TALIB HUSSAIN and others vs MEMBER, BOARD OF REVENUE and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been instituted by petitioners against the judgment dated 2nd December, 1998 passed by Lahore High Court, Lahore whereby writ petition filed by petitioners has been dismissed.

2. Precisely stating facts of the case are that one Syed Nizamuddin son of Khizar-ud-Din (since dead) somehow succeeded in obtaining evacuee land cancelled from the name of Mirza Muhammad Afzal Baig vide order dated 24th January, 1990 allegedly passed by Settlement Commissioner (Land)/Notified Officer. Out of this land he transferred 62 Kanals, 6 Marlas to one Rasheed Shah son of Hassan Shah vide Mutation No,741 dated 4th February, 1990. This person further transferred the land from his name on the name of Zaheeruddin and others vide Mutation No,824 dated 20th August, 1991. Besides this parcel of land Syed Nizamuddin also transferred an area measuring 18 Kanals and 8 Marlas to one Noor Muhammad son of Sardar vide Mutation No,758 dated 19th May, 1990. He also transferred this land to Ghulam Muhammad vide Mutation No,773 dated 6th October, 1991. Thereafter Ghulam Muhammad transferred this land to Muhammad Idress and others. In pursuance of these transactions present petitioners also purchased the said property. It is noteworthy that statedly one Rehmat Khan the predecessor-in- interest of respondents Mst. Hameeda Begum and others as back as in the year 1970 had filed a Mukhbari application for cancellation of disputed land from the name of Mirza Muhammad Afzal.

His legal representatives i.e, Hameeda Begum and others were also pursuing their remedy and ultimately on filing Writ Petition No,412-R/1984 they succeeded in getting favourable order from Additional Settlement Commissioner (Land), Gujranwala on 4th April, 1995 in respect of the same land which Syed Nizamuddin succeeded in getting transfer on his name on 24th January, 1990. As such the land in respect of which Mutation No,740 was attested in favour of Syed Nizamuddin was cancelled by Assistant Collector No,II and the total land from his name was transferred in the name of Provincial Government vide Mutation No,982 followed by Mutation No,983 according to which the land was transferred from the name of Provincial Government to Rehmat Khan on 29-10-1995. As such his property devolved upon respondents Hameeda Begum and others vide Mutation. No,896.

On inquiry when the petitioners came to know that the land has been cancelled from their name and allotted to respondents Nos.7 to 13 by respondent No,2 vide Mutation entry sanctioned on 29th October, 1995, as such Writ Petition No,42-R/1996 was filed by the petitioners as well as Syed Nizamuddin son of Khizar-ud-Din who perhaps passed away during pendency of petition. A learned Singe Judge in Chambers of Lahore High Court vide impugned judgment dismissed the writ petition. As such instant petition has been filed.

3. Learned counsel for petitioners vehemently contended that late Syed Nizamuddin from whom the petitioners have purchased the property was its lawful transferee as per the order dated 24th January, 1990 passed by Assistant Commissioner, Hafizabad/Notified Officer, therefore, such order was not liable to be superseded by another Notified Officer i.e, Additional Commissioner (Revenue)/Settlement Commissioner (Land) dated 4-4-1995. He further stated that respondent Hameeda Begum and others being successors-in-interest of Rehrnat Khan were not entitled for the transfer of the land because the claim of their predecessor-in-interest was never recognized by any of the authorities of the Settlement Department. Therefore, according to him the petitioners who have purchased the land from Syed Nizamuddin against value cannot be deprived from their legitimate right because they did purchase it from a person who was its ostensible owner.

4. On the other hand learned counsel for the caveator contended that petitioners have no right to claim relief either from the High Court or from this Court because the property purchased by them was not legally transferred in favour of Syed Nizamuddin vendor and after cancellation of same from his name the petitioners have become non-entity. He also explained that Syed Nizamuddin succeeded in getting the evacuee land surrendered by Mirza Muhammad Afzal Baig in Mouza Wandow, Tehsil and District Gujranwala on the basis of fictitious direction issued by Board of Revenue, whereas no such directions were issued as it is indicated from the reports, which were submitted subsequently. Factually Syed Nizamuddin had never filed any application under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 in the capacity of Mukhbir seeking cancellation of the property owned by Mirza Muhammad Afzal Baig. According to him there were three Mukhbars namely Rehmat Khan, Sana Ullah and Siraj Din as is evident from the order dated 29-9-1976 passed by Additional Settlement Commissioner, claim of two Tatters' was settled by the Settlement Department but former's claim could not be settled at that time which now has been satisfied by the Authority Notified.

5. We have heard the learned counsel at length and have also gone through the impugned judgment. It may be noted that writ jurisdiction of learned High Court was invoked by Syed Nizamuddin as well as the petitioners, therefore, primarily burden was upon them to prove that the Notified Authority vide its order dated 24th January, 1990 had legally transferred the land on the name of Syed Nizamuddin. Learned Judge in the High Court had examined the case of Syed Nizamuddin in depth with reference to the litigation commencing from the time when evacuee land was resumed from the name of Mirza Muhammad Afzal Baig. It was observed that three persons namely Sana Ullah, Siraj Din and Rehmat Khan have filed Mukhbari application seeking cancellation of land of Mirza Muhammad Afzal Baig. As far as former two are concerned their claim was adjusted. As far as latter is concerned his claim was not adjusted. The legal heirs of Rehmat Khan consistently remained following the authorities but ultimately it so happened that the land resumed from Mirza Muhammad Afzal Baig was got transferred by Syed Nizamuddin vide order dated 24th January, 1990 passed by the Notified Officer on the pretext that he has been directed by the Member, Board of Revenue on 12th October, 1988 but detailed inquiry conducted in this behalf revealed that no such directions were given to Assistant Commissioner, Hafizabad. In this connection learned Judge of the High Court relied upon a report, extract whereof has been reproduced in the judgment, perusal whereof indicates that Letter No,5866/88-1739-RL (A)I dated 12-10-1988 was forged one. It may also be noted that in respect of commission of such forgery Commissioner, Gujranwala was asked to hold inquiry against Assistant Commissioner for allotting the land to Syed Nizamuddin without any jurisdiction because in 1990 no case of Syed Nizamuddin was pending before Settlement Authorities. Therefore, on the basis of such facts learned High Court rightly came to the conclusion that late Syed Nizamuddin was never Mukhbar, as such he was not entitled for transfer of alternate land. It may be noted that as per contents of impugned judgment Sana Ullah, Siraj Din and Rehmat Khan were three Mukhbars who submitted application for cancellation of the land from the name of Mirza Muhammad Afzal Baig and in pursuance of said application the property which was entered on the name of Mirza Muhammad Afzal Baig situated in Mouza Kuryalla, Tehsil Hafizabad, District Gujranwala was cancelled because his claim has already been satisfied by the department in Mouza Wandon, Tehsil Gujranwala, therefore, the cancelled land was ordered to be transferred on the name of Mukhbars including Rehmat Khan vide order dated 4-4-1995. A perusal of said order indicates that Syed Nizamuddin got allotted the land, which was cancelled from the name of Mirza Muhammad Afzal Baig on his name, therefore, the legal heirs of one of the Mukhbir were entitled for allotment of the land, which was cancelled from the name of Afzal Baig. Obviously in 1976 Syed Nizamuddin was-not in picture as he subsequently somehow managed to get the disputed land transferred on his name but when authorities learnt about fraudulent transaction they got it cancelled vide order dated 4th April, 1995 and mutated the said land on the 'name of legal heirs of Rehmat Khan vide Mutation sanctioned on 29th October.

1995. It goes without saying that as far as fraudulent transaction is concerned it has no foundation to stand and whenever such transaction is declared null and void then the whole series of such order alongwith superstructure built upon' it is bound to collapse. Reference in this behalf may be made to the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104). It would also not be out of context to note that' fraudulent transaction is considered to vitiate even most solemn proceedings as it has C been held in the judgments (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). John Paul v. Irshad Ali 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 PCr.LJ 1979).

6. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in the judgments (1) Kanwal Main and 3 others v. Fateh Khan and others (PLD 1983 SC 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 v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasise that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected.

' Thus for the foregoing reasons we are constrained to hold that there is no substance in instant petition as such the same is dismissed and leave declined.