1986 PLP 2538 (CLC)

Nemo for Respondent. Date of hearing: 12th March, 1986. MUHAMMAD ZAHOORUL HAQ, J.--The petitioners have called in question the order passed by Chairman, Federal Land Commission on 5-11-1976.

2. The relevant facts are that the land in dispute was alleged to have been transferred by the father of the petitioners in their favour on 1-1-1969 by making a statement before the Mukhtiarkar that he was distributing the property by way of gift in favour of the petitioners.

3. The Land Commissioner, Sind, had allowed the said alienation by his order, dated 7-5-1972 to remain effective. The said alienations were also accepted .as correct by Deputy Land Commissioner by his order, dated 12-9-1972 when he had considered the case of the declarant under M.L.R. 115 on 18-8-1972.

4. However, by the impugned order the respondent took the view that there had been an interpolation in mutation entries and that the word 'Warhai' which according to him meant 'inheritance' had been changed with the word 'Bakhahist which obviously means 'gift'. He further took the view that the possession of the/ land had not been proved to have been transferred in favour of the sons.

5. The petitioners had clearly stated in their petition which is supported by affidavit that the sons were already in possession of the land at the time of the gift and have remained in possession ever since. It has also been asserted that one of the petitioners, namely Abdul Rashid had sold the land gifted in his favour on 4-8-1970 which could not have been done without the land having been in his effective possession on that day. It has been further asserted that this factum of the sale of land by Abdul Rashid had been brought to the notice of the respondent No. 1 but he refused to consider the same. There is no counter-affidavit filed controverting the allegations made by the petitioners supported by affidavit on oath. The petitioners have also produced alongwith the petition photostat of the certified copy of the statement made by Haji Aitaber Khan, the father of the petitioners, before the Mukhtiarkar. The said statement does not show any changes having been made in the words to but both these words are present simultaneously in the said statement.

6. We find in the said copy that there is one word 'Abdul Haq' which had been scored off and had been replaced by Abdul Rashid and, therefore, the contention of Mr. Muhammad Ali Sheikh that if there had been any change as allegedly noticed by the Chairman the same would have been apparent in respect of the words and as well, but the same not being there, the finding in respect of the interpolation does not appear to be completely justified. We may note here that this copy of the mutation had been produced by the petitioners alongwith the petition and it must have been sent to the respondent alongwith the petition but since respondent had not cared to oppose this petition, therefore, it appears reasonable to infer that the respondent is not challenging the copy of the statement which has been produced by the petitioners. 7 . We find that the words and are together present in the statement made Haji Aitbar Khan, the father of the petitioner, and these words convey ' an impression to us that Haji Aitbar Khan was distributing as we11.fting the land, separately, to his sons, and this interpretation ,is supported by the request of Haai Aitbar Khan which follows those words where he states that 'necessary entries in- the record may be made and separate Khata may be maintained. This gives an impression that Haji Aitbar Khan wanted his sons to become the owners of the land and, therefore, he had used the word 'distribution' and 'gift'. It, therefore, appears to us that the finding of intefpoolation reached by the respondent No .l was completely unjustified. ,fore over, the possession of the petitioners had been evidently prove by the sale having been made by one of the petitioners Abdul Ra, hid and, therefore, both the grounds taken by the respondent were not tenable in law.

8. Consequently, this petition is allowed and the impugned order is declared to bej without lawful authority and ineffective. The respondents are restrained from ,giving effect to the said order. A.A. Petition allowed.