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Civil Petition for Special Leave to Appeal No. 889 of 1979, decided on 11th February, 1980.
(On appeal from the judgment and order of the Lahore High Court, dated 8‑8‑1979, in W. P. No. 813‑R/79).
---Art. 185 (3)‑Leave to appeal‑Land in dispute purchased by petitioner from contesting respondents and contesting respondents obtaining such land from one A. B. in exchange of their own land later found to be non‑transferable by settlement authority on ground of being village pond and public road‑Settlement authority further holding transaction of exchange to have fallen through and as such directing land obtained from A. B., i. e., land in dispute, to be restored to A. B.‑High Court holding such order to be just and fair inasmuch it restored parties to their legal positions‑Contention that petitioner being purchaser in good faith for value his purchase could not be affected by defect in title of contesting respondents Purchase relied upon by petitioner having taken place during pendency of litigation after remand of case by Settlement Commissioner, con tention held, not sustainable.
Ch. Bashir Ahmad Khan, Advocate Supreme Court and Sh. Abdul Karim Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 11th February, 1980.
‑The dispute in this case is about land measuring 40 kanals and 4 marlas. This land was purchased by the petitioner vide mutation No. 3058 on 13‑12‑1971, from respondents 16, 17 and 18 herein.
2. The aforesaid respondents on their own part had obtained the said area in exchange from one Mst. Ayesha Bibi, to whom they gave their own land consisting of khasra No. 4159 (measuring 66 kanals and 6 marlas) (chair Mumkin Chhappar) and Khasra No. 1877 (measuring 2 kanals and 7 marlas) (Ghair Mumkin Rasta).
3. To avoid the unnecessary details of litigation, through which the matter passed, it will be sufficient for our purpose to mention that on 28‑7‑1979 the learned Additional Settlement Commissioner set aside the basic transfer of Khasra Nos. 4159 and 1877 from the names of respondents 16, 17 and 18 on the ground that the aforesaid khasra Nos. constituted as a village pond and public road, therefore the same could not have been trans ferred to anybody as land reserved for services of public nature were excluded from transfer under the West Pakistan Rehabilitation Settlement Scheme. Since this land had been given by respondents 16, 17 and 18 to Mst. Ayesha Bibi in exchange therefore the learned Additional Settlement Commissioner further held that with the cancellation of the basic transfer of that land from the names of respondents 16, 17 and 18, its obvious effect was that the transaction of exchange with Mst. Ayesha Bibi also fell through, and as such, the land which respondents 16, 17 and 18 had obtained from Mst. Ayesha Bibi should be restored to her, even though it had been sold away by the said respondents to the present petitioners.
4. The petitioners filed a constitutional petition being W. P. 813‑R/79 but the same was dismissed by the High Court on the ground that the order of the learned Additional Settlement Commissioner seemed to be just and fair, in as much as, it restored respondents 16, 17 and 18 on the one hand, and Mst. Ayesha Bibi, on the other hand, in their respective legal petitions, and in the circumstances the petitioner could not retain that land which respondents 16, 17 and 18 had obtained from Mst. Ayesha Bibi (and then sold to them) when the basic land which the said respondents gave to Mst. Ayesha Bibi could neither had been transferred to them and nor further trans ferred by them (in exchange) to Mst. Ayesha Bibi.
5. The petitioner has come up in a petition for special leave to appeal against the same to this Court.
6. Learned counsel for the petitioner argued that if there was an defect in the basic transfer of land to respondents 16, 17 and 18, the same should not have affected them because they were purchasers in good faith for value from the said respondents of a separate piece of land which the said respondents had obtained from Mst. Ayesha Bibi after giving their "defective land" to her in exchange. If exchange fell through, Mst, Ayesha Bibi could sue respondents 16, 17 and 18 for damages but she could not be given the land back after taking the same away from the petitioner. The contention has no merit. The purchase relied upon by the petitioner took place on 13‑12‑1971 during the pendency of litigation, after the case was remanded on 9‑3‑1971 by the learned Settlement Commissioner who ultimately decide it on 28‑7‑1979 as mentioned above.
7. The result is that this petition has no merit and is dismissed.
Petition dismissed.
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