P L D (PLP)

This case has been remanded by the High Court, by their judgment in Writ Petition No. 1130 of 1969, to the Land Commission or to the Chief Land Commissioner for proceeding with the same in accordance with law. Land Commission have authorised the Chief Land Commissioner to dispose of the matter on the judicial side according to law after hearing parties. The parties are Nazir Ahmed and 57 others who were sitting tenants during the crucial harvests, namely, Kharif 1958 and Rabi 1958‑59; Shahzadi Sharaf Sultan and 4 others, who, respectively; were plaintiff No. 1 and are successors‑in‑interest of plaintiff No. 2 in civil litigation; Shahzada Jalil Sher Jan and Mrs. Molli Sher Jan and 4 others who are successors‑in-interest of defendant in civil litigation, late Major‑General (then Brigadier) Sahazada Sher Mohammad Jan; and Load Commission represented by the Assistant Secretary, Load Commission. Mst. Sultan Jehan Begum was one of the persons added at the instance of Shahzada Jalil Sher Jon She has not appeared in spite of notice issued to her by registered post at the address given by Shahzada Jalil SO" Jan but as the interest of Mst. Sultan Jehan Begum is not different from either that of Shazada Jalil Sher Jan or that of other successors‑in‑interest of late Major‑General Shahzada Sher Muhammad Jan and as Shahzada Jalil Sher Jan is personally present and the persons, other than Mst. Sultan Jehan Begum, added at his instance are represented by Advocate, the case is proceeded with in the absence of Mst. Sultan Jehan Begum.

2. Advocate for Molli Sher Jan, Mst. Julia Sher Jan alias Jamila Sher Jan, Jamil Sher Jan and Richard Sher Jan alias Rashid Sher Jan, has stated that he will adopt the argu ments of Advocate for respondents Nos. 1 to 5.

3. Advocate for respondents Nos. 1 to 5 has argued that the petitioners can have locus stand only after the land has been finally resumed by the Land Commission. I do not agree with him. The petitioners are vitally interested in the out‑come of this case and are, therefore, necessary parties. Advocate for respondents Nos. 1 to 5 then traced the history of this case but as it is already given in the High Court case reported in P L D 1963 Lah. 606, 1 do not consider it necessary to repeat it in this order. Advocate for respondents No. I to 5 argued that as in the case of Lyallpur land comprising 67.856 acres the Supreme Court decision giving 1/2 of the land to the two sisters, Shabzadi Sharaf Sultan and Shabzadi Asifa Sultan, was honoured by the Land Commission, the High Court decree in this case should also be honoured. He further said that the single Judge of the High Court, Mr. Justice Sajjad Ahmad Jan, had discussed the matter in detail in the reported case already mentioned, and that decree, as modified in terms of settlement between the parties by Division Bench judgment dated 17‑12‑1964, should be accepted by the Land Commission Authorities. He further pointed out that during the pendency of the Letters Patent Appeal, the High Court had enquired, by later No. 11526 dated 27‑5‑1964, whether the land situated in village Ibrahimabad resumed from Major‑General Shahzada Sher Mohammad Jan (appellant) was intended to be restored to the parties, according to their shares. The Land Commission, vide their letter No. DSH 520‑64/3452 dated 7‑7‑1964, had intimated to the High Court that "the Land Commission has resumed the land provisionally and If the declarant owner is declared as the sole owner of the land in dispute, the land will be finally resumed and sold under the Sale Scheme. If, however, the sisters of the appellant establish their claim of ownership to the whole or any portion of the land, it may then be restored to them provided they are not affected by Land Reforms." The High Court had then allowed the parties to enter into a compromise. The Division Bench had ordered in their judgment dated 17‑12‑1964 that "the West Pakistan Land Commission shall be informed of this order and directed to deliver the possession of the land to the plaintiff‑respondents (to be held by them in equal shares) which had been taken into possession under M. L. R. No. 64, as in excess of the entitlement of Major‑General Shahzada Sher Mohammad Jan and also to pay to them the income thereof in equal shares under intimation to this Court." In compliance with this direction the Deputy Land Commissioner put the plaintiff respondents into possession and also paid them Rs. 43,715 on 15‑3‑1965 as rent of this land deposited by sitting tenants with the Land Commission. The High Court was also informed by Deputy Land Commissioner, Lahore, that the possession had been given to the plaintiff respondents on 13‑2‑1965.

4. Advocate for respondents Nos. 1 to 5 further argued ,that the suit was pending before the promulgation of M. L. R. No. 64, that the Division Bench had given them less land than given by the trial Court, and that there was no collusion, that according to paragraph 50(i) of the Land Reforms in West Pakistan Volume 1, surplus area is to be provisionally resumed but not disposed of under paragraph 19 of the Regulation till the decision of the civil suits instituted before the promulgation of the Regulation, and that the plaintiffs were existing owners as they were entitled to inheritance even though they were not entered in the revenue records. He also referred to ruling reported in P L D 1958 S C (Pak.) 516 to show that when an authority issues an order of a general nature, it may be invoked by affected persons. He also referred to ruling reported in 1968 S C M R 262 in support of his argument that the Land Commission is bound to honour the decree in view of paragraph 12 of letter of the Land Commis sion No. ASP‑202‑60/1519/LC, dated 3‑3‑1960. He also referred to ruling reported in P L D 1968 Lah. 1145 in support of his argument that the entitlement of a person is a matter within the jurisdiction of the civil Court and there is nothing which gives the Land Commission authority to examine the entitlement of a declarant or of a donor who donated the property in favour of the declarant. Finally, he stated that the letter of Secretary, Land Commission dated 7‑7‑1964 acts as an estoppel and the Chief Land Commissioner cannot for that reason also refuse to honour the decree of the civil Court. He also sought to refer to observation of Chief Land Commissioner In his note dated 16‑11‑1970 but this observation was not allowed to be referred to as it was made in noting in a file and not in a judicial proceeding.

5. Advocate for the petitioners argued that the order of resumption is dated 4‑6‑1959 and it was challenged in appeal by respondent No. 1 and predecessor‑in‑interest of respondents Nos. 2 to

5. The appeal was rejected by the Commissioner on 24‑8‑1959. Revision Petition was moved before the Chief Land Commissioner, but it was rejected on 5‑11‑1959 in default. The matter of resumption, therefore, stood finally decided on 5‑11‑1959. Advocate for respondents Nos. 1 to 5, interjecting, stated that the appeal/revision was only on the question of Jagir. Advocate for the petitioners further went on to say that the present petition has arisen from petition by sitting tenants under paragraph 19 of M. L. R. No. 64 for purchase of the land after compromise decree was rejected by the Land Commission on 5‑5‑1965. He pointed out that there was no precedent for recognising a compromise decree and quoted rulings of Chief Land Commissioner dated 29‑7‑1959 and 22‑9‑1962 published in Land Reforms in West Pakistan Volume II to show that a compromise decree is not accepted by the Land Commission. He further argued on the basis of rul ing reported in P L D 1968 Lah. 1145, that civil Court decision is not binding on the Land Commission, when it was not a party before the civil Court. The single Judge decree was replaced by the Division Bench by compromise decree, and, on the same principle on which the High Court has remanded this, case that nobody should be condemned unheard, as neither, the Land Commission nor the Chief Land Commissioner were made a party before the compromise decree was passed by the Division Bench the same principle of natural justice should apply to the decree. He further referred to ruling reported in P L D 1966 S C 84 and P L D 1966 S C 114 to show that civil Court decrees were not binding on the Land Commission. Shahzada Sher Mohammad Jan was the exclusive owner of the land at the time according to revenue records. Compromise was an attempt to defeat the gift and ultimately Land Reforms. Natural flow of law was deflected by compromise. No final determination regarding the legal issues was made; between the parties. The decree covered by Supreme Court order in Civil Appeal No. 54 of 1958 was accepted by the Land Commission but it was not in respect of gifted land nor in respect of a compromise decree. In their letter dated 7‑7‑1964. Land Commission did not commit itself to recognise a compromise decree. Enquiry was made at the stage of admission of Letters Patent Appeal and not at the stage of compromise decree. The transfer of possession was illegal. According to Land Reforms in West Pakistan Volume I page 86 sub‑clause (v), compromise decree is not to be ordinarily recognised, and other decrees are to be referred to Chief Land Commissioner. Further, possession gives no right. Transfer of possession was never intended by Deputy Land Commissioner. He had asked the subordinate staff to report in the matter and instead they had made over the possession. Refund of Rs. 43,715 on 15‑3‑1965 was also illegal because no prior approval of Chief Land Commissioner was obtained for implementation of any direction from the High Court. As there is no appeal against a consent decree, so it is the final decree but as compromise decrees are never accepted by Land Commission it cannot be accepted by the Chief Land Commissioner. In case it is, accepted others whose compromise decrees were not accepted would say that their compromise decrees should also be accepted on the principle of equality before law. This will open the flood gates of litigation.

6. Shahzada Jalil Sher Jan objected to the observation made in the order of my predecessor dated 4‑7‑1969 that in order to evade resumption of the surplus land, the parties had compromised. He thought that this was an unmerited reflection on his father who, as Judge Advocate‑General of Pakistan Army, had drafted M. L. R. No. 64 and who could have safeguarded his interest before promulgation of M. L. R. No. 64 if be wanted to evade resumption. He, however, pointed out that at no time his father conceded that the latter's sisters, plaintiffs in civil litigation, had any right in the land. The decree by the single Judge was not accepted by him and he went in Letters Patent Appeal. There can be no compromise without parties colluding together. It was not a sort of conspiracy but could be described as a compromise of convenience. The entire property left by Shahzadi Sultan Begum was pooled and divided according to Shariat, not on the basis that it was the right of the parties but on the basis of agreement to end the civil litigation to the advantage of parties therein who were kith and kin.

7. Assistant Secretary, Land Commission, confirmed that the Land Commission has never recognised a compromise decree. He further pointed out that according to instructions of the Land Commission contained in their letter No. DSH 3722‑59/2084‑LC, dated 17‑6‑1959, all Deputy Land Commis sioners were informed that a decree passed on the basis of compromise or consent after 8th October 1958, should not be recognised, but in cases of decrees obtained otherwise than by compromise, where the Deputy Land Commissioner is of the opinion that the decree should be recognised, the matter should be referred to the Chief Land Commissioner through the Land Commissioner. He pointed out that the action of subordinate authorities in making over the possession to respondent No. 1 and predecessor‑in‑interest of respon dents Nos. 2 to 5 and giving rent amounting to Rs. 43,715 to them was against the direction of the Land Commission. He further pointed out that the existing owner, according to Notification No. ASR‑II‑696/69/1967‑LC, dated 4‑4‑1969, shall be deemed to mean such person as is entered as an owner of more than 500 acres of irrigated or 1000 acres of un‑irrigated land in the revenue records on or before the 7th February 1959, and such other person/owner whose holding exceeded the above limit as a result of inheritance before the said date, although not entered as such, in the revenue records. A person/owner whose holding exceeds the ceiling limit as a result of inheritance or otherwise on or after 7th February 1959, shall not be deemed to be an "existing owner" for purposes of grant of concession under paragraphs 9 and 11 of the Regulation. Such a person/owner shall only be entitled to retain land of his choice equivalent to 500 acres of irrigated land or 1000 acres of un‑irrigated land and the excess land, if any, shall be resumed by Government. Accordingly, the plaintiffs in the civil litigation could not claim to be existing owners as the Notification had an over‑riding effect from the 7th February 1959, the date on which it shall be deemed to have come into force.

8. At this stage parties were asked if they wished to add anything to what has been recorded above. Advocate for respondents Nos. 1 to 5 said that his case having been decided by the High Court in 1964 falls in the definition of existing owner as it then prevailed. Advocate for the petitioners said that assuming, without conceding, that respondent No. 1 and predecessor‑in‑interest of respondents Nos. 2 to 5 were governed by the old definition of existing owner, vide paragraph 45 of Land Reforms in West Pakistan Volume I, there was no entitlement of any land on account of inheritance on 7‑2‑1959. Shahzada Jalil Sher Jan pointed that the first ever mutation, No. 10 at page 85, was entered in favour of his aunts in Jamabandi of 1965‑

66. He' also argued that if the gift made by his grand mother to his father is objected to, similarly Shahzadi Sharaf Sultan could not have mutated land to her children which she had done on 13‑1‑1971 vide mutation No. 19 (Intiqal Tamlik). Advocate for respondents Nos. 1 to 5 replied that inheritance opened on the death of Shahzadi Sultan Begum on 17‑9‑1954 and was decided by single Judge on 25‑10‑1963 in case reported in P L D 1963 Lah. 606 and modified by Division Bench judgment on the basis of compromise on 17‑12‑1964. He further said that Shahzadi Sultan Begum was a limited owner while by operation of M. L. R. No. 64 and decision in civil litigation Shahzadi Sharaf Sultan had become a full owner.

9. I have carefully considered the arguments of the parties and duly examined the case.

10. According to paragraph 3 of M. L. R. No. 64 the provisions of this Regulation, and any rule or order made thereunder, 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. According, to paragraph 27 of M. L. R. No. 64, no provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall has jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine.

11. The letter of the Land Commission dated 7th July 1964, stated that the land stands provisionally resumed and if the declarant owner is declared as the sole owner of the land in dispute then the land will be finally resumed and sold under the Sale Scheme. If, however, the sisters of tile appellant establish their claim of ownership to the whole or any portion of the land, it may then be restored to them provided they are not affected by Land Reforms. The decree of single Judge has been modified in Letters Patent Appeal on the basis of compromise which appears to me to be a compromise between kith and kin and which does not determine the disputed issue of their respective legal rights but conveniently divides this land between them as part of a general settlement. This does not amount to the sisters of the appellant establishing their claim of ownership to the whole or any portion of the lend. The Land Commission was not a party to the decree nor can it otherwise also be binding on it in view of the legal position stated in paragraph 10 above. The effect of acceptance of the decree will be to deprive the Land Commis sion directly and the sitting tenants indirectly of land on the basis of a compromise of convenience between an existing landowner, as defined in Notification No. ASR‑II‑696/69/1967 LC, dated 4‑4‑1969 which has over‑riding effect from 7th February 1969, and his sisters. According to the consistent policy of she Land Commission and to consistent judicial decisions of Chief Land Commission reported in Land Reforms In West Pakistan Volume II, I refuse to accept the compromise decree. The result will be that entries in the revenue record before the compromise decree was obtained shall be accepted fn respect of the land covered by this case and the land, and all consequential matters relating thereto, shall be disposed of accordingly so far as the Land Commission or authorities subordinate to it are concerned.

12. The petition is disposed of as above. Order accordingly.