MUHAMMAD NAWAZ ABBASI, J.---The above two appeals by leave of the Court have been preferred against a consolidated judgment dated 22-1-2002 passed by a learned Single Judge of the Lahore High Court, Lahore in W.P. No,322-R of 1986 and 323-R of 1986 in which the subject-matter of dispute was the allotment of evacuee land. These appeals involving common question of law and facts are proposed to be disposed of through this single judgment.
2. The relevant facts giving rise to these appeals in the background are that land measuring 444 Kanals, 6 Marlas was allotted to Mst. Maryam Bibi and land measuring 1509 Kanal, 18 Marlas was allotted to Abdul Rashid at Khata RL-II Nos.917 and 918 respectively against their verified claim on 9-1-1958 by the Deputy Settlement Commissioner in Village Bhikhi, District Sheikhupura. The present appellants purchased the land from the above named allottees in 1963 through registered sale- deeds. Subsequently it transpired to the Settlement Department that Mst. Maryam Bibi and Abdul Rashid refugees from Panipat were allotted land against their verified claims in excess to their entitlement and consequently the Additional Settlement Commissioner (Lands), Sheikhupura after examination of record in detail and asserting the actual position cancelled the excess allotment vide order dated 20-10-1969 and directed for resumption of the excess land in the possession of refugees. The above order of the Additional Settlement Commissioner (Lands), Sheikhupura passed in exercise of the powers of Chief Settlement Commissioner was assailed by the appellants through separate settlement revisions before the Lahore High Court and a learned Division Bench of the High Court while setting aside the order of the Additional Settlement Commissioner vide judgment dated 2-7-1971 remanded the case to the delegate of the Chief Settlement Commissioner for the fresh decision after hearing the parties and considering various memorandum issued by the Chief Settlement and Rehabilitation Commissioner on the subject.
However, the excess land cancelled from the name of Mst.Maryam and Abdul Rashid refugees was proposed for allotment to Mst.Umrao Bibi's another claimant on 26-11-1969 which was confirmed in her name vide order dated 15-12-1969 and she was also impleaded as party in the settlement revision before the High Court. The Additional Commissioner, Lahore Division in the post-remand proceedings decided the matter, after repeal of the evacuee laws as pending case in exercise of the powers of Settlement Commissioner (Lands), Lahore and vide order dated 31-7-1986 upheld the earlier order of cancellation of excess allotment. The appellant challenged this order by way of filing Writ Petitions Nos.322-R of 1986 and 323-R of 1986 in the Lahore High Court, and a learned Snigle Judge vide judgment dated 7-5-1995 allowed the writ petitions and remanded the case to the Chief Settlement Commissioner for decisions afresh in terms of the order dated 2-9-1971 passed by High Court in settlement revisions. The appellants/vendees from the original allottees assailed the above judgment before this Court in Civil Appeal No 11'26 of 1995 and 1327 of 1995 and with the consent of the parties the case was remanded to the High Court for decision of the writ petitions on merits. In post-remand proceedings a learned Single Judge of the Lahore High Court having dilated upon the question of law and fact raised in the writ petition in detail held that the land allotted to the refugees in excess of their entitlement was rightly cancelled and dismissed the writ petitions vide impugned judgment.
3. The Additional Commissioner (Revenue)/Settlement Commissioner, Lahore while dealing with the question of entitlement of the allottees in his order dated 31-7-1986 observed as under:-- "6. After going through the record and perusing the written arguments filed by the petitioner and decision of superior Courts, I have come to the conclusion that the Bighas in Tehs4 Panipat, District Karnal were Kham Bighas beyond any doubt, I have already held so in the other above mentioned cases already decided by me on 28-12-1985. The actual entitlement of Mst.Maryam comes to 269 units whereas allotment of land to the extent of 1155 units had been secured at Khat:, No,917 of Village Bhikhi and in this way the excess allotment to the extent of 886 units has been found.
However, as the Additional Settlement Commissioner (Lands), Sheikhupura had given 20% Beeshi on actual entitlement, I also allow 20% Beeshi on the actual entitlement of 269 units and if the units of Beeshi which may be to the extent of 54 units are deducted from 886 units, even then they remains as excess allotment of 832 units. Previously the Additional Settlement Commissioner (Lands), Sheikhupura, had wrongly determined the excess to the extent of 799 units out of the said excess allotment of 832 units an area to the extent of 799 units already stands confirmed to Mst.
Umrao Bibi and it was further alienated in favour of the petitioner Khalid Hameed. The excess land to this extent is therefore, not available for sale to the respondents."
4. In consequence to the above decision the Settlement Commissioner in exercise of the powers under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 read with section 2(2) of Act XIV of 1975 having cancelled the excess allotment from the name of refugees held that allotment of land made in the name of Mst.Umrao Bibi by the Additional Settlement Commissioner, Sheikhupura was in accordance with law. The appellant being vendee from the original allottees were however allowed by the Settlement Commissioner to purchase the remaining area with the permission of Member, Board of Revenue (Settlement and Rehabilitation) subject to the deposit of sale price within two months failing which the said area would also be resumed.
5. Leave was granted in the present appeal vide order dated 28-5-2002 in the following terms: "2. Leave is granted to consider, inter alia, the following points:--
(a) Whether the Settlement Authorities acting under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 could gobehind the orders passed by the Claims Authorities under the relevant laws of acceptance of the claims of the claimants?
(b) Whether the present petitioners who are bona fide purchasers from the original allottees were entitled to purchase the land in their possession under the Evacuee and Displaced Persons Laws (Repeal) Act, 1975?"
6. Learned counsel for the appellant has raised the following contentions in support of the present appeal:
(1) The entitlement of the allottees was determined on the basis of their verified claim under Registration of Claims Act, 1956 and the allotment in their name under Rehabilitation Act, 1956 was confirmed on 9th January, 1958 whereas the Displaced Persons (Land Settlement) Act, 1958 was enforced on 23rd September, 1958, therefore, the Settlement Authorities in exercise of their powers under Displaced Persons (Land Settlement) Act, 1958 would not be competent to reopen the matter on the ground that Bighas in Panipat area were Kham and the entitlement of the allottee was miscalculated. The learned counsel submitted that the allotment of land was made on the basis of verified claim and the same being not based on fraud or misrepresentation would not be subject to provision of sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 and that the Settlement Authorities had no jurisdiction to cancel the allotment.
(2) The appellants being vendee from original allottee and bona fide purchaser even otherwise would be entitled to retain the possession of the land seeking protection of section. 41 of the Transfer of Property Act, 1882 or by purchasing the area of excess allotment in their possession in terms of the notification/memorandum dated 11-6-1964 issued by the Chief Settlement Commissioner.
(3) Mst. Umaro Bibi was a fake claimant and the allotment of land in her name was not genuine as she died in the year 1975 whereas gift of land in the name of Khalid Hameed respondent No,2 was shown to have been made by her in the year 1983 and in any case the allotment of land was made in her name in violation of the stay order issued by the High Court in settlement revisions and consequently the allotment order passed by the Additional Settlement Commissioner would create no right in her favour.
7. The learned counsel submitted that if the allotment of Mst. ,Umrao Bibi would have been declared illegal, the land would be available for purchase for the reason that except Mst. Umrao Bibi there was no claimant in the field and the appellant being vendee from original allottees would beentitled to purchase the excess land in their possession. In support of above contentions the learned counsel has placed reliance on 1969 SCM R 299, 1971 SCM R 339, 1978 SCM R 350, 1981 SCM R 547, 1983 SCM R 1039, 1983 SCMR 119, 1985 SCM R 491, 639 and 1994 SCM R 2021.
8. Learned counsel for the private respondents on the other hand has argued that the original allottees namely Mst.Maryam and Abdul Rashid having not challenged the orders dated 20-10- 1969 and 15-12-1969 by virtue of which the excess area of their allotment was cancelled and was allotted to Mst. Un-irao Bibi have conceded the factual position and the vendees from them would not be in a position to plead on their behalf without impleading them as party in the proceedings before the Settlement Authorities and the High Court and consequently would not assert any right in the resumed land. The learned counsel next argued that the Additional Commissioner Revenue exercising the power of Settlement Commissioner (Lands), Lahore having examined the entitlement of original allottees directed for the resumption of excess land of their allotment vide order dated 20-10-1969 and the said order was ultimately maintained by the delegate of the Chief Settlement Commissioner vide order dated 31-7-1986. The learned counsel submitted that at both occasions the Settlement Authorities with reference to the Central Record Office held that measure of land in Panipat Was Kham Bighas and not Pacca Bighas and that this Court affirmed the view of the High Court on the issue in Alimuddin and others v. The Additional Deputy Commissioner (C), Additional S.C. (L) and others (NLR 1979 Supreme Court 689) wherein it was held:-- "5. This petition was earlier taken up on 13-3-1979 when after hearing the learned counsel for the petitioners, the representatives of the Central Record, Office were directed to appear alongwith the record received from India to throw light on the entitlement of and the nature of the land left by the claimants in the village concerned. The departmental representatives have appeared today and shown the Special Jamabandi received from India to us. They have also placed on record a correct chart showing the entitlement of the petitioners and we have noticed, that the Special Jamabandi specifically mentions that the land held by claimants in India was in the measure of Kham Bighas, which would mean that when the same was earlier taken to be in the measure of Pacca Bighas, it was clearly due to an obvious misreading of the record, and if the claimants also asserted anything contrary to the record, their assertions naturally were not correct and honest. In this view of the matter the orders impugned hardly call for any interference by this Court, as they are fully supported by the relevant record.
9. Learned counsel contended that the allotment of land under Rehabilitation Settlement Scheme, 1956 or any other scheme prepared under Evacuee Laws before the promulgation of Displaced Persons (Land Settlement) Act, 1958 (herein called Act XLVII of 1958) would be treated as allotment under the said Act and an allotment obtained in excess to the entitlement in any manner would be subject to the provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958.
In support of the above contentions the learned counsel has placed reliance on 1976 SCM R 342, 1976 SCM R 489 and 1983 SCM R 1199. It was further argued by him that after cancellation of excess allotment, the resumed land was allotted to Mst.Umrao Bibi which was not available for purchase by the appellant before or after the repeal of Evacuee Laws and further that the allotment made in the name of Mst.Umrao Bibi in presence of status quo order passed by the High Court in settlement revisions would be subject to the ultimate result of the litigation and the legal defeat if any in it stood removed with the dismissal of the writ petition. The learned counsel added that the provisions of section 41 of the Transfer of Property Act, 1882 would be inapplicable in case of a transaction of sale and purchase of evacuee property and the State land.
10. We have heard the learned counsel for the parties at length and also perused the record in detail with their assistance. The basis of the litigation between the parties, was method and measurement of land for determination of the entitlement of the refugees from Panipat for the purpose of allotment of land to them against their verified claims. The Settlement Authorities during the scrutiny of record having come to know that the entitlement of the allottees in the present case was determined through miscalculation of units and on the basis of same they were allotted in excess to their actual entitlement. The order of cancellation of excess land was passed after having conducted a detailed factual inquiry and the High Court having made thorough probe into the controversial question of facts upheld the order of Settlement Commissioner in the writ petition. The learned Single Judge in the High Court in the light of facts pleaded by the parties examined the question relating to the nature of Bighas in Panipat area whether Kham or Pacca and held that the Settlement Commissioner was right in holding in the light of factual inquiry that Bighas in Panipat were Kham whereas the entitlement of refugees calculated on the basis of Pacca Bighas and consequently they obtained much more to their actual entitlement. The relevant portion of judgment is reproduced as under:-- "3. In so far as the unit calculation on the basis of Pacca Bighas or Kham Bighas in Panipat, Tehsil and District Kamal is concerned, the matter stands settled by a Division Bench of this Court in Alimuddin and 10 others v. Additional Settlement Commissioner (L), Sialkot, and others (NLR 1979 Civil (Lahore) 908) wherein it was observed that 'the reliance by the Settlement Authorities on the general instructions/directions of Rehabilitation Commissioner(Lands), issued in 1953 for the discovery of the scale of the measurement in Panipat Tehsil on the basis of the Kham Bighas is unexceptionable. It appears that although this policy decision was promulgated in a standard form referred in the order of the Chief Settlement Commissioner as P.1, but in this case it was not followed at the time of original allotment. The impugned correction was not only essential and lawful, but also just and proper.' The said judgment was upheld by their lordships of the Hon'ble Supreme Court i,e, Alimuddin and others v. The Additional Deputy Commissioner (C), Addl. S.C.(L) and other (NLR 1979 Civil (SC) 689). The controversy has thus substantially been set at rest. The view of respondent No,1 being consistent with the instructions issued from time to time and in accord with the above precedents, is amply justified."
The view of the High Court in Alimuddin and others v. Additional Settlement Commissioner and others supra was affirmed by this Court in NLR Civil (SC) 689. We having gone through the record find that the concurrent finding of fact of Settlement Commissioner and the High Court on crucial issue being not suffering from any defect of misreading of record would not call for any interference of this Court and in any case the controversial question of facts as to whether the Bighas in Panipat were Kham or Pacca or the entitlement of the allottees was not based on miscalculation and the conclusion drawn by the Settlement Authorities as well as the High Court was not correct would not be allowed to be reopened and adjudicated by this Court.
The sole legal question requiring determination would he whether the allotment made and order passed under Rehabilitation Laws before the enforcement of Displaced Persons (Land Settlement)
Act. 1958 could not be interfered with by the authorities exercising the power under Act XLVII of 1958.
The language of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 in general terms would not indicate that the order passed under the provision of Act III of 1956 would be upset or recalled by an officer exercising the power under Act XLVII of 1958. But the examination of the same in the light of the rest of the provisions in the Act would clear the legal position.
11. It is provided in subsection (1) of section 11 of the Act that the Chief Settlement Commissioner may for reasons to be recorded cancel any allotment made under any Rehabilitation Scheme or under Displaced Persons (Land Settlement) Act, 1958. The allotment of land in the present case was made against the claim verified under the Registration of Claims (Displaced Persons) Act, 1956 under Rehabilitation Settlement Scheme, 1956 prepared under Pakistan Rehabilitation Act, 1956 (Act III of 1956) and on theenforcement of Act XLVII of 1958 the said scheme would be treated a' scheme under section 2(7) of Act of 1958, which provided as under:-- "2(7) 'Scheme' means a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) or section 7 of the Balochistan (Rehabilitation) Regulation 1950 (II of 1950."
12. The allotment has been defined in section 2(1) of the Displaced Persons (Land Settle merit) Act, 1958 as under:-- 'Allotment': Allotment means an allotment of agricultural land made to a displaced person under this Act or under any Scheme, in lieu of any claim registered and verified, or deemed to have been registered and verified under any of the following enactments:--
(i) The West Punjab Refugees (Registration of Land Claims) Act, 1949 (W.P. Act of 1949).
(ii) The Refugees (Registration of Land Claims) (Capital of the Federation) Ordinance, 1949 (XII of 1949).
(iii) The North-West Frontier Province Refugees (Registration of Land Claims) Act, 1949 (N.-W.F.P. Act X of 1949).
(iv) The Bahawalpur State Refugees (Registration of Land Claims) Act No,14 of 1949.
(v) The Sindh Refugees (Registration of Land Claims) Act, 1950 (Sindh Act II of 1950).
(vi) The Khairpur State Refugees (Registration of Land Claims) Ordinance No,4 of 1952.
(vii) The Refugees (Registration of Land Claims) (Balochistan) Regulation, 1950 (III of 1950), and (viii)The Registration of Claims (Displaced Persons) Act, 1956 (III of 1956).
13. The above provision in Act XLVII of 1958 would clearly show that the allotment of land under any scheme against the verified claims before or after the enactment of Act XLVII of 1958 would be an allotment under the said Act. The allotment in the present case was proposed and confirmed under Rehabilitation Settlement Scheme, 1956 before the enforcement of Act XLVII of 1958 and the Additional Settlement Commissioner exercising the power under section 11 of Act XLVII of 1958 on coming to know that the excess allotment obtained through miscalculation of entitlement, cancelled the excess land. The Rehabilitation Settlement Scheme, 1956 under which the allotment was made became part of Act XLVII of 1958 by operation of law and consequently the provisions of sections 10 and 11 mutatis mutand is would be applicable to the allotments made before the promulgation of 1958. The retention of the land obtained in excess of the entitlement through miscalculation knowingly would be defined as an act of fraud and therefore, the provisions of sections 10 and 11 of Act XLVII of 1958 in such cases would be attracted. The miscalculation of entitlement due to the mistake of Central Record Office would not create a legal right in the excess area and consequently an allotee would not be allowed to retain excess land by taking advantage of the mistake of Central Record Office. Under the provisions of Act XLVII of 1958 an allottee on cancellation of allotment has to surrender the possession and as the consequence of the cancellation, the alieners from such allottee would not be entitled to retain the possession without establishing the essential fact that there was no fraud, misrepresentation or miscalculation of entitlement to bring the case out of the purview of sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. It was held in Sher Muhammad v. Chief Settlement Commissioner (1971 SCM R 339) that settlement under section 15 of the Displaced Persons (Land Settlement) Act, 1958 would mean the settlement obtained in accordance with law and the settlement which was not obtained in accordance with law would be liable to cancellation under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 and if an allottee by taking advantage of mistake of the Central Record Office, obtained the excess allotment it would be said that he had acted fraudulently. In Chuto v. Chief Settlement Commissioner (1978 SCM R 350), Alimuddin and others v.The Additional Deputy Commissioner. NLR 1979 Civil SC 689 and Gulzar Ahmed v. Settlement and Rehabilitation Commissioner, Land, Punjab (1982 SCM R 547) it was held that the Chief Settlement Commissioner was always empowered to cancel the allotment, if satisfied, , that it was obtained in unlawful manner.
14. Learned counsel for the appellants in the light of judgments in the cases titled Muhammad Siddique v. Abdul Majid (1999 SCM R 2674) and Muhammad Hussain v. Ghulam Hussain 1994 SCM R 841) has contended that the Claims Office under Registration of Claims (Displaced Persons) Act, 1956 and the allotment of land made under Rehabilitation Settlement Scheme, 1956 prepared under Pakistan Rehabilitation Act, 1956 could not be cancelled by the Settlement Authorities in exercise of their power under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958.
The judgments referred above being distinguishable in facts and law would not be as such applicable in the present case and we in the light of legal position explained in the preceding paragraphs hold that in case of allotment in excess to the entitlement through misrepresentation or miscalculation as the case may be made before or after enforcement of Act XLVII of 1958, the Settlement Authorities under the ibid Act would be competent to cancel such allotment. Having examined the relevant previsions in the Displaced Persons (Land Settlement) Act, 1958, The Registration of Claims (Displaced Persons Act, 1956, Pakistan Rehabilitation Act, 1956 and the judgments cited by the learned counsel for the parties in support of their respective contentions, we do not find any substance in the argument of the learned counsel for the appellant that in such cases of excess allotment the Settlement Authorities would be powerless to cancel the excess allotment and the allottees would be entitled to retain the excess allotment obtained either due to the mistake of Central Record Office or by fraud or misrepresentation.
15. The next question would relate to the right of purchase of the allottee or the vendee from such allottee of the excess area in the terms of notification dated 11-6-1964 under Displaced Persons (Land Settlement) Act, 1958 or the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. In the Rehabilitation Settlement Schemes I and II in Chapter 111 and VI respectively, it was provided that if an allottee would subsequently found to hold land in excess of his actual entitlement in accordance with the prescribed procedure, the allotment of the excess land. It was also provided that no such allottee would be entitled to any compensation to any improvement made on the land if subsequently his allotment was cancelled as the excess allotment under Rehabilitation Settlement Scheme being subject to cancellation, the allottee would be deemed to in unauthorized possession of the land. It was held in Bashir Ahmad v. Additional Commissioner (1983 SCM R 1199) that a purchaser for value would not be entitled to the protection of section 41 of the Transfer of Property Act 1882 as the allotment of land made under the Displaced Persons (Land Settlement)
Act, 1958 is always subject to the provisions of sections 10 and 11 of the said Act and every purchaser from an allottee is saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection under section 41 of Transfer of Property Act, 1882. In Mst. Maryam Begum v. Shah Muhammad (1976 SCM R 342) it was held as under:-- "Section 10 of the Displaced Persons (Land Settlement) Act, 1958 gives power to annul the allotment which is obtained by fraud or confirmation of allotment if subject to h., allotment being in the nature of the grant we do not see how the counsel for the petitioner can press section 41 of the Transfer of Property Act, 1882 to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement) Act, 1958."
16. The allottees in the present case obtained land in excess of their entitlement and only the excess land was cancelled, therefore, the appellants could not make a legitimate grievance as the basic right of allotment by such cancellation was not affected' and they having no lawful claim in excess area, the same would be taken away from them at any time. We having considered all aspects of the matter are not inclined to take a different view and hold that the provisions of sections 10 and 11 of the Displaced Persons (LandSettlement) Act, 1958 would not be applicable to the allotment made against the verified claim before the enactment of Act of XLVII of 1958 or section 41 of Transfer of Property Act 1882 would be applicable in such cases. However, an original allottee or a purchaser from such allottee who obtained possession of the land in pursuance of sale for valuable consideration may have the right of purchase if the land after cancellation was still available. In the present case after the cancellation of the excess land from the name of original allottees, Mst. Umrao Bibi claimant was adjusted in the resumed land which was no more available, therefore, neither the original allottees nor the vendee from them could assert their claim of purchase of land in their possession. This is notable that the original allottees were neither made party in the proceedings nor they themselves joined the proceedings at any stage and the subsequent vendees have not been able to justify and defend the excess allotment obtained by the refugee, therefore, they would not be entitled to retain the possession of the land of excess allotment either seeking protection of section 41 of the Transfer of Property Act, 1882 claiming themselves as bona fide purchaser or in exercise of right of purchase under evacuee laws but the Settlement Commissioner still with the exclusion of land allotted to Mst. Umrao Bibi allowed the appellant to purchase the remaining land. The learned counsel for the appellant has argued that the allotment of land in the name of Mst. Umaro Bibi was not genuine and was based on fraud and consequently the orders passed by the Additional Settlement Commissioner and Settlement Commissioner in the matter having no legal backing may be set aside and the land allotted to her may be declared available to be disposed of by the Notified Officer under Act XIV of 1975. We are afraid the order passed by the Settlement Commissioner relating to the allotment of Mst. Umrao Bibi was not independently challenged at any stage which would be holding field and having attained finality would not be challengeable at this belated stage.
17. The above appeals arose out of the order of cancellation of allotment of the appellant and even if they would have succeeded in establishing that the land allotted to Mst. Maryam Bibi and Abdul Rashid was not in excess of their entitlement, still Mst. Umrao Bibi would be entitled for allotment of the land against her verified claim and she would be adjusted in her own right, therefore, the objection regarding the genuineness of her claim would not be entertain able. The contention. Of the learned counsel for the appellants for purchase of the excess land by them in the light of memorandum dated 11-6-1964 and subsequent memorandum issued by the Chief Settlement Commissioner in 1966, was properly considered by the High Court and having come to the conclusion that there was no substance in the claim of purchase of excess area observed as under:--
18. "4. The reliance of the learned counsel for the petitioners on memorandum dated 11-1-1964 is inappropriate and of no avail. The said memorandum had received attention of the Chief Settlement and Rehabilitation Commissioner from time to time as and when implications thereabout surfaced, and the import thereof had to be clarified. In memorandum dated 24-2-1966, it was clarified that 'the object of issuance of the above cited instructions was to condone only petty cases of small excess and it was not intended to permit large area obtained in excess of entitlement for one reason or the other on the grounds that the claimant concerned had not misrepresented'. It was emphasized that nobody was entitled to allotment in excess of his entitlement and the excess land withdrawn should be utilized for the satisfaction of the outstanding claim. The position was further explained and clarified through memorandum dated 6-5-1966 as memorandum dated 11-1-1964 was being misunderstood. These memorandums were in the field when the Additional Settlement Commissioner exercising the power of Chief Settlement Commissioner has passed order dated 20-10-1969.... In Sher Muhammad v. The Chief Settlement Commissioner and others (1971 SCM R 339) it was observed that 'the allotment of excess area was due to inadvertent mistake on the part of the officers of the Central Record Room who had verified his claim for 260 Bighas and 12 Biswas. It is idle for the petitioner to contend that he did not know what his actual entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudulently'. It was also observed in that case that 'the petitioner has no legal right to purchase the excess area'.
Similar view was taken in Chotu v. Chief Settlement Commissioner, Lahore and 6 others (1978 SCM R 350). In Dahla v. Settlement Commissioner (Lands) and others (1983 SCM R 1039), it was observed that 'we do not share his view that an allotment which is in excess of the entitlement of a displaced person made in his favour by public authorities cannot be cancelled. Such a cancellation is clearly possible under section 11 of the Displaced Persons (Land Settlement) Act and the necessary powers thereunder would be available even where the excess allotment has been made on account of a bona fide mistake of the Settlement Authorities'. In Ali Muhammad and others v. The Additional Commissioner (Consolidation) with powers of Settlement Commisisoner (L) and others (1985 SCM R 1128) wherein memo. Dated 11-1-1964 also finds mention, it was held that 'this Court has held in several cases that the Settlement Authorities have the power to withdraw the area allotted to a claimant which is in excess of his entitlement on grounds other than fraud and misrepresentation under section 11 of the Displaced Persons (Land Settlement) Act. In Abdul Sattar through Legal Heirs and others v. Muhammad Shafiq Khan and others (1994 SCM R 2021), it was held that 'the allotment which isin excess of the entitlement can be cancelled under section 11 of the Displaced Persons (Land Settlement) Act 1958 even if the allotment was made by sheer mistake by the Settlement Authorities' . The order of the High Court passed in writ jurisdiction was set aside by their lordships and that of the Settlement Authorities was restored. In Bashir Ahmad and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others (1983 SCM R 1199) which was also a case of excess allotment, it was observed that 'since an allotment of land is subject to the provision of sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor'. The contention of the learned counsel for the petitioners that the allotment found in excess of the entitlement of a person cannot be cancelled, is this too wide a proposition, not tenable in view of the above legal position.
The import of memo. Dated 11-1-1964 which was clarified through later memorandum is clearly misunderstood."
18. We having considered the question relating to the right of purchase in the light of above memorandums are of the considered view that no such right could be asserted on the basis of above notification/memorandum even if the land would be available. For the foregoing reasons these appeals would fail and the same are dismissed accordingly. The parties shall bear their own costs.