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Writ Petition No. 63/R of 1979, heard on 24th January, 1979.

S. 52‑Doctrine of lis pendens‑Predecessor‑in‑interest of respon dents getting allotment in lieu of valid claim and also getting another allotment against same claim after two years ‑ On Mukhbari application of N first allotment cancelled and land allotted to N, who during pendency of revision petition against cancellation, alienating land‑Held, principle of lis pendens applicable in case and N not entitl ed to alienate or deal with land so as to adversely affect right of respon dents‑Held further, alienation subject to decision of revision petition [Lis pendens].

Munawar Hussain v. Nisar & Co. 1976 S C M R 385 ref.

Tanvir Ahmad for Petitioners.

Ch. Qadir Bakhsh and Ch. Abdul Sattar Ali for Respondents Nos. 2 and 3.

Nemo for Respondents Nos. 1 and 4.

Dates of hearing: 18th, 19th and 24th January, 1982.

This constitutional petition calls in question the validity of the order dated 30‑I1‑1978 of the learned Settlement Commissioner (Land), Lahore, wereby he accepted the revision petition filed by Bahadur Ali and set aside the order dated 21‑9‑1967 of the learned Additional Settlement Commissioner (Land) Gujranwala.

2. The relevant facts giving rise to this petition are that Fatu, the predecessor‑in‑interest of respondents Nos. 2 and 3 got allotment of land on 13‑12‑1957 in lieu of his verified claim at Khata No. 243 in Mauza Masanda, District Gujranwala. On 5‑9‑1967 Mst. Najamun Nisa, the predecessor‑in -interest of the present petitioners filed Mukhbari application against the aforementioned allotment of land made in favour of Fatu, the predecessor -in‑interest of respondents Nos. 2 and 3 on the ground that another allotment of land against the same claim was procured on 30‑5‑1959 at Khata No. 374 of Mauza Randheer, District Gujranwala. Respondents Nos. 2 and 3 were reportedly served through proclamation in the newspaper. The applica tion was accepted on 21‑9‑1967 and the land situated in village Masanda was cancelled from the allotment of respondents Nos. 2 and 3 and allotted to Mst. Najamun Nisa by the Additional Settlement Commissioner (Land) Respondents Nos. 2 and 3 assailed the aforementioned order through Writ Petition No. 988/R. of 1967 which was treated on 8‑11‑1973 as revision petition and sent to the settlement authorities for disposal. During the pendency of these proceedings Mst. Najamun Nisa a respondent in the writ petition/revision petition alienated the land in dispute on 27‑3‑1974 through mutation No. 113 in favour of the present petitioners and respon dent No. 4.

3. The revision petition came up for decision before respondent No. 1 who vide his order dated 30‑11‑1978 impugned herein accepted the same, restored the allotment of the land in favour of respondents Nos. 2 and 3 at Khata No. 243 of village Masanda, Distrist Gujranwala and cancelled the allotment of land in dispute made Khata No. 319 in favour of Mst. Najamun Nisa, the predecessor‑in‑interest of the petitioneRs.Hence this petition.

4. Learned counsel for the petitioners contended that although it was in the knowledge of respondent No. 1 that the petitioners were bona fide purchasers of the land in dispute from Mst. Najamun Nisa, they were not impleaded as respondents, in the revision petition. The impugned order is, therefore, untenable having been passed behind their back. It was next pointed out that the predecessor‑in‑interest of respondent No. 2 had obtained double allotment in lieu of his claim, and therefore, the Additional Settle ment Commissioner (Land), lawfully cancelled the allotment made to them on the Mukhbari application of Mst. Najamun Nisa, the predecessor‑in -interest of the petitioners. It was next submitted that the order of the Addi tional Settlement Commissioner (Land) cancelling the allotment of the disputed land situated in village Masanda was legal because respondents Nos. 2 and 3 did not join proceedings before him in pursuance of Mukhbari appli cation of Mst. Najamun Nisa despite their service through newspaper. Learned counsel for the petitioners further submitted that it was on the application of Mst. Najamun Nisa that double allotment of the land procured by Fatu, the predecessor‑in‑interest of respondents Nos. 2 and 3 was discovered as such the order of the learned Additional Settlement Commis sioner (Land) could not have been set aside by respondent No. 1. Learned counsel, however, could not controvert the fact that the allotment of land made in village Randheer was subsequent in time than that made in village Masanda in favour of the predecessor‑in‑interest of respondents Nos. 2 and 3. He also could not deny the fact that Mst. Najamun Nisa alienated the land in. dispute in favour of the present petitioners and respondent No. 4 during the pendency of the revision petition in which she was one of the respon dents.

5. Learned counsel for the respondents on the other hand submitted that the petitioners being vendees of the land in dispute were duly heard by the learned Settlement Commissioner (Land) as is borne out by first line of paragraph 2 of the impugned order. It was next submitted that Mst. Najamun Nisa being party to the revision petitioner could not alienate the land in favour of the petitioners during the pendency of the revision petition as the alienation made in their favour was hit by the principle of pendente lite nihil Innovatur. He relied on Munawar Hussain v. Nisar & Co. (1976 S C M R 385). It was sub mitted that the petitioners having stepped into the shoes of Mst. Najamun Nisa who alongwith respondent No. 4 contested the revision petition cannot successfully urge that they were not provided opportunity of hearing while the impugned order was passed against them. It was also submitted that the application of Mst. Najamun Nisa dated 5‑9‑1967 was hastily accepted by the learned Additional Settlement Commissioner (Land) on 21‑9‑1967 without associating respondents Nos. 2 and 3 in the proceedings on the basis of information reportedly conveyed through publication in the newspaper. It was lastly submitted that respondents Nos. 2 and 3 or their predecessor -in‑interest did not secure double allotment of land in lieu of their claim in village Randheer and even if the application of Mst. Najamun Nisa assumed to have succeeded then only the land admittedly allotted subsequent to that already allotted in village Masanda was required to be cancelled for the benefit of the informer. In no case the land validly allotted in favour of the predecessor‑in‑interest of respondents Nos. 2 and 3 could be can celled by the learned Additional Settlement Commissioner (Land) and allotted to Mst. Najamun Nisa.

6. I have heard learned counsel for the parties at length and perused the documents on the file. It is established that the land in dispute situated in village Masanda was allotted in lieu of valid claim of Fatu, the predecessor- in‑interest of respondents Nos., 2 and 3 two years prior to the subsequent allotment made in his favour in village Randheer Tehsil and District Gujranwala. It is also proved on the record that the Mukhbari application moved by Mst. Najamun Nisa was allowed by the learned Additional Settle ment Commissioner (Land) only after a fortnight and the land allotted prior in time in favour of Fatu was cancelled instead of that allotted subsequently in village Randheer. It is also an admitted fact that during the pendency of revision petition Mst. Najamun Nisa, the predecessor‑in‑interest of the peti tioners and respondent No. 4 alienated the land in favour of the present petitioners. The principle of lis pendens as envisaged in section 52 of the Transfer of Property Act was applicable in the case and she was not entitled to alienate or deal with the immovable property so as to adversely affect the right of her opponents i.e. respondents Nos. 2 and 3. The petitioners being vendees of the land in dispute were subject to decision of the revision petition having stepped into the shoes of their predecessor‑in‑interest. They, therefore, cannot maintain this constitutional petition on the plea that they were not provided opportunity of hearing by the learned Settlement Commis sioner (Land). Even otherwise as it appears from paragraph 2 of the impugned order the vendees/petitioners were heard by the learned Settlement Commis sioner and no grievance that they were not provided opportunity of hearing was provided to them, can be validly agitated in this constitutional petition. Admittedly respondent No. 4 was co‑vendee with the present petitioners and Mst. Najamun Nisa and the petitioners were duly represented by a counsel before the learned Settlement Commissioner (Land) and his order, therefore, cannot be set aside on the bald assertion of the petitioners that they were not provided opportunity of hearing.

7. In the result I find no merit in this petition and dismiss the same with costs.

K. M A. Appeal dismissed.