' These two revision petitions have been filed against the order dated 19-3-1977 of the Additional Commissioner (Revenue), Multan by which the orders dated 19-5-1975 of the Extra Assistant Settlement Officer, Leiah, cancelling the lands in dispute from the names of the petitioners, were affirmed.
2. Briefly, the petitioners purchased the lands in dispute from one Qadira son of Shera of village Nausher Kalan vide register of sale-deeds dated 29-11-1952 with the express condition that in the event of acquisition of land by the T. D. A. They would be compensated from the canal irrigated land that might be released in favour of Qadira. This condition was not mentioned in the sale- deeds of other Vendees to whom the land was also sold by said Qadira. In 1961, the land in question was adjusted in favour of the petitioners. This adjustment was never challenged in appeal or revision and attained finality. After a lapse of 14 years the E. A. G. O., Leiah cancelled the lands in dispute from the names of the petitioners without affording them an opportunity of hearing and adjusted the lands in favour of the respondents, vide his orders dated 19-5-1976. The petitioners challenged these orders in appeals before the Additional Commissioner (Revenue), Multan who held that a number of persons had purchased land from Qadira who was entitled to the regrant of 2,344 kanals 16 marlas of land. This target was consumed in the case of first nine Vendees and the remaining vendees including the petitioner who purchased the land beyond the right of regrant could not be given any land in return. In the case of Mian Khan, petitioner in R.
0. R. 767/76-77, it was submitted that he had purchased 408 kanals out of which 237 kanals falling within the irrigation boundary, were given to him in adjustment, but the area in which he had planted a garden and built a house was taken away from him. The Additional Commissioner rejected both the appeals with the direction that in so far as Mian Khan was concerned he could be given option to retain that part of the land on which he had planted a garden and constructed a house. Being aggrieved, the petitioners have come in revision against this order.
3. The learned counsel for the petitioners assailed the impugned orders on the following grounds :
(i) That in the case of Muhammad Hussain, etc. Petitioners in R.
0. R. No, 766/76-77, it has been specifically mentioned in the sale-deed that after regrant, vendees would get irrigated land. Similarly in case of Mian Khan petitioner in R.
0. R. No, 767/76-77, Qadira vendor made an affidavit on 11-11-1963 affirming that if any land was taken away by the T. D. A. Out of the sold land, then it would be taken away from his own land ;
(ii) That the petitioners were duly put in possession of the sold land which has continuously remained with them since 1952 and therefore they have a preferential right over others who had not been delivered possession of the land sold to them ;
(iii) That the orders cancelling the land from the names of the petitioners were passed without notice and in violation of the principle of natural justice and therefore void and of no legal effect.
(iv) That the mutations sanctioned in favour of the petitioners were subsequently reviewed on 5-3- 1960 under the orders of the Collector and as a result the T. D. A's. Share in the sold land was slashed away and the remaining land mutated in the names of the petitioners on 12-2-1964 vide mutations Nos, 1008 to 1011. The order dated 5-3-1960 was never challenged in any Court and therefore it was not competent to the Extra Assistant Colonization Officer to review the order of his predecessor dated 12-5-1976 without prior permission of the Commissioner.
4. As against the above the learned counsel for the respondents argued according to the instructions, adjustment was to be made in the names inguinal owner and the land sold by him adjusted in the names of the vendees in the order of priority. As the total regrant allowed in the names of Qadira was consumed among the first nine vendees the petitioners who came later in the order of priority had no claim over the land sold to them by Qadira over and above his entitlement. The learned counsel submitted it was for the petitioners to verify if Qadira could sell the land to them and if they had not done so they should suffer for their lack of vigilance in view of the principle of caveat emptor. As to the objection that the petitioners were condemned unheard the learned counsel submitted that this legal lacuna stood cured after the Additional Commissioner had heard them. He however conceded that the respondents were never put in possession of the land sold to them.
5. After hearing the arguments advanced on both sides and on perusing the relevant record. I have formed the view that the vendees who were put in possession must get perference over those who were never given possession of the land sold to them because no transfer of land could be validly effected without delivery of possession. Moreover, there is a specific condition in the sale-deed executed in favour of Muhammad Hussain etc. Petitioners providing that in case any land was to be acquired by the T. D. A. It would be acquired from the land of the vendor and not from the land sold to the petitioners. Similar condition has been incorporated in the affidavit sworn by Qadira vendor on 11-11-1953, in favour of Mian Khan petitioner. Further the land in dispute had been permanently mutated in favour of the petitioners in pursuance of the review order dated 5-3-1960 of the Collector and during the subsistence of the said order no further review was possible after an elapse of 14 years without the prior sanction of the Commissioner. Consequently I would allow both these revisions, set aside the impugned orders and direct that the land purchased by the petitioners and under their occupation shall remain with them.