IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN. 
MR. JUSTICE SH. AZMAT SAEED. 
 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015. 
(On appeal against the judgment dt. 20.03.2015 passed by the Lahore High Court, 
Lahore in C. R. Nos. 1575, 1882 and 1883 of 1999).  
 
Province of the Punjab through Collector, Sheikhupura, etc.  …Appellant(s) 
Versus 
Syed Ghazanfar Ali Shah, etc.  
 
 
 
  …Respondent(s)   
 
AND 
C. A. NO. 205-L OF 2015, CMA NOS. 974, 62 AND 117 OF 2016 IN C. A. NO. 
205-L OF 2015. 
 
Province of the Punjab through Collector, Sheikhupura, etc.  …Appellant(s) 
Versus 
Iqbal Ahmad (decd) through his L.Rs. etc. 
 
  …Respondent(s)   
 
AND 
 
C. A. NO. 206-L OF 2015, CMA NOS. 63 OF 2016 AND 1604-L OF 2015 IN C. A. 
NO. 206-L OF 2015. 
(On appeal against the judgment dated 20.03.2015 passed by the Lahore 
High Court, Lahore in C. R. Nos. 1575, 1882 and 1883 of 1999).  
 
Province of the Punjab through Collector, Sheikhupura, etc.  …Appellant(s) 
 
Versus 
 
Fazal Dad Khan, etc.  
Iqbal Ahmad (decd) through his L.Rs. etc. 
 
  …Respondent(s)   
 
 
 
For the appellant(s):  
Mrs. Aasma Hamid, Addl. A. G. Pb. 
 
Rana Shamshad Khan, Addl. A. G. Pb. 
 
Rao M. Yousaf Khan, AOR (Absent)  
(in all cases) 
 
In CA.204-L/2015. 
 
For respdt. 1:  
Mr. M. Muzammil Khan, Sr. ASC. 
 
For respdts. 2-3: 
Mr. Tahir Naeem, ASC.  
 
For respdts. 4-15: 
N.R. 
 
In CA.205-L/2015. 
 
For respdts. 1, 2(b)-2(d), 3-8: Syed Najmul Hassan Kazmi, Sr. ASC  
 
For respdt. 2(a) : 
Raja M. Ibrahim Satti, Sr. ASC. 
 
For L.Rs. of respdts. 10: 
Mr. M. Muzammil Khan, Sr. ASC. 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
2 
 
For respdts. 2(e) to 2(j), 9, 11-25: 
N.R.  
 
In CA.206-L/2015. 
 
For respdt. 1 : 
Ch. M. Masood Akhtar Bhan, Sr. ASC. 
 
L.Rs. of respdt. 7: 
Mr. M. Muzammil Khan, Sr. ASC.  
 
For respdts. 2-6, 8-15: 
N.R. 
 
In CMAs. 61-63/2016: 
Ms. Aasma Hamid, Addl. A. G. Pb. 
(For bringing on record 
Rana Shamshad Ahmed, Addl. A. G. Pb. 
LRs of Syed Ghazanfar  
Ali Shah).  
 
In CMA. 117/16 : 
Syed Ashiq Raza, ASC. 
(Intervenor).  
 
In CMAs. 974 and 1604/L/16: 
Nemo.  
(Intervenor). 
 
Date of Hearing: 
 
21.11.2016. (Judgment Reserved).  
 
 
 
 
 
 
 
 
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- 
 
 
    J U D G M E N T    
 
 
 
 
EJAZ AFZAL KHAN, J.- These appeals with the leave of the 
Court have arisen out of the judgment dated 20.03.2015 of the Lahore High 
Court whereby the learned Single Judge in its chambers dismissed the 
revisions petitions filed by the appellants and upheld the judgments and 
decrees of the learned Appellate Court.  
2. 
 
Brief facts of the case are described in paragraph one of the 
impugned judgment which reads as under :-  
“Briefly the facts are that Syed Ghazanfar Ali Shah 
and legal heirs of Syed Raza Ali Shah respondents 
(hereinafter to be referred as plaintiffs) brought a suit 
for possession with the assertion that land measuring 
117 acres fully mentioned in the body of the plaint 
was evacuee property, which was leased out to the 
petitioners/Forest Department (hereinafter to be 
referred as the defendants) for a term of twenty years 
vide Notification dated 27.07.1950. However, out of 
the said property a chunk of land measuring 13 acre 
5 kanals and 12 marlas was released and restored to 
the original owners on 27.1.1959 whereas rest of the 
property measuring 103 acres 2 kanals and 8 marlas 
remained in occupation of the defendants. It is also 
averred in the plaint that whole of the disputed land 
being evacuee property was available for allotment 
to the displaced persons and after due verification of 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
3 
claims of the plaintiffs the same was proposed to the 
them, which was subsequently confirmed to the 
plaintiffs by duly attestation of RL-II in pursuance of 
the issuance of No Objection Certificate by the Forest 
Department/defendants. It is also pleaded in the 
plaint that as the disputed property was proposed to 
the plaintiffs and later on it was confirmed, therefore, 
property in disputed became private property and no 
nexus 
was 
attached 
with 
the 
Rehabilitation/ 
Settlement authorities whereas the lease period of 
defendants was extended for another ten years, 
which expired on 26.07.1980, but despite of the best 
efforts made by them, the plaintiffs could not 
succeed to take physical possession in spite of that 
the defendants had no right to retain possession 
thereof, which constrained the plaintiffs to institute 
the suit for possession. The said suit was resisted by the 
defendants with the assertions that disputed property 
is owned by them and that no NOC was issued on 
behalf of the department.” 
 
3. 
 
The points raised and noted at the time of grant of leave read 
as under:-  
 “The suit for possession filed by the respondents vis-à-
vis 117 acres of land has been decreed by the 
learned Trial Court only to the extent of 13 acres and 
5 marlas, but it was dismissed to the extent of 103 
acres and 2 marlas. The respondents challenged this 
judgment and decree in appeal(s) which has been 
accepted. The revision(s) filed by the petitioner has 
also failed.  
 
2. 
Leave is granted in these cases, inter alia, to 
consider whether the directive issued by the Chief 
Settlement 
Commissioner 
dated 
27.2.1965 
was 
operative retrospectively and would not in any way 
entitle the respondents to have confirmation of the 
suit land in their favour as evacuee property; whether 
the courts below have rightly interpreted RL-II which 
per se was conditional on the issuance of NOC by the 
Forest Department when admittedly, till date there is 
nothing on the record to establish if such NOC has 
been issued by the Forest Department for the 
confirmation of the suit land in favour of the 
respondents; whether in the earlier round of litigation 
the points now agitated especially about the 
confirmation of land has been conclusively decided 
by this Court in favour of the respondents and against 
the petitioner, the Forest Department; whether the 
property till date does not vest in the petitioner (Forest 
Department) and the lease period in its favour has 
also expired, thus the petitioner is bound and required 
under the law to surrender the land to the 
respondents, who were the allottees of the land and 
in whose favour the confirmation has been made 
vide RL-II dated 30.11.1964; whether RL-II was duly 
and validly issued to the respondents and there is no 
element of fraud and misrepresentation in this 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
4 
context; whether RL-II has been validly and properly 
construed and relied upon by the courts below.”  
4. 
 
Before the learned AAG for the appellants could take the 
rostrum to open up her case, a preliminary objection was raised by the 
learned ASC for the respondents for dismissal of appeal on account of 
having been filed against the dead persons. The learned AAG repelled the 
contention of the learned ASC for the respondents by submitting that 
where the appeal was filed against more than one person, death of one or 
two of the respondents would not render it liable to dismissal. To support her 
contention learned AAG placed reliance on the cases of Farzand Ali and 
another. Vs. Khuda Bakhsh and others (PLD 2015 SC 187) and Muhammad 
Yar deceased through L.Rs. and others. Vs. Muhammad Amin deceased 
through L.Rs. and others (2013 SCMR 464). She next contended that where 
the record was completed and corrected at the instance of the 
respondents themselves, appeal would not abate on this score. The 
learned AAG to support her contention placed reliance on the case of 
Niamat and another. Vs. Allah Banda and another  (1984 SCMR 321). The 
learned AAG arguing the case on merits contended that where the Chief 
Settlement Commissioner placed ban on allotment of notified or un-notified 
evacuee land in possession of Forest Department vide Memorandum 
dated 27.02.1965, its allotment could not be confirmed in the name of any 
claimant and that the judgments and decrees of the fora below as well as 
the High Court being against law merit outright annulment. The learned 
AAG to support her contention placed reliance on the cases of 
Muhammad Ayub and others. Vs. The Province of Punjab (1989 SCMR 1033), 
Province of Punjab. Vs. Muhammad Mahmood Shah  (1991 SCMR 1426) and 
Forest Department through Divisional forest Officer, Chhanga Manga, 
Lahore. Vs. Muhammad Amin and 26 others  (2002 SCMR 703). The learned 
AAG next contended that mere allotment without confirmation does not 
create any right much less vested, therefore, memorandum mentioned 
above, would be applicable with all force and vigour to the allotment 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
5 
which is subsequent to the date of issuance of memorandum. Learned 
Additional Advocate General to support her contentions placed reliance 
on the case of Mian Rafi-ud-Din and 6 others. Vs. Chief Settlement and 
Rehabilitation Commissioner and 2 others (PLD 1971 SC 252). The learned 
AAG went on to argue that where title of the respondents was disputed by 
the appellants in their written statement by asserting their own title, mere 
suit for possession without declaration could not be decreed. The learned 
Addl. A. G. placed reliance on the cases of Muhammad Aslam. Vs. Mst. 
Ferozi and others  (PLD 2001 SC 213) and Sultan Mahmood Shah through 
L.Rs. and others. Vs. Muhammad Din and 2 others  (2005 SCMR 1872). 
Deduction about issuance of NOC, the learned AAG contended, would be 
just conjectural when it has not been proved through primary or secondary 
evidence. She next contended that the letter purportedly issued by a 
Minister could not be banked upon without knowing where did it come 
from and whether it was ever issued by the Minister it was attributed to. She 
lastly argued that neither the High Court nor the fora below considered the 
documents showing that the land forming subject matter of dispute was in 
fact purchased by the Forest Department.  
5. 
 
Learned ASC appearing on behalf of respondent contended 
that the land being evacuee was allotted to Ghazanfar Ali, respondent No. 
1 and his brother Ali Raza predecessor-in-interest of respondents No. 2 to 9; 
that their status as allottees of the aforesaid land has never been disputed 
nor has it been challenged in any Court of law; and that failure of the 
appellants to challenge it at any stage of litigation would take away the 
ground from beneath their feet to challenge it, even if, it is assumed without 
conceding, that allotment in favour of the respondents was void. Even void 
orders, the learned ASC added, have consequences if not questioned 
within the prescribed period of limitation. The learned ASC to support his 
contention placed reliance on the cases of Conforce Ltd. Vs. Syed Ali, etc  
(PLD 1977 SC 599) and S. Sharif Ahmed Hashmi. Vs. Chairman Screening 
Committee, Lahore and another (1978 SCMR 367). Application of 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
6 
memorandum banning allotment of land in possession of Forest 
Department, the learned ASC maintained, cannot be stretched to the 
present case when the land stood allotted to the respondents before its 
issuance, that too, when there is nothing in the memorandum providing for 
its retrospective operation. The learned ASC next contended that no 
documentary evidence has been brought on the record by the appellants 
to show that the land in dispute has ever been sold to the Forest 
Department, therefore, their claim about its sale was rightly turned down by 
the Court of appeal as well as the Court of revision. Reliance on the cases 
of Muhammad Ayub and others. Vs. The Province of Punjab, Province of 
Punjab. Vs. Muhammad Mahmood Shah, and Forest Department through 
Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin 
and 26 others  (supra) the learned ASC argued, is misconceived when the 
memorandum cannot override or extinguish a right accrued nor could it 
restrict the powers of the Settlement Authority to allot the property. The 
learned ASC next contended that the judgments rendered in the cases of 
Muhammad Ayub and others. Vs. The Province of Punjab, Province of 
Punjab. Vs. Muhammad Mahmood Shah, and Forest Department through 
Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin 
and 26 others  (supra), lack authoritative or even persuasive value when 
they were rendered in derogation of an earlier three-member bench 
judgment rendered in the case of Wali Muhammad. Vs. Settlement 
Commissioner Sargodha Division, Sargodha and others  (1984 SCMR 1574). 
The learned ASC next contended that where a party did not raise 
objection as to the admission of a document and its exhibition, it cannot 
subsequently complain about its mode of proof. Latter loss or lapse in 
production of the NOC, the learned ASC contended, would not have 
much meaning once its existence finds mention in RL-II and the letter dated 
13.11.1988 issued by the Minister for Forestry, Wildlife and Fisheries 
Department. The said letter of the Minister, the learned ASC argued, would 
also prove whether the land was purchased by the Forest Department or 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
7 
closed for forestation. Suit for possession, the learned ASC contended, is the 
only remedy when allotment of the land to the respondents has never 
been challenged by the appellants. The learned ASC lastly argued that 
when in another litigation between Mst. Sairan and the respondents, the 
issue about the memorandum banning allotment of the land in possession 
of Forest Department has been decided, the appellants who were party 
thereto could not raise it again.  
6. 
 
Learned ASCs appearing on behalf of the applicants in 
CMAs. No. 61, 974, 62, 117 and 63 of 2016 and 1604-L of 2015 pleaded for 
their being impleaded as respondents in C. As. No. 204-L to 206-L of 2015 on 
the ground of their being bonafide purchasers. The learned Addl. A. G. 
opposed the CMAs for being impleaded as parties by contending that 
plea of bonafide purchaser cannot be entertained nor the rights thus 
acquired could be protected under Section 41 of the Transfer of Property 
Act when the allotment itself does not hold good. The learned Addl. A. G. 
to support his contention placed reliance on the cases of Gul Muhammad 
and others. Vs. The Additional Settlement Commissioner and others (1985 
SCMR 491) and Ejaz Ahmad Khan. Vs. Chahat and others (1987 SCMR 192).     
7. 
 
We have gone through the record carefully and considered 
the submissions of learned Addl. A. Gs. Punjab and learned Sr. ASCs and 
ASCs for the parties.  
8. 
 
A perusal of the impugned judgment would reveal that the 
learned Single Judge of the High Court while concurring with the finding of 
the learned Appellate Court mainly relied upon the extracts from the 
record of rights, NOC, purportedly issued by a D.F.O, letter dated 18.12.1980 
written by the Solicitor to the Government of Punjab and letter dated 
13.11.1988 written by the Minister for Forestry, Wildlife and Fisheries. But none 
of these documents has been brought on the record in conformity with the 
mode provided by the Qanoon-i-Shahadat Order, 1984. Extracts from the 
record of rights were produced and exhibited without examining the 
Patwari. Who prepared and signed them and affirmed about their 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
8 
correctness is anybody’s guess. Where did NOC come from, who issued, 
and countersigned it and what is the latter fate of this document is again 
anybody’s guess. How did the Solicitor edge in and where did the letter 
purportedly written by him come from and how did it reach the hands of 
the person producing it in the Court? How did the Minister step in the 
matter when it was pending in the Court? Where did go the record of the 
letter and the register showing its dispatch, if at all it was written? Why did 
the respondents bypass the mode of proving the document prescribed by 
Articles 2 and 78 of the Qanoon-e-Shahadat Order and what did constrain 
the Court to rely upon them? How could, bringing of papers on the record, 
be considered synonymous with proving them? All these questions are 
fundamental and foundational but the learned Additional District Judge 
hearing the appeal and the learned Single Judge of the High Court 
hearing the revision petition relied on these documents without addressing 
anyone of them.  
9. 
 
The argument that where a party did not raise objection as to 
the admission of a document and its exhibition, it cannot subsequently 
complain about its mode of proof has not impressed us as the provisions 
governing the mode of proof cannot be compounded or dispensed with, 
nor can the Court, which has to pronounce a judgment, as to the proof or 
otherwise of the document be precluded to see whether the document 
has been proved in accordance with law and can, as such, form basis of a 
judgment. In the case of Messrs Bengal Friends and Co., DACCA. Vs. Messrs 
Gour Benode Saha and Co., and The Deputy Registrar of Trade Marks, 
Chittagong (PLD 1969 SC 477) this Court while dealing with the mode of 
proof of the documents not properly brought on the record held as under :-  
“Besides the authenticity of the account books relied 
upon by the respondent that were not properly 
brought on record as evidence of the transactions 
mentioned therein. The learned Chief Justice in the 
High Court ruled out the objection raised by the 
appellant on the view that it related to mode of proof 
of the entries in the account books and was not 
raised before the Deputy Registrar of Trade Marks. It 
was omitted from consideration that under section 34 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
9 
of the Evidence Act entries in books of account 
regularly kept in the course of business are only 
declared to be relevant whenever they refer to a 
matter into which the Court has to enquire. But this 
does not dispense with the requirement of section 67, 
that if a document is alleged to have been written by 
any person, the signature or the handwriting of so 
much of the document as is alleged to be in that 
person's handwriting must be proved to be in his 
handwriting. Mere production of account books kept 
in regular course of business, therefore, does not 
constitute evidence of entries contained therein. The 
Legislature has made an exception in this behalf in 
the Bankers' Books Evidence Act. Section 4 provides 
as follows: 
"Subject to the provisions of this Act, a certified 
copy of any entry in a banker's book shall in all 
legal proceedings be received as prima facie 
evidence of the existence of such entry, and 
shall be admitted as evidence of the matters, 
transactions and accounts therein recorded in 
every case where, and to the same extent as, 
the original entry itself is now by law admissible, 
but not further or otherwise." 
In the absence of such a provision in the Evidence 
Act regarding entries in books of account kept in 
regular course of business  the mere production of the 
account books does not constitute evidence of the 
transaction and accounts therein recorded. Mr. Israrul 
Hossain further pointed out that the account books 
containing Exh. G.B. 3 series were not even exhibited 
by the Deputy Registrar. In the affidavit of the 
respondent sworn on the 25th August 1958, in 
paragraph the genuineness of the records, Exhs. G.B. 
1 to G.B. 10, is affirmed, but this bald statement did 
not constitute proof of the entries in these series unless 
they were in his handwriting and he swore to the 
correctness of the transactions mentioned therein. 
The documents Exhs. G. B. 3 series relied upon by the 
respondent No. 1 in support of his claim that since 
1937 he had been selling on large scale in Bengal 
and Assam including the riverine districts now 
constituting East Pakistan coaltar bearing trade mark 
"Jahaj Marka Al-katra" with a device of a ship were in 
this view wrongly treated as evidence by the Courts 
below.” 
 
10. 
 
In the case of Khan Muhammad Yusuf Khan Khattak. Vs. S. M. 
Ayub and 2 others (PLD 1973 SC 160) this Court while dealing with an 
identical issue held as under :-  
“I am of the view that even if such documents are 
brought on record and exhibited without objection, 
they remain on the record as “exhibits” and faithful 
copies of the contents of the original but they cannot 
be treated as evidence of the original having been 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
10 
signed and written by the persons who purport to 
have written or signed them, unless the writing or the 
signature of that person is proved in terms of the 
mandatory provisions of section 67 of the Evidence 
Act. If instead of the copy Exh. P.E., the original form 
“E” which formed the primary evidence, had been 
exhibited on the record without proving as to who 
was its author can it be argued that by merely 
exhibiting it, the document should be taken for 
granted as bearing the signature of the appellant 
without proof that in fact it was written and signed by 
him. The onus obviously lay on the respondent to 
prove this fact and his failure to prove it did not cast 
any responsibility n the appellant to negatively 
disprove it. “ 
 
11. 
 
The argument that latter loss or lapse in production of the 
NOC would not have much meaning once its existence finds mention in RL-
II and the letter dated 13.11.1988 issued by the Minister for Forestry, Wildlife 
and Fisheries Department, has also not impressed us when it did not see the 
light of the day at any stage. We, therefore, have no hesitation to hold that 
deduction about the issuance of NOC being conjectural has no evidential 
basis.  
12. 
 
The argument that when in another litigation between Mst. 
Sairan and the respondents, the issue about the memorandum banning 
allotment of land in possession of the Forest Department has been 
decided, the appellants who were party thereto could not raise it again is 
misconceived, firstly because the litigation referred to above ended up in 
rejection of plaint, and since rejection of plaint does not operate as res- 
judicata, against the plaintiff in the subsequent suit, it cannot operate as 
such against a party who was defendant; and secondly because all the 
Courts in the said litigation having focused on the question of title between 
the rival claimants, decided the question of title only, without attending to 
the question of law and the judgments rendered in the cases of 
Muhammad Ayub and others. Vs. The Province of Punjab and Province of 
Punjab. Vs. Muhammad Mahmood Shah (supra). Therefore, reference to 
the previous litigation would not be of any help to the respondents.  
    
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
11 
13. 
 
Let us pause here for a while to see where did the 
memorandum dated 27.02.1965 come from and what did it stand for? This 
memorandum was issued by the Chief Settlement Commissioner under 
paragraph 4-A of the Rehabilitation Settlement Scheme, who had the 
power to exclude land from allotment where it was required for public 
purpose. The memorandum provided as under:-  
“On the representation of Forest Department it has 
been decided by the Chief Settlement Commissioner 
that evacuee lands in possession of the Forest 
Department whether notified or un-notified should not 
be allotted against claims under the provision of the 
West Pakistan Rehabilitation Settlement Scheme till 
further orders. “ 
 
 
The memorandum reproduced above provides that evacuee land 
in possession of the Forest Department whether notified or un-notified could 
not be allotted against claims under the provisions of the West Pakistan 
Rehabilitation Settlement Scheme, till further orders. Additional Settlement 
Commissioner or any other Officer in the hierarchy being subordinate to the 
Chief Settlement Commissioner could not nullify or neutralize its effect 
unless, of course, ordered otherwise by the Chief Settlement Commissioner 
himself. It does not give any power or authority even to the Forest 
Department to nullify or neutralize its effect, or read something in it what is 
not there. Allottee, too, could not ask for allotment of land on the condition 
of managing its retrieval from the Forest Department on his own when he 
does not figure anywhere in the scheme of the memorandum. We do not 
understand what prevailed on the Additional Commissioner to confirm 
allotment on the undertaking of the respondents or on the basis of NOC of 
the Forest Department, if at all it is assumed to have any existence, outside 
the record, when the memorandum does not provide for either of them. 
We thus hold that the allotment confirmed in derogation of memorandum 
dated 27.02.1965 cannot hold good. In the case of Muhammad Ayub and 
others. Vs. The Province of Punjab (supra) this Court while dealing with an 
identical issue held as under:-  
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
12 
“The suit was dismissed by the learned trial Court 
observing "that the plaintiffs never got possession and 
that many trees have been grown up there in the 
supervision of the Forest Department" and, therefore 
the claim of the petitioners that they were in possession 
which was allegedly interfered with by the Forest 
Department, was not well founded. It was also held on 
account 
of 
Memorandum 
No.65/775-RL, 
dated 
27-2-1965 from the Chief Settlement Commissioner 
Lahore 
to 
the 
Deputy 
Commissioners, 
Sialkot, 
Gujranwala, Sheikhupura, Gujrat, Rawalpindi, Jhelum 
and Attock on the subject of "disposal of evacuee land 
in possession of Forest Department" which was to the 
effect that evacuee lands in possession of the Forest 
Department whether notified or unnoticed were not to 
be allotted against any claim under the provisions of 
the West Pakistan Rehabilitation Settlement Scheme, 
the allotment of this land in favour of Muhammad Din 
on 1-3-1966 against his verified claim was itself not valid 
and the subsequent sale of this land in favour of the 
petitioners did not confer any title on them. The 
aforesaid judgment and decree was upheld by the, 
learned District Judge on appeal and again by the. 
High Court on revision. Hence this petition for leave.” 
14. 
 
In the case of Province of Punjab. Vs. Muhammad Mahmood 
Shah  (supra) the same view was restated with much greater clarity and 
emphasis in the paragraph which reads as under :- 
“9. Under paragraph 4-A of the Rehabilitation 
Settlement 
Scheme, 
the 
Chief 
Settlement 
Commissioner had the power to direct the exclusion 
of land from allotment where it was required for a 
public purpose. While so excluding by his directive 
dated 27-2-1965, the Chief Settlement Commissioner 
was acting within hi; lawful authority. The High Court, 
however, did not approve of it in a case (Civil 
Appeal. No.155 of 1983) where the allotment had 
been made for the first time on 18-4-1968, by 
observing as hereunder:--- 
"The main ground on which the Settlement 
Commissioner set aside the allotment of the 
petitioners was the order of the Chief Settlement 
Commissioner 
dated 
27-2-1965 
mentioned 
above restraining the district authorities from 
allotting such lands as were in possession of the 
Forest  Department. The copy of the Jamabandi 
for the year 1905-66, however, shows that the 
possession over some of the land in question at 
that time was that of the petitioners but he did 
not go into the same. In any case it has recently 
been held by a Division Bench of this Court in 
Inayat 
Bibi 
 
etc. 
v. 
Assistant 
Settlement 
Commissioner 
and 
Chief 
Settlement 
Commissioner PLD 1978 Lah. 252 that the Chief 
Settlement Commissioner could not issue such 
instructions restraining statutory functionaries to 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
13 
allot land against the claims. The letter dated 
27th February, 1965 is thus without lawful 
authority and of no legal effect: " 
Another paragraph which is extremely relevant in this behalf also 
merits a look and thus reads as under :-  
10. The decision referred to and relied upon for 
recording the above findings related to absolute 
prohibition against making the allotments and not 
qualified prohibition as is contained in paragraph 4-A 
of the Rehabilitation Settlement Scheme. Hence, the 
very basis for the decision is incorrect. In a decision of 
this Court in Muhammad Ayub and others v. The 
Province of Punjab (1989 SCMR 1033), the allotments 
made on 1-3-1966 were held to be violative of the 
directive of the Chief Settlement Commissioner dated 
27-2-1965. The law point involved in all these cases 
has received an authoritative pronouncement in 
Mian Rafi-ud-Din and 6 others v. The Chief Settlement 
and Rehabilitation Commissioner and 2 others P L D 
1971 S C 252 in the following words:-- 
 “It is necessary in my view to keep in mind that 
there is a distinction between the right to claim 
a transfer and the right to the transfer and the 
right to the transference of the property itself. 
The provisions of the Schedule indicated the 
persons or the category of persons who can 
claim the transfer of a particular property but 
the right to the transfer of the property accrues 
or becomes vested only after a final order for 
such transfer has been made in accordance 
with the provisions of the Act itself, the 
Schemes, the rules framed under the Act and 
the instructions from time to time issued. Until a 
final order of transfer has been made it cannot 
be said that the property has been disposed of 
and is no longer available for transfer. It is only 
when a property is no longer available for 
transfer 
that 
an 
order 
of 
the 
Central 
Government laying down a different mode of 
disposal will not affect it, on the principle that 
change in the mode of transfer cannot reopen 
a past and closed transaction." 
15. 
 
In the concluding part of the judgment only those lands have 
been excluded from the purview of the memorandum in which the 
confirmation of allotment was made before 27.02.1965. The land forming 
subject matter of dispute in this case would be fully covered by the 
memorandum when its allotment was admittedly confirmed on 30.04.1965.  
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
14 
16. 
 
The same view was reiterated in the case of Forest 
Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. 
Muhammad Amin and 26 others  (supra).  
 
17. 
 
The argument that failure of the appellants to challenge 
confirmation of allotment in favour of the respondents at any stage of the 
litigation would takeaway the ground from beneath their feet to challenge 
it even if it is assumed that allotment in favour of the respondents was void, 
is devoid of force as the appellants despite enjoying uninterrupted 
possession have been questioning the confirmation of allotment in favour 
of respondents at every forum including Civil Courts and even in the 
litigation culminating in the instant appeals. The argument that even void 
orders have consequences if not questioned within the prescribed period 
of limitation would have been tenable had the appellants abated legal 
fight at any stage. Their unabated fight even in the second round of 
litigation initiated at the instance of the respondents speaks for itself. 
Therefore, the judgments rendered in the cases of   Conforce Ltd. Vs. Syed 
Ali, etc  and S. Sharif Ahmed Hashmi. Vs. Chairman Screening Committee, 
Lahore and another (supra) have no relevance to the case in hand.  
18. 
 
The argument that the judgments rendered in the cases of 
Muhammad Ayub and others. Vs. The Province of Punjab, Province of 
Punjab. Vs. Muhammad Mahmood Shah and Forest Department through 
Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin 
and 26 others (supra) lack authoritative and even persuasive value when 
they were rendered in derogation of an earlier three-member bench 
judgment rendered in the case of Wali Muhammad. Vs. Settlement 
Commissioner Sargodha Division, Sargodha and others (supra) is not 
correct as the former deal with the memorandum dated 27.02.1965 while 
the latter deals with the memorandum dated 25.06.1973. The first having 
been issued by the Chief Settlement Commissioner under paragraph 4-A of 
the Rehabilitation Settlement Scheme was held to be intra vires and any 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
15 
allotment confirmed in derogation of the said memorandum was held to 
be of no effect. Whereas the second having been issued without 
jurisdiction and lawful authority was declared void and so was the 
cancellation or allotment made thereunder. Therefore, no parallel can be 
drawn between the memoranda mentioned above nor between the 
judgments rendered in the cases of Muhammad Ayub and others. Vs. The 
Province of Punjab, Province of Punjab. Vs. Muhammad Mahmood Shah 
and Forest Department through Divisional forest Officer, Chhanga Manga, 
Lahore. Vs. Muhammad Amin and 26 others (supra) and the one rendered 
in the case of Wali Muhammad. Vs. Settlement Commissioner Sargodha 
Division, Sargodha and others (supra). Allotment without confirmation has 
also been held to be of no effect by a five-member bench of this Court in 
the case of Mian Rafi-ud-Din and 6 others. Vs. Chief Settlement and 
Rehabilitation Commissioner and 2 others (supra) which has been taken 
notice of and referred to in the case of Province of Punjab. Vs. Muhammad 
Mahmood Shah (supra). 
19. 
 
The argument that where no documentary evidence has 
been brought on the record by the appellants to show that the land in 
dispute was ever sold to the Forest Department, their claim about its sale 
was rightly turned down would have been relevant had the allotment in 
favour of the respondents been confirmed in conformity with the 
memorandum issued under paragraph 4-A of the Rehabilitation Settlement 
Scheme.  
20. 
 
The argument that the memorandum banning allotment of 
the land cannot be stretched to the case in hand in the absence of 
anything providing for its retrospective effect, is also misconceived when 
allotment in favour of the respondents was confirmed after issuance of the 
memorandum mentioned above.  
21. 
 
Form of suit also does not appear to be proper when the 
respondents did not ask for declaration, in spite of the fact that their title to 
the land in dispute was seriously disputed by the appellants. Reference to 
C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 
16 
the cases of Muhammad Aslam. Vs. Mst. Ferozi and others and Sultan 
Mahmood Shah through L.Rs. and others. Vs. Muhammad Din and 2 others  
(supra) would not be out of context.     
22. 
 
The argument that applicants be impleaded as party on 
account of being bonafide purchasers is devoid of force, where the 
original allotment made in favour of the vendors cannot hold the field. The 
cases of Muhammad Yamin and others. Vs. Settlement Commissioner and 
others (1976 SCMR 489), Manzoor Hussain. Vs. Fazal Hussain and others 
(1984 SCMR 1027) Gul Muhammad and others. Vs. The Additional 
Settlement Commissioner and others (1985 SCMR 491) and Ejaz Ahmad 
Khan. Vs. Chahat and others (1987 SCMR 192) may well be referred to in this 
behalf. The argument of the learned ASC for the respondents seeking 
dismissal of appeals on account of having been filed against the dead 
persons need not be addressed at length when it has been befittingly dealt 
in the judgments rendered in the cases of Farzand Ali and another. Vs. 
Khuda Bakhsh and others, Muhammad Yar deceased through L.Rs. and 
others. Vs. Muhammad Amin deceased through L.Rs. and others and 
Niamat and another. Vs. Allah Banda and another  (supra). 
23. 
 
Having thus considered, we allow these appeals, set aside the 
impugned judgments and decrees with no order as to costs.  
 
CMAs. NO. 61 TO 63, 117, 974 AND 1604-L OF 2016. 
 
These CMAs are disposed of accordingly.  
JUDGE 
 
 
JUDGE 
Announced in open Court at Islamabad on 25.11.2016 
 
JUDGE 
‘NOT APPROVED FOR REPORTING’ 
M. Azhar Malik 
