2016 Y L R 1385
[Balochistan]
Before Muhammad Noor Meskanzai, C.J.
INAYATULLAH and 2 others ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Senior M.B.R. and 3 others ---Respondents
Civil Revision No.339 of 2005, decided on 25th January, 2016.
(a) Balochistan Cancellation of Illegal Allotments of State Land Act (V of 1996) ---
----Ss. 3, 4 & 5 (2) ---Balochistan Land Lease Policy, 1988, Cls. 5, 7 & 12 ---Transfer of Property
Act (IV of 1882), S. 41 ---Allotment of land ---Cancellation of ---Plea of bona fide purchaser ---
Scope ---Contention of plaintiffs was that they had purchased the suit land from the original
allottees ---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court ---
Validity ---Allotment or lease by its elf did not create ownership rights ---Allottee or lessee was
required to remain in possession for 45 year to acquire right of ownership and fulfilled the
requirement as determined by Balochistan Land Lease Policy, 1988 ---Plaintiffs could not claim
ownershi p rights on the basis of such transfer as it could not create ownership/title in favour of
so called transferee and subsequent purchaser ---Lessee/allottee could not sublet, mortgage and
transfer in any manner the leased land ---Allotments/transfers in quest ion were in violation of
Balochistan Land Lease Policy, 1988 which stood automatically cancelled ---Seller could not
transfer a title better than that he himself had ---Original allottees were neither owner nor could
have transferred any ownership and title to the plaintiffs ---Plaintiffs could not claim to be bona
fide purchasers when illegal allotment/lease stood refundable ---Plaintiffs had got no locus standi
to call in question the orders passed by the competent authority with regard to terms and
condition s of an allotment/lease ---Revision was dismissed with costs throughout in
circumstances.
(b) Balochistan Land Lease Policy, 1988 ---
----Cl. 13(4) ---Allotment of property situated on Highway ---Any property situated on Highway
could not be allotted or le ased out.
Mujeeb Ahmed Hashmi and Kushal Khan Kasi for Petitioners.
Zahoor Ahmed Baloch, A.A.G. for Respondents.
Date of hearing: 27th November, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. ---This case was remanded by the Hon'ble
Apex Court with following observations: --
"The portion of the order of remand, reproduced above, shows that the question
mentioned therein was a legal one which could have been decided on the basis of the
available evidence. It would therefore be a futile exercise to send the case back to the
Trial Court for another round of litigation when the revision petition could have been
decided on the available record. The appeal is allowed, the impugned judgment set aside
and the case is remanded to the High Court to decide Civil Revision No.339 of 2005 on
merits, the same shall be deemed to be pending."
Instant revision petition is directed against the judgment and decree dated 19th
November, 2005 passed by the learned Additional District Judge -IV, Quetta whereby the app eal
filed by the respondents was accepted and the judgment and decree dated 13th May, 2005 passed
by the Civil Judge -IV, Quetta was set aside and the suit filed by the petitioners was dismissed.
2. Facts relevant for the disposal of instant petition are that the petitioners instituted a suit
for declaration and permanent injunction against the respondents/defendants, in the Court of
Civil Judge -IV, Quetta. It was averred in the plaint that the respondent No.1, allotted a piece of
land measuring 12 Acres i n Mouza Khushkaba Sadat, Halqa Shahdenzai, Tehsil and District
Quetta to one Allah Bakhsh son of Ghulam Hussain who subsequently deposited Rs.1,306,800
(Rupees thirteen lacs, six thousands and eight hundred only) in favour of the respondent No.1
and the mu tation was transferred in the name of Allah Bakhsh. Besides this allotment, another
allotment was made in favour of Shehnaz Akhtar who also deposited amount in favour of the
respondent No. 1. Both of them entered into agreement with the petitioners. After purchase
mutation was recorded in Tehsil record and thus the property bearing Khasra Nos. 1052/897 -102
and 1210/1215 -1003/1, was transferred in favour of the petitioners and possession was also
handed over to them. The petitioners were peacefully enjoying the possession when the
respondents started interference. On enquiry the petitioners came to know that allotment of
previous recorded owner has been cancelled on 14th March, 1993 by respondent No.1. The
petitioners approached to respondent No.1. As per pet ition on 21st December, 1998 cancellation
order was passed against Allah Bakhsh (previous recorded owner) which was withdrawn on the
same day and the previous allotment order was restored in favour of Allah Bakhsh. However,
respondents Nos.1 to 4 again wit hout issuing any notice and providing opportunity of hearing to
previous recorded owner and the petitioners passed order dated 27th February, 2002. Thereafter,
the petitioners filed the suit in question which was contested by the defendants by way of filin g
written statement, however, the same was dismissed by the trial Court vide order dated 21st
December, 2001. The petitioners feeling aggrieved of said order preferred two separate appeals
(one under section 96, C.P.C. against the order and decree of dismi ssal of suit and other under
Order XLIII, Rule 1(r) (C.P.C.) which too were dismissed vide judgment and decree dated 13th
May, 2002. The petitioners still feeling aggrieved of both the judgments and decrees filed
Revision Petitions Nos. 198 and 199 of 2002 before this Court, which were allowed and the case
was remanded to the Civil Judge -II, Quetta with directions to decide the same afresh in the light
of observations made in the judgment dated 25th March, 2003. After remand the plaintiffs filed
amended pla int and the defendants also filed amended written statement. The trial Court on 30th
May, 2003 framed the following issues: --
"1. Whether the plaintiffs are lawful purchaser (sic) of the property in dispute? OPP.
2. Whether the defendants have no lawfu l authority to dispossess the plaintiffs from
the land in dispute? OPP.
3. Whether the order of cancellation dated 27 -2-2001 passed by the defendants
against the previous owner of property in dispute is not effective against the right of
plaintiffs? OPP.
4. Whether the defendants have no lawful authority to cancel the mutation entries
carried out in favour of the plaintiff? OPP
5. Whether the property in dispute had not been allotted in the (sic) favour of Allah
Bakhsh son of Ghulam Hussain? OPD.
6. Whether this trial Court (sic) has no jurisdiction to entertain the instant suit? OPD
7. Whether the plaintiffs are entitled to a decree as prayed for?
8. Relief?
3. Thereafter, the plaintiffs produced 8 PWs and plaintiff No.1 got recorded his statement
for himself as well as attorney of plaintiffs Nos. 2 to 5, whereas, in rebuttal the defendants
examined Allah Dina Patwari. The trial Court after evaluating the evidenc e and hearing the
parties vide judgment and decree dated 12th May, 2005 decreed the suit. The respondents feeling
aggrieved of the later judgment and decree preferred an appeal before the Additional District
Judge -IV, Quetta, who vide judgment and decree d ated 19th November, 2005 reversed the
judgment and decree dated 12th May, 2005 passed by the trial Court and dismissed the suit. The
petitioners feeling aggrieved of the judgment and decree refereed to hereinabove preferred Civil
Revision No.339 of 2005 be fore this Court which was disposed of vide judgment dated 31st
March, 2010. The petitioners challenged the later order by way of filing Civil Appeal No.1152 of
2010 before the Hon'ble Supreme Court. The Hon'ble Apex Court vide judgment dated 5th
March, 201 4 allowed the appeal, set aside the judgment dated 31st March, 2010 passed by this
Court and remanded the case to this Court to decide the same on merits (deemed to be pending).
4. 1 have heard M/S Mujeeb Ahmed Hashmi and Khushal Khan Kasi, Advocates for
petitioners and Mr. Zahoor Ahmed Baloch, AAG for respondents.
Learned counsel for the petitioners submitted that the learned appellate court failed to appreciate
facts of the case in its true perspective. In fact, the petitioners had purchased the land from its
previous recorded owner namely Allah Bukhsh and Shehnaz Akhtar to whom the land was
allotted by the respondent No. 1. It was further submitted that the petitioners produced ocular as
well as documentary evidence to prove their version but the appe llate Court without any
justifiable reason discarded the same and arrived at a conclusion which is not sustainable under
law. Lastly, learned counsel for the petitioners submitted that the petitioners are entitled for
protection provided under Section 41 o f the Transfer of Property Act; as they are bona fide
purchasers.
On the other hand learned AAG strenuously opposed the petition and submitted that the appellate
Court rightly accepted the appeal and dismissed the suit because the basic suit was not comp etent
due to non -impleading of necessary parties. He further contended that as the petitioners are not
legal allottees; therefore, they are estopped to call in question the cancellation orders. It was
maintained that the allotment made before the year 1996 were cancelled vide Act 1996 (The
Balochistan Cancellation of illegal Allotments of State Land Act, 1996), therefore, the trial Court
had no jurisdiction to entertain the suit. It was canvassed that the learned counsel for the
petitioners failed to point out any illegality or material irregularity in the order passed by the
appellate Court. The appellate Court after proper appraisal of material available on record passed
a well reasoned judgment which is not open to any exception. The trial Court by misrea ding the
evidence and mis -appreciating the material available on record illegally decreed the suit.
5. I have considered the arguments advanced by the learned counsel for the parties and
perused record of the case. Needless to mention here that owing to non-authenticity of the
documents annexed with the petition original record of the appellate as well as trial Court were
requisitioned. Though the learned appellate court has formulated point for determination. I would
like to discuss the matter in depth a nd detail, by dealing with the issues:
6. Issues Nos. 1 and 2. The trial Court has dealt with issues No.1 and 2 jointly as the same
are to the same effect. The petitioners produced 8 PWs, however the ocular account was
furnished by PW -1 and PW -2 and the rest of the PWs produced documentary evidence. A
meaningful application of judicial mind would reveal that the trial Court failed to take into
consideration the factual and legal position of the controversy, therefore, the findings drawn by
the trial Court cannot be subscribed to for multiple reasons. Firstly, the ocular account as well as
documentary evidence were misread and mis -appreciated, for instance PW.1 states that the
property in question was allotted to one Abdullah Jan and stood cancelled by the provisions of
Ordinance, 1993 and thereafter Allah Bakhsh and Shahnaz Akhtar got mutated the property in
their name and Allah Bakhsh deposited an amount in the sum of Rs.1,306,800/ - through challan.
Whereas, PW.2 states that property in question was purcha sed by Allah Bakhsh and Shehnaz
Akhtar from Government of Balochistan, so the petitioners after due satisfaction purchased the
property in dispute. The statements of PW.1 and P.W.2 negate the averments of the plaint
because as per the contents of the plain t the property measuring 12 acres were allotted in the
name of Allah Bakhsh son of Ghulam Hussain whereas infact Allah Bakhsh is not Allottee.
Secondly the documentary evidence runs contrary to ocular account. The basic document i.e. Ex:
P/7 produced by th e plaintiffs reads as under: --
"No.200 -8/89-Rev. In exercise of the powers conferred upon him vide Notification
No.490 -8/86-Rev. dated 15th March, 1988, the Member -II, Board of Revenue,
Balochistan is pleased to transfer Government land measuring 30 -0-0 acres to each of the
following persons of Quetta under Khasra No.1, 1/2 Mahal and Mouza Khushkaba Sadat
Halqa Shahdenzai Tehsil and District, Quetta at the rate of Rs. 600/ - per acre for
Agriculture purpose: -
1. Abdullah Jan son of Khan Muhammad Bitani r esident of Quetta.
2. Abdul Halim son of Khan Muhammad Bitani.
3. Abdul Razaq son of Khan Muhammad Bitani.
4. Muhammad Ashraf son of Kakey Khan Bitani resident of Quetta."
7. A bare perusal of the document referred to hereinabove reveals that the Member Board of
Revenue (MBR) has exercised powers under Notification No.490 -8/86-Rev. dated 15th March,
1988 and thereby has transferred the government land measuring 120 acres to fou r persons
mentioned hereinabove. The question arises as to whether the Land Lease Policy, 1988 does
contemplate transfer of land as done by the MBR, secondly whether such transfer would confer
ownership to the transferees and thirdly if treated an allotmen t or lease, whether land
allotted/leased could be used for any other purpose as done in this case? So far as the first point
is concerned, the answer is a 'BIG NO' because the perusal of Balochistan Land Lease Policy,
1988 reflects that the Ordinance conte mplates the allotment of the State agricultural land on lease
to a person having the following qualification as per clause -2 of Land Lease Policy: --
"Rural Lands Allotment.
2. Eligibility. A person shall be eligible for allotment of state agricultural land by lease
under these conditions before or at the time of grant of such lease if, --
(a) he actually cultivates or has been cultivating any state land himself and can
produce evidence to this effect to the satisfaction to the Collector of a district; and
(b) he has no land of his own or possesses land which is less than sixteen acres of
irrigated or thirty two acres of un -irrigated land; or
(c) he is already in possession of state land, but less than sixteen acres of irrigated or
thirty two acres o f un-irrigated land."
The above transferees do not fulfill/satisfy the requirements. Besides, as per clause -3(3)
of Land Lease Policy, 1988 prior to allotment of state land a wide publication is required to be
made. For the sake of convenience the claus e-3(3) of the Policy is reproduced: --
"(3) The state land shall be allotted after wide publicity, in the following order;
(a) Firstly, to those eligible persons who have been residents of the village or revenue
estate where the land is situated;
(b) Secondly, to those eligible persons who are residents of the adjoining village or
revenue estate where the land is available;
(c) Thirdly, to those eligible persons residing in any other village or revenue estate;
Provided that he resides or belongs to a district where the land is available."
No publication was produced by the plaintiffs to prove that prior to passing the order dated
26.10.1991 any publication in a significant circulation was made. Similarly, rest of the
requirements were not satisfie d as the said persons are not the residents of respective villages.
So, irrespective of the procedural violations, there is no provision in the policy for the transfer of
land. The MBR after compliance with the mandatory procedural provisions can only make an
order for allotment/lease of land initially for thirty years. Here in this case no allotment/lease has
been made but only transfer of land has been ordered which is in utter disregard and flagrant
violation of policy, which is without lawful authority and falls within the definition of 'Illegal
Allotment' and attract the provisions of section 4 of the Act, 1996. Besides, as per clause -4 of the
Policy the State land shall be leased out for the period of 30 years and thereafter renewable for
further perio d of 15 years subject to fulfillment of the conditions laid down in clause -8 of the
Policy. The grant of proprietory rights have been dealt with in clause -5 of the Land Lease Policy
which in an ambiguous terms state that ownership/ proprietory rights of th e leased land could be
conferred after expiry of the extended lease period and that too, subject to conditions laid down
in clause -5 of the Policy. Similarly, so far as the conferment of ownership right/title is
concerned, legally allotment or lease by its elf does not create ownership rights. To acquire the
right of ownership an allottee or lessee is required to remain in possession for 45 years and fulfill
the requirements as determined by the Land Lease Policy. A lessee after developing the land for
a per iod of 30 years i.e. the initial lease period thereafter he would be entitled for extension of
Lease for a further period of 15 years. Thus, a minimum period of 45 years have to lapse, then
the question of ownership/title for such allottee/lessee would ari se, in this respect it would be
beneficial to reproduce the relevant provision i.e. clause 5 of the Policy, which reads as under:
"5. Grant of proprietary rights. In case the allottee has developed the land so allotted, he
shall be entitled to the grant of owner -ship/propriety rights of the leased land on payment
of nominal price to be fixed by the Government after the expiry of extended lease
period."
8. Looking the case of the plaintiffs with this perspective it can safely be held that the initial
order was made in the year 1991 and cancelled in year 1993 and again restored in 1998 and the
property was sold in 2000, so there is no occasion for the plaintiffs to claim ownership rights on
the basis of such transfer as it cannot create ownership/title in favour of the so called transferee
and subsequent purchaser, therefore, the second query is answered in negative.
9. Now adverting to third query, the Clause -7 of the Land Lease Policy categorically
imposes restriction on the allottees/lessees of the sta te land and does not allow the use of the
property for any other purpose except agriculture, which is to following effect: --
"7. Use of allotted lands. The lease shall be exclusively for the purpose of agriculture and
the land so leased out, shall not be used for any other purpose other than the agriculture
during the lease period."
Above all, there is absolute bar and complete restriction on subletting, disposal and transfer of
the leased land. In this regard clause -12 of the Policy speaks volume again st subletting, and
transfer, which reads as under:
"12. Prohibition against sub -letting, transfer, etc. of the leased lands. The lease shall not
assign, sublet or mortgage or transfer in any manner the leased land or any part thereof. "
The above repro duced clause makes it crystal clear that the lessee/allottee cannot sublet,
mortgage and transfer, in any manner the leased land what to speak of sale. The above stated
restrictions have been imposed on a legal lessee/allottee, whereas, Abdullah and Shenaz Akhtar
were neither lessees nor allottees in terms of Balochistan Land Lease Policy, 1988. The
cumulative effect of above discussion is that the orders passed on 26.10.1998 and 21.12.1998 by
the MBR are without jurisdiction, lawful authority and ab initio void, therefore, the third query is
answered in negative.
10. Realizing the callous attitude, poor approach and colorful exercise of jurisdiction by
delinquent officers and the highhandedness of the land grabbers the Government of Balochistan
in the yea r 1993 through an Ordinance i.e. (`The Balochistan Cancellation of Illegal Allotments
of State Land Ordinance, 1993' (VI of 1993) cancelled all the illegal allotments. Needless to
mention here that the Ordinance was made Act in 1996. As per the section 3 o f the Act all the
allotments of the State land made during 15th March, 1988 and 18th August, 1993, both
inclusive were declared illegal allotments. For the sake of facility section 3 of the Act is
reproduced herein below: --
"3. Notwithstanding anything contained in any other law, rules or instructions for the
time being in force, all allotments of state land made during the period between 15th
March, 1988 and 18th August, 1993, both days inclusive in contravention of the Land
Lease Policy by whatever authority of the Government, including a Revenue Officer are
hereby declared to be illegal allotments;
As discussed hereinabove, the allotments/ transfers in question were made during 15th March,
1988 to 18th August, 1993 and i n violation of Land Lease Policy, so automatically stood
cancelled by the operation of law as contemplated by Section -4 of the Act, 1996, which is to the
following effect:
"4. (1) All illegal allotments shall stand cancelled forthwith.
(2) In consequen ce of cancellation of illegal allotments the Revenue Officer concerned
shall correct the Revenue record accordingly through its revenue stall in the district or in
whose custody the revenue record is kept and maintained."
11. Admittedly, as per the conte nts of the plaint and the statement of PWs the property in
question is situated at High way and a business oriented area. Another plausible justification to
discard Ex:P/7 emerges as per the provisions of the Clause -13(4) of Balochistan Land Lease
Policy, 1988 any property situated on Highway cannot be allotted or leased out. For the sake of
facility clause 13(4) of the Policy is reproduced: --
"(4) No state land available along a provincial/national highway within the limits of a
local council shall be al lotted by lease to any private individual for residential or
commercial purpose."
Therefore, Ex: P/7 too does not render any help to the petitioners. The statement of the
petitioners recorded by the trial Court reveals that the property in question was r equired for
business purpose, therefore, they purchased it. In this regard provision of clause -7 of the
Balochistan Land Lease Policy, 1988 referred to hereinabove is relevant which prohibits such
transaction.
12. Now coming to the second document dated 21st December, 1998 i.e. Ex:P/5, as per the
contents of the plaint after the cancellation of order dated 21.10.91 the plaintiffs approached the
Member Board of Revenue and the MBR -III restored the order dated 30th October, 1991 to the
extent of 5 acres, wh ich reads as under: --
"No. 200 -8/89-Rev. The Board of Revenue, Balochistan with the approval of competent
authority is pleased to restore the allotment order No.200 -8/89-Rev. dated 27th October,
1991 to the extent of only 5 -0-0 acres out of 30 -0-0 acres situated under Khasra Nos. 1,
1/2 Mohal and Mouza Khushkaba Sadat Halqa Shahdenzai Tehsil and District, Quetta at
Rs.6/ - per sq.ft. in favour of Abdullah Jan son of Khan Muhammad which was sold to
one Allah Bakhsh son of Ghulam Hussain resident of Quetta.
13. Admittedly, Ex:P/5 is restoration of allotment order in favour of Abdullah Jan but since
there was no allotment in favour of Abdullah Jan at all and the cancellation of transfer was by
operation of law, therefore, the MBR -III was divested of power to restore allotment which does
not exist nor ever had existed. Secondly, the cancellation order dated 27.10.1991 was by
operation of law and owing to availability of remedy provided by the same Act for fresh
allotment as contemplated by Section 7 of the Act , 1996 there was no scope for restoration of a
non-exited previous allotment.
14. The last submission of the learned counsel for the petitioners i.e. the petitioners being
bona fide purchasers are entitled for the protection provided under Section 41 of the Transfer of
Property Act; lacks substance and is forceless. Admittedly, there is no sale deed and the case of
the petitioners hinges upon mutation entries. The claim of the petitioners that they have
purchased the property in question is unacceptable a s legally neither Abdullah Jan nor Allah
Bakhsh and Shahnaz Akhtar could have sold and mutate the property to the petitioners because
they were neither allottees, lessees nor owners. Had the said persons been allottee of the property
in dispute even than t hey could not have sold the property, unless the period of 45 years was
expired. There is no cavil to the legal proposition that a seller cannot transfer a title better than
that himself had. In this regard, reliance is placed on the Judgment titled as 'Mu hammad Shamim
through legal heirs v. Mst. Nisar Fatima through legal heirs and others' reported in 2010 SCMR
page 18 (relevant at page -26) wherein it was observed as under: --
"It is also well -established that a vendor cannot pass on to the vendee anythin g better than
he himself holds. Therefore, it is the vendee who is to apply maximum care before going
for a transaction of sale/purchase. His right/title being dependent upon the strength or
weakness of the title of the seller, he is to sail, swim and sink with the seller, and to
pursue him for any loss suffered if he is ultimately the loser."
As discussed in preceeding paras; an allottee is required to acquire title after development of
property and expiry of 45 years, thereafter, a lessee may apply for transfer of title and not prior to
that. Therefore, it can safely be concluded that Abdullah Jan, Allah Bakhsh and Shahnaz Akhtar
were ne ither owner nor could have transferred any ownership and title to plaintiffs, hence mere
entries do not create any title and ownership in favour of petitioners in view of peculiar and
particular circumstances of this case.
15. Similarly, the version of b ona fide purchasers and protection under Section 41 of the
Transfer of Property Act is also out of question and in -helpful to the petitioners. While seeking
protection under Section 41 of the Transfer of Property Act a couple of essential conditions are
required to be satisfied. For instance whether the transferee has acted in good faith by taking all
lawful care and caution to ascertain that the transferee had powers to transfer, so far as this
requirement is concerned, the plaint is absolutely silent and not a single sentence to such effect
has been stated. However, PW.1, PW.2 and attorney for the plaintiffs in their statements before
the Court have tried to state so, but their evidence stands rejected for the sole reason i.e. being
beyond the pleadings. S o far as second requirement i.e. the transferee must be ostensible owner,
this condition is also lacking in the instant case, as the basic order of transfer in favour of
Abdullah Jan and subsequent restoration of allotment in favour of Allah Bakhsh to the extent of
(05) acres are not legal documents and were issued without lawful authority, therefore, for all
intent and purposes they could not be deemed to be ostensible owners particularly when the
mutation entries were not carried out with express or impli ed consent of the actual owner i.e.
Government of Balochistan. Similarly, the payment of so called sale consideration is
insignificant because the alleged seller did not enjoy legal title and valid ownership. Therefore,
by mere making payment the petitione rs cannot claim to be bona fide purchasers specially when
the Balochistan Cancellation of Illegal Allotments of State Land Act, 1996 specifically stipulates
that any payment made in consequence of any illegal allotment/lease stands refundable. For the
sake of convenience Section 5(2) of the Act, 1996 is reproduced:
"(2) The Board of Revenue shall refund the sale proceeds or lease money to the allottees
as and when claimed by them."
So, in my considered view the petitioners cannot claim protection under Section 41 of the
Transfer of Property Act because the preconditions are not attracted, as such, are not entitled for
such protection. By holding the view I am fortified by the dictum laid down in the judgment
titled as 'Haji Abdul Ghafoor Khan though Lega l Heirs v. Ghulam Sadiq through Legal Heirs'
reported in PLD 2007 Supreme Court 433 (relevant at page - 445), wherein it has been held as
under: --
"18. As far as the question whether predecessor -in-interest of respondents Nos. 1 to 6 was
a bona fide purch aser for value, we will like to observe that such a protection is available
under section 27(b) of the Specific Relief Act as well as under section 41 of Transfer of
Property Act. Protection under section 27(b) could be claimed by a person basing his
claim on a perfected sale as against a person claiming on the basis of a prior agreement.
Since the plaintiffs case was based on a perfected sale section 27(b) of the Specific Relief
Act was not applicable. As far as section 41 is concerned, protection could on ly be
claimed when the following conditions are satisfied: --
"(a) the transferor is the ostensible owner, -
(b) he is so by the consent, express or implied, of the real owner;
(c) transfers for consideration; and
(d) the transferee has acted in good faith, taking reasonable care toll ascertain that the
transferor had power to transfer."
Likewise in the case titled as 'Muhammad Shamim through Legal Heirs and others v. Mst. Nisar
Fatima through Legal Heirs and others' reported in 2010 SCMR 18 (releva nt at page -24),
wherein it was observed as under: --
"The reliance of the learned counsel upon Kanwal Nain and 3 others v. Fateh Khan and
others PLD 1983 SC 53 is inapt inasmuch as the learned High Court has while
considering the provisions of section 41 of the Transfer of Property Act, 1882, made
reference to several precedents and observed that in order to invoke the provisions of
section 41 (ibid) it is necessary that the transferor should be the ostensible owner, his
ownership should he consented or im plied by the real owner, the transfer should be for
consideration and the transferee must have acted in good faith taking reasonable care to
ascertain that the transferor had the power to transfer."
For the above reasons it can safely be held that the findings drawn by the trial Court qua the
issues Nos. 1 and 2 are hereby reversed.
16. Issues Nos. 3 and 4. So far as issues Nos. 3 and 4 are concerned, as both are to the same
effect, therefore, are dealt with jointly. The trial Court while resolving th ese issues has mainly
relied upon the mutation entries and restoration order dated 12.09.1998, besides the statement of
DW.1 has been based wherein DW.1 stated that "it is correct that when the property was
purchased the allotment was in field." These find ings are unsustainable for the simple reason (a)
that the previous owners have accepted the cancellation, as the restoration order dated
12.09.1998 has neither been passed on an application filed by Abdullah Jan nor on an application
filed by Allah Baksh a nd as per the contents of the plaint the plaintiffs approached the
respondent/defendant No.1. (B) Mst. Shahnaz Akhtar as per para -5 of the plaint had filed a suit
against cancellation order and had withdrawn the same with permission to file afresh one but
latter on she never filed any suit and by now no suit could be filed by her because of limitation.
So far as the obliging reply by DW -1 is concerned, this is in -helpful because it is factually
incorrect as there was not allotment in favour of so called sel ler. So far as Abdullah Jan and
Allah Baksh are concerned, they have not filed any suit nor approached any authority as
provided by the Balochistan Cancellation of Illegal Allotments of State Land Act, 1996.
Though the order dated 21st November, 1998 iss ued by Board of Revenue restoring the mutation
of Shahnaz Akhtar wife of Shafiq Ahmed was produced before the trial Court as Ex:P/3 -A but
the same is of no avail because so far the claim of the plaintiffs at the strength of purchase of
land from Mst. Shahn az Akhtar is concerned, the case is apparently feeble and weak for the
reasons firstly; Mst. Shahnaz Akhtar is not an allottee, as per the record she was a purchaser
from one Syed Anwar Shah in the year 1995 but the settlement carried out was cancelled by the
MBR and the general cancellation culminated in cancellation of settlement of the so called
owner, so there was no occasion for Mst. Shahnaz Akhtar to remain owner of the property and
the cancellation attained finality. Secondly, Mst. Shahnaz Akhtar her self filed a suit in the year
2000 against the seller as well as official respondents but withdrew the suit with permission to
file a fresh one but never filed suit till date.
Furthermore, while resolving issues Nos. 1 and 2 it has already been held that the plaintiffs
cannot be termed and treated lawful purchasers, the cancellation order shall remain effective and
the petitioners have got no locus standi to challenge the cancellation order. Legally, neither the
petitioners are allottee nor lessee nor for that matter have got any locus standi to call in question
the orders passed by the competent authority with regard to the terms and conditions of an
allotment/lease based upon the terms and conditions of the Land Lease Policy and the
Balochistan Cancellat ion of Illegal Allotments of State Land Act, 1996. Moreover, the plaintiffs
were served with show cause notice and the plaintiffs did not contest the same, therefore, the
official respondents enjoyed legal jurisdiction and power to pass impugned orders and were
rightly passed, therefore, the findings of the trial court with regard to issues Nos. 3 and 4 are
reversed.
17. So far issue No. 5 is concerned; this issue was resolved by the trial Court contrary to
record. Admittedly there is no allotment in favo ur of Allah Bukhsh and Shehnaz Begum. A
specific objection was raised in the written statement that no allotment order has ever been
issued. In Para No. 5 of the plaint there is categoric admission on the part of the plaintiffs that the
so called real allo ttee has filed a suit challenging the cancellation of her allotment which is sub
judice before the Senior Civil Judge -I, Quetta. For the sake of convenience Para No. 5 of the
plaint is reproduced herein below: --
"That defendants Nos. 1 to 4, again withou t giving any notice or providing opportunity of
hearing to plaintiffs and previously recorded owner, again passed the order on
27.02.2000, whereby allotment order made in favour of previous recorded owner was
cancelled without any lawful basis. However, in this respect said person has filed a civil
suit and challenged the said order, which is pending adjudication before the Honourable
Court of Senior Civil Judge -I, Quetta".
18. Similarly, the defendant in his written statement has raised an objection rega rding
maintainability of the suit on the ground that Mst. Shehnaz Begum has filed a suit in the Court of
Senior Civil Judge challenging the allotment, however; she withdrew her suit with permission to
file afresh. In such state of affair the question arise s as to whether the present suit would be
competent. It appears that the trial Court did not adhere to this aspect. In my considered opinion
once the so -called original allottee/transferee has challenged the cancellation of allotment the
same relief cannot be prayed for by anybody through a subsequent suit much less by the
plaintiffs who stepped in to the shoes of so -called original allottee. Astonishingly the plaintiffs
did not implead the alleged so called allottees from whom they claim to derive the so -called title.
Legally, Syed Anwar Shah, Abdullah Jan, Allah Bukhsh and Shehnaz Akhtar were necessary
party. It appears that non -joining them as party is based on mala fide and perhaps to avoid the
consequences, of dismissal of the suit already filed by Mst. Shahnaz Akhtar who had sought the
same relief without mentioning that she has sold property to plaintiffs.
19. Furthermore, in the plaint the plaintiffs claim that the property in question has been
allotted to Allah Bukhsh and Shehnaz Akhtar but in fact have failed to produce allotment order
in favour of Allah Bukhsh and Mst: Shehnaz Akhtar. The claim of the petitioners/ plaintiffs is
clear that they are purchasers of the property; therefore, even on the basis of pleadings there was
no occasion for the t rial court to have resolved the issue in affirmative. In the light of above
discussion the findings on issue No. 5 are hereby reversed.
20. As far as issue No. 6 is concerned, while remanding the instant case this Court
formulated two points and both the points have been dealt with by the appellate court in depth.
There is no cavil to the legal proposition that the civil court exercises inherent powers to
adjudicate upon civil matters unless its jurisdiction is expressly or impliedly barred as
contemplate d by section -9 of the C.P.C. For the sake of facility Section 9 of the C.P.C. is
reproduced herein below: --
"Courts to try all Civil Suits unless barred ---The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred".
21. Admittedly, the property in question basically vests in Government and the Government
being owner is competent to dispose of its property in accordanc e with legislative intent and for
the purpose the relevant law is Land Lease Policy, 1988. The Act, 1996 promulgated with the
view to nullify all the illegal allotments made during a particular span of time. No doubt; the
allotment/transfer made and cancel led both fell within the stipulated period prescribed by the
Act, 1996. However, within the meaning of Section -6 of the Act, an allottee whose allotment
stands cancelled can apply for fresh allotment; as such it would be appropriate to reproduce the
same a s follows:
"6. An allottee, whose allotment stands cancelled under this Act, may apply to the Board
of revenue for fresh allotment in accordance with the Land Lease Policy:
Provided that he fulfils all the conditions as laid down in the Land Lease Policy, and is
eligible thereunder.
Nevertheless, the Civil Court's jurisdiction has been barred as per the Section -7 of the Act.
Section -7 is reproduced herein below: --
"Bar of Jurisdiction. ---(1) Any order passed or proceeding taken by the Board of
Revenue, or any Revenue Officer, under this Act, shall not be called in question in any
Court".
"(2) Any proceedings pending in any Court Government or the Board of Revenue for
claim on account of illegal allotment of State land, shall abate on under this Act and the
rules made there under".
22. As discussed above, the suit stands barred as per Section -6 of the Act, 1996 and Section
172 of the Land Revenue Act. It is admitted pos ition that as per the Land Lease Policy the
property, allotted/leased to some one for the agriculture purpose cannot be used for any other
purpose. Legally, on failure of lessee or allottee to irrigate the land within six years the allotment
is liable to b e cancelled subject to issuing a notice. Here in this case there is only an alleged
transfer and the transferee failed to develop the land rather sold out the same, therefore, the act of
the transferee is absolutely contrary to the mandate of the Land Leas e Policy, as such, an
illegality sufficient enough to vitiate the transfer, hence, did not cloth either the initial transferee
or the subsequent transferee to call in question the act of cancellation of transfer as per the
provisions of Section 12 of the L and Lease Policy. So, the findings on issue No.6 are hereby
reversed.
In the wake of discussion made hereinabove, the conclusions drawn by the appellate
Court are not open to any exception Resultantly, the petition has no force, which is dismissed
with cost throughout.
Before parting with the judgment, I feel it inevitable, to observe that the petitioners are
adamant that they are in possession, and if this is the position the official respondents besides
recovery of possession shall press into service the penal provisions of Clause -8(2) of the
Balochistan Land Lease Policy, 2000 vide Notification No.490 -8/86-Rev dated 1st December,
2000, which is to the following effect: --
"(2) Any person found in possession of a state land without supporting authority and
documents shall be charged lease money for the period of such occupation at a penal rate
which shall normally be double the rate of market value as determined by the Collector
and in addition, he will be liable to be evicted from such land at his own risk and cost."
ZC/19/Bal Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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