P L D 1974 Lahore 520 (PLP)

Provided that such a person may alienate his entire holding. (4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding, or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza. (5) Any alienation made in contravention of the provisions of this paragraph shall be void. (6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commis?sioner." The present case falls within sub-para. (3) of para. 25 which, to excuse repetition, states that "no person shall be allowed to alienate any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding". If we read the aforesaid sub-para carefully, we notice that it prohibits the person concerned from alienating any portion of his holding which may reduce his balance holding below the subsistence holding This shows that the bar to alienate is not absolute and pertains only to the relevant fraction involved in any particular case. To illustrate our view by an example, if a large area is alienated, the transfer of the whole of the area will not be rendered void, but transfer only of that much portion will be void which by itself reduces the balance left with the alienor below the subsistence holding. This construction is clearly deducible from the phrase, "any portion of his holding which may reduce" the balance left with the transferor below the subsistence holding. Proceeding in this way, since in the instant case the balance left (i.e. 102 kanals and 10 marlas) with the transferor, after the transfer of 205 kanals out of 307 kanals, was short ?only by 8 kanals and 5 marlas), from the subsistence holding (which is 111 kanals and 5 marlas), the transfer to the extent of the aforesaid area of 8 kanals and 15 marlas, will only be void and not with regard to the rest of the area, because, it is the aforesaid fraction which reduces the size of his holding to an area less than the area of subsistence holding. In this way if 8 kanals and 15 marlas are taken away from 205 kanals it means that transfer of the balance area of 196 kanals and 5 marlas, was quite valid and in order. The transaction in hand to that extent, therefore, did not suffer from any infirmity. The learned Chief Land Commissioner acted without lawful authority in striking down even this portion of the transfer. We have preferred to adopt this construction because we are of the view that the intention of Para. 25 of M. L. R. 64 of 1959, was not to stop the land-holders from obtaining necessary credits or otherwise a good price for their lands, but only to avoid fragmentation of their holding. The view that, we have adopted in no way destroys that purpose and rather purports to achieve it without violence to other rights of the citizens to acquire or dispose of property. Situations are not lacking where for instance a party to as contract is unable to perform the whole of his contract-(the performance of a part being prohibited or illegal)-but law authorises him to perform that part which he can perform. Reference here may be made to section 14 of the Specific Relief Act and the two illustrations contained therein which are reproduced below:

"Section 14.

Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small unperformed is to the whole in value, and admits of com?pensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency." illustration (a) (a) A contracts to sell B a piece of land consisting of 100 bighas. It turns out that 98 bighas of the land belong to A, and the two remaining bighas to a stranger, who refuses to part with them. The two bighas are not necessary for the use or enjoyment of the 98 bighas, nor so important for such use or enjoyment that loss of them may not be made good in money. A may be directed at the suit of B to convey to B 98 bighas and to make compensation to him for not conveying the two remaining bighas, or B may be directed, at the -suit of A, to pay to A, on receiving the conveyance and possession :of the land, the stipulated purchase money, less a sum awarded as com?pensation for the deficiency". Illustration (b) (b) In a contract for the sale and purchase of a house and lands for two lakhs of Rupees, it is agreed that part of the furniture should be taken at a valuation. The Court may direct specific performance of the contract notwithstanding the parties are unable to agree as to the valuation of the furniture, and may either have the furniture valued in the suit and include it in the decree for specific performance, or may confine its decree to the house." Reference may also be made to section 15 and its two illustrations which are as follows:

"Section 15.

Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion tract where part of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to comp?ensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. Illustration (a) (a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50 bighas of the land belong to A, and the other 50 bighas to a stranger who refuses to part with them. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A, waiving all right to compensation either for the deficiency or for less sustained by him through A's neglect or default, B is entitled to a decree directing A to convey those 50 bighas to him on payment of the purchase money." Illustration (b) (b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The garden is important for the enjoyment of the house. It turns out that A is unable to convey the garden. A cannot obtain a decree against B for the specific performance of the contract, but if B is willing to pay the price agreed upon, and to take the estate and house without the garden, waiving all right to com?pensation either for the deficiency or for loss sustained by him through A's neglect or default, B is entitled to a decree directing A to convey the house to him on payment of the purchase-money." In the instant case the learned Chief Land Commissioner acted without lawful authority in not keeping in view and in not acting on correct construction of para. 25(3) of M. L. R. 64 of 1959. His assumption that whole of the transfer is to be rendered void is not borne out from the test of Para. 25 under examination, and as such, his order in this respect is outside the scope of law under which he was purporting to act. At this stage we may point out that the direction in Para. 25(5) that "any alienation made in contraven?tion of the provisions of this paragraph shall be void," also refers to that bit or portion of area alienated which renders the balance holding of the transferor below the subsistence holding and has no concern with the rest of the area which can be transferred, and the extent of which can easily lx worked out by deducting the "excess-bit" from the total area alienated in any given case, as we have demonstrated above. The principle that 9f a major part of a contract is capable of performance, but only performance of a very small portion is not permissible, the same cannot be an excuse for not performing the major part is well recognized in section 57 of the Contract Act and sections 14, 15 and 116 of the Specific Relief Act and various cases under the exceptions to the "doctrine of frustration of contract" which are well known in law. Reference may be made to Joydeb Agarwala v. Baitulmal Karkhana Ltd. (P L D 1965 S C 37), where principle of maintaining a contract in part was upheld. To the similar effect in Rotherford v. Adams (AIR 1915 P C 113), which accepts the right of a purchaser who can "elect to take all that he can get" and clarifies that "this right applies only to a deficiency in the subject-matter described in the contract." As a matter of fact we have really not been able to appreciate the stand-point of Muhammad Afzal. respondent No. 2 in this respect. If Muhammad Afzal had filed a suit for specific performance of the agreement we could understand that Ghulam Mehr could have taken up the plea that he was not agreeable to stick to the lesser area. But we cannot comprehend that when Ghulam Mehr is willing to maintain the deal even though it is cut short for example by 8 kanals and 15 marlas in exchange for which he has already given land to Muhammad Afzal, how can Muhammad Afzal resile and say that even lesser area he will not allow to be retained by Ghulam Mehr. It is to be pointed out that when a statute directs certain transfers to be void Courts can ascertain as to how far, to what extent and for what purpose the transaction is void and cases may be available where it may be void only to a limited extent or for a limited purpose. Reference here may be made to Para. 7 (1) (a) and Para. 7(1)(b) of Land Reforms Regulation (M. L. R. 115) of 1972, where certain transfers have been declared to be void but the Chief Land Commissioner has himself in Mst. Karam Illahi v. The State (P L D 1974 Rev. 17), held that the mandate of voidness therein is not absolute but only for a particular and limited purpose of ascertaining the holding of a declarant and not for destroying the transaction if otherwise concerned party or parties want to honour the same after the surrender of excess area. We have also so held in Writ Petition No. 1791 of 1973 entitled Mst. Raj Bibi and others v. Additional Chief Land Commissioner and others decided on 28-3-1974. Proceeding on the similar quest of finding the true import of paras. 25(3) and 25(5) of C M. L. R. 64 of 1959 we are of the view that they did not render the whole transfer as void but only that bit of land by which the subsistence hold was reduced.

8. The next point raised by the learned counsel for the petitioner was that the learned Chief Land Commissioner had not appreciated that the transaction in hand was only one limb of the overall transaction of exchange-?(and other family settlement)-whereunder Muhammad Afzal had duly received, far earlier, land in villages Kot Miana and Ghaus Muhammad Wala and the learned Chief Land Commissioner has not passed any order about nor dealt with the other limb of the transaction and his orders purport to allow Muhammad Afzal to retain not only the land in Chak No. 49-NB but also the land in villages Kot Miana and Ghaus Muhammad Wala. It was conceded before us by the learned counsel for the respondents that this defect and lacuna did exist in the impugned orders. If this is so then the impugned orders being inoperative and incomplete are liable to be quashed on this short ground alone. We hold accordingly.

9. It was argued that the case of the petitioner before the learned Chief Land Commissioner, as is evident from the petitioner's written submissions hereinbefore referred to and also from the impugned orders, was that the transfer of 1021 kanals of land to the petitioner and an equal area to Muhammad Akram and similarly the retention of an equal area by Muhammad Afzal in Chak No. 49-NB was not an independent transfer by itself, but it was in pursuance of an already existing share and antecedent entitlement of the parties on the basis of a family settlement which their father had himself made during his lifetime. The effect of civil suit decree was to give recognition to the aforesaid already existing and antecedent entitlement and not to create any new entitlement or transfer. It was argued that there was a vast difference between a transfer which for the first time by itself bestows a title on a transferee on the one hand, and a transfer which is made in recognition of a prior-(just and independent) title of a transferee on the other hand. The former will result in reducing the ownership or holding of the transferor while the latter will only fix in point of fact as to what his ownership or holding was. In the latter case there is no transfer from the holding of the transferor and all that is done is that the transferee gets what really already was his own. The learned counsel submitted that all the land in the hands of the parties was that which had basically been settled on them by their late father, one significant feature of which was that he had ultimately made such arrangements that each brother in each village should possess and retain equal area. He in this respect referred to the factual pleadings of the plaintiffs in the civil suit filed by the petitioner and Muhammad Akram which were accepted in toto in the parawise written statement filed by their father. He also referred to the civil Court decree above reproduced for showing that the said decree actually indicated a sort of family settlement inasmuch as it allowed Muhammad Afzal to retain compensation money of land acquired by the P. A. F. plus a further area of 1021 kanals in Chak No. 49-NB and that it settled entitlement of parties from overall area of 4291 kanals and not with reference to balance area of 307 kanals. If acquired area be also counted towards the land left in the hands of Muhammad Afzal then the balance left with him in no way fell short of the subsistence holding. It was submitted that Muhammad Afzal was playing clever in pocketing the compensation money of that area but not counting the same into holding. The fact that acquisition had taken place in 1963, it was submitted, was immaterial in this respect, because, the parties agreed to divide the property by putting the acquired area-(or its compensation money)-also into Notch-potch and once having agreed to that process it was dishonest on the part of Muhammad Afzal to back out of the same and state by relying on technicalities that the acquired area did not form the subject-matter of the division of land. It was submitted that if the acquired land was not in controversy why did Muhammad Afzal-(through his father of course)--get the compensation of that area specifically mentioned and remaining fallen to his lot in the civil Court decree. This shows that the set-offs on either side were mutual and reciprocal and the matter should not be confined to the balance land left in the hands of Muhammad Afzal but should be adjudged with reference to the entire context of claims and counter-claims which were being advanced by the parties. The problem, in this respect, it was submitted, was not so simple as Muhammad Afzal pretended it to he and nor it has been considered as to whether it was the acquired land which in the context affected the balance holding of Muhammad Afzal or was it the civil Court decree. The civil Court decree accepted entitlement, of the petitioner and Muhammad Akram to similar equal area of 1021 kanals each and read with plaint and written statement it showed that alt the three brothers had equal area in the present and also in the other two villages of Kot Miana and Ghaus Muhammad Wala. The learned Chief Land Commissioner, it was argued, had not gone deep into this matter nor attended to the relevant documentary evidence produced before him in that respect and nor did he decide as to whether the alleged transfer to the petitioner was in the nature of fixing his previous share and antecedent entitlement with reference to whole land and not merely the balance land in Chak No. 49-NB and thus giving to him what already was his or was it a new transfer by itself out of the balance holding of the transferor alone. In other words whether 1021 kanals taken by the petitioner already belonged to him or were given to him afresh. The contention seems to have force. We notice that the plea of family settlement was pointedly raised before the learned Chief Land Commissioner with reference to copious case-law but without deciding the same he proceeded to declare the transfer to Ghulam Mehr as void. In Ameer Hasan v. Muhammad Ejaz Hussain (A I R 1929 Oudh 134), it was laid down that where several members of a family arrive at a Settlement each one relinquishing his claim in respect of the property not falling to his share and recognising the rights of the others as they had previously asserted it to the portions allotted to them respectively, the transaction should be looked upon as a family arrangement and not as a transfer from one member to the other member. In Sital Singh and others v. Gyindra Bahadur Singh and others (A I R 1929 Oudh 373), it was laid down that it is a wrong principle of law to test the validity of the agreement by having recourse to the expedient of finding out whether the claims of the parties to the agreement were good. The true test is whether the parties had laid any claim against each other and whether these claims had been settled by virtue of the agreement termed the family settlement. If a settlement was arrived at the strength or validity of the claims of the parties has nothing to do with the validity of the family Settlement. The fact that the claims of the parties had been adjudged and that the disputes between them had been settled would amount to a sufficient consideration for the upholding of the family settlement. In Sultan Ahmad Khan v. Sirajul Haque and others (A I R 1938 All. 170), it was laid down that where a family settlement does not. confer any distinct title on any member but each member relinquishes claim in respect of property assigned to another and recognises the antecedent right of the other person to the property which fell in his share, such settlement does not amount to an alienation by one member to another-Also see Lala Behare Lal v. Rani Mewa Konwer ((1968) 3 Agra H C R 82), Ramgopal v. Tulsi Ram and? another (A I R 1928 All. 641), and Mst. Hiran Bibi and others v. Mst. Sohan Bibi (AIR 1914 P C 44), which are to the same affect. In Martin Cashin and others v. Pater J. Cashin (A R 1938 P C 103), there occurs a constructive passage at page 109 which reads as follows:

"In view of the facts as known to Lady Cashin and Mr. Lawrence Cashin and to Mr. Martin Cashin, was the transaction one which was unfair to the respondent? This is not a matter of balancing values which can be actually ascertained. An arrangement of the kind under consideration would not be unfair merely because it was generous on the one side or the other. For example, family resettle?ments executed between father, tenant for life, and son, tenant-initial, the latter being advised by the same soliciter as the former, have been considered reasonable and supported by the Court even though from a pecuniary point of view, the son's position is greatly prejudiced. See Savery v. King (1856) 5 H L C 627 at p. 657 and Fane v. Fane (1875) 20 E Q 698 and cases there cited. A parent can be generous to a son, or legitimate children to an illegitimate one, or a son to a mother upon the occasion of a family arrangement without its being proper or possible in equity merely on that ground to suggest that the arrangement is an unfair one and ought to be set aside. It would indeed be strange if an agreement entered into by parties of full con?tracting capacity could be set aside in equity because, regarded from the stand-point of the family, it was generous as well as just." We have referred to the aforesaid case-law just to highlight the importance of the question involved and have no intention to record our own views in this respect. For our part it is enough to hold that failure to attend to the aforesaid pleas raised renders the impugned orders of the learned Chief Land Commissioner as to be without lawful authority and of no legal effect against the petitioner. It may be emphasised that even on the wording of Para. 25(3) of M. L. R. 64 of 1959 itself the controversy in hand had to be resolved before it could be assumed that Muhammad Afzal was transferring any land from "his holding" and was not merely acknowledging an antecedent title of the petitioner. Such an approach was approved by their Lordships of the Privy Council in Khunni Lai v. Gobind Krishna Narain and others (I L R 33 Au. 356 (P C)), where it was held that the true test to be applied to the transaction in hand was to see as to from where and from whom the alienee derived the title because in certain cases it may turn out that it was based "on the assumption that there was an antecedent title of some kind in the parties" (within the meanings of the aforesaid concept as was accepted in Rani Mewa Kuwar v. Rani Hulas Kuwar ((1874) L R 1 I A 166 (P C)).

10. Mr. S. M. Zafar learned counsel for the petitioner then argued that paragraph 25 of M. L. R. 64 of 1959 prohibited only voluntary transfers by a land-owner and not such transfers which were made by him involuntarily. He submitted that transfers made in pursuance of orders of a Court or for instance acquisitions by the Government under the Land Acquisition Act were not hit by para.

25. In this way learned counsel submitted that the present was also a case, if at all, of a transfer under a Court decree. On principle this construction of Para. 25 appears to be correct and is supported from a passage which occurs at page 178, para. 233 of Land Reforms in West Pakistan (Volume 1) wherein it was written that "the Commissioner, after careful examination, came to the conclusion that paragraph 25 of the Regulation did not apply to involuntary sales which had to be made by the collectors to recover the dues of the Government or Government sponsored institutions as arrears of land revenue. This para?graph placed the persons owning land under a liability and did not debar sales under the orders of competent officer." In para. 234 the aforesaid view was again repeated which states that "in certain cases Courts directed sales of land for the satisfaction of decrees. It was enquired as to whether sales of land ordered by a competent Court could be made if they militated against any of the provisions of paragraph

25. The Commission examined this aspect of the question and came to the conclusion that the provisions of paragraph 25 did not debar sales made under orders of competent Court. It only placed restrictions on the sales to be made by a land-owner and did not apply to involuntary sales". In the instant case, however, the learned Chief Land Commissioner did not resolve this controversy. If it was a family settlement in recognition of an antecedent title of the petitioner and the Court decree simply confirmed and enforced that title then para. 25 will not be attracted. It is to be notice that the joint plaint of the petitioner and Muhammad Akram stated that Muhammad Afzal was not willing to transfer their share of the land in dispute to them and hence the suit was being filed to compel him to recognise the title of the then plaintiffs. After accepting this plea of earlier refusal, the father of Muhammad Afzal, however, ultimately agreed to the claim of the petitioner. The learned Chief Land Commissioner ought to have decided this aspect of the matter regarding voluntary or involuntary nature of the transaction and the nature of the civil Court decree, before ignoring the same. His failure to do so vitiates his order.

11. Another point argued by S. M. Zafar was that under para. 32 of M. L. R. 115 of 1972 the previous Regulation 64 of 1959 was repealed. The aforesaid paragraph 32 reads as follows :

"Para.

32. Repeal and saving.-(1) The West Pakistan Land Reforms Regulation (Regulation 64 of 1959), hereinafter referred to as the said Regulation, is hereby repealed. (2) Subject to the other provisions of this Regulation the repeal of the said Regulation shall not affect- (a) the previous operations of the said Regulation or the validity, invalidity, effect or consequences of anything already done or suffered thereunder; (b) any right, title, privilege, obligation or liability, acquired, accrued or incurred thereunder; or (c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation; (d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punish?ment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation had not been made. (3) Any proceeding pending before an authority constituted or appointed under the said Regulation, immediate before the coming into force of this Regulation, shall stand transferred to such authority constituted or appointed under this Regulation as the Commission may, by order published in the official Gazette specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings, act in accordance with the provisions of the said Regula?tion, as if it had been appointed under the said Regulation." Mr. S. M. Zafar submitted that the application to invoke the revisional jurisdiction of the Chief Land Commissioner was filed-(as alleged by Muhammad Akram)-on 4-3-1972 under rules 12 and 3 of the West Pakistan Land, Reforms Rules, 1959 read with Para. 235(c), Land Reforms in West Pakistan (Volume I). Rule 12 reads as follows:

"Rule

12. Revision.-(1) The Chief Land Commissioner may, at any time of his own motion or on an application made to him in that behalf, within thirty days of the passing of any order, call for the record? of by case or proceeding under the Regulation which is pending or in which a Land Commissioner or a Deputy Land Commissioner has passed any order, for the purposes of satisfying himself about the correctness, legality or propriety of any such order, and may pass such fresh orders in relation -thereto as he thinks fit. (2) A Land Commissioner specially empowered in this behalf by the Chief Land Commissioner may, either of his own motion or on an application made to him in that behalf, within ten days of the passing of an order, call for the record of any case or proceedings under the Regulation in which a Deputy Land Commissioner, Assistant Land Commissioner or a Sub-Assistant Land Commissioner under his jurisdiction, has passed an order, for the purpose of satisfying himself about the correctness, legality or propriety of such an order and may pass such order in relation thereto as he thinks fit. (3) The Chief Land Commissioner or a Land Commissioner, as the case may be, shall not pass any order under this rule revising or modifying an order affecting any person without affording such person an opportunity of being heard." Rule 3 reads as follows:

"Rule

3. Powers of the Chief Land Commissioner.-(l) Subject to the general superintendence and control of the Commission, the Chief Land Commissioner may make such general or special orders, not inconsistent with the provisions of the Regulation and these Rules, as he may consider necessary or expedient for giving effect to the purposes of the Regulation and/or for the proper discharge of his functions as such. (2) Subject to the provisions of the Regulation and these Rules, general superintendence, control and direction of all officers and staff appointed for, or entrusted with the duty of implementing the provisions of the Regulation, shall vest in the Chief Land Commissioner. (3) The Chief Land Commissioner, may by special or general order, provide for the distribution and allocation of work to be done by all or any such officers and staff." Para. 235 reads as follows;

"Para.

235. Implementation of the provisions.-The question .of implementa?tion of these provisions presented some difficulties. The number of holdings particularly small holding is very large and a system had to be devised which would be workable without causing any undue hardship to persons concerned and violating any of the basic principles contained in paragraph

25. Alienations take place through registered deeds or through mutations by Revenue Officers. The Commission after careful consideration decided that:- (a) The Registrars and Sub-Registrars should not accept deeds for registration in respect of land as defined in the Regulation unless they were accompanied by- (i) a Fard from the Patwari/Tapedar in respect of the area to . be alienated together with an extract of the entire holding of the alienor; and (ii) an affidavit by the alienor and the alienee that the transaction of alienation did not contravene the provisions of the aforasaid Regulation. On receipt of the deed alongwith the documents, the Registrar should examine as to whether the deed was in conformity with the provisions of paragraph

25. If it was not, then he should by an order in writing, refuse to register such a deed. The order of the Registrar or Sub-?Registrar would be appealable like any other order under the Registration Law. (b) In respect of oral transactions regarding alienations the Revenue Officers should examine them carefully with a view to determining as to whether they were in accord with the provisions of the Regulation. If the transaction contravened any of the provisions of the Regulation then the Revenue Officer should refuse to sanction such a mutation. (c) It was also made obligatory on the part of the Revenue Officers to see whether the registered-deed or the decree which was to be incorporated in the Revenue Records infringed any of the provisions of the Regulation. If he found that it contravened any of the provisions of the Regulation then he should refuse to sanction such a mutation notwithstanding that it was based on the decree or a registered-deed. The above procedure was communicated to all officers under the authority of the Commission and it was made clear that it shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, as is laid down in paragraph 3 of the Regulation." Mr. S. M. Zafar submitted that rule 12 ibid authorised the Chief Land Commissioner to call for the record of any case which was pending before or had been decided by any subordinate Land Reforms Authority but the Chief Land Commissioner could not call parties to any private transaction to appear before him especially when their case was neither pending nor decided by any subordinate Land Reforms Authority. In the instant case, he submitted no proceedings were pending before and nor was any order passed by any subordinate Land Reforms Authority. Sub-Para. (c) of Para. 235 which was quoted by the respondent in his application had also no relevancy inasmuch as it created no new jurisdiction in the Chief Land Commissioner. Learned counsel also referred to rule 3 of the West Pakistan Land Reforms Rules, 1959 and submitted that this rule did not give power to the learned Chief Land Commissioner to decide a case or call for records of any private transaction which was not pending before any of his sub?ordinate staff nor this rule should be considered to be in delegation of rule 12 ibid. Learned counsel then took us through other general provisions in M. L. R. 64 of 1959. He referred to Paragraphs 3, 4 and 27 and submitted that none of the aforesaid paragraphs contemplated interference on the part of the Chief Land Commissioner in any private transaction in derogation of rule

12. The powers of general superintendence and control of the powers to implement the provisions of the Regulation, it was argued, pertained to issuing general orders in the nature of policy or principles but if interference was to be made in any case then the jurisdiction of the Chief Land Com?missioner could be exercised only under rule 12 and not otherwise. The arguments raised by the learned counsel are quite attractive but we are afraid that in view of Nasir Ahmad Khan v. Mst. Ismat Jehan Begum (1968 S C M R 667), it is not possible for us to attend to them, because, in that case the Supreme Court itself directed a suitor to file an application before the Chief Land Com?missioner even though there also no case was either pending before or had been decided by any subordinate Land Reforms Authority. Mr. S. M. Zafar submitted that in that case the point as advanced by him was not attended to and, therefore, we should approach the same with the new dimensions which were being highlighted by him. We do not agree. The verdict of the Supreme Court is binding on us and we have no authority to take exception to the same on any count.

12. Mr. S. M. Zafar then submitted that sub-Para. (2) of Para. 32 of M. L. R. 115 of 1972 saved only pending proceedings. He submitted that in the exercise of suo motu revisional powers and jurisdiction, a suitor has no right just as it was held in Khushiram Atmaram Jisinghani and others v. Custodian of Evacuee Property, West Pakistan, Karachi and others (PLD 1965 S C 453), that a suitor had no right in exercise of suo motu review jurisdiction (that was a case of suo motu review jurisdiction of the Custodian). He submits that an application for invoking suo motu revisional jurisdiction of the Chief Land Commissioner was not a proceeding pending under the old Regulation which could be continued under Para. 32(3) ibid after the repeal of M. L. R. 64 of 1959. Suo motu revisional jurisdiction, it was argued, was an act of the Chief Land Commissioner himself and a proceeding in that respect cannot be said to be pending merely, because, a person had filed an application to invoke the same. Projecting his view-point, he submitted that suppose the learned Chief Land Commissioner wanted to invoke his suo motu revisional jurisdiction under M. L. R. 64 of 1959 in a case where he was not moved by any person by or before 11th March 1972 which is the date when M. L. R. 64 of 1959 stood repealed and M. L. R. 115 of 1972 came into force. Since no proceedings in that respect were pending before him in the suggested situation, learned counsel argued, it is obvious that Para. 32(3) of M. L. R. 115 of 1972 would have no application and the Chief Land Commissioner would not be able to take up the aforesaid case because under the relevant provision he could continue only with such a case proceedings whereof were already pending before him. If this was the nature of suo motu jurisdiction, then its characteristic would not change merely because a suitor had filed an application to invoke it. The argument is very attractive but with respect we have not been able to endorse it. No doubt, suo motu revisional jurisdiction of the Chief Land Commissioner is his own jurisdiction, but if an application is made to invoke it and is duly registered and proceedings on that basis start, then it cannot be said that no F proceedings in that respect came into the filed or that they could not be considered as pending proceedings. In the instant case since the application had been filed on 4-3-1972, therefore, it was pending on 11-3-1972 when M. L. R. 64 of 1959 was repealed and, as such proceedings in that application could be continued under M. L. R. 115 of 1972.

13. The upshot of the above discussion is that the impugned orders of the learned Chief Land Commissioner for various acts of commission and commission on his part as hereinbefore high-lighted are declared to be without lawful authority and of no legal effect against the petitioner and are hereby quashed. It is clarified that this declaration is being granted to the petitioner alone, because respondent No. 3 Muhammad Akram, as is evident from his written statement in this Court and also in the earlier civil suit of Muhammad Afzal, had not claimed any transfer in his favour and he rather accepted that he had no share in any part of the land in dispute in Chak No. 49-NB in Sargodha Cantonment. Since it was due to the unholy and collusive alliance of Muhammad Afzal and his real brother Muhammad Akram that the step-brother Ghulam Mehr (petitioner) had to be subjected to the onerous litigation above-mentioned. therefore, it will be in the interest of justice if costs of this case are borne by respondents Nos. 2 and 3 jointly. We order accordingly. K. B. A. ?????????????????????????????????????????????????????????????????????????????? Petition accepted.