1986 PLP 660 (CLC)

ABDUL QADEER CHAUDHRY, J.‑‑

The petitioner No.l owned a considerable agricultural land which was declared by him under M.L.R.

64. He was allowed to retain the land admissible under the Regulation. He made a gift of 403‑24 Acres of agricultural land on 6‑8‑1980 in favour of his son, petitioner No.2 as permissible. The remaining 68‑15 Acres was exchanged by him with petitioner No.3. Mutation was recorded in the record of rights (Annexures B, C and C‑1). On 25‑2‑1967 the petitioner No.l transferred by way of gift an area of 411‑00 Acres to his brother petitioner No.

3. The petitioner No.l declared his holding to be more than 12,000 P.I. Units under M.L.R.

115. The excess land to his entitlement was ordered to be resumed by the Deputy Land Acres with an area of 71 Acres with his brother petitioners Nos.3, 4 and 5 respectively.

2. The respondent No. 1 on the report of the Inspection Team issued a suo motu notice under paragraph 29 of M.L.R. 115 to examine the Banjar concession as well as additional area allowed to the petitioner No. 1 on account of tubewell. The respondent No. 1 on examination found that rant of additional area on account of tubewell was proper and as regards the gift, it was observed that mere word of the declarant is not sufficient. Transaction was not made through registered documents as required under section 123 of the Transfer of Property Act. He, therefore, held that the petitioner failed to make a valid gift for the area, allowed to be gifted under paragraph 9(f) of repealed Act, and that area was resumed by the respondent No.l by means of an order, dated 20‑12‑1976, impugned in this petition.

3. We have heard the learned counsel for the parties. Both the learned counsel have referred to the case of Sachunand and another v. Officer on Special Duty, Federal Land Commission, Rawalpindi and others reported in P L D 1981 Kar. 393, wherein, it has been held that the respondent No. 1 has not disputed the de facto nature of the alienations made by the petitioner No. 1 by way of oral gift in favour of his parents who fall among the category of specified heirs under the said Regulation, which was accompanied by delivery of possession, and statement made before Mukhtiarkar, and followed by mutations of the names of the donees in the Records‑of‑Rights. There is also no dispute between the donor and the donees and the circumstances establish that petitioner No.l had completely gotton rid of the property and cannot, since the date of gift, be said to own the land or possess it within the meaning of para. 7(1)(a) of the Regulation. It has been further observed that for the purposes of M.L.R. 115, transaction by which alienation of any land is made need not strictly be de jure, but an alienation which is de facto in nature would also be effective even if requirement of registration of the deed has not been complied with. Paragraph 7(1)(a) of the Regulation does not say that transaction must be through registered documents. The transactions made between the target dates shall always be deemed to be void but in the instant case the transactions had been made before the target date and the alienation by way of gift in favour of the heirs by the petitioner No.l has not been disputed by the respondent No.l and the transactions were set aside merely on technical grounds. The other cases on the point are 1979 C L C 294; 1982 C L 1947 and 1984 C L C 2396.

4. This Court in the cited judgment (P L D 1981 Kar. 393) had disposed of this matter and held the transaction valid, therefore, relying on the said authority, we accept this petition and set aside the impugned' order passed by respondent No.l on 20‑12‑1976 Annexure 'A' as illegal and without lawful authority. The petition is accepted as such. There will be no order as to costs. H . B . T Petition accepted