1989SCMR210 (PLP)

Imaru Ali G. Kazi, Senior Advocate Supreme Court instructed by M.S. Ghaury, Advocate‑on‑Record for Respondents (in both Appeals). Date of hearing: 8th September, 1988. JAVID IQBAL, J.‑‑In both these appeals namely Civil Appeal No. 56‑K of 1982 and Civil Appeal No. 57‑K of 1982 a common question of law has been raised, and therefore, these are being taken up and disposed of together. The brief facts respecting Civil Appeal No. 56‑K of 1982 are that respondent No. 4 Syed Ali Sher Shah who is father of Syed Ghulam Nabi Shah respondent No.l, Syed Ghulam Ali Shah respondent No.2 and Syed Ghulam Muhammad Shah respondent No. 3 gifted away certain agricultural land in favour of respondents Nos. 1 to 3 on 21 June, 1909. A parcel of agricultural land measuring about 33 Acres was gifted to respondent No. 3 alone (gift No.l ), whereas another parcel of land measuring about 53.6 Acres was gifted in favour of respondents Nos. 1 to 3 collectively (gift No. 2). These gifts were effected on the basis of the statements of Syed Ali Sher Shah respondent No. 4 made by him before the Mukhtiar‑i‑Kar concerned. Since respondent No. 3 was a minor, respondent No. 1 on his behalf got his statement of acceptance recorded on 21 June 1969 in respect of gift No.l. Thereupon, the entry in the relevant Village Form No. VII was made also on the same date. The mutation fee in respect of one part of the said land was assessed and paid on 27 May, 1976 whereas in respect of the other part it was deposited on 27 May, 1972. In respect of gift No. 2 the statement of Syed Ali Sher Shah respondent No. 4 was recorded on llth August, 1969 and an entry in Village Form No. XV was also made on the same date. Thereafter, respondents Nos. 1 to 3 paid revenue for the same during the years 1970‑71 and 1971‑

72. On the promulgation of Land Reforms Regulation in 1972 Syed Ali Sher Shah respondent No. 4 filed his declaration under para. 12 which was scrutinized by the Land Commissioner Sind who vide his order dated 15 June, 1972 declared the two gifts as valid. However, in 1975 appellant No. 1 i.e. Federal Land Commission through the Officer on Special Duty in the exercise of suo motu revisional powers issued a notice under para. 29 to the respondents and thereafter he passed the impugned order dated 6 August 1975 declaring the said gifts as void on the ground that the revenue records were manipulated by all the respondents. Aggrieved of the said order the respondents filed Constitution Petition (No. D‑49 of 1977) before the High Court of Sind‑which was allowed and as a result the impugned order of appellant No. 1 was set aside. The background respecting Civil Appeal No. 57‑K of 1982 is that respondents Nos. 2 to 5 are sons of respondent No. 1 Haji Muhammad Ishaq. Respondent No.l alienated by way of gift total area of his agricultural land measuring about 208 Acres to his sons i.e. respondents Nos. 2 to 5 and transferred possession to them. The statement of respondent No. 1 in respect of the same was recorded by Mukhtiar‑i‑Kar on 30 September, 1971 and the statements of acceptance of the gift as well as delivery of possession by respondents Nos. 2 to 5 were recorded by them on the same date. However, the mutation in consequence of the aforesaid gift statements was effected in Village Form No. VII on 25 February, 1972. Upon promulgation of Land Reforms Regulation 1972, respondent No. 1 filed the relevant declaration before the relevant authority respecting his land holding and also disclosed the making of the aforesaid gift in favour of his sons. The declaration was scrutinized by the Land Commissioner who after going through the record upheld the gift as valid vide his order dated 9 June, 1972. However, subsequently by notice dated 26 July 1976 appellant No. 1 Federal Land Commission through the Officer on Special Duty I exercise of the powers under para. 29 reopened the case under the suo motu revisional jurisdiction and thereafter arrived at the conclusion that the gift was invalid as the entries in the record relating to the gift had been anti‑dated. Thus, vide his order dated 31 December, 1976 alienation of land by way of gift in favour of respondents Nos. 2 to 5 was held to be void. This order of appellant No. 1 was challenged by all the respondents before the High Court of Sind by way of a Constitutional Petition (No. D‑223 of 1977) which was allowed and as a result the impugned order dated 31 December, 1976 of appellant No. 1 was set aside. Leave to appeal in both these cases was granted to the appellants to consider as to whether the High Court in its Constitutional Jurisdiction could have disturbed the finding of fact arrived at by the revising authority. It was argued by the learned counsel for the appellants before us that the OSD of the Federal Land Commission in exercise of his suo motu revisional power and on the basis of the material on record, declared in both the cases that the gifts were invalid. But the High Court had on the basis of the same material and an additional piece of evidence namely a receipt dated 27 May, 1970 (in C.A. 56‑K of 1982) which had not been produced before the revising authority, held that in both the cases the gifts were valid, and set aside the orders of the revising authority declaring them to have been passed without lawful authority. The main contention of the learned counsel for the appellants in both these cases is that there was no misreading of evidence by the revising authority nor was there any perversity in arriving at the findings of fact by the revising authority. Consequently the High Court while exercising Constitutional jurisdiction could' not interfere with the findings of the revising authority on a question of fact. Learned counsel placed. reliance on 1989 SCMR 178 (Sher Muhammad Shah v. Abdul Aziz etc.). In that case the High Court while exercising its Constitutional jurisdiction reversed the order of the Settlement Commissioner on the material which had been placed before it for the first time and which was not before the Settlement Commissioner or considered by him at the hearing of the revision petition. Setting aside the order of the High Court as well as of the Settlement Commissioner the case was remanded by the Supreme Court to the notified authority for decision of revision petition afresh on the ground that where it was felt that questions had been left undecided by inferior authority or tribunal, it was more appropriate to return the case to the said authority or tribunal after quashing the order complained against for deciding the matter in the light of material on which decision of the undecided questions was desired and that the High Court should have not substituted its own judgment for that of the authority concerned. We have heard learned counsel for both the parties in the two appeals. It may be pointed out at the outset that learned counsel for the appellants has not produced before us the orders passed by the Federal Land Commission dated 6th August, 1975 and 31st December, 1976 although his prayer is that these orders had been validly passed and should have not been set aside by the High Court. Be that as it may, in both the impugned judgments of the High Court the aforesaid orders were minutely scrutinized by a Bench consisting of two learned Judges who also perused the original record. Thereafter, they arrived at the conclusion that the orders passed by the appellant in fact amounted to misreading of the evidence on record and were based on surmises as well as conjectures. Hence they were correct in 'setting aside these orders and holding that the gifts were valid. The findings in Civil Appeal No. 56‑K of 1982 are as follows: "If the register containing the statements of respondent No. 6 (respondent No. 4 Syed Ali Sher Shah) and of petitioner No. 1 (respondent No. 1) in respect of gift No. 1 is to be discarded, there is still sufficient documentary evidence on the record to conclude that the gift In question was in fact effected and acted upon prior to crucial date i.e._ 210 December, 1971, gift No. 1 was mutated in the register of Form VII of 21 June, 1969. It has been recorded as entry No. 84. . . . . . . . . . . . . . . . . . . It is true that the page in question does not contain any page number. but in our view it does not make any difference for the reason that prior to this page there is page No. 47 and after that there is page No.

49. The numbering on the pages has been done in hand in ink and are not printed. The condition of the register of Form VII is such that one goes the impression that it has not been tampered with. There is no difference in the colour of the paper. Difference in ink used for the various entries cannot invalidate an entry, as the various entries were recorded on different dates. The above documentary evidence stands corroborated by y the receipt dated 27 May, 1970 in respect of the payment of mutation f pertaining to the land situated in Deh Poto (Annexure E to the petition) From the above receipt it is evident that the above gift was acted upon much before the crucial date inasmuch as the mutation fee was paid on 27 May, 1970." The submission of the learned counsel for the appellants before u5 to the effect that this receipt dated 27 May, 1970 was not before the revising authority and that if the High Court was to use that as a piece of evidence then in the light of the authority cited by him it should have not substituted its own judgment for that of the authority concerned but at the most should have remanded the case, is without any force because a perusal of the portion of the judgment cited above clearly indicates that the said receipt was not used as a piece of additional evidence but was only considered as supporting or corroborating the documentary evidence already on the record. In that view of the matter the authority cited by him is riot applicable to the facts of the present case. " Respecting gift No. 2 in Civil Appeal No. 56‑K of 1982 again the learned Judges considered the evidence on record and carefully scrutinized the same', before arriving at the conclusion that gift No. 2 could not have been declared as void on the grounds which found favour with the revising authority. Again they were justified in holding that under' para. 7(1)(b) of the Land Reforms Regulation, the Federal Land Commission was entitled to go into the question as to whether there was, a gift in favour of an heir but it could not inquire into the bona fides of such a gift. In Civil Appeal No. 57‑K of 1982 the learned Judges of the High Court after going through the record also found that the revising authority had arrived at a sweeping conclusion that the entries made in the record of rights respecting the gift had been antidated but in the absence of any evidence to that effect tae conclusion arrived at by the revising authority was arbitrary and based on pure surmises. Thus, in both the cases the High Court upset the orders of the appellants because these were based wholly upon misreading of evidence and unwarranted by the material on the record and such findings can be reversed in the exercise of Constitutional Jurisdiction. It was held in 1984.SCMR 1110 (Mst. Tayaba Khatun etc. v: Chairman Federal Lard Commission etc.), that the Land Reforms Regulation being confiscatory in nature and appropriative without any compensation, the High Court had jurisdiction and power to go into facts in effective manner. Similarly in 1984 SCMR ON') (Federal Land Commission etc. v. Mst. Zarin Qaisha) it was held that the High Court in exercise of Constitutional jurisdiction can interfere with the findings of fact under the Land Reforms Law. In the light of the above discussion we do not find any substance in these appeals. The appeals namely Civil Appeals Nos. 56‑K and 57‑K of 1982 are accordingly dismissed with costs. M.Y.H/F‑79/S Appeals dismissed.