Muhammad Khalid Mushtaq Vs Board of Revenue etc

Stereo. HCJDA 38 Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Writ Petition No.45094 of 2021

Muhammad Khalid Mushtaq Versus The Board of Revenue, Government of Punjab etc.

JUDGMENT

Date of Hearing: 08.12.2021 & 09.12.2021 Petitioner by:- Mian Irfan Akram, Advocate. Mr. Shahzad Mehmood Butt, Advocate for the petitioner in Writ Petition No.62184/2021. Respondents by:- Mr. Muhammad Akram Khurram, AAG M/s Farooq Amjad Mir, Ahmad Farooq Mir, Muhammad Rafique Shad, Advocates for respondent No.5.

Mr. Waseem Iqbal Butt, Advocate for Chief Settlement Commissioner with Record.

CH. MUHAMMAD IQBAL, J:- Through this single judgment, I intend to decide the titled Writ Petition along with connected Writ Petition No.62184/2021, as common questions of law and facts are involved in both these petitions.

2.Through these writ petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have challenged the validity of order 02.06.2021 passed by the Member (J-V) / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab who validated the transfer of

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land measuring 13-Kanals 10-Marlas comprising Khasra Nos.229, 230 of Village Dhana Singhwala Lahore in favour of the PTCL/respondent No.5 and declared the PTO No.709071 and PTO No.709072, both dated 12.03.1962 purportedly issued in the name of Ghulam Muhammad and his son Muhammad Hussain as well as subsequent PTDs dated 21.03.1969 issued in the name of subsequent alleged transferee Abdul Ghani and Mst. Safia Latif etc., as bogus, forged and fabricated documents and also held that the mutation No.3227 dated 30.11.2005 was allegedly got sanctioned without prior permission / verification from the office of the (S&R) Wing of the Settlement Department.

3.Brief facts as contained in these petitions are that Pakistan Telephone & Telegraph Department (T&T), Government of Pakistan [which department was later on renamed as Pakistan Telecommunication Company Limited (PTCL)] intended to purchase the evacuee land for construction of its offices, telecommunication installations, a colony for its employees as well as a School, Maternity Home, Dispensary, Recreation Club and Playground at Dhana Singhwala near Punjab University, New Campus, Lahore and in this regard made a request to the Settlement Department through letter dated 04.06.1970. In response to the above request, it was decided on 06.06.1970 to alienate

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land measuring 1200-Kanals in favour of the then T&T Department against consideration of Rs.24,00,000/-. This consideration amount was paid to the Settlement Department through two cheques one amounting to Rs.8,00,000/- and other 16,00,000/-. This payment of consideration was duly acknowledged by the Transferring Department through letter dated 13.10.1970. The Central Government through the Ministry of Rehabilitation & Work, Islamabad accorded approval on 07.04.1971 and evacuee land measuring 800- Kanals was initially sold to respondent No.5/T&T Department (PTCL).

4.That after payment of all dues Transfer Order (TO) No.74635 dated 26.06.1979 was issued in favour of the then T&T Department for land measuring 738-Kanals 06-Marlas including Khasra Nos.229 & 230 of Moza Dhana Singhwala and mutation No.771 was sanctioned on 12.06.1982 in favour of T&T Department/PTCL. Further land measuring 28-Kanals was transferred through Transfer Order [TO No.0000563] dated 16.06.1993 which was duly verified by the Settlement Department/Board of Revenue on 10.07.1993.

5.Being dejected from sanctioning of the mutation in favour of respondent No.5 with regard to land comprising khasra No.229 (3k.16M) and Khasra No.230 (9k.14M) of Mauza Dhanna Singhwala, Muhammad Hussain son of Ghulam Muhammad etc. filed Writ Petition [No.167-R of

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1998] on 04.11.1998 claiming to be allottee of the aforesaid land (bearing Khasra Nos.229 & 230) through T.O No.709071 and 709072 dated 12.03.1962 as well as PTD Nos. 940 & 941 both dated 21.03.1969. The said writ petition was accepted by this Court vide judgment dated 19.07.1999. Against the said judgment Haroon Mahmood Masih etc. also filed petition under Section 12(2) C.P.C.

[C.M.No.1/2000] claiming himself to be transferee from the allottee Muhammad Hussain s/o Ghulam Muhammad who hold PTDs No.154-CSC-4-5/4/193 dated 17.01.1962 and PTD No.125-CSC-4-5/4/196 dated 21.03.1962. The said application was accepted vide order dated 09.08.2001, the judgment dated 19.07.1999 was recalled and matter was remanded to the Notified Officer for decision of the matter as per law.

6.Against the said remand order, Abdul Ghani and Mst.

Safia Latif filed petition under Section 12(2) C.P.C. [C.M.

No.1720/2004] in CM No.1/2000 in W.P No.167-R.98. In the C.M. No.1720/2004 respondent No.5/ PTCL filed an application under Order I Rule 10 C.P.C [C.M.

No.572/2006]. These applications were heard on 18.04.2006 and vide order announced on 04.08.2006 whereby petition under Section 12(2) C.P.C. [C.M. No.1720/2004] was allowed to the extent of allotment of applicants (Abdul Ghani and Mst. Safia Latif) whereas the application under Order 1

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Rule 10 C.P.C [C.M.No.572/2006] of PTCL/respondent No.5 was dismissed.

7.Feeling aggrieved of the order announced on 04.08.2006 [date of hearing dated 18.04.2006], PTCL through its GM filed Civil Petition No.1994-L/2006 and the Hon”ble Supreme Court of Pakistan vide order dated 04.03.2009 converted civil petition into Civil Appeal [No.108-L/2009], accepted the same and remanded the case to the Chief Settlement Commissioner for decision. In aforesaid Civil Appeal, Abdul Ghani and Mst. Safia Latif filed C.M.A Nos.2207-L, 2208-L & 2209-L of 2009 which were dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 21.06.2012 and maintained its remand order dated 04.03.2009 passed in Civil Appeal No.108-L/2009.

8.The pending proceeding in this Court i.e. F.A.O [No.204/2011 titled as PTCL etc. Vs. Khalid Mushtaq etc.], Writ Petition [No.53-R/2014 titled as PTCL Vs. Province of Punjab etc.] as well as application under Section 12 (2) CPC (C.M.No.255-C/2011) in Civil Revision No.2858/1994 and petition under Section 12(2) C.P.C. (C.M. No.256-C) of 2011 in Civil Revision No.2857/1994 filed by respondent No.5- PTCL were disposed of vide order dated 18.05.2018 with the consent of the parties whereby this court also remanded the matter to the Chief Settlement Commissioner to decide the same in accordance with law.

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9.In the post remand proceedings the Chief Settlement Commissioner / Member (J-V) / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab vide order dated 02.06.2021 declared that the Provisional Transfer Orders Nos.709071 and 709072, both dated 12.03.1962 allegedly issued in the name of Ghulam Muhammad and his son Muhammad Hussain as well as subsequent Permanent Transfer Deeds (PTDs) dated 21.03.1969 in favour of Mst. Safia Latif and Abdul Ghani etc. as bogus, forged and fabricated documents as well as cancelled the mutation No.3227 dated 30.11.2005 being sanctioned without prior permission of the (S&R) Wing of the Chief Settlement Commissioner Office and validated the transfer of land measuring 13-Kanals 10-Marlas comprising Khasra Nos.229, 230 of Village Dhana Singhwala Lahore in favour of the PTCL. Hence, these writ petitions.

10.I have heard the learned counsels for the parties at full length and gone through the record with their able assistance.

11.As the main controversy revolves around the allotment of the evacuee land to Muhammad Hussain and Ghulam Muhammad as well as sale of the said evacuee land to respondent No.5. For resolving the controversy among the parties, following points are formulated that;

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1.Whether the respondent No.5/PTCL has valid title in its favour whereas PTO Nos.709071 & 709072 dated 12.03.1962 in favour of Muhammad Hussain and Ghulam Muhammad and PTDs dated 21.03.1969 in favour of Abdul Ghani and Mst. Safia Latif were not validly issued?

2.Whether evacuee land of Khasra Nos.229 & 230 of Mouza Dhana Singhwala falls within the category of building site or same was available for allotment against any evacuee claim?

3.Whether the Chief Settlement Commissioner / Notified Officer has the jurisdiction after promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 to decide the issue arising from allotment of the evacuee land?

4.Whether the subsequent claimants/purchasers from the original allottee have protection of bonafide purchaser under Section 41 of the Transfer of Property Act?

5.Whether the matter has already been finalized upto the Hon’ble Supreme Court of Pakistan which cannot be re-opened?

12.As the main dispute between the parties is regarding their claim to have a valid title of the land in question granted by the Settlement Department in their respective favour, as such, the Point No.1, formulated as above, is being decided at the first instance.

Admittedly, the subject matter of this litigation is evacuee land comprising Khasra Nos.229 & 230 measuring 13-K 10-M of Mauza Dhana Singhwala. The Chief Settlement & Rehabilitation Commissioner, West Pakistan sold evacuee land measuring 800-Kanals situated in Mouza Dhana Singhwala, Tehsil Lahore Cantt., vide order dated 04.06.1970 in favour of respondent No.5 and subsequently quantum of said sold land was enhanced upto land measuring 1200-Kanals through letter dated 13.10.1970 and

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acknowledged the receipt of consideration amount of Rs.24,00,000/- through letter No.F-5 (43)70-WI dated 07.04.1971 and above transaction was given effect in the Revenue Record and possession was delivered to PTCL vide Roznamcha Waqiati dated 24.08.1971 of Mouza Dhana Singhwala. One Muhammad Hussain filed a civil suit against the Board of Revenue etc. and got decree dated 29.07.1978 in respect of land measuring 1887-Kanals 14-Marlas of Mouza Dhana Singhwala, including the land transferred in favour of T&T Department (PTCL). The Province of Punjab challenged the above referred appellate and revisional orders [of this court] but remained unsuccessful. The aforesaid dicta of lower judicial fora was assailed through filing a civil petition and the Hon”ble Supreme Court of Pakistan converted the said civil petition into appeal and accepted the same declaring the suit of Muhammad Hussain etc. as barred by limitation and set aside all the judgments of the lower courts as well as that of the High Court and dismissed the suit through judgment dated 10.02.1992 which is reported as [Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore & Others Vs Muhammad Hussain through Legal Heirs & Others (PLD 1993 SC 147)].

Thus, the matter to the extent of transfer of land in question in favour of PTCL has attained the status of finality.

13.Further, the sale of land measuring 738-Kanals 06- Marlas including land measuring 13-Kanals & 10-Marlas

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Khasra Nos.229 & 230 of Mouza Dhana Singhwala by the Settlement Department in favour of respondent No.5 (PTCL) through T.O No.74635 dated 26.06.1979 which was given effect in Revenue Record through mutation No.771 dated 12.06.1982. The title document No.0000563 of the PTCL was duly verified by the Board of Revenue vide letter dated 10.07.1993. For ready reference, letter dated 10.07.1993 is reproduced as under:

Phone No.353319 No. 116-93/PA/Secy (S&R) Board of Revenue, Punjab, Lahore, dated the 10th July, 1993

From:

The Board of Revenue, Punjab.

To The Addl: Deputy Commissioner (General) Lahore Cantt.

Lahore

Subject: VERIFICATION OF TRANSFER DOCUMENTS.

Please refer to your memorandum No.

ADC(G)/Cantt/323 Dated 28.2.1993 on the subject cited above. The record was examined by the Verification Committee in its meeting held on 5.7.1993 and observations made/orders passed by the Committee in this case are recorded in the minutes at Sr. No.1. Originally T.O.No.74635 was issued in favour of Pakistan Telegraph and Telephone Department through General Manager Lahore Telephone Region Lahore and 738 Kanals and 6 marlas of land as detailed in the said T.O at Page 4 situated in village Dhana Singhwala Tehsil Lahore was allotted. Subsequently revised T.O No.563 was issued in favour of T&T Department by virtue of which an area of 710 Kanals and 6 marlas of land as detailed at page No.4 of the said T.O. in village Dhana Singh Wala has been transferred. T.O No.563 found to have been issued in the name of T&T Department and is, therefore, verified.

You are, therefore, requested to please take further action in the matter.

Sd-

(JAWAD AHMAD MUFTI)

SECRETARY (SETT: & REH.)

BOARD OF REVENUE, PUNJAB.

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No.116/93 P.A/Secy (S&R)

A copy alongwith a verified copy of T.O No.563 in respect of land measuring 710 Kanals and 6 Marlas as detailed on page 4 of the said T.O situated in village Dhana Singh Wala in the name of T&T Department is forwarded to the Tehsildar, Lahore Cantt: Lahore for necessary action. However, before taking further action he shall re-confirm the validity of this letter on personal level from the undersigned.

Sd-

(JAWAD AHMAD MUFTI)

SECRETARY (SETT: & REH.)

BOARD OF REVENUE, PUNJAB.

14.From perusal of record of the writ petitions and Civil Revision Nos.2857 & 2858 of 1994 [wherein the record of civil suits is also available] it transpires that against the transfer of the land to T&T (PTCL) Department, Abdul Ghani son of Amar Ali filed suit [No.270/1/1990] for declaration with permanent injunction claiming to be owner of land measuring 07-Kanals falling Khasra No.230 Min.

situated in Village Dhana Singhwala, Tehsil & District Lahore and also challenged mutation No.771 dated 12.06.1982 in favour of PTCL. In Suit No.270/1/1990 filed by Abdul Ghani, the memo of parties is as under:- “1. Province of Punjab through Secretary, Board of Revenue, Punjab, Lahore.

2.The Collector, Lahore District, Lahore.

3.The Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad.”

As per available record, the said suit was filed on 29.11.1990 and it was decreed ex-parte by the learned Senior Civil Judge, Lahore on 14.01.1991. The proceedings

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conducted in the suit / complete order sheet are reproduced as under:

" 29.11.90وکلسندمیعاحرض دوعیدجدیےہ۔درجررٹسجوہوے۔

ونسٹابذخابلطہنرقتبر09.12.90اجریوہں۔

09.12.90وکلسندمیعاحرض اعرف ٹب راکیرڈ رپیک اجنمبن دماع ہیلع ربمن 1احرض۔ دماع مہیلع ربمن 3 ،2یک اجبن ےس وکیئ احرض ہن ےہ۔ ان ےک الخف کی رطہف۔ رباےئ وجاب اجنمبن ربمن 1رقتبر 09.01.91شیپوہوے۔اتاترخیوموجدہوصرتربرقارراھکاجےئ۔یان ا۔ای۔ 09.1.91وکلسن دمیع احرض ۔ امندنئہ دماع ہیلع ربمن 1احرض ۔ دماع مہیلع 2 & 3ےک الخفکیرطہف۔دماعہیلعربمن1یک اجبنےساساک امندنئہایبندنبملق رکااناچاتہےہ۔ ااکسایبندنبملقایکاجاتےہ۔

ایبنامندنئہدماعہیلعربمن1 ایبن ایک ہک دمیع ےک انم PTOربمنی ،709071ومرہخ 12.3.92ابتب ارایض

دتموعہیاجریایک۔ایاھت۔ ، 21.03.99 9404 PTDانبمدمیعاجری۔ای۔

PTO/ PTDدوونں ذتمرکہ ابالات اح خوسنخ ہن وہےئںی۔دمیعےک انم وکیئ اقب ا اجتہنںیاورامتمرمقادادشہےہ۔یسکمسقیک litigationیھبزریِامستعہنےہ۔ اس رطحدماع ہیلع ربمن 1دوعیھذاوک contestہنرکاتےہ۔ اور اس یکدح کت ڈرگی ایکاجےئ۔رکنسدرتسمیلستایک۔"

رباےئ وبثت کی رطہف دماع مہیلع 2 & 3یک دح کت رقتبر 13.01.91شیپ وہوے ۔ یان ا۔ای۔

13.01.91وکلسندمیع احرضاجنمبندماعمہیلعوکیئاحرضہنےہ۔وبثترطکیہفدنبملق دش۔رباےئثحبومکحرقتبر14.1.91شیپوہوے۔یان ا۔ای۔

دوعی وحباہل مکح رحبوف ارگنزیی ڈرگی ہعم رخہچ ایک 14.1.91وکلسن دمیع احرض۔ ٰ اجاتےہ۔لثمدعبازرتبیتولیمکتاحمظفاخہناجےئ۔یان ا۔ای۔

15.Another suit [No.271/1/1990] was filed by Mst. Safia Latif for declaration with permanent injunction against the

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respondents claiming herself to be the owner of land measuring 06-Kanals 10-Marlas comprising Khasra Nos.229 / 230 of Village Dhana Singhwala Tehsil & District Lahore and challenged the mutation No.771 dated 12.06.1982 in favour of PTCL. The memo of the parties in said suit is scribed as under:-

“1. Province of Punjab through Secretary, Board of Revenue. Punjab, Lahore.

2.The Collector, Lahore District, Lahore.

3.The Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad.”

Admittedly, the said suit was filed on 29.11.1990 and same was decreed ex-parte by the learned Senior Civil Judge, Lahore on 14.01.1991. The proceedings conducted in the suit / complete order sheet are reproduced as under:

وکلسندم ہیعاحرض29.11.90 " دوعیدجدیےہ۔درجررٹسجوہوے۔

اجریوہوے۔09.12.90ونسٹابذخابلطہنانبمدماعمہیلعرقتبر وکلسندم ہیعاحرض09.12.90 وکیئاحرض3،2احرض۔اجنمبندماعمہیلعربمن1اعرفٹبراکیرڈرپیکاجنمبندماعہیلعربمن شیپ وہوے۔ ۔ ات09.01.91 ہن ےہ۔ ان ےک الخف کی رطہف۔ رباےئ وجاب رقتبر اترخیوموجدہوصرتربرقارراھکاجےئ۔یان ا۔ای۔

احرض ااھتریٹ رٹیل شیپ ایک ۔ای1 وکلسن دم ہیع احرض ۔ امندنئہ دماع ہیلع ربمن09.1.91 ایبندنبملق رکاناچاتہےہ۔ااکسایبندنبملقایکاجاتےہ۔1ےہ۔امندنئہدماعہیلعربمن ےکالخفکیرطہف2 & 3دماعمہیلع

1ایبنامندنئہدماعہیلعربمن ،709072 / 12.3.92 PTO ایبن ایک ہک دم ہیع ےک انم اجدیئاد دتموعہی ربوےئ

PTO/ لقتنم یک یئگ ےہ۔SSC-V 4/272 ، 941 /21.03.99 PTD

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ات اح خوسنخ ہن وہےئ ںی۔ امتم رمق ادا دش ےہ۔ ھچک اقب ا ہن ےہ۔ اس رطحPTD "وک دوعیڈرگیےئکاجےنرپارتعاضہنےہ۔رکنسدرتسمیلستایک۔1دماعہیلعربمن شیپ وہوے ۔12.01.91 یک دح کت رقتبر2 & 3 رباےئ وبثت کی رطہف دماع مہیلع یان ا۔ای۔

وکلسن دم ہیع احرض اجنمبن دماع مہیلع وکیئ احرض ہن ےہ۔ وبثت رطکیہف12.01.91 شیپوہوے۔یان ا۔ای۔14.1.91دنبملقدش۔رباےئثحبومکح رقتبر دوعی وحباہل مکح رحبوف ارگنزیی ڈرگی ہعم رخہچ ایک ٰ وکلسن دم ہیع احرض14.1.91 اجاتےہ۔لثمدعبازرتبیتولیمکتاحمظفاخہندالخوہ۔یان ا۔ای۔

16.Perusal of the record of suits as well as above reproduced memos of parties shows that the Chief Settlement Commissioner / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab was not arrayed as party whereas Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 as well as under Section 79, read with Order XXVII CPC the impleading of Province of Punjab through Chief Settlement Commissioner / Administrator (Residual Properties) / Notified Officer, Board of Revenue, was mandatory and without arraying it as a party to the lis, no effective decree could have been passed and even if a decree is passed in violation of the above, that would be inexecutable against the person who was not party to the said lis. The above proposition was conclusively settled in the earlier round of litigation which is reported as Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore & Others Vs Muhammad

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Hussain through Legal Heirs & Others (PLD 1993 SC 147) wherein the Hon”ble Supreme Court of Pakistan has held that under Section 79 of the Civil Procedure Code read with Order XXVII, CPC and Article 174 of the Constitution, the suits against the Central Government be filed in the name of Pakistan (Federation) and against a Provincial Government in the name of the Province. For ready reference, Para-7 of the above said judgment is reproduced as under:- “7. If the trial Court, the appellate Court and the revisional Court had kept in view the requirements of section 79 of the Civil Procedure Code read with Order XXVII, C.P.C. they would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974 - -much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.

Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.

As regards the Collector of the District, the procedure prescribed was quite a simple one --a straightforward one, for service on him. It is provided in Order XXVIII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort, at any sage, was made to effect service through the Government Pleader, The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming that Collector represented ex- officio the province of Punjab and by impleading him the Province stood automatically impleaded. Not only the Collector is not under the law representative of Province

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but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made.”

Reliance in this regard is placed on cases cited as Messrs Fine Electric Corporation Vs. Province of Punjab and 3 others (1989 SCMR 1407) and The Federation of Pakistan Vs. Mir Mohim Khan (PLD 1955 Baluchistan 21), Mst.

Maqbool Begum etc. Vs. Gullan & Others (PLD 1982 SC

46)& Muhammad Siddique (Deceased) through L.Rs. and others Vs. Mst. Noor Bibi (Deceased) through L.Rs. and others (2020 SCMR 483). In a recent pronouncement rendered in the case of Province of Punjab through Secretary Excise & Taxation Department, Lahore & Others Vs. Murree Brewery Company Ltd (MBCL) & Another (2021 SCMR

305)the Hon”ble Supreme Court of Pakistan has held that:

14.Therefore, the legislative intent and the purpose of the operation of this provision is for the State, or the Province, to be adequately represented and defended through the impleadment of the proper department. This purpose cannot be achieved if the concerned and proper department is not made a party to the suit, nor can it be achieved if the State, or Province, are not named in the suit.

15.This Court, in previous matters before it, has held that S.79 of CPC is a mandatory provision where the State, or the Province, was either not impleaded in compliance with S.79 of the CPC, and Article 174 of the Constitution, or the concerned department was not made party to the suit. Reference can be made to the cases of Province of the Punjab through Member Board of Revenue (Residual Properties) v. Muhammad Hussain, Haji Abdul Aziz v.

Government of Balochistan through Deputy Commissioner, Khuzdar, and Government of

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Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi.

17.Moreover, in both the suits which were filed by Mst.

Safia Latif and Abdul Ghani, the Province of Punjab was made party through Secretary, Board of Revenue, Punjab, whereas dispute was relating to the evacuee property and settlement department [Notified Officer / Administrator (Residual Properties) / Chief Settlement Commissioner / Member, Board of Revenue, Punjab] was a necessary party and it should have been impleaded. Similar is the position of the Collector. Under Order XXVII Rule 4 C.P.C. the Government or its functionaries can be served through Government Pleader but no effort at any stage, was made to effect the service through Government Pleader thus no legal and proper service of summon was effected upon the relevant department. A Clerk of the Board of Revenue of his own appeared and got recorded a conceding statement without having any authority to make such statement and mere on the statement of the clerk, both suits were decreed without recording the evidence of any responsible officer of the Settlement Department. Furthermore, Mst. Safia Latif and Abdul Ghani merely challenged the vires of the mutation No.771dated 12.06.1982 sanctioned on the basis of transfer orders dated 26.06.1979 in favour of the PTCL whereas in the said suits, they have not assailed the validity of sale

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transaction as well as the issuance of PTO and PTD in favour of respondent No.5 before any competent forum till date whereas it is settled law that entry of mutation is amounted to mere updating of revenue record and mutation itself does not create any title. In the earlier lis only mutation was challenged which has no any legal significance as the foundational transfer order/PTD in favour of respondent No.5 are still in field.

18.Moreover, against the aforesaid ex-parte judgments & decrees in favour of the petitioner”s predecessor, the respondent-PTCL being purchaser of the suit land filed application under Order IX Rule 13 read with Section 12(2) CPC which was dismissed by the learned Civil Judge, Lahore vide order dated 11.02.1993. The above order was challenged through appeals which were accepted by the learned Addl.

District Judge, Lahore vide judgment & decree dated 09.05.1994. Against the said judgment & decree, Abdul Ghani and Mst.Safia Latif filed two separate Civil Revision Nos.2857 & 2858 of 1994, which were accepted by this Court vide judgment dated 28.01.1997 and set aside the order of the lower appellate Court. Respondent No.5/ PTCL challenged the above decision through filing Civil Petition for Leave to Appeal [Nos.542-L/1997 & 543-L of 1997] which were dismissed by the Hon”ble Supreme Court of

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Pakistan vide order dated 06.08.1998 with observation that as the scope of present proceedings is limited to the question as to whether the notices were served on the PTCL or not and that it was prevented from any reasonable cause to appear before the Court. So far as the question of the validity of PTOs and PTDs in favour of the petitioner”s predecessor is concerned, the same cannot be taken up as it falls outside the scope of these proceedings. For ready reference, Para-13 of order dated 06.08.1998 is reproduced as under:- “13. We are not inclined to deal with this contention in these proceedings as the scope of present proceedings is limited to the question as to whether or not notices were served on the petitioner No.1 and that it was prevented from any reasonable cause to appear before the court. So far as the question of validity of the PTOs and PTDs, issued in favour of the respondents herein, is concerned, the same cannot be taken up as it falls outside the scope of these proceedings remedy for which should have been sought by the petitioner before appropriate forum in accordance with law.”

Against the above pronouncement, respondent No.5/PTCL filed Civil Review Petitions Nos.30-L & 31-L of 1998 which were also dismissed by the Hon”ble Apex Court vide order dated 28.12.1998.

19.As per record, the mutation was entered in favour of respondent No.5 on 12.06.1982 whereas both the suits were instituted on 29.11.1990 i.e. after lapse of about 08-1/2 years whereas the limitation for filing a suit for declaration, under Article 120 of the Limitation Act, 1908, is six years.

Reliance is placed on the case titled as Agha Syed Mustaque Ali Shah Vs Mst. Bibi Gul Jan & Others (2016 SCMR 910).

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Furthermore, both the suits were filed through special attorney but the instrument of power of attorney was not appended with the suits. The said suits were ex-parte decreed on 14.1.1991 just within 47 days including the winter vacations, whereas neither PTCL was arrayed as party nor any notice/ summon was duly served upon it. The ex-parte proceedings were initiated on very second date of hearing against the Federation and Collector without observing due process of law. The conceding statement of a so called representative / record keeper of the Board of Revenue was got recorded on behalf of the Province of the Punjab whereas no such authorization letter /without having any express authorization from the competent authority is found available on the record, as such, both judgments & decrees passed in both suits have no bearing upon the Settlement Department as well as on PTCL department and are not sustainable in the eyes of law as well. Reliance is placed on a case titled as Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore & Others Vs Muhammad Hussain through Legal Heirs & Others (PLD 1993 SC 147).

Even otherwise, conceding statement, if any, made by a Departmental Representative / Law Officer appearing on behalf of the State, in absence of any written instructions, has no binding effect as held by the Attorney General for Pakistan in a report reproduced in PLD 2003 Journal 95

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which was duly approved by the Hon'ble Supreme Court of Pakistan in a judgment cited as Chairman / Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others Vs. Muhammad Sharif Javaid Warsi (PLD 2003 SC 6). Reliance is also placed on cases cited as Ali Muhammad through Legal Heirs and others Vs. Chief Settlement Commissioner and others (2001 SCMR 1822), Faisalabad Development Authority v. Raja Jahangir Nasir and others (2004 SCMR 1247).

20.There is another significant aspect of the matter that the suitors (Abdul Ghani and Mst. Safia Latif) filed suits on 29.11.1990 whereas they had sold the suit property to respondent No.6 on 16.04.1979 through alleged transfer deed No.7678 dated 22.04.1979. Thus, at the time of filing of the suit, they (Abdul Ghani and Mst. Safia Latif) were not owners of the property and lacked locus standi to file the suits. Further, mutation No.3227 dated 30.11.2005 was got sanctioned in pursuance of decree of the lower court passed in 1991 without obtaining prior permission of Chief Settlement Commissioner / Notified Officer whereas vide notification

No.1624/78/855/RL.II dated 19.06.1978 it was made imperative for the revenue authority to obtain explicit permission from the Notified Officer before sanction of mutation relating to evacuee land. Further, property was shown

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to be sold in favour of respondent No.6 as back as in the year 1979 which clearly shows that a fraud was committed with the court. Abdul Ghani and Mst. Safia Latif did not disclose this fact in civil suits or in the civil revisions that they had already sold out the property to respondent No.6 and withholding of the above mentioned information amounts to the concealment of facts which is considered as a fraud. It is well settled that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of fraudulent transaction should automatically be dismantled and any ill- gotten gain achieved by committing fraud cannot be validated under any norms of laws. Reliance in this regard is placed on the cases titled as Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), The Chief Settlement Commissioner Lahore Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) & Lahore Development Authority Vs. Firdous Steel Mills Pvt. Limited

(2010 SCMR 1097).

21.Further, regarding the genuineness and validity of alleged PTOs in favour of Muhammad Hussain and Ghulam Muhammad, an inquiry was conducted by Secretary (S&R),

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Board of Revenue, Punjab and apprised the Anti-Corruption Department through order / letter No.1177-2000/16-OIRR dated 03.01.2001 that “The PTO’s No.709071 & 709072...are bogus, forged and fabricated as reported by Superintendent Incharge Record Room and case may be registered against the persons involved in it and then investigate on merits.” The petitioners have not challenged the vires of the aforesaid letter before any forum till date.

Thus, the TOs in favour of Muhammad Hussain and Ghulam Muhammad are no more in field which were repeatedly declared as illegal and bogus by the competent authority.

As per record, the alleged TOs were issued in favour of Muhammad Hussain and Ghulam Muhammad in the year 1962 and PTDs in favour of Abdul Ghani and Mst. Safia Bibi were issued in the year 1969 whereas mutation No.3227 was sanctioned on 30.11.2005 after about 43 years. But with regard to sanctioning of mutation on the basis of a stale instrument of allotments, the Chief Settlement Commissioner vide Policy Notification No.1624/78/855/RL dated 19th June, 1978 imposed restrictions that if any order of allotment of land passed by Settlement Authority had not yet been incorporated in the revenue record before coming into force of the Evacuee Property & Displaced Persons (Repeal) Act, 1975 or within one year after passing of alleged order, whichever is later, the said order may be deemed to have

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been obtained fraudulently by anti-dating the entries in the register R.L.II or in revenue record and same should be considered as cancelled forthwith. For ready reference, notification whereof is reproduced as under:- No.1624/78/855/RL Office of the Member Board of Revenue (Settlement & Rehabilitation Wing) Punjab.

Dated Lahore the 19.6.1978.

From Mian Waheed-ud-Din Rathoro, Secretary (Rural) (Settlement & Rehab. Wing) Board of Revenue Punjab.

To

1.All the whole time Settlement Commissioners (L) & Addl: Settlement Commissioners (L) Punjab.

2.All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab.

Subject: Allotment of resumed land to informers etc. Mr. A.K.Khalid, C.S.C./Member Board of Revenue (S&R) Punjab.

Memorandum:

The Chief Settlement Commissioner / Member, Board of Revenue(S&R) Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property & Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called allottee

2.The Chief Settlement Commissioner/Member Board of Revenue(S&R) Punjab, has further been pleased to order that all cases where land has been resumed on 'Mukhbari' applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under Section 14 (1A) of the Displaced Persons (Land Settlement Act, 1958, read with section 3 of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975.

3.You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay.

Sd/-SECRETARY RURAL)

(SETT: & REHAB. WING)

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BOARD OF REVENUE PUNJAB.

No.1624/78/855/RL dated 19th June, 1978.

A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land) Punjab for information and necessary action.

Sd/-SECRETARY RURAL)

(SETT: & REHAB. WING)

BOARD OF REVENUE PUNJAB.

The above said policy notifications have repeatedly been recirculated through Notification No: 238–89/PA/Secy. (R), Board of Revenue, Punjab, Lahore, dated 25.03.1989 as well as No.2127-2000/3321/PA/Secy (S&R), Farid Kot House, Lahore, Dated 07.12.2000. As per the above notifications the alleged allottees (predecessor in interest of the petitioner) of the evacuee land were under mandatory obligation to get incorporate their allotment orders in the revenue record within the prescribed period and non-compliance whereof would frustrate the validity / veracity of their alleged orders of allotment and the Permanent Transfer Deed (PTD).

The answer to the Point No.1, in nutshell of the aforesaid discussion, is that the land in question was validly transferred in favour of the respondent No.5/PTCL (then T&T Department) by the Settlement Department whereas the PTO Nos.709071 & 709072 dated 12.03.1962 in favour of Muhammad Hussain and Ghulam Muhammad as well as the subsequent PTDs dated 21.03.1969 in favour of Abdul Ghani and Mst. Safia Latif were bogus and product of fraud.

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22.Now adverting to point No.2: “Whether evacuee land of Khasra Nos.229 & 230 of Mouza Dhana Singhwala falls within the category of building site or same was available for allotment against any evacuee claim?” Admittedly, the land in question was an evacuee land which conclusively falls in the jurisdiction of the Settlement Authorities. Section 13 of the Displaced Persons Land Settlement Act, 1958 confers jurisdiction upon the Chief Settlement and Rehabilitation Commissioner to declare any evacuee land as a “building site”. The above provision of law is reproduced as under:

“13. Disposal of building sites. Any evacuee land declared by the Chief Settlement Commissioner to be a building site in pursuance of sub-clause (b) of clause (3) of Section 2 shall be disposed of in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation Act, 1958 and.—

(a)In case the land is situated wi thin the limits of a Municipal Corporation, a Municipal Committee, a Sanitary Committee or a Cantonment, as such limits exist on the commencement of this Act, the sale proceeds thereof shall be credited to the compensation pool constituted under Section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958); and (b) In other cases, the sale proceeds shall be credited to one or more of the compensation pools constituted under Section 5.”

Thus, by exercising the power under the aforementioned provision of law, the Chief Settlement & Rehabilitation Commissioner, West Pakistan, Lahore issued a Notification No. 236-66/948-R(L) dated 24.02.1966 [published in the Gazette of West Pakistan dated 8th April, 1966] whereby Khasra Nos.229 & 230 of village Dhana Singhwala were declared as building site. The scanned copy of the relevant

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khasra numbers mentioned at Page-839 of aforesaid notification is reproduced as under:

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With issuance of the above notification, the evacuee land situated in Dhana Singhwala was treated as a “building site” and it was not available for allotment against any urban or rural agriculture claim. The above said notification has never been rescinded by any competent authority which was still in vogue when the Chief Settlement Commissioner in exercise of power vested with him under Section 2 of clause

(b)& sub-clause (3) of the Displaced Persons (Land Settlement), Act 1958 issued another notification dated 16.05.1973 declaring all the agricultural lands falling within the Municipal Limits etc. as “Building Site” and restrained his subordinate settlement authorities to make any fresh allotment without approval of the competent authority. The said notification is reproduced hereunder:- “In exercise of powers conferred upon me under clause (b) of sub-section (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, IO, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates situated within the Urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment, throughout the Province of Punjab, as building sites, for disposal under section 13 of the said Act.”

Since the promulgation of Notification dated 24.02.1966 whereby certain Khasra Numbers including the Khasra Nos.229 & 230 of land in question of Mouza Dhana Singhwala were treated as building site, whereafter the local

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settlement authorities were debarred to make any allotment of said land. Moreover the above notifications were still in field as the same were neither withdrawn by the authorities nor were set aside by any competent forum.

23.The vires of the above notification dated 16.05.1973 were assailed by different persons but finally it came under judicial scrutiny before the August Supreme Court and said notification was upheld in case reported as Bashir Ahmad and others Vs. Punjab University Academic Staff Association and others (1991 SCMR 377) as under:

“Mr. Shahzad Jehangir has been heard on behalf of the petitioner, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16-5-1973 declaring the urban lands within the Municipal Limits etc. as “building sites” no allotment of such lands on the basis of the claimant’s units, whether urban or rural, could be made.”

Another reliance is placed on a case titled as Muhammad Ramzan & Others Vs. Member (Rev.) / CSS & Others (1997 SCMR 1635) where it is held as under:-

“23..... The ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255 and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into “building sites” and consequently notification dated 16-5-1973 was valid.”

The Hon'ble Supreme Court of Pakistan has reiterated the aforesaid view in a judgment titled as Member, Board of Revenue, Punjab, Lahore Vs. Rafaqat Ali (1998 SCMR 2596).

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Whereas, after promulgation of the Repealing Act, 1975 there exists no agricultural urban land in Mouza Dhana Singhwala, Lahore for any allotment or adjustment against unsatisfied claims of produce index units. Admittedly the land of revenue estate of village Dhana Singhwala, Lahore definitely falls within the ambit of the Notification dated 24.02.1966 as well as 16.05.1973. The Chief Settlement Commissioner has already declared it a “building site” leaving nil space for any allotment of said land to any claimant and if any allotment was obtained in contravention of the above notification that would be illegal and void ab initio.

24.Next with regard to the jurisdiction of Chief Settlement Commissioner in point No.3 is formulated as under: “Whether the Chief Settlement Commissioner / Notified Officer has the jurisdiction after promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 to decide the issue arising from allotment of the evacuee land?”

To answer this question, the Hon”ble Supreme Court of Pakistan twice passed directions, firstly on 04.03.2009 in C.P.No.1994-L/2006 to the Chief Settlement Commissioner to decide the matter. For ready reference, Para-6 of order dated 04.03.2009 is reproduced as under:-

“6. In view of the afore-referred stand taken by the learned counsel for the parties, this petition is converted into appeal and allowed, the impugned judgment dated 18.4.2006 is set aside, petitioner is permitted to join the proceedings pending

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before the Chief Settlement Commissioner who shall hear all the parties and shall examine all the legal pleas, which may be raised before him in accordance with law. As the matter is pending decision since 2001 after the remand, we are persuaded to direct, in the interest of justice, that the Chief Settlement Commissioner, Government of Punjab, shall decide the matter within eight weeks of the receipt of this order. Both the parties are directed to appear before him on Monday i.e.

Secondly when C.M.A Nos.2207-L, 2208-L and 2209-L filed by the petitioners were dismissed by the Hon”ble Apex Court vide order dated 21.06.2012, now they cannot question the jurisdiction of the Chief Settlement Commissioner.

Further, with the consent of both the parties, this Court vide order dated 18.05.2018 [(passed in F.A.O No.204/2011 (titled as PTCL etc. Vs. Khalid Mushtaq etc.), Writ Petition No.53-R/2014 (titled as PTCL Vs. Province of Punjab etc.,) and C.M.No.255-C/2011 in Civil Revision No.2858/1994, petition under Section 12(2) C.P.C. titled as PTCL etc. Vs.

Abdul Ghani etc. and C.M. No.256-C of 2011 in Civil Revision No.2857/1994, petition under Section 12(2) C.P.C.

(titled as PTCL etc. Vs. Mst. Safia Latif etc.,)] referred the matter to the Chief Settlement Commissioner for decision.

For ready reference, para-2 of order dated 18.05.2018 is reproduced as under:-

“2. In view of above and with the concurrence of the parties, instant applicant is disposed of with the direction to the Chief Settlement Commissioner to decide the matter pending before him strictly in accordance with law after hearing all the parties and pass well reasoned speaking order. The parties are directed to appear before the Chief Settlement Commissioner on 25.06.2018. Till then the status quo to the extent of the possession only shall be maintained by all the parties.”

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Moreover, the matter of jurisdiction of the Chief Settlement Commissioner came under judicial consideration and a Full Bench of this Court has observed in a judgment reported as Muhammad Siddique Vs M.B.R/C.S.C, Punjab and others (2017 MLD 572) that Chief Settlement Commissioner has the jurisdiction to decide the issue arising from the allotment of the evacuee lands/properties. Further, it is settled by this Court vide order dated 05.10.2021 in Writ Petition No.14-R of 2011 that the Chief Settlement Commissioner has jurisdiction to adjudicate the matter. For ready reference, Para10 & 11 of order dated 05.10.2021 is reproduced as under:-

“10.It evinces from the record that the petitioner fraudulently obtained the allotment of evacuee land. It is settled law that where an allotment order has been obtained by committing fraud in that eventuality, the Chief Settlement Commissioner being custodian of the evacuee property has jurisdiction to initiate inquiry or take cognizance of the matter of allotment of the evacuee land which is ultimately the property of the public at large. The issue of jurisdiction of the Chief Settlement Commissioner/Notified Officer has been settled by the Hon”ble Supreme Court of Pakistan in a recent judgment reported as Messrs Beach Luxury Hotels, Karachi Vs. Messrs Anas Muneer Ltd and others (2016 SCMR 222) wherein it is observed that when a matter of allotment is re-opened, the Settlement Authority has the jurisdiction to re-examine all the facts pertaining to the title of the parties from the very inception of claim and to decide the matter according to available record as per law. In another judgment cited as Virasat Ullah Versus Bashir Ahmad, Settlement Commissioner (Industries) and another (1969 SCMR 154), the Hon'ble Supreme Court of Pakistan has observed as under:-

“We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Commissioner which merely required that the petitioner should disclose his credential as the transferee of the property in dispute. The leaned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no

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apparent reason why the petitioner wants to avoid this examination. The grievance of the petitioner at this stage is baseless and premature. This petition is dismissed.” (emphasis supplied) The above said view has been reiterated in case reported as Chief Settlement Commissioner, Lahore V. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).

11.Moreover, Section 21 of the General Clauses Act, 1897 confers an inherent jurisdiction to an authority which has passed the order to reverse the erroneous or illegal order earlier passed by it. Similarly if any benefit has been obtained from authority by practicing misrepresentation or fraud, the same forum is vested with inbuilt jurisdiction to undo the wrong. In this regard the Hon”ble Supreme Court of Pakistan in a case titled as Muhammad Baran and others Vs. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) has held that where the allotment order made by the authorities was illegal, without jurisdiction, based on fraud and forgery, in that eventuality the same authority can undo such illegal order either on its own motion or on the information received to it through application. In the case of obtaining allotment of evacuee land through fraud, the settlement authority may reverse such order of allotment and in such like matter, the superior Courts can withheld the exercise of their discretionary writ jurisdiction to annul the order of authority, even though it was clearly without jurisdiction. Relevant portion of the said judgment (supra) is reproduced as under:-

“Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter “was clearly without jurisdiction.”

Further, in another judgment reported as Shamrooz Khan Vs. Muhabbat Khan and another (1989 SCMR 819), the Hon”ble Apex Court held that the Settlement Authorities have jurisdiction to issue notices on the complaint wherein it reveals that the order of transfer of evacuee land was procured on the basis of fraud and non-existent documents. The relevant portion of the judgment (supra) is reproduced as under:-

“The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows

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from our decision in the Chief Settlement Commissioner, Lahore V. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court.

We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs.”

Thus, it is conclusively declared that Chief Settlement Commissioner / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab has the jurisdiction to take cognizance of any issue emerging from the evacuee land since its inception and can issue a declaration qua final determination in this regard as such argument of the petitioners” counsel regarding lack of jurisdiction of Chief Settlement Commissioner is misconceived and repelled accordingly.

25.Keeping in view the aforesaid facts and circumstances of the case, the Member (J-V) / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab rightly passed order dated 02.06.2021, the operative part whereof is reproduced as under:

“6. From perusal of the record, it has been established that previously the Settlement & Rehabilitation Wing after remand from the High Court conducted a thorough enquiry about the genuineness of the titled documents of parties vide report dated 09.08.2007, which is reproduced as under:-

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“Reference orders of the learned Chief Settlement Commissioner at Para-6/N. The undersigned has perused the facts as explained in noting paras 1 to 5. This case relates to the evacuee land measuring 13 “kanals” 10 “marlas” comprising khasra No.229/230 situated in Dhana Singh Wala, Lahore. The case was previously examined by the office and held that PTO No.709071 and 709072 purported to be issued in favour of Mst. Safia Latif wd/o Sh. Abdul Latif R/o 29 Model Town, Lahore and Abdul Ghani S/o Muhammad Ali for land measuring 13 kanals 10-marlas are bogus, forged and fabricated. The Additional Director, Anti-Corruption (Establishment), Punjab was requested to register a case against Mr. Manzoor Farooqi and Khalid Mehmood, Clerk of S&R Wing of BOR, Punjab, vide this office letter dated 03.07.2001 (Flag-D). Subsequently, the matter was again probed by the former Secretary (S & R), Mr. Khurshid Ali Khan vide Para-134 to 139 of noting who submitted a self- contained note to the Chief Settlement Commissioner Punjab. The Chief Settlement Commissioner entrusted the case to the Dy. Secretary (S&R)/Notified Officer for decision within 45 days strictly on merit. The case remained under process with the Deputy Secretary (S&R) who has informed Investigation Officer Mozang that the PTO No.s mentioned above are found forged and fabricated. He further intimated that the Hon”ble Lahore High Court, Lahore has remanded the case to the Learned MBR/CSC which is still sub-judice vide letter dated

(9)So far as the implementation of the orders of the District Officer (Revenue), Sheikhupura (Mr. Anwar Jalil) is concerned on a suo-moto report of the Revenue Field Staff, he has ordered to review the mutation No.1867, dated 11.09.1998 but the Revenue Officer/Officials instead of only reviewing the question mutation, have sanctioned mutation No.3227, dated 30.11.2005 for land measuring 13-kanals 10 Marlas situated in village Dhanna Singh without prior permission/verification of the Chief Settlement commissioner. This act on part of the Revenue Officer and Revenue Officials concerned is illegal, malafide and ulterior motive.

(10)According to the instructions issued by the Chief Settlement Commissioner, Punjab from time to time vide Circulars No.26-99/67 RL (A)I, dated 09.01.1999, No.2127- 2000/3321/PA/Secy. (S&R), dated 07.12.2000 and No.2801-2003/1732. PA.Secy. (S&R),

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dated 27.06.2007 (Flag-A, B & C), according to which all the Revenue Officers in the Punjab are duty bound to get prior permission of the Chief Settlement Commissioner before entering/attesting mutations on the basis of decrees title documents PTD/TD/TO etc. and other allotment orders of the various Settlement Authorities. Neither the Revenue Officers nor the District Officer (Rev.) has clarified from the Settlement Department about the genuineness of the title documents on the basis of which mutation No.3227 for land measuring 13 Kanals 10 Marlas has been attested in favour of Abdul Ghani and Mst. Safia Lateef.

(11)The District Officer (Rev.), Sheikhupura ordered to review the mutation No.1867 but not to sanction the mutation No.3227 in favour of Abdul Ghani and Safia Latif whose title documents have already been declared by the Settlement Department as bogus, antedated.

(12)In view of the above the case is submitted for orders on the following proposals:- a) The DO (Rev.), Lahore may be asked to review the mutation sanctioned without the prior permission/verification of the Chief Settlement Commissioner.

b) The Revenue Officer and Revenue Officials may be proceeded under the PEEDA Rules on the charges of in-efficiency, mis-conduct and corruption”.

7.From the above narrated facts, it is quite clear that area measuring 13-Kanal 10-marlas bearing Khasra Nos.229, 230 of village Dhana Singhwala Lahore has already been transferred in favour of PTCL through Transfer Order No.0000563 and the same has been verified by the (S&R) Wing. On the other hand, the PTOs and PTDs claimed by the legal hires of Mst. Safia Latif, Abdul Ghani etc. are declared as bogus, forged and fabricated. The mutation No.3227 dated 30.11.2005 was allegedly sanctioned without prior permission / verification by the office of (S&R) Wing. In that scenario, the malafide on the part of the beneficiaries with connivance of Revenue officer / Revenue officials concerned is proved.”

26.The Member (J-V) / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab, , in compliance of the direction given by the Hon'ble Supreme Court of Pakistan as well as the remand order passed by this Court with the consent of the parties,

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has rightly validated the transfer of land measuring 13- Kanals 10-Marlas comprising Khasra Nos.229, 230 of Village Dhana Singhwala Lahore in favour of the PTCL/respondent No.5 and declared the PTO No.709071 and PTO No.709072, both dated 12.03.1962 purportedly issued in the name of Ghulam Muhammad and his son Muhammad Hussain and subsequently the PTDs dated 21.03.1969 issued in the name Abdul Ghani and Mst. Safia Latif etc., as bogus, forged and fabricated documents as well as held that the mutation No.3227 dated 30.11.2005 was allegedly sanctioned without prior permission / verification by the office of the (S&R) Wing. Thus, this just and well- reasoned order does not require any interference by this Court.

27.As regard the protection to rights of petitioner being subsequent purchaser is concerned, in this regard, point No.4 is formulated that whether the subsequent purchasers have any protection under Section 41 of the Transfer of Property Act.? Suffice it to say that it is settled law that a purchaser or subsequent vendee is saddled with extraordinary responsibility of taking care and caution; exhaustively scrutinize the genuineness or originality or legality of the title of the vendor before entering into the sale transaction under the principle of caveat emptor subject to incidence, if

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any infirmity or deficiency subsequently emerges in the title of the vendor that shall always travel with the land and subsequent purchaser is precluded to raise plea of protection of Section 41 of the Transfer of Property Act rather they have to face the consequences of their own negligence for non- carrying out the requisite bonafide and reasonable investigation into title of the vendor under the principle of Caveat Emptor. Reliance can be placed on the case titled as Muhammad Yamin and others Vs. Settlement Commissioner and others (1976 SCMR 489) wherein it is held that the alleged allotment was declared as bogus and mutation of allotment has been reviewed whereafter vendees have no independent right, title or interest in the allotted land as their rights have to soar and sink with the title of the original allottees, as such, it is clear that no protection is available to the petitioner under Section 41 of the Transfer of Property Act. In case titled as Talib Hussain & Others Vs Member, Board of Revenue & Others (2003 SCMR 549), the Hon”ble Apex Court held as under:-

“It is important to emphasis 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.” In a case titled as Abdul Hamid Vs. M.B.R. and others (1994 CLC 1160), this Court held as under:-

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“4. The learned counsel for the petitioners has contended that all the petitioners are bona fide purchasers for value of the land from the transferee and they are entitled to retain the same. It is not disputed that transfer in favour of Noor Muhammad was found to be fraudulent. Not only that it was further found by the Notified Officer that Noor Muhammad, the real claimant, was not traceable and some other person had obtained allotment by impersonating him. As the vendor of the petitioners had no right in the land, he could not pass any title to the petitioners and they have no consequently legal right to retain the land (See Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491) and Manzoor Hussain v: Fazal Hussain and others (1984 SCMR 1027).”

In another case titled as Rasheed Ahmad & 2 Others Vs Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala & Others (2007 CLC 1801) the learned Division Bench of this Court held as under:- “8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under section 41 of the Transfer of Property Act. We respectfully follow the above view.

Reliance in also placed on a case cited as Province of the Punjab through Collector, Sheikhupura and others Vs. Syed Ghazanfar Ali Shah and others etc. (2017 SCMR 172).

28.Further, the petitioners are subsequent purchasers from Ghulam Muhammad and Muhammad Hussain whose alleged allotment of land measuring 13 Kanal 10 Marla bearing Khasra Nos.229 & 230 of Mouza Dhana Singhwala, was declared as bogus by the Settlement Department through order / letter dated 03.01.2001 and this letter has never been challenged by the petitioners or their predecessor

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till date. Thus the above order / letter dated 03.01.2001 has attained the status of finality.

29.As far as objection raised by the learned counsel for the petitioner formulated in point No.5 that whether the matter has already been finalized upto the Hon'ble Supreme Court of Pakistan which cannot be re-opened. The matter in in the earlier round of litigation went upto the Hon”ble Supreme Court of Pakistan in Civil Petition for Leave to Appeal Nos.542-L/1997 and C.P.No.543-L/1997 which were decided vide order dated 06.08.1998. For ready reference, Para-13 of order dated 06.08.1998 is reproduced as under:- “13. We are not inclined to deal with this contention in these proceedings as the scope of present proceedings is limited to the question as to whether or not notices were served on the petitioner No.1 and that it was prevented from any reasonable cause to appear before the court. So far as the question of validity of the PTOs and PTDs, issued in favour of the respondents herein, is concerned, the same cannot be taken up as it falls outside the scope of these proceedings remedy for which should have been sought by the petitioner before appropriate forum in accordance with law.”

(emphasis supplied)

30.As no final and conclusive determination was made with regard to the validity and genuineness of T.Os of the alleged allottees Muhammad Hussain and Ghulam Muhammad, as such the above argument of the learned counsel for the petitioner is badly misconceived and same is repelled.

31.For what has been discussed above, it is crystal clear that the PTO No.709071 and PTO No.709072, both dated

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12.03.1962 purportedly issued in the name of Ghulam Muhammad and his son Muhammad Hussain and

subsequently the PTDs dated 21.03.1969 issued in the name Abdul Ghani and Mst. Safia Latif etc. were rightly declared bogus, forged and fabricated documents by the Member (J-V) / Incharge Settlement Wing / Administrator (Residual Properties) / Notified Officer, Board of Revenue, Punjab vide impugned order dated 02.06.2021, which findings could not be controverted by the learned counsel for the petitioners before this Court.

32.Learned counsel for the petitioner has failed to point out any perversity, illegality or any jurisdictional defect in the impugned order calling for any interference by this Court in its constitutional jurisdiction.

33.Resultantly, these writ petitions are dismissed being devoid of any merits.

(CH. MUHAMMAD IQBAL)

JUDGE

Announced in open Court on 24.12.2021.

JUDGE

Approved for reporting.

JUDGE

Shahzad Mahmood