbal Khan-respondent No. 3 was accepted and land allotted to Sawant Khan alias Tara son of Karim Bakhsh (predecessor-in- interest of the petitioner) was cancelled.
2. Briefly the facts of the case, as stated in this petitioner, are that Sawant Khan, respondent No. 10 was allotted agricultural land measuring 423 kanals, 12 marlas in village Adhian, Tehsil.Il Ferozewala, District Sheikhupura, under the provisions of Displaced Persons (Land Settlement) Act, 1958. Out of this hand the allottee sold 166 kanals and 12 marlas to one Jamal Din on 5.12.1964. This sale was effected in contravention of Martial Law Regulation No. 64 of 1959, therefore nomutation was attracted. Thereafter, respondent No. 10 sold his entre holding to Jamal Din, Khushi Muhammad, Sher Khan, Muhammad Mai A
3. On the aforesaid application respondent No. 1 held a district inquiry, perused the relevant record and recorded statements of the concerned patwari. The petitioner also joined the proceedings before him and submitted written statement in support of his contention that he was a bona i.e purchaser for consideration and was not privy to the fraud committed by the allottee, therefore, entitled to retain the land. He also took up the plea that respondent No. 10 was the lawful allottee and the application submitted against him was not based on true facts. The allottee, however, did not turn tip and he was proceeded ex -parte. On the basis of evidence on record, respondent No. 1 held that claim Form No. 8186 was found bogus and fictitious, consequently allotment made pursuant thereto in the name of respondent No. 10 was cancelled and land resumed, through the impugned order.
4. Learned counsel for the petitioner contends, that proper inquiry was not held to verify the genuineness of Claim No, 8186 of respondent No. 10. After allotment the land was sold by him, therefore, he was no more residing at the given address in the revenue record. Proper procedure for effecting service of the allottee was not adopted and he was condemned unheard. No proof for cancellation of his claim was produced before the Chief Settlement Commissioner. The impugned order is not based on relevant material to justify cancellation of allotment of Sewant Khan. The learned counsel further argued that even if claim of respondent No. 10 is found to be bogus, the petitioner being bona i.e purchaser for consideration and not privy to the alleged fraud, is entitled to purchase the land under Repealing Act No. 14 of 1985, and the scheme made thereunder.
5. Learned counsel for the Settlement Department has supported the impugned order and under directions of the Court has managed to produce the relevant record from the Central Record Office through Muhammad Aslam Saleem, Naib Tehsildar.
6. 1 have heard ,the learned counsel for the contesting parties and perused the relevant record. The original record produced from the Central Record Office clearly indicates that claim Form No, 8186 stands cancelled. It is crossed as well as seal "cancelled" is affixed thereon. The order of Officer In charge, Central Record Office, Lahore dated 27.1.1968 shows that claim Form No. 8186 in the name of Sawant Khan alias Tara was received in his office through Deputy Commissioner, Sheikhupura for verification and scrutiny. The said claim was scrutinized and found absolutely forged and fictitious, therefore, the same was cancelled and consigned to the record. The concerned officer of District Sheikhupura was sent intimation for further necessary action through robkar bearing No. 4407-SK. The record further reveals that Mst. Asghari Begum daughter of Sawant Khan had submitted an application to the Officer In charge Central Record Office inquiring about the fate of aforesaid claim and she was replied through letter dated 18.3.1969 that claim of her father was found forged and had been cancelled by OSD on 26.1.1968. It is thus obvious that claim of respondent No. 10 was found forged and fictitious and was cancelled on 27.1.1968 by the Officer In charge Central Record Office and it was also in the knowledge of his daughter Mst. Asghari Begum.
7. The petitioner acquired his title by filing pre-emption suit against the sale made by respondent No. 10. Since the allottee himself was not entitled to the allotment of land, his claim having been found bogus, title of the petitioner has no independent legs to stand upon. He steps into the shoes of the vendee from the allottee who had no entitlement for such allotment. The allotment of respondent No. 10 was void and without jurisdiction, therefore, all superstructure based thereon falls to the ground. In Syed Wajid-ul-Hassan Zaidi Vs. Govt, of the Punjab and others (1997 SCM R 1901) their Lordships observed that:- "Order passed by the Authority which was in excess of jurisdiction or without jurisdiction was not final order- Such order does not require to he set aside and can simply be ignored if pressed into service."
This view also finds supports from the earlier judgment of the Supreme Court in cases, Yousaf Ali Kv.
Muhammad Aslam Zia and others (PLD 1958 S.C. 104). Khuda Bakhsh Vs. Khushi Muhammad (PLD 1976 S.C. 208) and Rauiuui Ali Vs. Chief Settlement Commissioner (PLD 1973 S.C. 236).
8. Since the allotment of respondent No. 10 was void and without jurisdiction, the sale made in favour of the vendee and the pre-emption decree obtained by the petitioner are of no consequence. The vendee as well as the petitioner step into shoes of the allottee and his claim having been cancelled, petitioner is not entitled to retain the property merely on account of being successful pre-emptor against the sale made by the allottee.
9. For what has been discussed above, the impugned order is based on proper appreciation of evidence which is supported by record produced from the Central Record Office before me. It does not suffer from any legal infirmity warranting interference.
10. It is, however observed that since the petitioner is a bona i.e purchaser for consideration and allegedly in possession of the disputed property, if the existing law so permits, he may apply for the purchase thereof, to the Chief Settlement Commissioner who shall decide his application on its on merit in accordance with law.