P L D 1966 (PLP)

2. These seven appeals have been filed against an order dated the 15th of May 1961, passed by the Land Commissioner, Peshawar, whereby he refused the validation of gifts alleged to have been made by appellant No. 6 in favour of the remaining six appellants.

3. The facts of the case are that, on 10th September 1959, the appellant No. 6 Nawab Sir Muhammad Farid Khan put in an application before the Deputy Land Commissioner, Hazara stating that he had made separate gifts in favour of the six appellants and requested for the validation of these gifts. The Deputy Land Commissioner heard the persons concerned, examined such evidence as was produced before him but did not recommend the validation. The Land Commissioner rejected the request for the validation of the alleged gifts Hence these seven appeals.

4. I heard the learned counsel for the appellants at great length. His request for the postponement of these appeals on the ground that the appellants had filed reviews before the Land Commissioner was rejected but the appellants were allowed to produce such additional evidence before me as they considered desirable.

5. Aft the outset, the learned counsel for the appellants referred to the grievance of the appellants that the Land Commissioner did not give them any opportunity of being heard personally. It was explained to the learned counsel for the appellants that, under the existing instructions, only Deputy Land Commissioners have to hear the parties and examine the evidence produced before them. There is no obligation laid down on the Land Commissioner that he should also hear the parties. I, therefore, do not see any force in the alleged grievances of the appellants.

6. These appeals are being dealt with together because the points for decision are the same. The learned counsel for the appellants concentrated his attention mostly on the case of Ghulam Sarwar Khan appellant which was stated to be the strongest of all the six cases. I shall, therefore, deal with Ghulam Sarwar Khan's case first.

7. In this case, the first contention of the learned counsel for the appellant was that the gift was made before Independence. In support of his contention, he referred me to series of documents which can be seen at pages 171, 167, 108, 172, 184 178, 183, 109, 177, 182, 179, 176 and

174. All of these documents have a common feature that the appellant is permitted to collect a specified amount or produce in respect of the land referred to in the documents. In certain cases, a fixed amount of money is mentioned. In others, the word "chokota" is used. Again in some cases it is said that it was a jagir for Ghulam Sarwar Khan appellant. The learned counsel for the appellant argued on the basis of these documents that the gift mentioned in the documents was complete before Independence and was confirmed by the Nawab's Sanad, dated 1st June 1959. I am afraid, I cannot accept this contention. The documents mentioned above only create a right of the appellant to realize the amounts of money or a portion of the produce in respect of the land mentioned therein. This grant was made to him in lieu of services rendered by him. Nowhere it has been laid down that the appellant was put in possession of the, land in dispute and could mortgage, sell or part with it, or was its inheritance allowed therein. At the most, these authorizations amount to the creation of the assignment of State dues, and for facility of administration the appellant was allowed to realize the dues himself. They cannot, in any way, prove that the Nawab had any intention of making any gift of land as such.

8. The learned counsel for the appellants also relied on the judgment of Sub‑Judge, Mansehra dated the 20th of February, 1956 in which it was held that Ghulam Sarwar Khan was a Guzarakhore of the land in dispute. A Guzarakhore is declared as such by the Provincial Government. An examination of they judgment, however, showed that the Provincial Government wane not made a party in the suit. This judgment cannot, therefore, help the appellants in proving his contention that he is a Guzarakhore. The Land Commission have recognized only those persons as Guzarakhore, who have been declared as such by the Provincial Government. The appellant Ghulam Sarwar was not declared as such, and can claim no considerations by the Land Commission.

9. My attention has also been drawn to another judgment ran given by Sub‑Judge, Mansehra, on 5th December 1961. The rid judgment was obtained after the enforcement of Martial Law Regulation No. 64 and the Land Commission was not made c a party to the suit. This decree is based on an allegation made by the plaintiff and on an admission made by the Nawab So far as the Land Commission is concerned, it is no more than a consent decree and cannot, therefore, help the appellant in his contention of being the owner of the land in dispute.

10. I have also considered the Sanad, dated the 1st of June 1959. It is true that therein the Nawab says that the ownership rights had been transferred to the appellant. In the first instance, the Sanad is not quite consistent with the previous orders made before Independence. In the second, even if the gift of land is presumed to have been made this Sanad only completes transaction which had been made earlier. The evidence on record, however, shows that the previous alleged gifts mentioned only specified amounts or the produce of the land but did not say that land as such was gifted.

11. So far as Pir Muhammad Zaman appellant is concerned, the learned counsel for the appellant, relied on the statement of Pir Muhammad Zaman on page 60 and the Nawab's Sanad, dated 1st June 1959. These documents relate to the similar types of grants of money or the yield of land as has been discussed in the case of Ghulam Sarwar Khan, appellant.

12. In the case of Khan Irshad Ahmad Khan appellant, reliance was placed on similar types of grants and the Nawab's Sanad of 1st June 1959. In this case, however, I find that Irshad Ahmad Khan did not get any Hasilat between 1951 and 1959 but the learned counsel for the appellants argued that this cessation would not affect the legal rights. I am afraid, I cannot accept this connection. This would show that the previous grant was cancelled. In this case, the appellant cannot even rely on the continuance of Hasilat. His case is therefore, much weaker than that of others.

13. As regards Abdur Rahim appellant, reliance is placed on documents purporting to show that he also got Hasilat from the land referred to in the documents. The Nawab's Sanad of 1st June 1959 is also relied upon. Neither individually nor jointly these documents could have proved that the land was gifted to the appellant before the enforcement of the Martial Law Regulation No. 64.

14. In the case of Syed Mubarik Shah appellant, reliance was made on documents which are on pages 70 and 88 of the file. These only showed that the appellant was granted a perpetual jagir for services rendered.

15. My attention has also been drawn to judgment dated 5th January 1954, passed by a Magistrate, 1st Class. This was a case under section 145, Cr. P. C. and the possession of the tenant who was under Mubarik Shah was held to be valid. This does not, in any way, show that Mubarik Shah was an owner or a donee in the suit.

16. Again, the learned counsel for the petitioner referred me to another judgment dated the 24th of January 1957 (page 84) passed by Sub-Judge 1st Class, Haripur. In this case, the Provincial Government was not made a party and, therefore, there was no real contest against Syed Mubarik Shah appellant.

17. The evidence produced before me does not show that any gift of land as such was made and the appellant acquired any such rights of ownership as would give him powers to alienate the land, or his successor any right to inherit the property.

18. In the case of Mr. Justice Sajjad Ahmad Jan appellant, reliance was based do the documents at page 47 and on the Nawab's Sanad dated 1st June 1959. The document at page 47 is of the same type as those which have been discussed in the case of Khan Ghulam Sarwar Khan with the exception that, in this case he was not given a right to collect the yield (Hasilat) of the land himself. These two documents neither jointly nor severally can show that any gift of land as such was made in favour of the appellant before the Martial Law came into force.

19. In these circumstances, the learned Land Commissioner was perfectly justified in rejecting the request for validation of these alleged gifts. I see no justification for any interference. All the seven appeals fail and are rejected hereby. The appellants should be informed accordingly. S. Q. Appeals rejected: