MANZOOR HUSSAIN vs FAZAL HUSSAIN AND OTHERS

ORDER

1. ' MUHAMMAD HALEEM, C. J.-The dispute in this petition relates to 93 Kanals 3 Marlas of agricultural land situate in village Oppal Jagir, Tehsil Gujranwala. This land was settled on Abdul Majid in satisfaction of his claim, and, was accordingly entered at Khata No, 103 in R. L. II Register on 9th of March, 1963. He sold it to Muhammad Ali through a sale Mutation No, 359, dated 1st of October, 1963.

2. Muhammad Ali next sold it to the petitioner on 16th of November, 1963, and a sale Mutation No, 360 was sanctioned on 31st of August, 1964.

3. ' However, it appears from the record that there was a complaint made against him that he had obtained allotment of agricultural land in excess of his entitlement. Accordingly, the Settlement Commissioner, Lahore, by his order, dated 26th of March, 1974, saved certain allotments of land within his entitlement, which did not include his allotment of land made on 6th of March, 1963 in village Kotli Gul Muhammad as that was earlier cancelled by the Additional Settlement Commissioner, which order was upheld in appeal. The allotment of the land in dispute was made on 9th of March, 1963, and the whole of it was in excess of his entitlement. Another complaint was made for its cancellation under sections 10 and 11 of the Displaced Persons'(Land Settlement) Act, 1958, and the Additional Settlement Commissioner, Gujranwala, exercising the powers of the Chief Settlement Commissioner, cancelled it by his order, dated 25th of March, 1977 holding the allotment as void ab initio and further directing its resumption and allotment to Fazal Hussain, the first respondent herein.

4. ' Being aggrieved by this order, Manzoor Hussain through Writ Petition No, 787/R of 1977, challenged its legality, but did not succeed as it was dismissed in limine on 24th of April, 1984.

5. ' It was urged in the High Court that being a vendee he was not heard, and, accordingly, the order was without jurisdiction. But the High Court repelled it on the ground that he had participated in the proceedings as was evident from the short order, dated 3rd of March, 1976. The High Court next held that the disputed land was allotted to Abdul Majid in excess of his entitlement as the earlier allotment of land made in his favour on 6th of March, 1963, was cancelled and if this allotment bad been brought to the notice of the Settlement Commissioner, he would not have also saved it. As such the petitioner could not be allowed to retain the land although he was a purchaser, as it was an "ill-gotten gain" ; and finally, its allotment in favour of respondent No, I was upheld.

6. ' The learned counsel for the petitioner relied on Officer on Special Duty v. Bashir Ahmad (1), and contended that as he was not a privy to any fraud or misrepresentation, the sale in his favour should be upheld as he was a bona fide transferee for value without notice of the defect of title. The observation on which he relied was obiter as the point for consideration in that case was whether the order of the Deputy Commissioner exercising the powers of Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, recorded after proper enquiry and maintaining the claim of the right-holder as being genuine, could be brushed aside and a fresh enquiry initiated. This question arose as after the enquiry another application was presented under sections 10 and 11 of the said Act for re-opening the question, and a separate application was also filed before the Officer on Special Duty, Central Record Office, Lahore. The Deputy Commissioner also referred the matter to the Officer on Special Duty for enquiry, and consequently fresh notices were issued to the allottees to show cause as to why their confirmed allotments should not be cancelled. It was thereupon that the vendees Bashir Ahmad and Abdul Haq filed a writ petition and contended that the earlier order had attained finality and the question could not be re-opened. Some informers had also filed a petition to question the confirmed allotments on the ground of fraud and misrepresentation. The High Court accepted the earlier petition and held that the matter should not be re-opened, and consequently the informers' writ petition was dismissed. This Court while upholding the order of the High Court on the ground of its being final under section 22 of the Act made the relevant observations on which reliance was placed, but locus standi of the vendee was not, in any way, challenged as to the bona fides of the sale. Here we may point out that the principle incorporated in section 41 of the Transfer of Property Act is an equitable doctrine of estoppel and in the context of the fraudulent allotment could it be said that the owner, i,e, the Government had consented to the ostensible ownership of the allottee which being a question of fact had to be determined upon the particular facts of each case. The observation, accordingly, is the enunciation of the principle laid down in section 41 where there is no dispute in regard to this aspect of the case.

7. ' In Muhammad Yamin and others v. Settlement Commissioner and others (2), it was held that where it was found that the vendor had no right, title or interest in the demised property, no protection can be given to him on the basis of section 41 of the Transfer of Property Act. Similarly, in Maryam Begum v. Shah Muhammad (3), again it was reiterated that the allotment being in the nature of a grant was subject to the provisions of section 10 of the Displaced Persons (Rehabilitation and Settlement) Act, and this being so it would exclude the applicability of the Transfer of Property Act, as in the case of grants made under the Grants Act, 1895. In Bashir Ahmad and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others (3), both these decisions were followed and it was held that the transaction of purchase was subject to the incidence of sections 10 and 11 and the purchaser is not protected even though the sale was bona fide and for value. Officer on Special Duty's case was referred, but it was distinguished on .The ground.

8. "However, the question of protection on the principle of section 41 of the Transfer of Property Act to the purchaser for value had itself {{FOOT NOTE}}

(1) 1977 SCM R 208 (2) 1976 SCM R 489

(3) 1983 SCMR. 1199 {{FOOT NOTE}} ' not been in controversy there. Nor was the observation essential to or made the basis of the decision in that case."

9. Accordingly, there is no room for the argument that the sale should be protected in terms of section 41 of the Transfer of Property Act as sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, govern the confirmation of allotment.

10. ' As to the contention that the petitioner should have been given the first offer to purchase the land in terms of the proviso to subsection (1) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, all that needs to be said is that the proceedings were pending when this Act was enforced and the case had to be decided in terms of subsection (3) of section (2) in which case it was the repealed Act under which the allotment could be made and that, in fact, was done which was upheld by the High Court.

11. ' Accordingly, there is no merit in this petition, which is dismissed.