IFTIKHAR MUHAMMAD CHAUDHRY, J. -- Civil Appeals Nos. 653 and 695 of 1995 have been filed by leave of the Court against the judgment dated 19th May, 1993 passed by Lahore High Court, Lahore in Writ Petitions Nos. 153-RF/1988 and 186- R/1988. Leave has been granted to consider following questions:-- "(1) Whether-the Deputy Settlement Commissioner, Multan had the jurisdiction to declare the land in dispute as building site?
(2) Whether the petitioners in C.P. No. 1487-L/1993 were unable to produce the requisite documentary evidence in support of their claim to have purchased the plots in auction because the necessary documents were not supplied to them by the Settlement Department and if so, whether the High Court should have called for the record or remanded the matter to the Settlement Authorities for holding an enquiry to ascertain the correctness or otherwise of the petitioners' claim?
(3) Whether the petitioners in C.P. No. 1511-L/1993 were the sitting allottees of Chak No. 130/15-L and they had pending claim/units in the said Chak, which should have been adjusted against the land in dispute and whether the findings of the Settlement Authorities negativing their claim were contrary to the record?"
2. This case has got a chequered history spread over morethan 4 decades. However, for sake of brevity following facts for the disposal of instant appeals are being noted.
(i) The subject property is situated in Chak No. 130/15-L, Tehsil Mian Channu District Khanewal. Mst.
Islam-un-Nisa and Taj Muhammad refugees from East Punjab temporarily got allotted the land (hereinafter referred to as the "land in dispute") in the year 1995.
(ii) Subsequently on 3rd June, 1961 the Deputy Settlement Commissioner declared the disputed land as potential building site and auctioned it as plots on 12.4.1963. Thereafter one Rehmat Ali son of Faqir Muhammad approached the Settlement Commissioner by filing a Revision Petition for allotment of the land in dispute in his favour against his alleged verified claim. Request so made by him was acceded to vide order dated 31st May, 1968 as a result whereof the land entered into Khasra Nos. 76/21/2, 22, 23/1, 27- 28, 88,10/1,10/2,11/1/2, 13/1/1/, 28, 1 to 2 to 4, 5/1, 7 to 9-10-11/1, 12/1, 13/1, 14/1, 27-28 and 28/1 measuring 105 kanals 7 marlas was allotted in his favour.
(iii) At this juncture it may be noted that the Deputy Settlement Commissioner besides declaring the land in dispute as potential building site also declared some other properties to be potential building sites situated in Tehsil Khanewal.
(iv) The order of Deputy Settlement Commissioner dated 3rd June, 1961 was assailed before High Court of West Pakistan in Writ Petition No. 2090-R/1963 by one Haji Abdul Hakeem son of Abdul Ali and others in respect of property other than subject-matter of proceedings. Mr. Justice K.E.
Chauhan (as he then was) vide judgment dated 21st December, 1966 issued the writ holding the order dated 3rd June, 1961 to be without lawful authority alongwith order of Assistant Commissioner dated 25th July, 1965.
(v) It would be important to point out that Rehmat Ali sold entire land through his attorney Sufi Muhammad Yaqub in favour of his own son Muhammad Yousuf besides 4 other persons namely Nasrullah, Muhammad lqbal, Allah Dad and Dr. Rehmatullah. On having acquired rights in the land in dispute these 5 vendees filed a review petition before Settlement Commissioner (Land), Multan, for deletion and substitution of Khasra numbers measuring 14 kanals, 16 marlas from the allotted land of Rehmat Ali and this application of Rehmat Ali through Sufi Muhammad Yaqub being attorney was allowed on 27th August, 1968.
(vi) Subsequent thereto in the year 1969 Nasrullah and four others sold the entire land measuring 105 kanals, 7 marlas to respondents Abdul Hameed and others who were 33 in number. However, the land in dispute was cancelled from the name of Rehmat Ali son of Faqir Muhammad on the application dated 7th April, 1970 filed by Sultan Mehmood Ansari son of Mehmood Ali Ansari (appellant No. 2 in Civil Appeal No. 654 of 1995 under Sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the ''Act") before the Additional Settlement Commissioner (Land) with powers of Chief Settlement Commissioner (Land) Punjab on the ground that Rehmat Ali had no claim and he had already been sentenced by a Military Court for committing fraud. The application was allowed on 24th July, 1972. Against this order respondent Abdul Hameed and 22 others filed an appeal before the Settlement Commissioner (Land), which was dismissed on 17th November, 1973.
(vii) Meanwhile after declaring the land in dispute as potential building, site the Settlement Authorities divided the disputed land into 105 plots approximately and put them to auction on 12.4.1963. The plots were purchased by the appellants and Siraj Din son of Muhammad Din and others in Civil Appeal No. 653/1995. As pointed out hereinabove originally the land in dispute was temporarily allotted in favour of Mst. Islam-un-Nisa and Taj Muhammad, therefore, M/s. Mehmood Ali Ansari son of Mst. Islam-un-Nisa and -Muhammad Ilyas son of Taj Muhammad had also instituted Writ Petition No. 400-R/1969 wherein the order dated 31.5.1968 passed by the Settlement Commissioner transferring the land on the name of Rehmat Ali son of Faqir Muhammad through his attorney Sufi Muhammad Yaqub and subsequent order dated 27.8.1968 . passed by Settlement Commissioner (Land) for deletion and substitution of certain khasra numbers were challenged.
(viii) In this writ petition Rehmat Ali son of Faqir Muhammad and the vendees Nasrullah and others through him were impleaded as party. The writ was issued on 26th May, 1975 whereby both the orders under challenge were set aside and the case was remanded to the Settlement Commissioner for fresh decision after providing opportunity of hearing to all the parties. It may also be noted that the allotment order in favour of Rehmat Ali son of Faqir Muhammad had already been set side by the Settlement Commissioner on 24th July, 1972 on the basis of Mukhbari Application of Sultan Mehmood Ansari.
3. From narration of above facts it seems that Mehmood All Ansari predecessor-in-interest of Sultan Mehmood Ansari (appellant No. 2 in C.A. 654/1995) after the demise of his father simultaneously opened another channel for redressal of his grievance by moving an application before the Settlement Commissioner. However, fact remains that cancellation of allotment order from the name of Rehmat All and subsequent vendees directly effected to the rights of Abdul Hameed and others (respondents in C.A. 653/1995), therefore they challenged this order before the High Court by filing Writ Petition No. 179R/1973. Surprisingly in the memo. of petition they did not mention regarding filing of Writ Petition No.400-R/1969 filed by Mehmood All Ansari and Muhammad Ilyas, as a result whereof both the petitions were disposed of separately. Meanwhile during pendency of Writ Petition No. 179-R/1973 a review petition was filed by nine auction purchasers being No. 105-R/1976 (appellants in C.A. No. 653 of 1995) as well as respondents Siraj Din and others. The High Court disposed of both the petitions on February 2, 1988 by making observations that the matter had already been disposed of in Writ Petition No. 400-R/1969 whereby directions have been given to the Settlement Authorities for fresh decision by the Settlement Commissioner. In view of decision of High Court Additional Commissioner (Revenue) with powers of Settlement Commissioner, Multan disposed of the cases vide judgment dated July 3, 1988 with following conclusions:-
(1) That Abdul Hameed and others have purchased the land from Nasrullah and others who got transferred the same in 1969 from Rehmat Ali and others are bona fide purchasers of the evacuee land, the subject-matter of the proceedings, as such they are entitled to purchase disputed land from the Revenue/Rehabilitation Authority at the rate of Rs.100/- per produce index unit.
(2) Theauctionpurchaser/PTD Holders (appellants/respondents Siraj Din and others (in C.A. No. 653/1995) did not take possession of the plots allegedly purchased by them through auction nor constructed their houses, as such they cannot be treated as bona fide purchasers of the disputed land.
(3) Appellant Mehmood All Ansari and others in C.A. No.654/1995 failed to prove that PIUs of their predecessor Mst. Islam-un-Nisa and others were transferred to Chak No. 130/15-L or not. However, according to report of Patwari -Halqa no units are pending in the village, therefore, no allotment can be made to them.
4. The auction purchasers, Siraj Din and others as well as predecessor-in-interest of Islam-un-Nisa and Taj Muhammad challenged the above order by filing Writ Petitions Nos. 153R/1988 and 186- R/1988 before Lahore High Court, Lahore. A learned Single Judge in Chambers of the High Court partially allowed the writ petition filed by Auction purchasers with the observations as under:-- "13. So far as Writ Petition No. 153-R of 1988 is concerned, I am not inclined to agree with the arguments of the learned counsel for the respondents that the judgment, dated 21.12.1966, delivered in Writ Petition No. 2090-R of 1963 by Mr. Justice K.E. Chohan was of general application or it was a judgment in rem, applicable to all evacuee lands in other urban areas similar to the one situated in Khanewal, to which the judgment pertained. In my opinion, it was relevant only to the land which was subject-matter of that writ petition and the respondents cannot be allowed to make use of it for undoing the disposal of the disputed land through public auction conducted by the Settlement Authorities on the ground that the Deputy Settlement Commissioner, Multan, had no jurisdiction to declare it as a potential building site. It appears that his jurisdiction depended upon the population of each town and it seems that before the learned Judge, dealing with Writ Petition No. 2090-R of 1963, it was demonstrated that the population of Khanewal town was of more than fifty thousand persons but there is no such material on the record of the present writ petition. Till recently Mian Channu was only a small town and a few years ago it was given the status of a Tehsil Headquarter, while Khanewal had been an old and important Sub-divisional Headquarter of District Multan 'before it was. raised to the level of District Headquarter some years back. Therefore, ordinarily it could have more population than Mian Channu and on this hypothesis it can be held that the population of Mian Channu at the relevant time was less than fifty thousand persons and the Deputy Settlement Commissioner, Multan, had the jurisdiction to declare the disputed land situated within its municipal limits to be a potential building site. As a result, the Settlement Authorities could lawfully dispose of the disputed land by public auction and some of the petitioners, who have brought on the record the proof of their auction purchasers as compared to Abdul Hamid and 30 others respondents who were subsequent transferees from intermediaries of Rehmat Ali allottee who was allotted the disputed land by the Settlement Commissioner, Multan, vide order, dated 31.5.1968, because due to its prior disposal by the Settlement Authorities in a lawful manner through public auction, it was not available for allotment to him, at least to the extent of the above-mentioned writ petitioners and to that extent the impugned order dated 3.7.1988 by the Additional Commissioner(Revenue)/Settlement Commissioner, Multan, is not sustainable at law and is declared without lawful authority. To be a little more precise, these findings shall benefit the following petitioners in relation to the plots indicated against their names:-
(1) Siraj Din (petitioner No. 1) plots Nos. 20 and 116,each measuring 9 marlas, 8 sarsahis.
(2) Muhammad. Gulzar (petitioner No. 2) plots Nos. 21,22 and 67, each measuring 9 marlas, 8 sarsahis.
(3) Bashir Ahmad (petitioner No. 3) plot No. 30, measuring 9 marlas, 8 sarsahis.
(4) Inam-ul-Haq (petitioner No. 4) plots Nos. 38 and 61,each measuring 9 marlas, 8 sarsahis.
(5) Sultan Ahmad (petitioner No. 5) plots Nos. 70, 71 and 78 each measuring 9 marlas, 8 sarsahis.
(6) Rashid Ahmad (petitioner No. 6) plot No. 106, measuring 9 nnarlas, 8 sarsahis.
(7) Muhammad Shafi (petitioner No. 7) plot No. 137, measuring 9 marlas, 8 sarsahis.
(8) Murad Ali (petitioner No. 8 now dead) plots Nos. 31,33, 35, 54 and 56 each measuring 9 marlas, 8 sarsahis.
(9) Saghir Ahmad (petitioner No. 13 now dead) plots Nos. 28 and 77, each measuring 9 marlas, 8 sarsahis.
(10) Begum Sarwar Khatoon (petitioner No. 14 now dead) plots Nos. 72, 73, 75, 76, 110, 111, 112, 114, 115 and 150 measuring 9 marlas, 6 sarsahis,10 marlas, 6 sarsahis, 10 marlas, 6 sarsahis, measuring 9 marlas, 8 sarsahis, measuring 9 marlas,8 sarahis, measuring 9 marlas, 8 sarsahis, 10 marlas, 6 sarsahis, 10 marlas, 6 sarsahis, measuring 9 marlas, 8 sarsahis and measuring 9 marlas, 8 sarsahis respectively.
(11) Budha (petitioner No. 18 now dead) plots Nos. 29, 68 and 69, each measuring 9 marlas, 8 sarsahis:"
5. As far as Writ Petition No. 186-R/1988 is concerned it was dismissed. Relevant para from the impugned judgment dealing with the said case is also reproduced herein below:- "12. First of all I would like to consider the entitlement of the writ petitioners in Writ Petition No. 186-R of 1988. Their counsel had claimed before the learned Additional Commissioner (Revenue)/Settlement Commissioner, Multan that the units of his clients or those of their predecessors were transferred by the Deputy Secretary, Board of Revenue, Punjab, Lahore to Chak No. 130/15-L, the estate where the disputed land was situated, but no proof was available on the record in support of that contention. To further ascertain the correctness of his assertion, the learned Additional Commissioner (Revenue)/Settlement Commissioner, Multan, obtained in writing the report of the concerned Revenue Patwari and he clearly reported therein that no unit of the writ petitioners or that of Mst. Islam-un-Nisa was pending in the estate. Acting on that report, he non- suited them. The learned counsel for the petitioners has tried to whittle down the effect of these findings by contending that the Patwari made a wrong report but to support his contention in this regard he has not referred me to anything on the record to show that the report of Patwari was fictitious. This being so, I have no reason to differ with the finding of the learned Additional Commissioner (Revenue)/Settlement Commissioner, Multan on this point and Writ Petition No. 186-R of 1988 is dismissed."
6. Learned counsel appearing for appellants in C.A. No. 653 of 1995 contended as follows:-
(a) The appellants alongwith 11 other persons namely Siraj Din and others have purchased the disputed plots through auction but relief has not been given to them on account of proof of allotment of the disputed plots and against their rights Abdul Hameed and others whose claim is based on fraudulent transaction has been ordered to be accommodated contrary to law.
(b) The appellants have been discriminated without allowing them opportunity to prove their title and if it was not -possible for the High Court to determine the factual controversy in this regard, it may have remanded the case to the Authority notified for decision after receiving evidence according to law regarding entitlement of appellants.
7. Learned counsel appearing for appellants in C.A. No. 654 of 1995 submitted as under:--.
(i) The predecessor-in-interest of appellants namely Mst.
Islam-un-Nisa and Taj Muhammad have been deprived from their claim by the High Court vide impugned judgment merely on the basis of the report of a Patwari contents whereof have not been proved according to law either before the Additional Settlement Commissioner or before the High Court, therefore, such report cannot be used contrary to the interest of the appellants.
(ii) Learned High Court in presence of judgment dated 21.12.1966 of the same High Court passed in Writ Petition No. 2090-R/1963 was precluded under Section 11, CPC to reopen the issue that Deputy Settlement Commissioner had no lawful authority to declare that the disputed land has been rightly declared as potential building site.
(iii) The appellants claim against the verified PIUs has not been satisfied, therefore, they are entitled for transfer of the disputed land because neither it can be given to the auction purchasers i.e. appellants in C.A. No. 653/1995 and respondents Siraj Din and others in the instant appeal nor it could be transferred to respondents Abdul Hameed and others whose claim is based on the title of Rehmat Ali son of Faqir Muhammad but latter's entitlement has been found bogus, therefore, neither they can be treated bona fide purchasers nor accommodated under the law qua the claim of appellants because they.have got no legal entitlement or locus standi for transfer of this land.
8. Learned counsel appearing for official respondents contended that Deputy Settlement Commissioner vide order dated 3rd June, 1961 was not empowered to declare the disputed land as a potential building site because it was an urban agricultural land, therefore, the High Court in earlier judgment delivered on 21.12.1966 in Writ Petition No. 2090-R/1963 rightly declared the order of Deputy Settlement Commissioner (Land) as illegal, hence the appellants in Appeal No. 653 of 1995 and the respondents Siraj Din and others were not entitled to retain the plots in their favour which were allegedly purchased by them through auction was back on 12th April, 1963. So far as respondents Abdul Hameed and others who have purchased the land in dispute from the successors-in-interest of Rehmat Ali son of Faqir Muhammad are concerned they also have no entitlement either to retain the same or purchase it from the Government because they entered into a transaction with the persons who were not enjoying proprietary rights in respect thereof. He lastly contended that on setting aside the impugned judgment it may be declared that- the land is available to the Provincial Government being its owner with an authority to dispose it of according to the Scheme framed for disposal of such property under Section 3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975,
9. Learned counsel for respondents Abdul Hameed and others contended:--
(1) The Deputy Settlement Commissioner (Land) declared the land in dispute as potential building site vide order dated 3rd June, 1961 without lawful authority and jurisdiction. This order has already been declared illegal by the High Court in Writ Petition No. 2090-R/1963 vide judgment dated 21.12.1966, therefore, the appellants Farhatullah Khan and others as well as respondents Siraj Din and others have no lawful authority to claim/retain the plots allegedly purchased by them through auction held on 12th April, 1963. To substantiate his arguments he referred to relevant provisions of law as well as notifications issued thereunder determining the powers of different functionaries of Settlement Department for the purpose of declaring the evacuee land as potential building site, etc.
(2) The respondents are bona fide purchasers of the evacuee land because on having satisfied themselves that Nasrullah and others and their successors are ostensible owners of the land in dispute, therefore, they purchased it for value and notwithstanding the fact that the title of respondents and others has been declared ineffective but in view of the principle laid down by this Court in the judgments reported in 1984 SCMR 1027 and 1985 SCMR 494, they have been held entitled to purchase the land in their possession from the Settlement Authority against consideration of Rs. 100/-per PIU.
(3) The High Court after having examined all aspects of the case has disposed of the writ petition, therefore, the impugned judgment being unexceptionable may not be interfered.
10. Learned counsel for Siraj Din and others contended that they occupied the plots in pursuance of auction proceedings held on 12.4.1963 and on making payment of auction price the Settlement Department had issued transfer orders in their names which were produced by them in the High Court and after examining the same the High Court allowed them to remain in possession, therefore, for such reason a right has accrued in their favour and as they are in possession of the plots, therefore, legally they are entitled to retain the same without any exception.
11. In instant appeals moot question for determination has been noted at S. No. 1 in leave granting order namely "Whether the Deputy Settlement Commissioner, Multan had the jurisdiction to declare the land in dispute as building site", therefore, fate of these appeals depend upon decision of this question. It is an admitted fact that disputed property is urban evacuee agricultural land being situated within the municipal limits of Mian Channu. In this behalf if need be reference could be made to the Notification No. 39736, dated 19th December, 1932 read with Notification No. 5256- B&C-50/47176, dated 13.9.1950. By means of latter notification disputed agricultural land of Chak No. 130/15-L was included within the boundaries of Mian Channu Municipal Committee. Therefore, next important aspect of the case requiring attention of this Court is whether Deputy Settlement Commissioner (Land) being a delegatee of the Chief Settlement Commissioner had authority to declare urban evacuee agricultural land as a building site.
12. Mr. Shahzad Jehangir learned Sr. ASC has drawn our attention towards Notification No. 6894- 69/491-R(P), dated 5th February, 1960 to canvass that Deputy Settlement Commissioner under Section 2(3)(b) of the Act was not competent to declare urban agricultural land as Building cite. To clinch the issue appropriately it would be proper to reproduce hereinbelow the contents of said Notification relating to the extent of powers of Deputy Settlement Commissioner, etc. to declare evacuee agricultural land as building site:- "Deputy Settlement Commissioners in all rural agricultural land in towns having population of less than 50,000 according to the census of 1941.
Additional Settlement Commissioner in respect of urban agricultural lands in town with population between 50,000 to 1,00,000 Settlement Commissioner in respect of urban agricultural land in towns with population of over 1,00,000."
13. A perusal of above notification suggests to hold that Deputy Settlement Commissioner (Land) was empowered to declare only Evacuee Rural Agricultural Land (emphasis provided) as building site whereas the land in dispute is admittedly urban agricultural land, therefore, question No. 1 is answered in negative holding that Deputy Settlement Commissioner (Land), Multan had no jurisdiction to declare the land in dispute as building site vide order dated 3rd June, 1961. It would not be out of context to note that learned counsel appearing in Civil Appeal No. 654 of 1995 stated that Additional Settlement Commissioner (Revenue) in the judgment dated July 3, 1988 has observed that the High Court in Writ Petition No. 2090-R of 1963 has held that order dated 3rd June, 1961 passed by Additional Settlement Commissioner (Land) declaring the urban agricultural land situated within the Municipal Committee, Khanewal as building site and as this order has been struck down, therefore, it would also cover the case of disputed property within the Municipal Committee, Mian Channu whereas learned counsel of appellants in C.A. No. 653 of 1995 contended that the said judgment of the High Court is applicable only to urban agricultural land of Khanewal as such it will have no bearing on the land in dispute. We think there is no need to enter into this controversy because hereinabove independently we have declared the order of Deputy Settlement Commissioner dated 3rd June, 1961 as illegal.
14 It may also be seen that in pursuance of order dated 3rd June, 1961 the Settlement Authorities divided the disputed land into 105 plots and allegedly put them to auction on 12th April, 1963 which were statedly purchased by appellants in Civil Appeal No. 653 of 1995 as well as respondents Siraj Din son of Muhammad Din and others but meanwhile this very land was transferred on the name of Rehmat Ali son of Faqir Muhammad through his attorney Sufi Muhammad Yaqub on 31.5.1968 and before dividing the land into plots this order of the Deputy Settlement Commissioner was set aside by Settlement Commissioner on 24th July, 1972 in pursuance of Mukhbari Application of Sultan Mehmood Ansari Despite cancellation of transfer of land from the name of Rehmat Ali, M/s. Mehmood All Ansari son of Mst. Islam-un-Nisa and Muhammad Ilyas son of Taj Muhammad original allottees instituted Writ Petition No. 400-R of 1968 which was accepted on 26th May, 1975 by learned High Court, therefore, on account of this added reason the original status of the land existing prior to 3rd June, 1961 was impliedly revived being part of Urban Evacuee Agricultural Land available in the Settlement Pool, for the purpose of transfer to eligible claimants as per the scheme promulgated by the Provincial Government under Section 3(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974.
15. Now attending the second question noted in the leave granting order namely "whether the petitioners in C.P. No. 1487- L/1993 (C.A. No. 653/1995) were unable to produce requisite documentary evidence in support of their claim to have purchased the plots in auction because the necessary documents were not supplied to them by the Settlement Department and if so, whether the High Court should have called for the record or remanded the matter to the Settlement Authorities for holding an enquiry to ascertain the correctness or otherwise of the petitioners' claim" we are of the opinion that this question needs no elaborate discussion in view of the fact that the Deputy Settlement Commissioner was not empowered to declare urban evacuee agricultural land as potential building site. Because the foundation of the claim of these appellants is based on the order of the Deputy Settlement Commissioner dated 3rd June, 1961 and once this order is ,declared to have been passed without lawful authority, the appellants or respondents Siraj Din and others would not he able to emphasis that on the basis of auction held on 12.4.1963 they are entitled for the transfer of the plots, therefore, it is held that the claim of the appellants cannot be entertained for the reasons mentioned hereinabove. Similarly declaration of learned High Court vide impugned judgment that Siraj Din and others are entitled for transfer of the plots for above reasons as well is not sustainable.
16. It is equally important to note that Abdul Hameed and others respondents in C.A. No. 654/1995 would also not be entitled to retain their lien over the land which they have purchased from successors-in-interest of Rehmat All son of Faqir Muhammad because transfer order in his favour was set aside by the Settlement Commissioner during the proceedings initiated by him on Mukhbari Application filed by Sultan Mehmood. Subsequently learned High Court vide judgment dated 26th May, 1975 passed in Writ Petition No. 400-R/1969 also declined to approve transfer in favour of Rehmat Ali son of Faqir Muhammad. Thus it is held that any transaction which is based on fraud cannot be sustained in the eye of law and such transferees are bound to swim or sink alongwith the transferor. Besides it for the reason that a fraudulent transaction howsoever it may be solemn but is bound to be vitiated in terms of principle of law enunciated in (1) Ghias-ud-Din v.
Iqbal Ahmad and 5 others (PLD 1975 Lahore 780), (2) Lal and another v. Muhammad Ibrahim (1993 SCMR 710), (3) Government of Sindh through Chief Secretary and others v. Khalil Ahmad .and others (1994 SCMR 782), (4) John Paul v. Irshad All and others (PLD 1997 Karachi 267), (5) Mst.
Sarwari Begum v. Atta-ur-Rehman (1997 CLC 1500) and (6) Muhammad Yaqoob v. The State (1997 P.Cr.L.J. 1979). In addition to it such purchasers can also not claim protection of Section 41 of the Transfer of Property Act, 1882 because the principles embodied in this provision of law would not be applicable to the evacuee property as held in the case of (1) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 S.C. 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan Vs. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v.
Mst. Elahi Sain (PLD 1991 S.C. 1034) and (6) Sufi Zaheer Ahmed (Deceased) through Legal Heir v.
Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195).
17. Thus it is held that neither the alleged auction purchasers i.e. appellants.in C.A. No. 653 of 1995 and Siraj Din and others nor respondents Abdul Hameed and others who claim themselves to be bona fide purchasers of the property from Rehmat Ali son of Faqir Muhammad would not be entitled for transfer of this land for the reason that Chief Settlement Commissioner vide notification dated 16th May, 1973 has declared the evacuee urban agricultural land to be building site.
Reference may be made, if needed to the case of All Muhammad through Legal Heirs and others v.
Chief Settlement Commissioners and others (2001 SCMR 1822).
18. While attending next question noted in leave granting order namely "Whether the petitioners in C.P. No. 1511-L/1993 (C.A. No. 654 of 1995) were the sitting allottees of Chak No. 130/15-L and they had pending claim/units in the said Chak, which should have been adjusted against the land in dispute and whether the findings of the Settlement Authorities negativing their claim were contrary to the record", it would be appropriate to reproduce following para from the order of Additional Commissioner (Revenue) dated 3rd July, 1988:-- "18. So far as Mehmood Ali Ansari, etc. and Islam-un-Nisa are concerned, the counsel for the appellants had stated that their units are transferred by the Deputy Secretary, Board of Revenue, Punjab, Lahore in Chak No. 130/15-L but no proof in this regard was given by the counsel. The Paatwari Helga was asked whether any units of Mehmood Ali Ansari, etc. and Islam-un-Nisa are pending in the village he stated in writing that no units of Mehmood Ali Ansari, etc. an. Islam-un- Nisa is pending in the village. The statement of the Patwari is attached with the file. Under the circumstances when no units of Mehmood Ali Ansari and Islam-un-Nisa, etc. are pending no allotment can be made to them."
During hearing of appeals learned counsel appearing for appellants in C.A. 654/1995 failed to satisfy us that after passing order dated 3rd June, 1961 by Deputy Settlement Commissioner (Land) in pursuance whereof the land in dispute was declared as potential building site they did not obtain any other land against their verified claim in some other area. Therefore, we have to accept the finding of Additional Commissioner (Revenue) reproduced hereinabove to the effect that in pursuance of report of the Patwari no units of Islam-un-Nisa and Taj Muhammad are pending in the Chak No, 130/15-L. Even otherwise the case of these appellants now cannot be remanded to the Notified Authority because this Court has already held in the case of Ali Muhammad (ibid) that merely on the basis of unconsumed produce index units the case of a claimant cannot be treated to. be a pending case and if such claimant desire, he/she can ask for compensation from the concerned authority of the Provincial Government. Therefore, it is held that the claim of appellants at this stage cannot be entertained.
Thus for the foregoing reasons both the appeals are disposed of as under:--
(1) The appellants Farhatullah and others as well as respondents Siraj Din and others and respondents Abdul Hameed and others are not entitled for transfer of the land in dispute on the assumption that they are bona fide auction purchasers of the plots or they have purchased the land considering themselves to be successors of Rehmat Ali to be ostensible owner of the property for the detailed reasons mentioned hereinabove.
(2) The land in dispute vests in the Provincial Government being building site free from any claim either of the appellants or respondents noted above and it shall use the same for any public purpose.
(3) The appellants in Appeal No. 654/1995 failed to substantiate their claim on behalf of their predecessorsIslam-un-Nisa and Taj Muhammad, therefore, they are not entitled for any relief.
(4) The impugned judgment dated 19th May, 1993 passed by Lahore High Court is set aside as having been passed without lawful authority.
(5) The parties to instant proceedings shall not be entitled to claim any benefit from the order of Additional Commissioner (Revenue) dated 3rd July, 1988 because case of each category of claimant has been dealt with independently in the instant judgment.
(6) No order as to costs.