BASHIR AHMAD AND Others vs ADDITIONAL COMMISSIONER WITH POWERS Of SETTLEMENT COMMISSIONER (L) AND Other

ORDER

M. S. H-. QURAISHI, J.-The petitioners are purchasers of land alloted to Salah-ud-Din etc. Respondents 9 to 11 successors-in-interest of Rafi-ud --Din, the deceased right-holder. The allotment was later found to be in excess of their entitlement and as such the excess was cancelled with the condition that the same should be restored if the objection filed by the allottees was decided in their favour. The High Court after checking from the Central Record Office came to the view that the entire allotment worked out to 1,414 units and as such there was an excess of allotment. On this finding the High Court further held "Any cancellation of allotment on the basis of that order or subsequent allotment or sale in favour of the respondents 9 to 12 (present petitioners), therefore, does not have any legal effect. The result is that the cancellation if any or subsequent allotment or sale of the same in favour of the respondents 9 to 12 is declared to be without lawful authority and of no legal effect."

Aggrieved, the petitioners have sought leave to appeal. The contention raised on their behalf is that they being bona fide purchasers for value, the sale in their favour should not have been affected and they should have been protected on the principle of section 41 of the Transfer of Property Act.

Such a plea had been held by this Court as not available in Settlement matters. In Muhammad Yamin v. Settlement Commissioner (1976 SCMR 489), decided on 1-3-1974, it had been held "As to the argument that the petitioners are bona fide purchasers for value, it is clear that no protection be afforded to them when it has been found that their vendor had no right, title or interest in the demised property." in another case, subsequently decided on 18-12-1975, that is, Maryam Begum v. Shah Muhammad appearing in the same report at page 342, the view taken was "The allotment being in the nature of a grant, we do not see how the counsel for the petitioner can press section 41 of the Transfer of Property Act to seek protection of the transfer when the grant itself is subject to section 10 of the Displaced Persons (Land Settlement) Act, 1958, that is, it could be cancelled on fraud being established. This being the essential condition of the grant, it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Crown Grants Act, 1895.

3. We notice that in DfJ11cer on Special Duty v. Bashir Ahmad (4977 S -C M R 208), where the basic question was whether after ah- allegation as to the genuineness of the claim had been examined under sections 10 and 11 of the Act and a final order passed, a fresh inquiry could be made, this Court had while holding that it could not be made, because finality attaches to the earlier order in view of section 22 of the Displaced Persons (Land Settlement) Act and there being no power of review available, further observed in that context that the argument in favour of the reopening the matter overlooks the fact that there was no discoverable principle for penalizing the purchasers for value who were not privy to any fraud or misrepresentation alleged against their predecessors-in- title, the original right-holders. However the question of protection on the principle of section 41 of the Transfer of Property Act to the purchaser for value had itself not been in controversy there. Nor was the observation essential to or made the basis of the decision in that case. Since. An allotment of Ian is subject to the provision of sections 10 and 11, every purchaser from a 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. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us.

4. The petition is, therefore, dismissed and leave to appeal refused, S. Q.