1989 PLP 2789 (MLD)

Date of hearing: 21st February, 1989. AJMAL MIAN, CJ--This petition is directed against the order dated 14-12-1976 passed by the respondent No.l. The brief facts leading to the filing of the above petition are that Mir Qasim Ali Khan the father of the present petitioner gifted away his agricultural land to the petitioner and to the other children in 1971. It is the case of the petitioner that she was given agricultural land, measuring 244-38 acres in Deh Phul, 43-16 acres in Deh Dhrokakanoro and 32-38 acres in Deh Alipur of Taluka Tando Bago, District Badin, in all measuring 321 12 acres by way of oral gift under Mohammadan Law. 1t is also the case of the petitioner that she was put in physical possession of the land in that year and that she exercised exclusive right in respect thereof by appropriating its crop and paying land revenue in her name. Upon the enforcement of MLR-115 (hereinafter referred to as the MLR) Mir Qssim Ali Khan filed a declaration under paragraph 7 of the MLR which was scrutinized by the Land Commissioner, Hyderabad Division, who by his order dated 4-8-1972 accepted the above declaration and inter alia above gift. However, it seems that respondent No.l in exercise of suo motu powers under paragraph 29 through the impugned order has declared the above gift as invalid on the ground that there was manipulation in the Revenue record as to the mutation and that there was no evidence to prove that the gift was accepted by the petitioner and the possession was taken by her. The petitioner being aggrieved by the above order has filed the present petition. In support of the above petition, Mr. Mushtaq Memon learned counsel for the petitioner has submitted as follows:- (1) That the petitioner was condemned unheard inasmuch as no notice was given to her though she was the recorded donee of the gift. (2) That since the petitioner was one of the specified legal heirs under proviso to Explanation No.l of paragraph 7 the merits of the gift could not have been gone into by the respondent. (3) That even otherwise on merits the respondent has incorrectly stated that mutation was not effected before the target date in respect of two Dehs but factually it was the other way round, and (4) Since the interpolation in the revenue record was alleged in respect of two Dehs, the gift, in respect of the third deh should have been accepted. On the other hand Mr. Mahmood Iqbal, learned counsel for the respondent No.l, has contended that there is a finding of fact recorded by the respondent to the effect that there was no transfer of possession and the acceptance of the gift by the donee and this finding of fact cannot be disturbed in exercise of Constitution Petition. Adverting to the first submission of Mr. Mushtaq Memon that the petitioner was condemned unheard, it may be observed that the respondents have not denied the factum that the petitioner was not served with any notice prior to the passing of the impugned order and, therefore, the impugned order is liable to be declared without lawful authority. As regards the other submissions of Mr. Memon it may be observed that Mr. Memon has candidly submitted that in memo of petition it has been wrongly stated that the mutation in respect of the land in two dehs was effected after the target date though actually it is incorrect as admittedly the mutation was effected prior to the target date in respect of two Delis namely Deh Phul and Deh Kakanoro which is evident from the Revenue record as well as from the Land Commissioner's Sind Hyderabad order dated 4-8-1972. Learned respondent No.l has also apparently incorrectly stated that the mutation in respect of two Delis was effected after the target date though the same was effected on 29-10-1971 in respect of the aforesaid two Delis and whereas in respect of third Deh the mutation was effected on 7-5-1972. If we were to accept the statement of the donor in respect of two Delis because the mutation was effected prior to the target date, it must follow that the statement in respect of the third Deh is also to be accepted though the mutation was not effected prior to the target date. However, the question which will further require consideration is, as to whether the gift was validly made which question has not been adjudicated upon by the respondent. We would, therefore, remand the case to the respondent No.l or any other officer exercising the power under paragraph 29 of the MLR to decide the above matter afresh after notice to the present petitioner and after hearing her. There will be no order as to costs. M.Y.H/190/K Case remanded.