2001 PLP 1164 (MLD)

MALIK MUHAMMAD QAYYUM, J.‑‑‑This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of the following circumstances. Respondent No.6 Khan Muhammad Iqbal Khan was the owner of considerable land. On the promulgation of the Land Reforms' Regulation No. 115 he submitted Forms LR‑I and LR‑11 for scrutiny and determination of his holding. It was indicated in the form that a gift of a parcel of land measuring 1000 Kanals and 14 Marlas had been made on 23‑7‑1971 to the petitioner who is declarant's unmarried sister and who has not received her due share in the inheritance. The Deputy Land Commissioner processed the case of the declarant but did not say anything about the gift in favour of the petitioner. Same was the position before the Land Commissioner, Multan. However, during the pendency of the proceedings before the Additional Chief Land Commissioner the petitioner applied for being impleaded as a party and for determination of her title on the basis of gift made to her by her brother Khan Muhammad Iqbal Khan. The Additional Chief Land Commissioner examined the documents tiled by the petitioner in support of the gift and came to the conclusion that no valid gift had been made in favour of the petitioner. It was observed that the transaction of gift was not given effect to in the Revenue Record nor is the petitioner shown to be the owner in the Revenue Record. It was also observed that the gift has not been properly described in the Forms LR‑1 and LR‑11 tiled by respondent No.6. It was, however, observed that the counsel for the petitioner offered to substantiate the gift‑deed through oral evidence of the persons who witnessed this document. This request was declined on the basis that this evidence cannot be called impartial evidence and cannot be accepted in the circumstances of the case. The Additional Chief Land Commissioner, therefore, proceeded to hold that no gift had been made in favour of the petitioner. The matter was then taken to the Federal Land Commission but the revision filed by the petitioner was dismissed and the order of Assistant Land Commissioner was upheld.

2. Mr. S.M. Zafar, learned counsel for the petitioner has contended that the order of the Additional Land Commissioner as also that of the Member Federal Land Commission is based upon conjectures and surmises and not any legal evidence. It was further argued that the petitioner has been condemned unheard inasmuch she was not allowed permission to lead evidence when she appeared before the Land Reform Authorities. 3: There is considerable merit in this contention of the learned counsel. The Supreme Court of Pakistan in Mst. Aqeedat Jabeen v. Muhammad Aslam Khan Sangi and others (1989 SCMR 1024) has laid down that before being deprived of his valuable property the donee must be given an opportunity to lead evidence in order to prove factum of gift. The gift deed in this case is attested by two responsible persons. The Additional Chief; Land CooTmissioner himself noted that their petitioner wanted to produce them as witnesses but for wholly untenable reasons refused to record their statements. The mere fact that the transaction was not reported to the Revenue Officer is not conclusive of the controversy inasmuch as the validity of a gift is not dependent upon the same having been given effect to in the A Revenue Record.

4. We feel that in the circumstances of the case the petitioner should have been allowed to produce evidence which was shut down by the Additional Chief Land Commissioner as also the Member Federal Land Commission. In view of the above, this petition is allowed, the impugned order dated 13‑6‑1974 of the Additional Land Commissioner and order dated 7‑1‑1975 of the Member Federal Land Commission are declared to be without lawful authority and of no legal effect and the case is remanded to the Additional Chief Land .Commissioner Punjab for a decision afresh after allowing the petitioner an opportunity to produce evidence. No order as to costs. H.B.T./G‑75/L Case remanded.