1988 PLP 611 (SCMR)

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the declarant who is now the appellant, under Land Reforms Regulation, 1972 (No.115) to examine whether the Land Commission Authorities were not in error in not recognising the alienations made by the declarant on 9-5-1957 in favour of his wife Mst. Hamdam Sultana in respect of 400 Kanals land and on 23-11-1967 in favour of Mst. Shaheena, his daughter-in-law, in respect of 153 Kanals land, The High Court, Peshawar by the impugned judgment, upheld the decision of Land Commission Authorities and declined to interfere in the Constitutional jurisdiction.

2. The appellant owned extensive land in Tehsil Charsada, District Peshawar. He filed a Declaration Form dated 23-5-1972 before the Deputy Land Commissioner. Therein he sought protection for other alienations but not these two. It was before Deputy Land Commissioner that the appellant sought protection for the first time for an alienation of 400 Kanals of land in favour of his wife by unregistered deed, dated 9-5-1957. It was stated to be in lieu of dower. The Deputy Land Commissioner by his order dated 1-6-1972, disallowed it in the following terms: -- "The counsel for the declarant has argued that vide un registered document (photostat copy Ex.P.H.) an area of 400 Kanals situated in village Masharan has been given in dower by the declarant to his wife and this area should not be resumed to the Government as it is not the declarant's property. I do not accept this argument on two points. Firstly that the document (Ex. P.E.) is unregistered and secondly that no effect has been given to it in the revenue papers. The total area declared by the declarant in form LR I has been entered in his name in the revenue record." At that stage and before the Deputy Land Commissioner benefit was not sought for the alienation made in favour of Mst. Shaheena on 23-11-1967.

3. The appeal filed before the Land Commissioner, Peshawar was rejected on 4-7-1972 denying him the benefit of alienation in. favour of Mst. Hamdam Sultana. No claim was preferred before him also in respect of alienation in favour of Mst. Shaheena. The observations made by the Land Commissioner, Peshawar on the subject are as follows:-- "The counsel for the declarant argued that an area of 400 Kanals i.e. 50 acres according to an unregistered document has been given in dower by the declarant to his wife and this area should not be considered the property of the declarant and therefore should not be calculated in his holding. This claim was rejected by the Deputy Land Commissioner on the ground that the document was not registered and no effect was given to his gift in the revenue record. I agree with the Deputy Land Commissioner and reject this plea."

4. An appeal was thereafter filed with the Chief Land Commissioner where too the benefit of alienation by the dower deed dated 23-11-1967 in favour of Mst. Shahfeena was not claimed and the benefit claimed in respect of dower deed in favour of Mat. Hamdam Sultana was denied in the following words:-- "The next contention of the counsel for the appellant is that according to unregistered documents the appellant transferred 4QO Kanals of land to his wife Mst. Hamdam Sultana in lieu of dower and the possession of land was also transferred to her. But as the alienation was between husband and wife and they were living together. Therefore, the land was managed by the appellant and the entry remained recorded in his name in the revenue record although he divested himself from the property and he was enjoying full proprietary rights over the land in question. He maintained that the transaction in favour of wife in lieu of dower is not subject to proof of bona fide even though dower deed was not registered nor was it given effect to in the revenue record. He argued that a dower deed can be written even on a plain paper."

5. A Review Petition was thereafter filed with the Chief Land Commissioner in which the benefit of both the alienations was sought by stating in para. 6 of the grounds-- "That the dower of 400 Kanals and 153 Kanals 5 Marlas are genuine and Civil Suits are pending in Civil Court for their adjudication. " The alienation in favour of the wife was reconsidered and the benefit not extended to it by holding as follows:-- "As regards the alienation in favour of petitioner's wife the counsel for the petitioner agitated the order on the grounds which have already been discussed and adjudicated upon in my order under review. The petitioner could not be able to produce any new or important matter which was not in his knowledge previously and could not be discovered with exercise of due diligence and could not be produced at the time when the order was passed, therefore, there is no reason to validate the alienation made by the petitioner in favour of his wife." The alienation dated 23-11-1967 was not dealt with in the Review Order.

6. In the revision, the Federal Land Commission also refused to extend the benefit of these two alienations. Hence the appellant filed Constitutional Petition in the High Court. The petition was rejected on the grounds that a finding of fact recorded by the Land Commission Authorities could not be substituted in Constitutional jurisdiction and that the alienation in favour of Mst. Shaheena was not pressed before) the Land Commission Authorities at any stage.

7. Mr.S. Iftikhar Gilani Advocate, the learned counsel for the appellant contended that in not examining the due execution of the dower deed in favour of Mst. Hamdam Sultana merely because it was not reflected in the revenue record, a clear omission has taken placed on the part of the Land Commission Authorities keeping in view of law laid down by this Court in Federal Land Commission and others v. Mst. Zarin Qaisha and others 1984 S C M R

666. Similarly it is contended that though Mst. Hamdam Sultana had at the very outset made a claim as an aliened she was not heard at any stage of the proceedings though her rights were in jeopardy. This was, according to the learned counsel for the appellant, against the law laid down by this Court in Mst. Tajbaro v. Chief Land Commissioner etc. PLD 1983 S C

184. Besides, it is also contended that in respect of both these alienations the alienees have obtained declaratory decrees from the civil Courts. It was obligatory on the part of the Land Commission Authorities to attend to these decrees with a view to determine whether these were to be accepted by them or not. They have yet to discharge that duty. Besides, according to the learned counsel for the appellant, in a similar alienation in favour of another daughter-in-law Mst. Tasleem Begum, though the alienation was of a later date, it was treated as a transfer for consideration and not a mere gift. There was therefore no ground to distinguish the alienation in favour of Mst. Shaheena.

8. It is clear from the recital of facts and a reference to the record that in the declaration of land holding and surrender of land, the appellant had made no mention of these two alienations. Nevertheless from the beginning, and consistently, he had claimed the benefit of alienation in favour of his wife made on 9-5-1957. He was denied its benefit and the alienee, Mst. Hamdam Sultana was not heard at all in the matter. Mst. Hamdam Sultana has not appeared before us as an aggrieved person, but, according to the appellant, her absence from the proceedings and the enquiry has prejudiced his claim. So far as the merits of his claim is concerned the fact of marriage with Mst. Hamdam has not been doubted. The amount of dower has not been doubted. The alienation made customarily has not been doubted. What has been doubted is the execution and the legal affect of the dower deed which is on plain paper and not incorporated in revenue record. Without doubting the other factors simply because the revenue record did rot reflect or incorporate these transactions their legal affect and validity could not be denied.

9. In view of the factual determination required to be made, they hearing to be afforded to the alienees and the effect of the judgment of the civil Court to be determined on the claim made by the appellant we consider it appropriate, and it appears to be necessary also, to have a determinative finding on these matters by remanding the proceedings to the Federal Land Commission. The appeal is allowed to that extent alone and the proceedings are remanded to the Federal Land Commission for passing an order in accordance with law. No order as to costs. M .I . /M-338/S Order accordingly.