198 PLP 2345 (MLD)

129‑2‑14 acres 8852 Faisalabad Chak No.220/RB& No. 76/JB 22‑1‑18 acres 2131 22‑1‑18 acres 2282 Total: 151‑4‑12 acres 9752 151‑4‑12 acres 11134 The Deputy Land Commissioner, Jhang vide his order, dated 27‑10‑1977 determined the declarant's holdings in both the districts as 11134 PIUs and found that he was in possession of an area equivalent to 3134 PIUs in excess of the prescribed limits under the Act. After examining the claim of the declarant regarding three gift transactions of 200 Kanals each in favour of his wife and two daughters the Deputy Land Commissioner found that there was evidence only of one such transaction in favour of Mst. Tehsin Fayyaz Ali Khan in the form of a registered gift‑deed and that there was nothing on record about the other two transactions claimed by the declarant. He, therefore, ordered resumption of land equivalent to 3134 PIUs under the Land Reforms Act, 1977. The declarant filed an appeal before the Land Commissioner, Sargodha which was rejected vide order, dated 9‑1‑1978 and the Deputy Land Commissioner's order was upheld. The declarant filed a revision petition against the Land Commissioner's order before the Additional Chief Land Commissioner, Punjab. In his appeal and revision the declarant alleged foul play in the office of the Sub‑Registrar before whom he had submitted three Tamleek‑names for registration out of which only one was registered while the other two, according to him, had been intentionally misplaced by the staff whereas the declarant claimed that he had always been under the impression that all the three documents had been duly registered and incorporated in the revenue record. The Additional thief Land Commissioner vide his order, dated 11‑5‑1978 accepted the revision petition on the ground that the declarant's holding should not have been determined by the Deputy Land Commissioner without deciding the matter of the alleged loss of two documents that the declarant claimed to have presented for registration. The Additional Chief Land Commissioner, therefore, set, aside the order of the Land Commissioner and remanded the case to the Deputy Land Commissioner with the direction to first decide (as Registrar) the application of the petitioner about the alleged loss of documents of Tamleek namas caused by his officials and then to proceed to determine the declarant's holdings under the Land Reforms Act, 1977.

2. The Deputy Land Commissioner, Jhang in his order, dated 16‑6‑1979 passed in his capacity both as Registrar under the Registration Act and as Deputy Land Commissioner found, after conducting an enquiry, that the two documents in question were presented for registration by the respondent Fayyaz Ali Khan before the Sub‑Registrar on 30‑10‑1975 but were misplaced or lost in the office of Sub‑Registrar, Jhang. He directed the respondent to get fresh copies of the two lost documents prepared by the same petition‑writer (going by the copies of the two documents entered in the petition writer's register) and, under section 68 read with section 75 of the Registration Act, he directed the Sub‑Registrar, Jhang, to register the said documents ordering at the same time that this registration was to take effect as if the documents had been registered when they were first presented for registration (on 30‑10‑1975) as required under section 75(3) of the Registration Act. By a separate order, dated 3‑2‑1980 the Deputy Land Commissioner re‑determined the total holding of Fayyaz Ali Khan in both the districts as being equivalent to 7650 PIUs after excluding an area of 400 Kanals gifted in favour of Mst. Rabia Fayyaz Ali Khan and Mst. Sitara Begum according to the two gift‑deeds registered in compliance with his order, dated 16‑6‑1979. The total holding of the respondent/declarant equivalent to 7650 PIUs being below the prescribed limit of 8000 PIUs, he filed the case as requiring no further action.

3. The whole matter was examined by the Federal Land Commission Inspection Team which reported the following position in its report, dated 6‑1‑1983 submitted to the Federal Land Commission:‑-- "(i) The thumb‑impression register of Sub‑Registrar's office shows that only one deed was presented for registration which was duly entered at Serial No.3097, dated 30‑10‑1975. (ii) Oral statement of witnesses are not to be relied upon. (iii) No proof of change in possession is available either from the Khasra Girdawari or from any other record. The declarant owned 1126 Kanals of land in this village out of which he gifted allegedly 600 Kanals leaving the balance of 526 Kanals. Later on he sold 109 Kanals 7 Marlas under registered sale‑deed, dated 19‑7‑1976 leaving a balance of 416 Kanals 13 Marlas whereas the economic holding in this village is equal to 445 Kanals. Thus, the economic unit of the declarant has been broken in violation of para.24 of M.L.R.115. Had the declarant genuinely gifted 600 Kanals to his wife and daughters he could not have possibly sold 109 Kanals 7 Marlas of land on 19‑7‑1976 because in this way he would not be in a position to sell the land in violation of para.24 of M. L. R.

115. This leads to inevitable conclusion that he has not gifted more than 200 Kanals of land to any of his heirs and the transfer of 400 Kanals of land is after thought and a managed affair. If this view is accepted the transfer of 109 Kanals 7 Marlas by way of sale would not be hit by para.24 of M.L.R. 115." In view of this position notices were issued to the respondents in exercise of suo motu revisional powers of the Federal Government under section 27 of the Land Reforms Act, 1977.

4. Counsel for the declarant and for respondents Mst. Rabia and Mst. Sitara were heard and the original record of the Sub‑Registrar Jhang and the relevant land revenue record was examined in their presence. Counsel for the declarant/respondent No.1 argued that the fact that two gift transactions in favour of Mst. Rabia and Mst. Sitara had not been entered in the record of rights through a duly sanctioned mutation does not render these transactions invalid as mutation does not create title over property. He cited 1968 S C M R 573 in support of this argument as also case A I R 1926 P C

100. The counsel for respondent No.1 also argued that the bona fides of Tamleeks in favour of heirs could not be questioned under the second proviso to para.7(i)(b) of Land Reforms Regulation, 1972 and cited P L D 1974 Lah. 456 in support of his argument. He finally argued that the Federal Land Commission cannot go behind the Registrar's order passed under section 75 of the Registration Act as this was a competent order passed in accordance with a special law which could not be questioned by the authorities set up under the Land Reforms Legislation.

5. Counsel for respondents Mst. Rabia and Mst. Sitara challenged the jurisdiction of the Federal Government in this matter since, according to him, the Land Reforms Act II of 1977 which came into force on 4‑1‑1977 could not be applied to gift transactions which had been made in 1975. He also challenged the jurisdiction of the Federal Government in the matter on the ground that the Federal Government's suo motu jurisdiction could not be exercised after 30th November, 1976 as laid down in paragraph 29 of Land‑Reforms Regulation, 1972 (M.L.R.115) which applied to the suo mote' revisional powers conferred by section 27 of the land Reforms Act, 1977 as this latter section was supplementary to paragraph 29, M.L.R.

115. He also cited P L D 1970 Pesh. 141 in support of his contention that entries in the Mutation Register and in the Record of Rights did not create any title in favour of any person as these documents were not deeds of title. Similarly he argued that it had been held in P L D 1976 Kar. 316 that no mutation of names in the Record of Rights was necessary to complete the transfer of possession of the gift property. The counsel argued that the order of the Registrar in accordance with the provisions of the Registration Act was in the nature of a decree of a civil Court and could not be set aside and in support of this he cited P L D 1974 Lah. 487 in which orders of the various Land Commission authorities which had refused to accept a consent decree passed by a civil Court were set aside.

6. The points raised by the learned counsel in respect of lack of jurisdiction of the Federal Government in the present matter can be summarily dealt with since there is no question but that under section 27 of the Land Reforms Act, 1977 the Federal Government is entitled to call for a case decided by a commission at any time of its own motion or otherwise and the bar of date 30th November, 1976 laid down in paragraph 29 of M.L.R. 115 does not apply in such cases. Similarly, the argument that Federal Government has no jurisdiction under Land A Reforms Act, 1977 which came into force on 4‑1‑1977 in respect of transactions made in 1975 only betrays confusion in the mind of the learned counsel on this point since under section 3 of the Act no person shall after commencement of the Act (i.e. 4‑1‑1977) own or possess land' in excess of the limits laid down in the section and obviously if such a person claims that a certain piece of land was not in his ownership or possession on that date as it had been gifted in 1975 then determination of the fact of such a gift made in 1975 becomes the most relevant factor for determining that person's holding as it stood on 4‑1‑1977. The argument that the bona fides of Tamleeks in favour of heirs cannot be questioned under the second proviso to para.7(i)(b) of the Land Reforms Regulation, 1972 is not relevant sine it is a case of a declaration filed under Land Reforms Act, 1977 and not one under the Land Reforms Regulation, 1972.

7. The argument made by both the counsels in support of which they cited several cases that entries in the Mutation Register and the Record of Rights do not confer any title over property and that no mutation of names in the Record of Rights is necessary to complete the transfer of possession of the gifted property are, of course, unexceptionable. But these arguments miss the main point in issue in the present case. While it is true that the validity or otherwise of a particular transaction does not depend on the existence of entries in the Mutation Register or the Record of Rights, it is also equally true that such validity has to depend on a determination of the fact of a valid transaction having actually taken place which was then either reflected or not reflected in the revenue records. Similarly, under the Muhammadan Law, there are three simple but very essential requisites for a valid gift viz. (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject‑matter of the gift by the donor to the donee. It is not essential that the gift should be made in writing for an oral gift is equally good. Neither is the mutation of names in the Record of Rights necessary to prove the gift or to complete the transfer of possession of the gifted property. But it is equally clear that these simple but essential ingredients of a gift under the Muhammadan Law have to be established on the basis of some evidence, be it in the form of entries in the Record of Rights or in the form of registered documents or in any other form which may stand the well‑known tests of assessment and appraisal of evidence relating to determination of facts.

8. As regard the argument that the order of the Registrar under the Registration Act cannot be questioned or that the Federal Government in deciding matters under the Land Reforms Act, 1977 cannot go behind such an order, this really begs the question whether such an order has indeed been passed by a competent authority in accordance with the provisions of the Registration Act itself. An examination of the Deputy Land Commissioner/ Registrar Jhang's order, dated 16‑6‑1979 purported to have been passed under section 68 read with section 75 of the Registration Act directing the Sub‑Registrar to register certain documents with retrospective effect from a date in 1975 shows that the order itself is not competent and has not been passed in accordance with the provisions of the Registration Act. An order under section 75 of the Registration Act could have been passed by the Registrar only if there was an appeal before him filed under section 72 of the Act against an order of the registering officer refusing to admit the document to registration within 30 days of the date of such order. In the present case, there was no order by any registering officer refusing to admit the document in question to registration, and hence no appeal against such an order before the Registrar. The application dated 10‑6‑1977 which was filed before the Registrar Jhang alleging non‑registration of two Tamleeknamas by the declarant Fayyaz Ali Khan on the ground that the documents had been misplaced in the office of the registering officer was not only NOT an appeal against refusal to register the document under section 72 gut it was also not made within 30 days of the refusal as required under section 72 but after a period of one year, 7 months and 10 days after the date when the documents were alleged to have been presented for registration. Section 75 of the Registration Act, therefore, did not come into play and the order, dated 16‑6‑1979 by the Registrar ordering registration of the documents was clearly incompetent and illegal.

9. The plea taken by the declarant Fayyaz Ali Khan in his application, dated 10‑6‑1977 to the Registrar that he came to know about non‑registration of the two Tamleeknamas only after the promulgation of the Land Reforms Ordinance, 1977 when he contacted the office of the Sub‑Registrar Jhang on a tip from the concerned Patwari that only one gift‑deed had been entered in the revenue record is disingenuous and untenable. Under the Punjab Land Commission Notification No.ASR‑II‑353/74/3655‑A‑LC(II), dated‑ 21‑6‑1974 the Registrars and Sub‑Registrars exercising powers under the Registration Act shall not accept deeds for registration in respect of land unless these are accompanied by a 'Fard' issued by the Patwari showing the areas to be alienated together with an extract of the entire holding of; the alienor within that estate and an affidavit by the alienor and the alienee that the transaction does not in any way contravene the provisions of M.L.R.115. Examination of the declaration file of Fayyaz Ali Khan in the office of Deputy Land Commissioner Jhang shows that the gift of 200 Kanals of land in favour of Mst. Tehseen vide registered document No.3097, dated 30‑10‑1975 was entered in the Mutation Register vide entry No.700, dated 24‑3‑1976 and the balance of the donor's holding was recorded as 1126 Kanals less 200 Kanals i.e. 926 Kanals. Later while selling 109 Kanals 7 Marlas to Ahmad, Hidayat and Inayat through registered sale‑deeds Nos.3008, 3009 and 3010, dated 19‑7‑1976, respondent Fayyaz Ali Khan obtained 'Fard Malkiat' as required under the Punjab Land Commission Notification mentioned above which was produced by him before the registering officer and which showed his holding as 926 Kanals less 109‑7 Kanals area being sold. The respondent, therefore, knew on 19‑7‑1976 when he sold the said area of 109 Kanals 7 Marlas with the support of the Fard Malkiat issued to him in connection with the registration of this area (and without producing which the sale‑deed could not have been registered) that his holding on that date before the sale was 926 Kanals and NOT 526 Kanals which would have been the case if he had indeed gifted 400 Kanals to his wife and daughter on 30‑10‑1975 through the allegedly misplaced documents. The fact that even on 19‑7‑1976 when he came to know that the two gifts of 400 Kanals claimed to have been made by him on 30‑10‑1975 to hi wife and daughter had not been registered and entered in the revenue record not only falsified the statement in his application dated 10‑6‑197 to the Registrar but is also clear proof of the fact that no such gifts were made and no gift‑deeds were presented for registration on 30‑10‑1975 as claimed by him and that he knew while selling 109 Kanals 7 Marlas to Ahmed, Inayat and Hidayat on 19,7‑1976 that his holding was in fact 926 Kanals and NOT 526 Kanals and he also knew that he could not have sold the area of 109 Kanals 7 Marlas without contravening the provisions of para.24 of M.L.R.115 if his holding was only 526 Kanals after making the gifts of 400 Kanals to his wife and daughter. He did not advert to this matter until the promulgation of Land Reforms Act, 1977 which reduced the ceiling on individual holdings to 8000 RIUs and it was only after promulgation of this Act that he made the application on 10‑6‑1977 claiming that he had gifted away 400 Kanals to his wife and daughter in 1975 and that, therefore, his holding on 4‑1‑1977 was below the newly, prescribed ceiling.

10. The Deputy Land Commissioner/ Registrar's order, dated 16‑6‑1979 was, therefore, incompetent and illegal for reasons explained in the preceding paragraph. The Additional Chief Land Commissioner, Punjab's order, dated 11‑5‑1978 directing the Deputy Land Commissioner to first decide the application of the declarant about the allegation of loss of documents of Tamleek caused by his officials was also incompetent because he could not give any direction to the Registrar for' taking any action under the Registration Act.

11. An examination of the enquiry file on which the Registrar's order, dated 16‑6‑1979 was based, moreover, shows that even the facts brought out in the so‑called enquiry did not lead to the conclusion drawn by the Registrar in this order. In fact his predecessor, while forwarding the enquiry file to the Land Commissioner, Sargodha vide his letter No.31493, dated 28‑11‑1977 had drawn a completely different conclusion when he stated as follows:‑-- "It is apparent that even the then Sub‑Registrar Mr. Aslam Hayat Kalyar, who has appeared as a witness in the enquiry, in his cross‑examination, has stated that he could not tell the number of deeds presented by Mr. Fayyaz Ali Khan. It cannot, therefore, be said with certainty that the two gift‑deeds relating to Mst. Sitara and Mst. Rabia Fayyaz Ali Khan were presented before the Sub‑Registrar for registration." How could" the successor Registrar in 1979' draw from identically the same enquiry file (without any additional material whatever) the conclusion that the "two documents were presented for registration by the petitioner Fayyaz Ali Khan before the Sub‑Registrar on 30‑10‑1975 but were misplaced or lost in the office of Sub‑Registrar Jhang" surpasses imagination.

12. An examination of Book I of the office of Sub‑Registrar Jhang for the period 29‑9‑1975 to 6‑11‑1975 required to be maintained under section 51 of the Registration Act shows an entry No .3097, dated 30th October, 1975 being a Tamleek‑nama gifting 200 Kanals of land in Chak No.232/JB, Tehsil and District Jhang in favour ok his daughter Mst. Tehsin Fayyaz Ali Khan made by Fayyaz Ali Khan s/o Faqir Hussain Khan: This entry is numbered 3097 and is followed by entries Nos.3099, 3101, 3103, 3105 and 3107 also made on 30th October, 1975. There is no other entry on this date and none of these entries relate to the gifts purported to have been made by the declarant in favour of his daughter Mst. Rabia Fayyaz Ali Khan and his wife Mst. Sitara Begum. Under section 52 of the Registration Act, it is mandatory for the registering officer to endorse on every document presented before hi the date or place of presentation and the signatures of: the person presenting the document and give a receipt for such document to the person presenting the same. A receipt is also to be given for all fees for registration of documents payable under section 80 of the Registration Act. Under section 60 of the Registration Act, the registering officer after complying with the relevant provisions of the Registration Act is required to endorse a certificate of registration which alone will then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Registration Act, and that the facts mentioned in the various endorsements have occurred as therein mentioned. After completion of the registration documents in accordance with the provisions of the Act the document shall then be returned to the person who presented the same for registration under section

61. The counsel for the declarant failed to explain why did the declarant not insist upon return of the original documents to him be the registering officer on completion of the registration to which he was entitled under section 61(2) of the Registration Act. The counsel also failed to produce receipts for the documents presented for registration by him to which he was entitled under section 52(1) of the Registration Act or for the registration fees paid by him for registration of these documents under section 80 of the Act.

13. In sum, there is no evidence of the gifts in question having been made before the promulgation of the Land Reforms Act, 1977 either in the revenue records or in the form of registered gift‑deeds. While registration of a. gift‑deed under the Registration Act is not essential for purposes of establishing the validity of such a gift under the Land Reforms Act, 1977, the declarant is not entitled to take advantage of the provisions of the Registration Act by taking the plea that the documents were presented for registration but were lost. As explained earlier the order, dated 16‑6‑1979 of the Deputy Land Commissioner/ Registrar does not help the declarant as this order is incompetent and illegal, and not in accordance with the provisions of the Registration, Act. The declarant has not relied upon any other evidence to prove these transactions. In fact, as explained in paragraph 9 above, there is strong circumstantial evidence to show that the gifts in question were not made in 1975 (i.e. before the promulgation of the Land Reforms Act, 1977) because if he had made these gifts the declarant could not have made the subsequent sale of 109 Kanals 7 Marlas of land in 1976 without contravening the provisions of M.L.R.115.

14. For reasons given in the preceding paragraphs, the claim of gifts of 400 Kanals by the declarant in favour of Mst. Rabia Fayyaz Ali Khan and Mst. Sitara Begum on 30‑10‑1975 cannot be accepted for purposes of the Land Reforms Act, 1977. Orders of the Additional Chief Land Commissioner, Punjab, dated 11‑5‑1978 and Deputy Land Commissioner, dated 3‑2‑1980 are, hereby, set aside and the case is remanded to the Deputy Land Commissioner, Jhang for re-determination of the holding of Fayyaz Ali Khan under the Land Reforms Act, 1977 in the light of this order and for further necessary action to resume the excess land under the Act.

15. Judgment in the case was reserved when it was last heard on 2‑9‑1986. The order should, therefore, be communicated to all concerned through the Deputy Land Commissioner, Jhang. A.A. Case remanded.