1986 PLP 628 (CLC)

MUHAMMAD ZAHOORUL HAQ, J.‑‑The Petitioner has felt aggrieved against the order, dated 4‑11‑1976 passed by the O.S.D. Federal Land Commission.

2. The relevant facts are that the petitioner was the allottee of agricultural land in her capacity as a claimant. She had surrendered some land under M.L.R. No.89/91 but had opted 'to repurchase on instalments. On 20th April, 1966 she made a gift by deed in favour of her son Ameenuddin of 310‑33 Acres, amounting to Rs.8,882 P.I. Units and handed over the possession to him. The gift deed was attested by Oath Commissioner. On 28‑6‑1966 she entered into the sale agreement with respondents Nos. 3, 4 and Kanwar Allah Baili, who is predecessor of respondent No. 5 for a transfer to them, respectively of 18.23 Acres = 483 P.I. Units, 39.08 Acres = 1,019 P.I. Units and 89.10 Acres = 2,554 P.I. Units. The land was given into the possession of the vendees, namely, respondents Nos. 3, 4 and predecessor of respondent No.5. It is also alleged that the petitioner had purchased a tractor on 25‑8‑1971. She had used the same for her farm. The tractor has been formally purchased in the name of Messrs Farooqui Farms, Badin.

3. When the Land Reforms came in 1972, the petitioner made a declaration required under M.L.R. 115 and showed the alienation. On 25‑4‑1973 the Deputy Land Commissioner, Hyderabad, scrutinised the alienation made by the petitioner. After scrutiny of the gift deed on 25th April, 1966 in favour of the son of the declarant he held that the gift was in accordance with the Mohammadan Law as Aminuddin was enjoying the produce of the land. In respect of the alienation made in favour of respondents Nos. 3 to 5, the Deputy Land Commissioner, held, that the predecessor were in effective possession of the land and have been enjoying the land produce and have been paying the land revenue, so the right and interest created in 6 purchasers stands protected and the alienations are held to be in order. It appears that the petitioner had also filed an application to the Deputy Land Commissioner for being given land on account of a tractor and she had filed a certificate of Assistant Commissioner, Badin in her favour in that respect and on that basis the Deputy Land Commissioner, Hyderabad ordered that the additional area of 2,000 P.I. Units be retained by the petitioner. The result was that net holding of the petitioner was determined to be 15,798 P.I. Units and she was allowed 12,000 P.I. Units and an area of 2,000 P.I. Units was allowed to her on account of her tractor while excess area of 1,845 P.I. Units was resumed. The alienation made by her, above referred, were allowed to continue.

4. The petitioner appealed against the calculation made by the D. L. C. and the Land Commissioner, Sind remanded the case for correction of area to the D . L. C . , Hyderabad after considering the various alienations and making the calculations. The D.L.C. came to the conclusion that the net holding of the petitioner was below the ceiling of 12,000 Units plus 2,000 Units for tractor and, therefore, nothing was to be resumed.

5. The suo motu revisional proceedings were taken by the O.S.D. Federal Land Commission, who issued notices to the petitioner and the respondents Nos. 3 to 5 as well as to Aminuddin and he set aside the order of the Deputy Land Commissioner. His view was that since the land was not fully paid at the time of making the alienation, therefore, the same were hit by paragraph 10 of the scheme framed under M.L.R. Nos.89, 91, and since the permission had not been obtained by the Deputy Commissioner and moreover, there were mere agreement of sale, therefore, the alienation in favour of respondents Nos. 3 to 5 were not accepted for the purpose of Martial Law Regulation

115. He also held that the gift in favour of Aminuddin was not proved as there was nothing on record to show that the said land was gifted. He further held that since the tractor was not registered in the name of the declarant therefore, she could not be considered as owner thereof.

6. Mr. Muhammad Ali Shaikh has submitted that the respondent No.l has failed to take into consideration the instructions issued by the Federal Land Commission on 20th August, 1973 which are to the following effect:‑ "In cases of sale or sale agreement, where the prior permission of the Collector was not obtained, all such transactions are to be reopened and thoroughly scrutinized by the Land Commissioner and if they are found to be genuine, they may be confirmed in spite of the fact that the permission of the Collector was not obtained. However, gifts made by the grantees of land under M.L.R. 89 should be resumed immediately and a compliance report sent to the Federal Land Commissioner." The learned counsel for the petitioner has further submitted that in P L D 1980 Kar. 189(190) a D.B. of this Court has relied upon those instructions of the Federal Land Commission and has allowed petition on that basis.

7. Mr. Azhar Siddiqui, learned counsel for the respondent No.l has conceded the position that such a circular was issued by the Federal Land Commission. Such being the position, the respondent No.l has omitted to consider a very material instruction of the Federal Land Commission itself and has thereby rendered his order without any authority. The alienation against the respondents Nos. 3 to 5 has been scrutinized by the Deputy Land Commissioner, Sind on 25‑7‑1983 and had been found to be in order. The order of the respondent No. l does' not show that he had found the said alienations to be in any way mala fide or not proved but he has simply passed his order of rejection on the basis of para. 10 of scheme under M.L.R. 89 without considering the effect of the instructions issued by the Federal Land Commission on 25‑8‑1973. Therefore, to this extent the order of the Federal Land Commission is declared to be without any effect and illegal. In respects of the tractor units, the petitioner's counsel has submitted that the O.S.D. has failed to take into consideration the certificate issued by the Assistant Land Commissioner, Badin. However, the petitioner has failed to produce the certificate before the respondent No.l or any copy of the same and, therefore, we cannot positively say as to what was the effect of that certificate. The O.S.D. has taken correct view that the registration of the vehicle was in the name of a person different from the petitioner and, therefore, he did not feel inclined to grant the concession in respect of the tractor. We have nothing before us on, the basis of which we could come to the conclusion that the view of the respondent No.l in any way is wrong, but the effect of the certificate issued by the Assistant Land Commissioner has to be assessed. The contention of the petitioner to this extent can be examined by the respondent as we are remanding the case to him.

8. The contention of the petitioner that the gift of land in favour of the petitioner's son had been fully proved and the land was shown to be in possession of Aminuddin who has enjoyed its produce, needs consideration. The petitioner has further contended that the view of the O.S.D. that there was nothing on record to substantiate the gift is factually wrong because the deed of gift had been seen by the D.L.C. in 1973 and it was produced in original by the petitioner before the said Deputy Land Commissioner and thereafter it was not in possession of the petitioner and hence the loss of the said deed of gift was not the responsibility of the petitioner or her son and they cannot be punished for the mal administration in the department of the Land Commission. The submission appears to be correct because the order of the Deputy Land Commissioner, Hyderabad, dated 25‑4‑1973 does indicate that he had scrutinized the said gift deed and he had noted its date as 28‑5‑1973 and had also noted that the same had been attested by the Oath Commissioner and that it was made by the petitioner in favour of her son. This being the position, the view taken by the respondent No.1 was completely in disregard of the set of evidence before the D.L.C., The petitioner has stated in para. 11 of the petition that he had filed a gift deed in original before the D.L.C., Hyderabad and there is nothing before us to rebut the said contention. We, therefore, accept the submission of the petitioner that there was such a gift deed and the view of the respondent No.l is, therefore, completely arbitrary.

9. Mr. Azhar Siddiqui has submitted that the gift of land which were covered by para. 10 of scheme 89 were to be resumed. However, para. 7 of Martial Law Regulation 115 which makes certain transfers void is not applicable to the present case which was made in 1966. It was not made after 20th December, 1971 nor it was made between 1‑3‑1967 and 9‑12‑1971. Moreover, sub‑para. (4) of the said para. 7 clearly allows any transfer of land or creation of any right of interest in pursuance of any land gifted by the donor in favour of an heir. It is, therefore, clear that gift by petitioner in favour of her son was saved by sub‑para. (4) of para. 7 of the M.L.R.

115. Mr. Azhar Siddiqui has further contended that a limited owner in Muslim Law cannot transfer his right. We do not agree with that submission: In fact, sub‑para. (4) of para. 7 itself allows the correction of any right or interest in any land by way of gift and, therefore, such gift by a limited owner was in order. Moreover, we find that in para. 114 of Principles of Mohammadan Law by Mulla, gift of any, actionable claims or incorporeal property by Muslims are allowed to be made. We are, therefore, of the view that the respondent No.l had acted without lawful authority by omitting to take into consideration the gift deed. Petitioner should have been permitted to prove the same by secondary evidence. The order of respondent No.l is declared to be without lawful authority and without any effect as the result is that this petition is allowed and the case is remanded back to the respondent No.l for fresh decision on merits in respect of alienations in favour of respondents Nos. 3, 4 and predecessor of respondent No.5. Similarly the gift made in favour of Aminuddin and concession for transfer has to be examined by the respondent No.l in the light of the observations made in this judgment. Petition is disposed of. H . B . T Petition allowed.