1989SCMR701 (PLP)

NASIM HASAN SHAH, J.‑‑This is an appeal by leave of this Court from the judgment of the Peshawar High Court Peshawar dated 8=9‑1981 by which a Constitutional petition filed by respondents 1 to 30, successors‑in‑interest of Mian Iftikharuddin deceased, was allowed with the result that the impugned orders of the Land Commission Authorities were set aside. Late Mian Iftikharuddin owned considerable landed property in Tehsil and District Peshawar. He filed a declaration under M.L.R. 115 of 1972 showing that he had alienated 61 acres 7 kanals and 2 marlas during the crucial period. The Deputy Land Commissioner, Peshawar, taking into consideration the declaration filed by him that he was the owner in possession of the land equivalent to 16511 P.I. Units passed an order dated 16‑6‑1972 that since the declarants was entitled to retain land to the extent of 12,000 P.I. Units, the excess of land equivalent to 4,511 Units shall stand resumed to the Government. This order was upheld by the Land Commissioner on appeal. Mian Iftikharuddin died by this time and his legal representatives went up in revision before the Federal Land Commissioner praying that the land which was gifted by Mian Iftikharuddin in 1960 had not been excluded from his holding by the Deputy Land Commissioner while examining the declaration under M.L.R.

115. According to them, the exclusion of the gifted land had resulted in the resumption of land which falls in the share of the appellants. Learned Member of the Federal Land Commission who heard the revision application took the view that since in his declaration under M.L.R. 64 Mian Iftikharuddin had only indicated that he would be availing of the concession granted to him to make gifts of his land to his heirs and no gift of any land was reflected in the revenue record during the period from 1960 to 1972 when M.L.R. 115 was promulgated, Mian Iftikharuddin was required to surrender land over and above 12,000 P.I. Units in his ownership and possession. On this view of the case, he dismissed the revision application. It was in these circumstances that the respondents challenged the order of the Land Commission Authorities in a Constitutional petition before the High Court which succeeded as stated earlier. The appellant, who was a tenant of a part of the land resumed from the respondents and was allotted the same on resumption of the excess area from them, has challenged the above order of the High Court by this appeal. Mian Muhammad Younis Shah, learned counsel for the ;.ppellant, has submitted that the High Court could not act as an Appellate Court and in holding that the respondents' area was not in excess of 12,000 P.I. Units has decided a pure question of fact, which fell within the exclusive jurisdiction conferred upon the Land Commission Authorities. He has further submitted that the High Court failed to consider that the respondents did not raise the question that the P.I. Units were wrongly calculated by the Land Commission Authorities before the Federal Land Commission and their case before it only was that they were entitled to the benefit of the gift, which their predecessor was entitled to make under Martial Law Regulation

64. Mr.S.M. Zafar, learned counsel for the respondents, points out that this appeal has been filed on behalf of only one of the tenants of the respondents, namely, Adam Khan son of Amanullah, while all the other tenants have accepted the judgment of the High Court by not fling any appeal against it. Learned counsel further states that in these circumstances his clients have no objection if the resumed land, which was allotted to Adam Khan son? of Amanullah, namely, 71 kanals 18 marlas is allowed to be kept by him. In view of the above concession, this appeal to the extent of the area allotted to the appellant herein, namely, 71 kanals 18 marlas, succeeds. Order accordingly. No costs. AA./A‑403/S ????????????????????????????????????????????????????????????????????????? Appeal partly accepted.