P L D 1976 Karachi 316 (PLP)

ABDUL KADIR SHEIKH, J.

The petitioner No. 1 Mir Haji Ali Ahmed Khan Talpur is a zamindar owning agricultural lands in Sanghar District and he is also a Member of the National Assembly of Pakistan. He filed Declaration in the form prescribed under the Martial Law Regulation No. 115 (now called the Land Reforms Regulation, 1972) showing that he owned and possessed 307-34 acres of agricultural land in Taluka Shabdadpur, District Sanghar. The Deputy Commissioner/Deputy Land Commissioner, Sanghar, after the necessary procedural verifications, resumed only 0-7 Ghuntas of land as an excess area beyond the prescribed limit, by the order dated 22-6-1972. On 6-2-1974, the petitioner No. 1 received a notice from the Deputy Land Commissioner. Sanghar issued on 1-2-74 directing him to appear on 9-2-74. When the counsel for the petitioner No. 1 appeared before the Deputy Land Commissioner, Sanghar on the date of bearing, he was informed for the first time that the Review proceedings had been necessitated because the Mukhtiarkar of Shabdadpur had passed an order on 14-1-1974 cancelling the mutation entries dated 10-12-66 in respect of 933-26 acres of land in Deh Dabbaro, which the petitioner No. 1 had transferred by wav of gift to his three sons and two daughters. namely Mir Haji Nabi Bux Talpur, Mir Hyder Ali Khan Talpur, Mir Muhammad Ali Khan Talpur Sahibzadi Zebunnisa and Sahibzadi Mehrunnisa, the petitioners Nos. 2 to

6. The counsel for the petitioner No. 1 not being aware of the facts and the circumstances that had led the Mukhtiarkar of Shahdadpur to pass the order dated 14-1-74, got the hearing of the case postponed from 9-2-74 to some other date. The case was finally heard on 16-3-74. On that day the counsel for the petitioner again prayed for an adjournment on the ground that the appeal filed by the petitioner No 1 against the order of the Mukhtiarkar dated 14-1-74 bad not yet been disposed of. This appeal was actually filed before the yearned officer himself, in his capacity as Deputy Commissioner, Sanghar but he had transferred it for disposal to the Assistant Commissioner, Sanghar. It was pointed out that the results of the appeal may be awaited as the Review proceedings initiated by the Deputy Land Commissioner. Sanghar were based on the order passed by the Mukhtiarkar of Shahdadpur dated 14-1-1974 which was sub judice in that appeal. The learned Deputy Land Commissioner, Sanghar, however, rejected the request for adjournment and passed the impugned order declaring that the holding of the petitioner No. 1 was to the extent of 940.50 acres, equal to 36,665 P. I. Units, and since he was entitled to retain only 307-27 acres, equal to 12,000 P. I. Units, the excess area of 632.18 acres, equal to 24,665 P.

1. Units must be surrendered by him to the Land Commission. He accordingly resumed the excess land and asked the counsel for the petitioner No. 1 to give choice for retention and resumption of the excess area, within three I days, failing which ex parte resumption, as, provided under the law, would be effected. It is this order that has been challenged by the petitioners in this petition under Article 199 of the Constitution. It would be relevant to mention, for the purpose of the disposal of the controversy in this petition, certain events that have taken place after the impugned order was passed on 16-3-1974. This petition was presented in this Court on 22-3-1974 and it came up for summary hearing before us on. 25-3-1974. On that day we passed an ad interim order, as prayed for by the petitioners, in the Civil Miscellaneous Application No. 473 of 1974, after admitting the petition to regular hearing. In the application, the petitioners prayed for an order to restrain the respondents from giving effect to the impugned orders and dispossessing the petitioners Nos. 2 to 10, and/or, interfering with their lawful possession of the lands in question. It is, however, the case of the respondents that the Mukhtiarkar of Shahdadpur took over the management and possession of the disputed lands on 22-3-1974, consequent to the order passed by the Deputy Land Commissioner, Sanghar provisionally resuming an excess area of 626-35 acres. This order was. passed ex parte, and according to the Deputy Land Commissioner, Sanghar, it was due to the failure of the counsel for petitioner No. 1 to give choice in respect of the retention and the resumption of land, within three days, as was, required of him under direction issued in the impugned order dated 16-3-1974. Another step in the litigation that may be mentioned is that the appeal filed by the petitioner No. 1 against the order of the Mukhtiarkar of Shahdadpur, dated 14-1-1974, was dismissed by the Assistant Commissioner, Sanghar on 29-3-1974. The petitioners have challenged the order passed by the Mukhtiarkar of Shahdadpur, dated 14-1-74 and also the one passed by the Deputy Land Commissioner, Sanghar, dated 16-3-1974, and it was urged by Mr. A. K. Brohi that the subsequent orders passed in the case would not come in the way of the petitioners, if they succeed in the challenge against the two impugned orders referred to above. Mr. A. K. Brohi challenged these orders on various grounds of law, and also contended that these are mala fides in nature and politically motivated. In order to appreciate the contentions raised in the case, we may first, give the factual background leading to this petition, as far as it is admitted by both the parties, or it is uncontroversial. These facts date back to 10-12-1966. On that day, the petitioner No. 1. made a statement before the Mukhtiarkar of Shahdadpur to the effect that: be was making a gift of certain portion of the agricultural land belonging to, him to his three sons and two daughters. The original statement made by him with the orders passed thereon was produced before us. Translated into English it reads: "I, the undersigned Mir Haji Ali Ahmed Khan son of Mir Nabi Bux Khan Talpur age

years resident of Hyderabad town state on solemn affirmation that I have got Kabuli Lands on my Khata in Deh Dabhro Raiti and Jagir, Taluka Shahdadpur measuring 939-23 acres according to my share. I give this land at my sweet will, by way of gift, to my three sons and two daughters as under. From today, I have handed over possession of the lands mentioned below to the donees. I have no objection if mutation is made in Record of Rights in their favour. The above statement is read over to me and I have signed it. Deh Serial No. Area Name of Donee Share paisas 1.Dabhro 1 2/1, 2 3/4, 1, 2 Total Mir Nabi Bux 87 Jagir 5/1, to 4 6/1, 2, 3 228-28 Khan son of 7/1 to 4, 8/1 to 3 Share Mir Ali 29/1 to 4, 30/1 to 4 200-4 Ahmed Khan 31/1 to 4, 32/1 to 4 33, 34 35 - 1 to4 1 to2, 2A, 3, 4 36 to 38, 58/1, 2 1 to 4 59/1, 2 2. 9/1, 2 10/1, 2, 11/1, 2 Total Mir Mohammad 87 12/1, 2, 13/1 to 3 24/12 Ali Khan son 14/2, 3 2 s/2, 3 Share of Mir Ali 24 to 27 28, 39 to 43 21/10 Ahmed Khan 1to4 1 to4 44/2, 3 53/2, 54/ 1, 2 55/1 56, 57 1,2 3. 14/1, 4 15 16/2 Total Mir Mohammad 87 24/12 Ali Khan son 1 to 4 Share of Mir Ali 21/10 Ahmed Khan 4. 16/1, 3, 4 17/1, 2, 3 Total Daughter No. 2 87 18/-19/1, 2 20/1 115-11 daughter of to 4, 21/1 to 5 22/1 Share Haji Ali to 4, 23/1, 4 44/1, 100-38 Ahmed Khan 45/1, 2 46/1, 2, 3 47/1, 2 48/1 5. 44/4, 44/3, 4 Total Daughter No. 2 87 46/4, 5, 47/3, 4 115-19 daughter of 47/3, 4, 48/2, 49/1, 2 Share Haji Ali 50/1 to 4, 51/1 to 4 ' 101-2 Ahmed Khan. 52/ 1 to 3, 53/ 1 71/1, 72/1 to 3 73/1 to 4, 74/1, 2 After giving above areas there remain 313-18 acres according to share on my khata. Read over to me and signed by me. (Sd.) Mir Ali Ahmed Khan He is the same person who gave the statement. (Sd.) Supervising Tapedar, Shahdadpur V. F. entries 10-12-1966. 3, 4, 5, 6, 7 10-12-66 Before me. (Sd.) Mukhtiarkar, Shahdadpur. 10-12-1966. It is the admitted case of the parties that the relevant entries in the Record of Rights were mutated in favour of the petitioners 2 to 6, on the same day, in terms of the statement made by the petitioner No.

1. These entries are borne at Serial Nos. 3, 4, 5, 6 and 7 of the Record of Rights. It may just be mentioned here that these serial Nos. are noted in the statement made by the petitioner No. 1, and this statement has been attested by the Mukhtiarkar of Shahdadpur. This aspect of the case has an important significance of its flown, which will be discussed in details at the later stage in the judgment. Reference to the entries made in the Record of Rights is also important, but since it would be inconvenient to reproduce the contents of all the columns, we may just reproduce only those that are of particular importance. In column 2, the dates of all the mutations entries are noted as 10-12-1966. The columns 3, 4 and 5 read as follows:

Record of Rights and Mutation Register Deh Dabhro Jagir Tapo Ranjho Bagrani Taluka Shahdadpur, District Sangbar. Transferor Transferee Nature of Rights 3/2 Mir Haji Ali Ahmad

1. Mir Nabi Bux Khan By way of gift, to his Khan Talpur Mir Haji Ali Ahmed sons and daughters, 0-87 Khan Talpur, who received equal 0-87 shares proportionately. Two wives of Mir Haji

2. Two wives of Mir However, Mohammad Ali Ahmed Khan Talpur Haji Ali Khan Ali Khan has also been, 0-13 0-13 given land previously which is situated in 1.00 1-00 the said Deh and Deh 4/2 Mir Haji Ali Ahmed Jumani. Even afterKhan Nabi Bux Khan. this gift, there still 0-87 remains313-18 acres. Two wives of Mir Haji of land as per share in: Ali Mohammad Khan. his khatta in the same 0-13 Deh. This gift has been signed by him of 1-00 his own free-will and 5/2 Mir Haji Ali Ahmed

1. Mir Mohammad Ali the statement has been Khan Mir Nabi Bux Khan Mir Haji Ali attested by the Mukh-. Khad Talpur Ahmed Khan tiarkar. Shahdadpur. 0-87 0-87 Accordingly the entry Two wives of Mir Ali

2. Two wives or Mir was made at page Mohammad Khan. Haji Ali Mohammad No. 9, of the book of 0-13 Khan. statement pertaining. 0-13 to Tapo Dabhro. 1-00 L3/4 6/21. Mir Haji Ali As per statement. Ahmed Khan dated 10-12-1966 of Mir Nabi Bux. Khatedar Mir Ali, 0-87 Ahmed Khan son of

2. Two wives of Haji Nabi Bux Khan Mir Haji Ali Talpur recorded on the Mohammad Khan back of page No. 8 of 0-13 the book of statement. pertaining to Tapo 1-00 Dabhro, 625-3 acres of 7/2

1. Mir Haji Ali `

1. Daughter No. 2 of land of his khata of Ahmed Khan Haji Ali Ahmed Deh Dabhro, Jagir, Mir Nabi Bux. Khan Talpur has been gifted as 0-87 0-87 follows:- Two wives of

2. Two wives of Mir Mir Haji Ali Haji Ali Mohammad Mohammad Khan. Khan. 0-13 0-13

1--00 1-00

1. Mgr Nabi Bux son of Ali Ahmed. 200-4

2. Mir Hyder Ali Khan son of Ali, Ahmed. 202-18

3. Mir Mohammad, Ali Khan son of Ali Ahmed. 21-10

4. Daughter No. 1 of Ali Ahmed. 100- 38

5. Daughter No. 2 of Ali Ahmed. 101-02 625-32 Note:

Against all these entries the following endorsement appears "As per statement". (Sd.) S. T. Tapedar, 10-12-66. The admitted case of the parties also is that as a result of these mutations of names, the petitioners 2 to 6 have all along been shown as the owners/ occupants of the respective portions of the lands as from 10-12-1966 upto 14-1-1974. These petitioners claim to have remained in continuous possession of the respective areas of land, received by them as gift from the petitioner No.

1. In the affidavit sworn on 21-3-1974, Haji Mir Nabi Bux Khan Talpur, the petitioner No. 2, who is also the General Attorney of the other petitioners, has armed that he and the petitioners 3 to 10 "are exercising all acts of possession as exclusive owners and to the exclusion of the petitioner No. 1 as owner of the land which is the subject-matter of the petition." In this behalf he has further asserted that "the aforesaid land originally stood recorded in the Government Records in the name of petitioner No. 1 and who by making verbal gifts of the entire gifted land ceased to have any right, title and interest in the aforesaid lands since the time of the verbal gift, and the petitioners 2 to 10 stand recorded in the place of petitioner No. 1 and they are paying Government Revenue to the knowledge of the respondents." Again in the Affidavit-in-Rejoinder filed on 19-4-1974, the petitioner No. 2 has affirmed as follows:

"The petitioner No. 1 had made an oral gift in my favour and those of the other petitioners 3 to

6. We the donees had accepted the gift and the possession was also delivered to us. I and the other donees had thereafter leased the land in question from 1967-68 to Dr. Haji Khan, his father and brothers. The said persons are in possession of the land as our lessees since 1967-68 and they are paying land revenue in our respective names. Out of 200 acres of land gifted to me by petitioner No. 1 in the year 1968 I had sold 100 acres to one Lal Kumar by registered sale deed dated 14-7-1967. This very same land I again re-purchased from said Lal Kumar by registered sale deed dated 4-12-1968. After this I gifted all the 200 acres to petitioners 7 to 10." Doctor Haji Khan, who according to petitioner No. 2 was given the lease of the disputed lands, has also filed an affidavit in support of the case set up by the petitioners, and produced the Original Land Revenue receipts, water bill, etc., to show that all these payments were made in the individual names of the petitioners as the owners of the re3prctive portions of the disputed land. All these are admitted documents. These clearly show that the Land Revenue, water charges etc. were being paid by the petitioners 2 to 10 in their individual names from 1967 onwards. Since much was made out about these admitted documents, it will be useful to list them hereunder:

1. No. 1628 63/67 Mir Nabi Bux Khan July 67 2. 63/68 Mir Haider All Khan

3. No. 1628 63/69 Mir Mohammad Ali Khan July' 67 4. 63/70 Daughter No. 1 of Mir Ali Ahmed Khan. 5. 63/71 Daughter No. 2 of Mir Ali Ahmed Khan.

6. No. 2519 65/92 Mir Nabi Bux Talpur. 25-6-68 7. 65/93 ' Mir Mohammad Ali Khan.

8. No. 2585 65/11 Mir Haider Ali Khan. 9. 65/12 Daughter No. 1 of Mir Ali Ahmed Khan. 10. 6513 Daughter No. 2 of Mir Ali Ahmed Khan.

11. No. 4480 69/74 Mir Sideman son of Mir Nabi Bux. 21-8-73 12. 69/71 Mir Zabar Kash son of Mir Nabi Bux. 13. 69/72 Daughter No. 1 of Mir Nabi Bux. .. 14. 69/73 Wife of Mir Nabi Bux. 15. 69/74 Mir Haider Ali Khan. 16. 69/75 Mir Mohammed Ali Khan. 17. 69/76 Daughter No. 1 of Mir Ali Ahmed Khan. , 18. 69/77 Daughter No. 2 of Mir Ali Ahmed Khan. ,

19. No. 4759 69/32 Mir Suleman son of Mir Nabi Bux. 31-1-74 20. 69/33 Mir Zabar Kash son of Mir Nabi Bux. .. 21. 69/34 Daughter No. 1 of Mir Nabi Bux. 22. 69/35 Wife of Mir Nabi Bux. 23. 69/ 37 Mir Haidar Ali Khan. 24. 92 69/38 Daughter No. 1 of Mir Ali Ahmed Khan. 25. 69/36 Mir Haider Ali Khan. 26. ` 69/39 Daughter No. 2 of Mir Ali Ahmed Khan. 1. 72/73 Wife of Mir Nabi Bux. 30-6-1973 2, Daughter No. l of Mir Nabi Bux.

3. Mir Zabar Kash. , 4. 72/73 Mir Suleman son of Mir Nabi 30-6-73 Bux.

5. Mir Mohammad Ali Khan.

6. Mir Harder Ali Khan.

7. Daughter of Mir Haji Ali Ahmed Khan.

8. Daughter No. 2 of Mir Haji Ali Ahmad Khan. Doctor Haji Khan has categorically affirmed that he alongwith his father and brothers has been the lessee of the land respectively belonging to petitioners 2 to 10 as well as the other land separately owned by the petitioner No. 1 from the year 1967-68 onwards, and that the Land Revenue charges are being paid by them for and on behalf of the petitioners, individually. The assertion made by him is not only borne out by the documentary evidence, but this is even the admitted position of the respondents also. It is amply clear from the notices issued to the Haris, and the mashir namas prepared in connection with the subsequent proceeding taken in the case after the order was passed by the Deputy Land Commissioner, Sanghar on 20-3-1974, that the disputed lands had been given on lease by the petitioners, individually in their names, to certain persons including Doctor Haji Khan. There is also no controversy over the assertion made by the petitioner No. 2 that he had sold 100 acres of land, out of area received, from his father, as gift, to one Lal Kumar by a registered sale-deed dated 14-7-1967, and afterwards, he purchased the same area from him, again through registered sale-deed dated 4-12-1968. Afterwards, the petitioner No. 2 gave away the entire area consisting of 200 acres as gift to his wife, his two sons and a daughter, the respondents 7 to

10. In this behalf, he made a statement before the Mukhtiarkar of Shahdadpur on 22-2-1971. The original statement made by him with the `notings' recorded by the Tapedar, Supervising Tapedar and the Mukhtiarkar of Shahdadpur was also produced before us. These gifts also find place in the Record of Rights. The mutation entries were, however, recorded in favour of the respondents 7 to 10 on 10th Decem ber 1966. The statement made by the petitioner No. 1 reads as follows:- "I, undersigned Mir Nabi Bux Khan Talpur son of Mir Ali Ahmed Khan Talpur aged about 28 3 ears, resident of Hyderabad, state on solemn affirmation that I own (200-29) acres of Kabuli land in my khata in Deh Dabhro Jagir Taluka Shahdadpur, which I give by way of gift to my two sons and one daughter and one wife. From today, I have handed over possession of the following mentioned land to the donees. I have no objection if the mutation is effected in the record and the khata is transferred in their name. The above statement was read over to me and the same is signed by me. Deh. Survey Nos. Names of Donees Dhabhro 29/3, 30/1 to 4 Mir Suleman Kako son of Mir Nabi Bux Jagir Khan Talpur. 31/1 to 4 32/1 to 4 33/1 to 4 34/1 to 4 Mir Zabar Bakhsh alias Mir Obaidullah sort 35/1 to 4 of Mir Nabi Bux Khan Talpur. 36/1 to 4 37/1 to 4 1, 2/2, A 3, 4/1, 2 Daughter No. of Mir Nabi Bux Khan Talpur. 4/1 to 4 6/1 to 3 7/1 6/1 to 3 7/1 7/2,4 Wife of Mir Nabi Bux Khan Talpur. 8/2, 3 29/ 1, 2, 4 38/1 to 4 58/1, 2 59/ 1, 2 (Sd.) Nabi Bux Talpur. I know the deponent (Sd.) Supervising Tapedar. I know the deponent very well. He is the same person who has given statement. (Sd.) Tapedar, Dhabhro. Before me. (Sd.) Mukhtiarkar, Shahdadpur. We have given this detailed account of the facts of the case for the reason that lengthy arguments were addressed at the Bar as to the legal value that can be attached to the mutation entries in the Record of Rights in respect of the disputed lands as the position obtained on 14-1-1974. Mr. A. K. Brohi challenged the order passed by the Mukhtiarkar, Shabdadpur dated 14-1-1974, not only on several grounds of law, but also urged that it was mala fide and politically motivated. We may however deal, first, with the factual aspects. Admittedly, the mutation entries in favour of the petitioners 2 to 10 were cancelled by an ex pate order passed by the Mukhtiarkar Shahdadpur on 14-1-1974. On the same day, the Tapedar firstly made the following 'Note' in the Record of Rights: "It is not mentioned in the statement of the donees whether the sale gift is acceptable to them or not. Therefore as per section 149 of Muhammadan Law, the entries regarding the said gift mentioned at S. Nos. 3 to 7 are illegal. The papers are therefore submitted for necessary decision." Upon this, the Supervising Tapedar Shahdadpur noted:-- "The above report of the Tapedar is correct. The above-mentioned entries regarding gift are liable to cancellation." On these Reports, the Mukhtiarkar, Shahdadpur cancelled the mutation entries from the Record of Rights by appending an order, in the few words; "since no statement of any of the donees regarding acceptance of gift, the entries from Nos. 3 to 7 are cancelled." The record of the case before us does not indicate how and when the Deputy Land Commissioner, Sanghar was informed of the order passed by the Mukhtiarkar, Shahdadpur dated 14-1-1974. It is, however, clear that he became aware of it by 28-1-1974. On that day he addressed the following letter to the Land Commissioner, Sind at Hyderabad ; "Mir Ali -Ahmed Khan Talpur filed declaration Form L. R. I. and II declaring his holding in Deh Dhabbro Raiyati and Jagir Taluka Sbahdadpur to be 307-34 acres and his case was finally decided by the then Deputy Land Commissioner, Sanghar (Mr. Muhammad Khan Junejo) vide his order dated 22-6-1972 allowing him to retain an area of 307.27 acres equal to 12000 P. I. Units and the remaining area of 0-07 acres was resumed to Land Commission. It may be pointed out that Mir Ali Ahmed Khan owned and possessed 922.01 acres of Agricultural land in Deh Dhabhro Riayati and Jagir on 10-12-1966, when he gifted an area of 625-35 acres to his heirs as under:

1. Mir Nabi Bux son 200.04

2. Mir Hyder Ali Khan son 202.18

3. Mir Mohammad Ali Khan son 21 10

4. Daughter No. 1 100.38

5. Daughter No. 2 101.05 625.35 These gifts have been disallowed by the Mukhtiarkar Shahdadpur vide his order dated 14-1-1974. After cancellation of these gifts the total holding comes to 922.01 acres. Out of which he is entitled to retain an area of 307.27 acres equal to 12000 P. I. Units and the excess area of 614.14 acres is to be resumed to the Sind Land Commission. It is therefore requested that I may kindly be allowed to review my predecessor's order as required under paragraph II(I)(a)(II) of the Land Reforms of 1972." The Land Commissioner, Sind accorded the requisite sanction on the next day, under his letter dated 29-1-1974. The importance of this aspect of the case was pointed out by Mr. A. K. Brohi in that it is significant that the requisite sanction was received just in one day under a "Top-Priority" letter. How ever, it was in these circumstances that notice was issued to the petitioner No. 1 on 1-4-1974 to show cause why the order passed on 22-6-1972 in the matter of the declaration filed by him under M. L. R. 115 should not be reviewed. As stated earlier, these proceedings terminated with the impugned order passed by the Deputy Land Commissioner, Sanghar on 16-3-1974. The learned counsel for the petitioner No. 1 had requested the learned Deputy Land Commissioner, Sanghar to keep the review proceedings in abeyance till the appeal filed by the petitioner No. 1 against the order of the Mukhtiarkar, Shahdadpur dated 14-1-1974, which was pending before the Assistant Com missioner, Shadadpur was decided. This request was, however, rejected. On merits of the case, the learned counsel for the petitioner No. 1 urged before the learned Deputy Land Commissioner, Sanghar that the disputed area of 625-35 acres "may not be treated as belonging to the Declarant (petitioner No. 1) as the entry of the year 1966 has been cancelled by the Mukhtiarkar, Shahdadpur without hearing the aggrieved and the orders passed by him on 14-1-1974 were ex parte." The learned counsel further argued; to quote hiss words noted in the impugned order ; The impugned gift was made by Mir Ali Ahmed Khan prior to his statement viz. 10-12-1966, and the acceptance by the donees and handing over of possession was also much earlier. All donees were major and married at the time of gift. Statement of Mir Ali Ahmed Khan was merely an information of mutation of khata. That Mir Nabi Bux, the eldest son of declarant had further gifted this land to his legal heirs which implied that original gift was accepted by the donees and also found correct by Revenue Authorities." The learned counsel further pleaded that "the cancellation of entry of the year 1966 by a Mukhtiarkar in year 1974 has a political motive. The declarant is dubbed as Rebel Member of ruling Pakistan Peoples Party, and the action is nothing short of victimisation." The learned Deputy Land Commissioner, Sanghar rejected all these pleas in the following words:-- "An entry made by a Tapedar or Supervising Tapedar in V. F. VII is of no value unless it is authenticated by a Mukhtiarkar who has to satisfy himself of the correctness of the entry before attesting it. Mere entry in V. F. VII made by a village staff shall not be construed to be correct without the attestation of the Mukhtiarkar. The Mukhtiarkar is competent to cancel all such incorrect entries which have wrongly been made by the Tapedar in V. F. VII. In all such cases of unilateral action by lower staff hearing is not required by the Mukhtiarkar before canceling incorrect entries. This entry was can celled as there was no acceptance of gift by the donees. The same Mukhtiarkar who recorded the statement of declarant Mir Ali Ahmed on 10-12-1966 could authenticate the entry in V. F. VII on the same day but he chose not to do so. It was thus crystal clear that in the absence of any acceptance by the donees and verification of their existence, the Mukhtiarkar did not find it legally justifiable to authenticate the entry. The assertion of the Advocate is that statement of acceptance by donees was never required under Muhammadan Law. Assuming for the sake of argument that their detailed statement was not necessary but then when was the testimony that possession had been handed over and that donees were all capable to accept gift by themselves. The Revenue Officer has to satisfy himself in justifiable manner that any gift has already been made and then alone mutation is ordered by him. In this case the Mukhtiarkar was never satisfied and whatever entry kept by Revenue Supervising Tapedar had no legal value and thus could be cancelled by Mukhtiarkar without calling the parties who were taking undue benefit with the connivance of lower village staff. (11) The statement given by Mir Ali Ahmad Khan Talpur shows that gift was being made from the day of statement viz: 10-12-1966 and as asserted by the Advocate there was no mention in this statement that gift was previously made. This statement also did not indicate that it was a mere information to Revenue authorities of a gift already made, for the change of khata. It is therefore wrong to say that gift was made prior to this statement as contended by the Advocate for the declarant. The contents show that the gift was being made through that statement. As such the consent of the donees accepting the gift was required to be given on it. There is also no mention of names of female donees in the statement. Only daughter No. 1 and daughter No. 2 have been shown. It therefore cannot be said to which daughters gift was being made and whether there was existence of these daughters only or many more. The gift of a land made by Mir Nabi Bux (one of donees) has also been cancelled by the Land Commissioner, Sind. Under these circumstances it is difficult to say that the possession was also delivered to the donees as alleged by the Advocate for the' declarant. It would also be ridiculous to believe that 2 daughters of Mir Ali Ahmed the declarant, obtained the possession themselves. The very fact that he was shy to disclose their names proves that possession was not handed over to them physically. Now if there was any substitution the law required that donor should have made such disclosure. (12) It is also not correct to say that the declarant has been victim of political motive. There are number of cases in this district which have been detected or re-opened and orders already passed in these cases are being reviewed by permission of Land Commission Authorities. (13) As regards the plea of the learned Advocate of the declarant that this Land Reforms case may be kept in abeyance till the decision of the appeal filed before the Assistant Commissioner Shahdadpur, it is not based on any law. The Land Reforms case is not to be kept pending on account of appeals or litigation under other normal laws. In Land Reforms cases the only point to be determined is the holding of a particular person, how much area is owned or possessed by him and if it is found to be m excess of permissible ceiling, the same shall vest immediately and absolutely in, Government free from any encumbrance or charge and without payment of any compensation. In this case the holding is much more than permissible limit. As the entry of year 1966 was not attested the transaction shown in V. F. VII shall be deemed not to have been effected and that shall be deemed as if entry made by Supervising Tapedar did not exist. There is no ambiguity or complication which should be solved in the appeal so preferred. However there is provision under the Land Reforms Rules of management etc. of the land involved in appeals etc. and that would be followed strictly and the order of Revenue Court honoured accordingly. (14) As stated above the holding of Haji Mir Ali Ahmed Khan comes to 940-05 acres equal to 36,665 P. I. Units and he is entitled to retain only 307-27 acres equal to 12,000 P. I. Units. The excess area of 632-18 acres equal to 24,665 P. I. Units is to be surrendered to the Land Commission. The declarant is, therefore, allowed to retain 307-27 acres equal to 12,000 P.

1. Units and the excess area of 632-18 acres equal to 24,665 P. I. Units is resumed to Land Commis sion free from any encumbrance or charge and without payment of any compensation. The counsel for the declarant is therefore, asked to give choice for retention and resumption of the excess area within 3 days, tailing which ex parte resumption as provided under the law would be effected. The resumed land to be disposed of according to set policy." We may complete the narration of facts by reproducing the reasons that prevailed with the learned Assistant Commission, Shahdadpur in dismissing the appeal filed by the petitioner No. 1 against the order of the Mukhtiarkar of Shahdadpur dated 14-1-1974. After noticing the three essentials of a valid gift under the Muhammadan Law as being (1) a declaration of gift by the donor, (2) an acceptance of the gift by the donee, (3) the delivery of the possession, the learned Officer has observed in the impugned order as follows:- "Perusal of the record reads that either the gift was not accepted by the donees or at least the acceptance has never been made to the Revenue Authorities. This is the compulsory condition to validate the gift which is missing and as such the entries in the Revenue Record in favour of the donees should not have been effected in the record." Finally the learned Assistant Commissioner, Shahdadpur has further observed as follows:-- "But I fail to understand when the appellant who gifted out the property and had now no interest in it, conveyed his decision for gift to the Mukhtiarkar, why the donees who were being benefited by that gift, failed to convey their decision of acceptance to the Revenue Authorities. On the other hand, the donees whose rights have been affected due to cancellation of the entries have not challenged the order of the Mukhtiarkar, though according to the appellant they are major and of sound mind. Moreover this matter involves the mixed question of law and facts to ascertain "whether the gift in the above circumstances was valid or proper". The Revenue Officers are not competent to go into the complicated question of law and fact. The Board of Revenue has repeatedly held that such questions of law and facts be left for determination by the civil Courts, where issues are framed, parties are summoned, cross-examined or re-examined. The above rulings are reported in P L D 1964 W P (Rev.) 25, P L D 1,964 W P (Rev.) 60, P L D 1963 W P (Rev.)

68. So far the contention of the appellant that the Mukhtiarkar was not competent to cancel the entries, it may be mentioned here that the Revenue Officers are competent to reverse the entries under the West Pakistan Land Revenue Act while making the periodical record. I, therefore, uphold the order of the lower Court cancelling the entries in Record of Rights and further direct the parties to seek remedy in the civil Court of competent jurisdiction and get their rights, if any, declared from there." With this factual background we may now proceed to deal with the conten tion raised by Mr. A. K. Brohi. The learned counsel pointed out that it is not the case of the respondents that the petitioners are guilty of fraud, or that mutation entries in the Record of Rights pertaining to the gifts made by the petitioner No. 1 in favour of his children were surreptitiously manipulated. On the contrary, these entries were admittedly made as long ago as 10-12-1966, and only defects found by the Mukhtiarkar of Shahdadpur on 14-1-1974 and by the respondents uptoday are two namely, (1) that the mutation entries were not certified by the Mukhtiarkar or his Head Munshi, and (2) that the acceptance of the gift by the donors was not made in the Revenue, Record. Both these omissions, according to Mr. A. K. Brohi, are no legal defects. He contended that the verification by the Mukhtiarkar or his Head Munshi in regard to the mutation entries in the Record of Rights was totally immaterial for the Mukhtiarkar had himself attested the statement of the petitioner No. 1 made before him and also noted down the Serial Numbers of the mutation entries in that statement personally, or these were noted by the Tapedar or the Supervising Tapedar before he put his signatures on the document. In this connection the learned counsel also pointed out from the original Register of the Record of Rights, which was produced in Court by the learned Advocate-General, that all these mutation entries were attested by the Supervising Tapedar on the same day. The learned counsel further pointed out that the attestation of these mutation entries made by the Supervising Tapedar was not something unusual, because, except for one or two. all the other mutation entries in the Record of Rights have been verified by the Supervising Tapedar, and not by the Mukhtiarkar or his Head Munshi. If, therefore, there was any defect in the case of the mutation entries relating to the petitioners, the learned counsel urged, the same principle should have been applied in all the other cases as well, and not that only the petitioners should have been singled out. The learned counsel argued that from the over all facts and the circumstances of the case, particularly that the Mukhtiarkar of Shahdadpur had personally seen or noted down the Serial Numbers of the mutation entries in the Record of Rights, it can easily be assumed that he had also verified the mutation entries as required by law. As an alternative Mr. A. K. Brohi submitted that no fault, in any case, can be found with the petitioners for the omission of the Mukhtiarkar or his Head Munshi to perform the duty cast upon them under the law and over which the petitioner had no control. In view of these facts and circumstances, he urged that even if there be any omission of the requirement in regard to the attestation of the entries by the Mukhtiarkar or his Head Munshi, it cannot be treated as fatal as valuable right in property had been created in favour of the petitioners 2 to 10 which have all along been enjoyed by them for over 7 years. It was further argued by the learned counsel that it is strange phenomenon of this case that, after a lapse of more than 7 years and without giving any show-cause notice to the petitioner No. 1 or the actual Khatedar (petitioners 2 to 10), in whose individual names large area of 625-32 acres was entered in the Record of Rights and the mutation entries were cancelled suddenly in one day. According to the learned counsel it is also significant that it was for the first time on 14-1-1974 that it transpired to the Tapedar that an important ingredient of gift viz., acceptance by the donees was missing, and he recommended for the cancellation of the entries and all the concerned Revenue Staff seemed to have shown marked extra vigilance thereafter because on that very day the Supervising Tapedar also made the recommen dation to that effect and the final order was also passed by the Mukhtiarkar of Shahdadpur cancelling these mutation entries. It was further urged by the learned counsel that the Mukhtiarkar had no authority to adjudicate or decide the questions as to the validity of the gift and it is also not the requirement of the procedure under the Revenue Law in regard to the mutation of names in the Record of Rights that the donees must accord acceptance of the gift in the presence of the Revenue Authorities. The learned counsel urged that the acceptance of the gift by the donees stood proved from the fact of their taking over possession of their respective holding on the site and by the fact that they have been managing the lands and appropriating the profits thereof and making the payments of the Land Revenue and the other charges in their own names. In this behalf the learned counsel placed reliance upon the Land Revenue receipts which according to him clearly show that the petitioners 2 to 10 have been paying Land Revenue individually in their names from the year 1966 onwards upto today. So far as the impugned order passed by the Deputy Land Commissioner, Sanghar, is concerned Mr. A. K. Brohi criticised it on more forceful grounds. He contended that the order passed by the learned officer is mala fide and politically motivated. In this behalf he referred to paragraph (x) of the grounds of the petition which reads as follows:-- "(a) Mir Haji Ali Ahmed Khan Talpur, though belongs to Pakistan Peoples Party and was elected as M. N. A. on its ticket, but later he developed differences with the present Government leaders. The group with which he is aligned now in the National Assembly is usually and frequently reported in the Press as "Rebel Group" of Pakistan Peoples Party because of their criticism of the Government in and outside the National Assembly. (b) The petitioner No. 1's speeches, criticising the present Government are being published from time to time in National Press. (c) Amongst petitioner No. 1's speeches in the Assembly and outside and his press-statements in the past, the noteworthy is his latest remarks before the Press at Lahore in January 1974, published in National Press regarding tea-party at which his brother Mir Rasool Bux Khan Talpur entertained Prime Minister Mr. Z. A. Bhutto at Hyderabad: "That we entertain any Tom, Dick and Harry who comes to our door". (d) The timings of the publication in press, of the above alleged remarks not able does in fact coincide with the timing of the above action by Sanghar District Revenue Authorities, and thereby is manifestly political victimisation." In support of these assertions several newspapers reports have been placed on the record before us. We need not refer to the contents of these news reports, or embark any further on this aspect of the case because we heard the learned counsel for the patties on the legal questions raised in the case as we felt that if there be any substance in them there would be no need to get into controversial allegations of mala fides. As to the legality of the order passed by the Deputy Land Commissioner;" Sanghar, Mr. A. K. Brohi firstly contended that the Review proceedings were not competent in law as paragraph 6 of the Regulation does not provide for suo moto Review and rule 10 in so much as it contemplates for the remedy of Review, it is ultra vires of the Regulation. In the alternative, Mr. A. K. Brohi contended that the Review proceedings were barred by time as the period of limitation in this behalf is no longer than the one prescribed in case of party making an application for such a relief. The learned counsel further urged that the order of the learned Deputy Land Commissioner, Sanghar, having been based on the illegal order passed by the Mukhtiarkar, Shahdadpur must automatically fail. In any case according to the learned counsel the review proceedings had been undertaken and finalized in violation of the principles of natural justice as well as of the rules because no notice was given to the donees, namely the petitioners 2 to 10, in whose names the disputed land stood mutated for 7 years. The learned counsel finally urged that the transaction of gift as well as the mutation entries related to the, period prior to 1-3-1967 and it could not be subject-matter of proceedings under the Law Reforms Regulation as it provides for scrutiny of those, alienations which were made between 1-3-67 and 19-12-71. The learned Advocate-General, on the other hand, vehemently argued that, in the absence of the test required to be made by the Mukhtiarkar or his Head Munshi in terms of section 135(d)(6) of the Code, and the entries to, be certified by him the mutation entries in question had no value in law, and it was therefore open to the Mukhtiarkar to correct the Record of Rights according to the order dated 14-1-1974, even without hearing the parties concerned. The learned Advocate-General indeed adopted the arguments that found favour with the Deputy Land Commissioner, Sanghar and Assistant Commissioner, Shahdadpur in upholding the order passed by the Mukhtiarkar of Shahdadpur dated 14-1-1974. The learned Advocate-General supported the view of the Deputy Land Commissioner Sanghar that "the same: Mukhtiarkar who recorded the statement of declarant Mir Ali Ahmed Talpur on 10-12-1966 could authenticate the entry in B. F. VII on the same day, but he chose not to do so. It was then crystal clear that, in the absence of any acceptance by the donees and the verification of their existence the Mukhtiarkar did not find it legally justified to authenticate the entry." The learned Advocate-General also urged that the learned Deputy Land: Commissioner, Sanghar has rightly pointed out that the Revenue Officer has to satisfy himself in justifiable manner that any gift has really been made and then mutation is ordered by him. In this case the Mukh tiarkar was never satisfied and whatever entry made by the Supervising Tapedar had no legal value, and this could be cancelled by the Mukhtiarkars who were taking undue benefit with the connivance of the revenue staff. The learned Advocate-General also placed reliance on the following portion of the order passed by the Deputy Land Commissioner, Sanghar; "There is also no mention of names of female donees in the statement Only daughter No. 1 and daughter No. 2 have been shown. It there fore cannot be said to which daughter gift was made and whether there was existence of these daughters only or any more. The gift of land made by Mir Nabi Bux (one of the donors) has also been cancelled by the Land Commissioner Sind. Under these circumstances it is a difficult to say that the possession was also delivered to the donees, as alleged by the Advocate for the declarant. It would also be ridiculous to believe that two daughters of Mir Ali Ahmad, the declarant obtained possession themselves. The very fact that he was shy to disclose their names proves that possession was not handed over to, them physically." So far as the impugned order passed by the Deputy Land Commissioner, Sanghar is concerned, the learned Advocate-General supported it not only on the merits, but also on the ground that it cannot be subject-matter of scrutiny by the High Court in exercise of its Constitutional Jurisdiction. He contended that under paragraph 3 as well as paragraph 26, the bar of jurisdiction against challenging an order passed under the Regulation is complete and this petition must, therefore, be dismissed on this ground alone. Paragraph 3 reads as follows:

"The provisions of this Regulation, and any rule or order made there under, shall have effect notwithstanding anything to the contrary in, any other law or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document." Likewise paragraph 26 may also be reproduced:

"No provision of this Regulation or :of any rules or orders made there under 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 have jurisdiction in respect of any matter which the Commissioner is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made there under, or in relation to anything done or intended to be done by or at the instance of the Commissioner or such officer." The learned Advocate-General vehemently urged that the Revenue Authorities who have also been invested with the powers under the Regulation have not acted mala fide against the petitioners; on the contrary they have taken action as per requirement of law. The learned Advocate-General pointed out that the petitioners still have a remedy under the West Pakistan Land Revenue Act 1967 to file a Revision Application before the Board of Revenue of Sind against the order passed by the Assistant Land Commis3ioner, Shahdadpur, and they can also challenge the order passed by the Deputy Land Commissioner, Sanghar in an appeal provided by the Regulation itself. The learned Advocate-General, therefore, contended that this petition should be dismissed on this short ground alone. Before we record our conclusion in regard to the contentions raised in the case we feel it necessary to reiterate the position under the Muhammadan Law in regard to the gifts of immovable property because of late, many cases have been brought to this Court in which alienations of land made by way of gifts which have been hit by paragraph 7 of the Regulation are involved. It is well known that Muhammadan Law has prescribed just three simple, but very essential, requisites for a valid gift. These are (1) a declara tion of gift by the donor (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject-matte of the gift by the donor to the donee. In simple words, the three act involved are that the donee should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not eve essential that the gift should be made in writing, for a written gift is as good as an oral one. In the case of Jamarun-nissa Bibi v. Hussain Bibi ((1818) 3 All. 366) the Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record of Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of haris may be completed by the donor asking the haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation entries effected in donee's favour in the Record of Rights. A husband making a gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisite of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let out to the tenants, or in the case of lands cultivated to haris, if the tenants or the haris are asked by the husband to attorn to his wife. In such cases, the fact that the husband continues to live in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not on his own account. In Amina Bibi v. Khatija Bibi ((1864) 1 Born. H C 157 ), the gift was from a husband to the wife and the gift consisted of a house in which the husband and wife lived together and of a chawl (adjoining the house) which was let out to tenants. Sir M. Sausse C.J., said: "In my opinion, the relation of husband and wife and his legal right to reside with her and to manage her property rebut the inference which in the case of parties standing in a different relation would arise from a continued residence in the house after the making of the hiba (gift), and in the husband generally receiving the rents of the chawl annexed to that house". In "Ma Mi v. Kallander Ammal" ((1927) 54 I A 23), the gift was by a husband to the wife, and mutation of names was duly effected in public records and the wife's name was entered as proprietress. Dealing with this case, their Lordships of the Privy Council said: "It must therefore be taken that mutation was effected by Moideen (husband) himself, and in the case of a gift of immovable property by a Mohammadan husband to his wife, once mutation of names has been proved, the natural presumption arising from the relation of husband and wife existing between them is that the husband's subsequent acts with reference to the property were done on his wife's behalf and not on his own." In the case of Mohammad Sadiq v. Fakir Jahan ((1932) 59 I A 1), it was held, "But no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife, and the deed is handed over to her and retained by her". In the case of Agha Mir Ahmed Shah v. Agha Mir Yuqub Shah (57 P Kar. 258 (sic)), it was held: "If there is an unequivocal declaration of intention, such as a gift deed or mutation of names, then the relation of husband and wife would go far in curing any ambiguity as to possession". No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward: All that is, however, necessary is to establish the bona fide intention to make the gift. The requirement of change of possession in such a case is not necessary for the father himself is the person to receive possession as the guardian of his son. Similarly, no change of possession is necessary in the case of a gift by a grand-father to his minor grand-son, if the father is dead, for the grand-father is the lawful person to take delivery on behalf of his grand-son as his guardian. In an old case on the subject, namely, Ameerunnisa v. Abdulunissa ((1875) 15 Beng. L R 67) it was held that "where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor." We may also usefully refer to a case decided by our Supreme Court cited as "Ghulam Hassan and others v. Sarfraz Khan" (P L D 1956 S C 309). Their Lordships approving many cases on the subject held that under the Muhammadan Law, formal delivery of possession to a minor donee is not required when the father, or guardian, or the person in charge of the minor makes a gift in the minor's favour. We are tempted to cite one more case namely, "Fazal Ahmed v. Mst. Rakhi" (P L D 1958 Lah. 218), as it has a bearing on the case before us. The following portion of the judgment will make it clear:

"As an ordinary rule of Muslim Law a gift is to be followed by delivery of possession, that is, the donor is to deliver to the donee whatever possession he has, but the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee. This proposition was laid down by their Lordships of the Privy Council long ago in Kalldas Mullick v. Kanhaya Lal Pandit and others. That was a case of Hindus, but the proposition was not based on any special rule of Hindu Law. It was held

that a gift where the donor supports it, the person who disputes it claiming adversely to both donor and donee, is not invalid for the mere reason that the donor has not delivered possession, and that, where a donee, or vendee is under the terms of the gift, or sale, entitled to possession, there is no reason why the terms of the gift, or sale, though not accompanied by possession, whether of movable or immovable property (where the gift or sale, is not of such a nature as would make the giving effect to it to be contrary to public policy), should not operate to give the donee, or vendee, a right to obtain possession. This proposition was repeated by their Lordships of the Privy Council in Mahomed Bakhsh and others v. Hosseni Bibi and others, a case of Muslim. In that case too, the donor, who was a lady, had not trans ferred possession at all for she was not in possession. Their Lordships, referring to the previous case said; The other point was, that the gift was invalid because possession was not given. That subject was considered in a case which came before this Board in 1884, Kala Das Mullick v. Kanhaya Lal Pundit. There it is stated that the principle, on which the rule rests has nothing to do with feudal rules, and that the European Analogy is rather to be found in the cases relating to voluntary contracts or transfers, where, if the donor has not done all he could to perfect his contemplated gift, he cannot be compelled to do more. In this case it appears to their Lordships that the lady did all she could to perfect the con templated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold, under these circums tances, that there can be no objection to the gift on the ground that Shahzadi had no possession, and that she herself did not give posses sion at the time. The view seems to be supported by a passage in Macnaughttn's Precedents, Case X, where the question was: If property left by two brothers devolve on the widows, are the widows entitled to dispose of their late husbands' property by gift, and if they have a right to do so, is the deed of gift executed by them in favour of one of the husband's heirs available in law? Then it is stated that, `although the widows at the time of the execution of the deed of gift were not seized of the property, yet if agreeably to their desire, the donee, in pursuance of a judicial decree, became subsequently seized thereof the fact of the donors having been out of possession at the time of making gift is not sufficient to invalidate it. Their Lordships had, in this case, accepted the applicability of the rule they laid down in the earlier case to a case governed by Muslim Law. The true reason of the rule of Muhammadan Law relating to delivery of possession was stated by their Lordships to be that a donor, because his act is gratuitous, cannot be compelled to do more than what he has done. If he has possession but he has not yet delivered ` it, be cannot be forced to do so. Similar is the reason of the rule given in the Hedaya. It says "gifts are voluntary deeds and if the right to property was established in them prior to the seizing it would follow that delivery would be incumbent on the voluntary agent before he had voluntarily engaged for it. In the present case, the rule of Muhammadan Law as to delivery of possession is not being violated if we have regard to the reason of this rule. Here, the donor has supported the gift and not only has he filed a written statement admitting the claim of the plaintiff and praying that a decree be passed in his favour, but he has appeared in the witness-box and has made a statement that he has transferred this land in lieu of the expenses incurred by the plaintiff in the previous litigation and that he has no objection to the plaintiff being granted a decree. If possession is decreed in favour of the plaintiff, it will be in accord with the wishes of the donor himself. Truly, this suit may be considered as a method by which possession is being delivered by the donor to the donee. The Court should certainly help him to do so." This much discussion should suffice to explain the position in regard to the gifts under the Muhammadan Law. We may now revert to the provisions of the Sind Land Revenue Code which is another important aspect of this case. The relevant provisions of the Code are these:

"135-B.

(1) A record of rights shall be maintained in very village and such record shall include the following particulars: (a) The names of all persons other than tenants who are holders, occupants, owners or mortgagees of the land or assignees of the rent or revenue thereof; (b) The nature and extent of the respective interests of such persons and the conditions or liabilities if any attaching thereto; (c) The rent or revenue if any payable by or to any of such persons; (d) Such other particulars as the Provincial Government may prescribe by rues made in this behalf. (2) Provided that the said particulars shall be entered in the record of rights with respect to tenancie3 of any other classes to-which the (Provincial Government may, by notification in the official Gazette), direct that the provisions of this section shall apply in any local area or generally. 135-C. Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof shall report orally or in writing his acquisition of such right to the Tapedar within three months from the date of such acquisition, and the said Tapedar shall at once give a written acknowledgement of the receipt of such report to the person making it: 'Provided that where the person acquiring the right is a minor or other wise disqualified, his guardian or other person having charge of his property shall make the report to the Tapedar: Explanation I-The rights mentioned above include a mortgage without possession, but do not include an easement or `charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882. Explanation II.-A person in whose favour a mortgage is discharged or extinguished, or lease determined, acquires a right within the meaning o' this section. 135-D.-(1) The Tapedar shall enter in a register of mutations every report made to him under section 135-C and shall also make an entry therein respecting the acquisition of any right of the kind mentioned in the first paragraph of section 135-C which he has reason to believe to have -taken place and of which a report has not been made to him under the said section." (2) Whenever a Tapedar makes an entry in the register of mutations he shall at the same time post up a complete copy of the entry in a conspicuous place in the Tapedar's Dero and shall give written intima tion to all persons appearing from the record of rights or register of mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein. (3) Should any objection to any entry made under subsection (1) in the register of mutations be made either orally or in writing to the Tapedar it shall be the duty of the Tapedar to enter the particulars of the objection in a register of disputed cases. (4) Orders disposing of objections entered in the register of disputed cases shall be recorded in the register of mutations by such officers and in such manner as may be prescribed by rules made by the Provincial Government in this behalf. (5) The transfer of entries from the register of mutations to the record of rights shall be effected subject to such rules as may be made lay the Provincial Government in this behalf: provided that any entry in the register of mutations shall not be transferred to the record of rights until such entry has been duly certified. (6) Entries in the register of mutations shall be tested and if found: correct, or after correction as the case may be, shall be certified by a, revenue officer of rank not lower than that of a Mukhtiarkar's first karkun. (7)

The rules framed under the Sind Revenue Code also require that every mutation must be posted in the Diary by the Tapedar, and is required to be: examined by the Supervising Tapedar. In this behalf reference was made to rules 106 and

107. These read as follows; "106.-(1) Every mutation shall be posted in the Diary by the Tapedar and examined by the Supervising Tapedar and shall be read out and explained by the latter to all persons present. (2) The Supervising Tapedar shall initial all entries so examined. (3) If any person adversely affected admits an entry to be correct, the Supervising Tapedar shall note the admission. (4) If any interested person disputes the correctness of an entry, the Supervising Tapedar shall not erase but shall correct any errors admitted by all parties either by bracketing the errors and inserting the correct entries by interlineations or side note or by an entirely fresh entry, in either case authenticated by his signature; if the error is not admitted, he shall enter the dispute in the Register of Disputed Case (Form Q), and it shall be disposed of under rule 108. 107.

(1) The entries in the Diary of mutations shall be further tested and revised by a revenue officer not lower in rank than a taluka Head Munshi. (2) Any entry found by such officer to be correct shall be certified by him. (3) Any entry found to be incorrect shall, if no dispute is brought to his notice, be corrected as in rule 106(4) and certified by him, such correction shall be a new mutation for the purpose of section 135-D(2). (4) Where such officer finds that there is a dispute regarding any entry examined by him, he shall enter the dispute in the register of disputed cases and the dispute shall be disposed of under rule 1.08. Such officer shall, wherever possible, himself dispose of the dispute under the said rule forthwith." In regard to the provision of the Sind Land Revenue Code, 1879. it would be noteworthy to mention that although the importance given to the Record of Rights maintained thereunder is popularly considered so important that it is treated as a conclusive evidence of Charter of Right of the persons shown in it, but it would not be correct to place it on that high pedestal. There is no doubt that the Record of Rights has an important significance of its own in the Revenue system in Sind. We may furnish a short background of the Revenue Law prevalent in Sind as the position in this regard be clarified as a matter of record. It is commonly known that the Record of Rights was introduced according to the system that prevailed in the Bombay Presidency, for until Separation in 1937. Sind was a part of the Province of Bombay and all the laws applicable before the Separation were made to continue. In historical perspective, the Record of Rights was to be maintained for less comprehensive purpose than it is today. It was originally prepared pursuant to a Resolution mad a in the year 1901 and was to show the rights in land from that of a registered-occupant to an annual tenant-at-will. It was considered that a, Record of Rights based on possession, if not on title, was indeed indispens able, for, the great support for British Administration in India obviously came from the Land-Revenue. The foundation of the Society in the sub continent was the agricultural land, and owing to this predominant position, a full record of rights was indispensable for the assessment and collection of Land-Revenue indeed in any scheme of taxation necessary for the maintenance for the British Administration in India. Without such a record it is indeed impossible to get true statistics of any species of production, or any other economic facility connected with land. An experiment was started just in few selected Talukas of the Bombay Presidency, and this was continued with the Bombay Act IV of 1903 giving it a legal character. The framing of the Record of Rights gradually led to the importance of the Forms of the Register of title, of the ledger or "demands and receipts" and of the receipts given to the revenue payer. Concomitantly the necessity of measuring and recording the sub-divisions of every Survey number became more and more apparent. It would be a matter of interest to point out that the general principles upon which survey operations were conducted, the unit adopted, at the outset at any rate, was a survey number, or a field capable of being cultivated by one pair of oxen. When the Survey was first started, holdings belonging to different persons were not indicated, but, after a time a practice arose of demarcating sub-divisions or survey Numbers in accordance with the rights of private persons in the land. These shares were, however, not measured or assessed, but were shown in the account against the names of their holders, as constituting so many "annas in the rupee" of the whole survey number e.g. 4 or 8 annas share. It would thus be seen that the main purpose to be achieved by the prepara tion of the Record of Rights was the collection of revenue from the occupants of land, and showing their title in property was just an ancillary matter. However, in subsequent years the importance of the Record of Rights grew as it was made applicable to Urban areas and the necessity of the administration required that the title of the land-holders acquired in any manner and the rights accrued by succession, conveyance or any mode of transfer of interest in land be indicated. Additional Forms were introduced from time to time and by now there can be no doubt it came to be the most important document in the Bombay Land Revenue System. As to the importance to be given to the most important document in the Bombay Land Revenue System. As to the importance to be given to the entries in the Record of Rights, the Privy Council in the case of Shankarao v. Shamphu ((1940) 43 B L R 1 (P C)) it was held that an entry in the Code shall be presumed to be true, until the contrary is proved. It was argued in this case on behalf of the appellant that this entry should not be taken into consideration against the appellant as he was a minor at the time when the mutation entries were effected, but the contention was rejected on the ground that the statutory presumption is not hereby weakened. Their Lordships observed "the suggestion that it is materially weakened by the mere consideration that when the record was made the appellant was minor and that his property was managed by the Collector on his behalf cannot be accepted; and if it be the case that at the time of the preparation of the record the permanency of the interest of the tenant was not disputed. This circumstance, of itself, in no, way retracts the force of the presumption". In Ganga Bai v. Fakirgowda (AIR 1930 P C 93), the Privy Council held that the entries in the Record of Rights are in no way conclusive, but they are evidence of the facts recorded therein. In this connection the following passage may usefully be reproduced:

"It appears from a perusal of the Act and the rules framed thereunder that the Act imposed on the officers concerned the duty of making the most careful public enquiry before recording any entry. Further, there are provisions for checking from time to time the correctness of entries made to prevent incorrect entries remaining on the records. Section 3 directs the preparation, revision and correction of the Record of Rights and register of mutation. Section 3, Clause 1(a), directs inter alia the preparation and the maintenance of a register containing the names of persons who are the owners, holders, mortgagees, landlords and tenants of the land. Subsection (3) directs that there shall be kept a register of mutations. Section 4(1) directs that any person acquiring land by partition shall report in writing his acquisition of such right to the village accountant within three months of the date of such acquisition. Subsection (5) requires the village accountant, on receipt of such report, to give notice in writing of the same to all persons appearing from the report to have any interest in the subject-matter thereof and to enter such report in his register of mutations. Rules were framed under the Record of Rights Act and rule 2 requires the village accountant, as soon as the preparation of the record has begun in any village, to cause notice thereof to be published by beat of drum throughout the village and to post a copy of the notice in a conspicuous place in the village Chavdi and to make an entry at the foot of the record to the effect that such notice has been duly imposed by the Act and the rules framed under it upon the persons responsible for the prepara tion of the record, and to give wide publicity to such preparation. These entries are prepared by public servants in the discharge of their official duty, and they are relevant under section 35, Evidence Act, to prove the facts recorded therein." So far as the procedure of mutation of the entries in the Record of Rights is concerned, it is required under section 135.C that any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, deed or otherwise any right as holder, occupant, owner, mortgagee, landlord or tenant of the lands, or assignee of the land or revenue thereof, shall report, orally or in writing, his acquisition of such right to the Tapedar, within three months from the date of such acquisition. If, however, the person acquiring the right is a minor, or otherwise disqualified, his guardian or any other person having charge of his property may make such report. It is however provided that any person acquiring a right by virtue of a registered document is exempt from the obligation of making the report. On receiving a report in terms of section 135-C, the Tapedar is required to enter the report in Register of Mutations, and also to make an entry therein. Even if no report is made by the person required to do so, Tapedar is required to take the same action if he has reason to believe that the acquisition of any rights of the kind mentioned in section 135-C has taken place. The stage is ripe now to examine the present case in the light of what has been stated above. It is the admitted case of the parties that the Record of Rights pertaining to the lands was mutated in terms of the statement made by the petitioner No. 1 on 10-12-1966. It is also the admitted position before us that the petitioners 2 to 6 have been in posses sion of the respective portions of the land gifted to them by the petitioner No. 1 ever since the mutation entries were effected in their favour. Indeed 'there can be no doubt whatever in this regard. The petitioner No 2 had sold 100 acres out of the area gifted to him to Lal Kumar by a registered deed dated 14-7-1967. He repurchased the same area from the said Lal Kumar again by a registered sale deed dated 14-10-1968. Afterwards, on 12-2-1971 he gave away the entire area received by him from his father (petitioner No. 1) by way of gift to his wife, two sons and a daughter, the respondents 7 to

10. In this connection he made a statement before the Mukhtiarkar of Shahdadpur on 21-1-1971, and it is the admitted case of parties that effect was given to these gifts and the mutation entries were also changed in favour of the petitioners 7 to

10. These mutations were, however, entered on 23-9-1973. It is true that the petitioners 2 to 10 did not make any report as required under section 135(c) of the Code ; instead the petitioner No. 1 himself made the statement to that effect on 10-2-1966. But it cannot be said that the action taken by the Tapedar, the Supervising Tapedar or the Mukhtiarkar of Shahdadpur on 10-12-1966 was totally unwarranted by law. A Tapedar even otherwise on his own initiative is required to make an entry in respect of the acquisition of any right of any kind mentioned in section 135(c), in spite of the fact that the person required to make such a report has failed to do so. The action taken by the Tapedar on the statement of the petitioner No. 1 is squarely covered by section 135(d) of the Code and it cannot, therefore, be held as illegal. So far as the further action taken on the statement of the petitioner No. 2 is concerned, it would be noticed that no objection was received from any quarter in respect of the mutation sought or required to be effected. Obviously, it was the petitioner No. 1 himself who was to be affected by the changes proposed to be made in the Record of Rights in respect of the mutation entries. So far as the donees are concerned their case categorically is that they had already accepted the gifts made by the petitioner No.

1. There is great force in the contention raised by Mr. A. K. Brohi that after all the gifts made in favour of the petitioners 2 to 10 were not of onerous character, and there could conceivably be no reason for any of the donees to refuse the land as a gift. Indeed, by their subsequent conduct by taking over possession of the respective portions of land mutated in their favaur pursuant to the statement made by the petitioner No. 1 on 10-12-1966, it is self-evident, beyond any shadow of doubt, that the donees had indeed impliedly accepted the gifted property. However, reverting back to the legality of the action taken by the Revenue Officers on 10-12-1966 in respect of the statement made by the petitioner No. 1 on 10-12-1966, in the absence of objection from any quarter none of the provisions of subsections (3) and (4) of section 135(d) was attracted, and as such the further action could be validly taken under the provisions of subsections (5) and (6) of section 135(d). This indeed was taken forthwith. The only omission, however, is that neither the Mukhtiarkar of Shahdadpur nor his Head Munshi put his signature in the relevant column of the Record of Rights as token of certifying the mutation entries. These were, however, certified by the Supervising Tapedar Shahdadpur. Such an action by him is not only true in the case of the petitioners, but in many other cases as well. The original Register of the Record of Rights shows that it had became a matter of practice with the Revenue Officers that neither the Mukhtiarkar nor his Head Munshi put their signatures in token of certifying the mutation entries. Except for 2 or 3, all the other E'' mutation entries in the Record of Rights have not been attested or verified by the Mukhtiarkar Shahdadpur or his Head Munshi. All the others have been verified by the Supervising Tapedar as in the case of the petitioners. The argument advanced by Mr. A. K. Brohi that the petitioners should not have been singled out cannot, therefore, be said to be without force. There is also substance in the contention that the blame for the non performance of the duty cast on the Mukhtiarkar Shahdadpur or his Head Munshi cannot be put on the shoulders of the petitioners for they only expected these officers to act in accordance with the law. It was observed by a Division Bench of this Court (of which one of us was a Member) in Tanzeem-e-Mullazameen Baldla v. Government of West Pakistan (P L D 1971 Kar. 535), that "It is no doubt true that any procedure set down in a statute has always to be scrupulously followed and it will be no excuse for any authority to say that the prescribed procedure has not been followed since it is of directory nature. But where there is no evidence to suggest that the violation to follow the prescribed procedure was the result of a, conscious or calculated hand or that such failure resulted in positive miscarriage of justice, there would be no justification in allowing the irregularity to effect the result". It would be further seen that the Mukhtiarkar of Shahdadpur had personally attested the statement of the petitioner No. 1 on 10-12-1.966 by which he gave the land to his children by way of gift. The relevant mutation entries are indeed noted down in this statement itself. Before' putting his signature the Mukhtiarkar is presumed to have noted all the contents of the statement as well as the remarks made by the Tapedar and the Supervising Tapedar. Since the Serial Numbers of the relevant mutation entries on the Record of Rights are mentioned in this statement, the assumption becomes irresistible that by putting his signature in token of the verification or attestation of the statement he is also deemed to have verified or attested the relevant mutation, entries in the Record of Rights. These entries were indeed attested by he Supervising Tapedar. It is nobody's case that any ulterior motives were involved in the action taken, either by the petitioner No. I or the Revenue Officers concerned on. 10-12-1966. Indeed this is not a case of an omission of the provision of law which requires verification of the mutation entries by a person of the rank not lower than the Mukhtiarkar's Head Munshi, for, instead of the Head Munshi, the act has been done by the Supervising Tapedar who in several cases such as this was allowed to take the action on previous occasion as well as in the cases that arose later on. On these facts and circumstances the finding recorded by the learned Deputy Land Commissioner Sanghar that Mukhtiarkar chose not to authenticate the entries, or he did not find it legally justifiable to authenticate the entries have no rational basis at all to say at least. Such a conclusion has no basis for it cannot even be drawn on any of the inferences that can be legitimately drawn on the record of this case. At best, what can be said is that there was an omission on the part of the Mukhtiarkar or his Head Munshi to verify the relevant columns of the mutation entries in the Record of Rights

not that the Mukhtiarkar refused to do so intentionally. If indeed the Mukhtiarkar found no legal justification to authenticate the entries, he could have very well cancelled these mutations at once, the Serial Numbers of these entries being mentioned in the statement on which he put his signatures. It is obvious, therefore, that after having attested the statement of the petitioner No. 1 in which the specified numbers borne on the Record of Rights relating to the mutation entries were already noted, the Mukhtirkar considered himself to have verified these mutation entries personally, and left the administerial act of signing the mutations in the Record of Rights to his Head Munshi or to the Supervising Tapedar who was allowed to do so in the past. There is also no force in the contention raised by the learned Advocate- General that it was open under the law to the Mukhtiarkar Shahdadpur on 14-1-1.974 to cancel the mutation entries that had been effected in favour of the petitioners 2 to in the Record of Rights pertaining to the disputed property in the manner done by him. The entries in the Record of Rights were clearly to the effect that these petitioners had acquired right in property by way of gift from the petitioner No. 1, as long ago as 10-12-1966. The fact that these petitioners had been paying, land-revenue and other charges in respect of their respective portions of the land as from the date the mutations were effected in their favour in the Record of Rights is not controverted at all. The Tapedar and the Supervising Tapedar of Shahdadpur whose main duty is to collect the land revenue and the other charges in respect of the lands must have obviously known this fact. Indeed it must be presumed that they were aware of this fact, for the reason that the bills for land revenue etc. are to be issued by the Tapedar himself. The fact that the petitioners 2 to 10 have been in possession of the land is not even disputed. It is respondent's own case that the possession was taken from all the respondents after the impugned order was passed. The fact that petitioners 2 to 6 had taken over possession of the respective portion of the property soon after the mutation of their names were recorded in the Record of Rights in the year 1966, can lead to no other conclusion but that they had actually accepted the gift of the property before-hand. They have filed affidavits to the effect that they had done so. After all, it is not the requirement of a valid gift under the Muhammadan Law that the acceptance of a gift by a donee should be in express terms for acceptance can even be implied. There can be, therefore, no escape from the conclusion that on the admitted facts on the record before us, it stands proved that the petitioners 2 to 6 had indeed accepted the gift of land made by the petitioner No 1 as claimed by them, and the transfer of the property took place through a valid gift under the Muhammadan Law which got reflected itself by the mutation entries recorded in favour of the petitioners 2 to 6 on 10-12-1966. As to the action taken by the Mukhtiarkar on 14-1-1974 is not satisfactorily shown as to how it occurred to the Tapedar and the Super vising Tapedar after a lapse of 7 years that the donees had not accepted the gifted lands. Even if it is accepted for the sake of argument that they noticed the omission in the Record that the donees had not accepted the gift of the land made by the petitioner No. 1 in express terms, they should have realised that they must have done so impliedly. If any lacuna to that effect was noticed by the Tapedar or Supervising Tapedar or even by the Mukhtiarkar they should have sought a clarification from the persons concerned and not taken upon themselves to hold that the rights conveyed to the donees as indicated in the Record of Rights were defective. Nothing was pointed out to us by way of requirement under any Revenue Law, Rule or a Circular etc., that an existing mutation-entry relating to transfer of property through gift can be cancelled at any time by Mukhtiarkar without notice to the party in whose favour the mutation stands recorded. We were also not referred to any requirement made by', a Rule that a donee of a gift must get his acceptance of the gift recorded before mutation can be effected in his name although the donor is willing to get the entry changed in donee's favour. It is, therefore, surprising that neither of the three Revenue Officers, viz. the Tapedar, the Supervising Tapedar and the Mukhtiarkar thought it fit to ascertain from the persons in whose favour the mutation entries had stood good for a matter of past 7 years, and who had been paying land-revenue and all the charges that the law has imposed in respect of their lands, if they had accepted the gifts of landed property. We may also mention an argument advanced by the learned Advocate- General that the Mukhtiarkar, Shahdadpur was competent to reverse the entries under the powers conferred upon him by section 42(6) of the West Pakistan Land Revenue Act as he is competent to reverse an incorrect entry in the Record of Rights while making the periodical record. This view also prevailed with the learned Assisi ant Commissioner, Sanghar as has been noted by him in the order dated 29-3-1974. We may reproduce the relevant portions of this provision of law :

"

42. Making of that part periodical records which relates to land owners :

(1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of estate, who shall

(a) record such report in the ronramcha to be maintained in the prescribed manner ; (b) furnish a copy of the report so recorded, free of cost, to the person making the report ; and (c) send a copy of the report, within a week of its receipt by him to the Union Committee, Town Committee or Union Council within which the estate is situated. (2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the patwari. (3) The patwari shall enter in his register of mutations very report made to him under subsection (1) or subsection (2), and shall also make an entry, in the roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made. (4) The report made to the patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed. (5) If the patwari fails to record or to display a report made to him under subsection (1) or subsection (2), the person making the report may make the report, in writing to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations. (6) A Revenue Officer shall from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to, the patwari and entries made in that register, and shall in each, case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, prefer ably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer, on the register of mutations. (g) An enquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the enquiry, relates. (9) Where a Revenue Officer makes an order under subsection (b) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct. We do not see how this provision of law helps the learned Advocate -General. After all valuable rights in property had accrued to the petitioners 2 to 10 for a long, long time, and the ex parte order passed by the Mukhtiarkar dated 14-1-1974 which adversely affected them must be held to have violated the rules of principles of natural justice. We find that the Revenue Authorities themselves are not taking the position that the learned Advocate-General took before us in regard to the interpretation of section 42 of the West Pakistan Land Revenue Act. In the case reported as Pir Bux v. Allahditta (P L D 1974 Rev. 22) the learned Member, Board of Revenue Sind has made the following observation in regard to this provision of law; "The whole scheme of the Land Revenue Act, 1967 pertaining to mutation is that the rights of the parties in the land should not be determined without affording them the opportunity of being heard and that is why the following procedure has been made mandatory in section 42(6)(s) of the West Pakistan Land Revenue Act ; (6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisition as aforesaid coming to his knowledge of which under the foregoing subsections, report should have been made to the patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (8) An enquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the enquiry, relates. The Daryakhurdi Right therefore could not form exception to this and instead of relying on the report of the officers, it should have been more appropriate in the interest of justice and equity, that the parties involved should have been heard and confronted if necessary with the report of officers subordinate to the Commissioner. As this has not been done and the ex parte order confirming the Darya -khurdi Rights of the respondent, has affected the right of the appellants adversely, I am therefore constrained to set aside the order .of the Commissioner, Khairpur to the extent mentioned above and remand the case to Colonization Officer, Guddu Barrage, who should afford an opportunity of being heard to both the parties and decide the matter on merits as he deems fit." Had the Mukhtiarkar of Shahdadpur, therefore, complied with the legal procedure by which he was bound, or had he not been guilty of the violation of the basic principles of natural justice which have been emphasized by the Superior Courts time and again, he would not have fallen in error. The petitioners Nos. 2 to 10 would have pointed out to him that the gifts had no lacuna of acceptance on their part, and the transfer of the property was a completed transaction 7 years old, and that if there was any lacuna left of the Mukhtiarkar having signed mutation entries in the Record of Rights, it was his duty to fill up the lacuna. As held earlier, the petitioners 2 to 10 had acquired valuable rights in property by virtue of valid gifts under the Muhammadan Law, and they could not be saddled with the burden of the consequences of the non-performance, if any, of the duty cast upon the Mukhtiarkar or his Head Munshi on 10-12-1966 to put signatures on the mutation entries, recorded in their favour. On the facts of this case it is clear that if there was any defect it was just that the Mukhtiarkar or his Head Munshi had committed a bona fide mistake or an inadvertent error. Had the petitioners been aware of it on 10-12-1966, they could have asked the Mukhtiarkar on that very day to perform the duty cast on him under the law. Nothing happened upto 14-1-1974 in spit of the promulgation of the Martial Law Regulation 115, that can be said to have taken away the petitioners' right of asking or indeed demanding" the Mukhtiarkar of Shahdadpur on 14-1-1974 to do the duty that was cast upon his successor on 10-12-1966 i.e. of filling up the lacuna by verifying the entries himself. On this view of the case, had the Mukhtiarkar of Shahdadpur given the opportunity of hearing to petitioners he could have been compelled by them to perform his duty of verifying the mutation entries required of his predecessor-in-office to be done. On these facts the order passed by the Mukhtiarkar of Shahdadpur dated 14-1-1974 is totally unwarranted in law. We may now proceed to examine the legality of the action taken against the petitioners after the order was passed by the Mukhtiarkar of Shahdadpur on 14-1-1974. On being informed of this order, it may well be open to the Deputy Land Commissioner, Sanghar, to draw up Review Proceedings, suo moto, and issue notice to the petitioner No. 1 in terms of rule 10(1) (b) of the Sind Land Reforms Rules, 1972. We have upheld the vires of this rule in the case of Pir Shah Mardan Shah II v. Chief Laid Commissioner and others Constitutional Petition No. 278 of 1973, and in view of this decision Mr. A. K. Brohi did not press this point further. However, there is great force in the contention of the learned counsel that the decision was made by him prematurely, for, the basis on which he had drawn up the Review proceedings namely, the order passed by the Mukhtiarkar of Shahdadpur dated 14-1-1974, was yet subjudice in the appeal filed by the petitioner No. 1 against that order. It is clear on record that this appeal had been filed before the learned Officer himself, in his capacity as a Deputy Commissioner, Sanghar, and he had himself transferred the appeal for disposal to the Assistant Commissioner, Sanghar. His own record shows that he had allowed an adjournment for three weeks on 23-2-1974 on an application made by the learned counsel for the petitioner No. 1 on the following grounds :

(1) "That the respondent (petitioner No. 1) has come in appeal before your honour in the capacity of the Deputy Commissioner against the same ex parte order of the Mukhtiarkar. (2) That till the decision of the said appeal it would be in the interest of justice that procedings of the Review may kindly be adjourned, because if finally the order dated 14-1-1974 is illegal, void and inoperative, the proceedings under the Review would become in- fructuous." On these facts, it is surprising that in the order passed on 20-3-1974 the learned Deputy Commissioner Sanghar should have observed as follows :

"In this case there is nothing on the office record to show that the appeal has actually been filed against the order of cancellation and is pending decision before the competent Appellate Authority, but the contention of the appellants' Advocate for declarant that such appeal had been filed and is pending before the Assistant Commissioner, Shahdadpur, cannot be overlooked as it is quite natural that the aggrieved person would not have remained silent." It is clear that the only basis on which the learned Deputy Land Commissioner, Sanghar, had drawn up the suo moto Review proceeding was the order passed by the Mukhtiarkar, Shadadpur dated 14-1-1974. This is amply clear from his letter dated 28-1-1974 through which he had sought permission from the Land Commissioner, Sind at Hyderabad for allowing him to review the order passed by his predecessor dated 22-6-1972 Since the very basis on which he had taken the suo moto action in Review was an order which on account of an appeal filed against it was premature, the propriety, if not competency under the law, demanded that the learned Deputy Land Commissioner, Sanghar, should have awaited until the finality was given to the basis on which he had taken the action. After all, by passing the impugned order dated 16-3-1974 he must have known that he was to close the door to any relief that could be given to the petitioner No 1 in the appeal filed by him, on the revenue side, which was pending before an officer directly subordinate to him, in his capacity as the Deputy Commissioner, Sanghar. The fate of the appeal filed by the petitioner No. 1 before the Assistant Commissioner, Sanghar, in the circum stances, can very well be said to have been decided with the order passed by the Deputy Land Commissioner, Sanghar, as indeed it turned out to be. Even if these aspects of the case are considered to be just matters of propriety, we have no hesitation in holding that the learned Deputy Land Commissioner, Sanghar seriously erred in law in passing the impugned order dated 16-3-1974. In fact he did no better than what Mukhtiarkar of Shahdadpur had done on 14-1-1974, except that he heard the petitioner No. 1 while the former had not done so. But again, what he did not realise at all was the fact that the parties who were to be adversely affected in the proceedings launched by him were not before him. He had not even called them. If he had not realized this position earlier, he should done so before he passed the final order. There can be no doubt that by the fact of the mutation-entries recorded in their favour and their being in possession etc., valuable rights in property had got vested in the petitioners 2 to 10, the defect in their title just being the want of knowledge on the part of the Revenue Officers whether or not they had accepted the gifts of land, they were essentially the "parties affected" in terms of rule 10(t)(b) of the Sind Land Reforms Rules 1972. We have already dealt with this aspect of the case in the case of Pir Shah Mardan Shah v. Chief Land Commissioner (Const. Petition No. 278/1973), and for the reason that prevailed with us in that case, we cannot reach to a different conclusion in the present one. We, however, find that every reason given by the learned Deputy 'Land Commissioner, Sanghar in the impugned order passed by him is without substance. The reasons that prevailed with the learned Officer are these :

(1) An entry made by Tapedar or Supervising Tapedar in V. F. VII is of no value unless it is authenticated by a Mukhtiarkar. (2) Mukhtiarkar is competent to cancel all such incorrect entries which have wrongly been made by the Tapedar in V. F. VIII. In all such cases of unilateral action by lower staff hearing is not required by the Mukhtiarkar before cancelling incorrect entries. (3) This entry was cancelled as there was no acceptance of gift by the donees. (4) The same Mukhtiarkar who recorded the statement of the declarant Mir Ali Ahmed Khan on 10-t2-1966 could authenticate the entry in V. F. IV on the same day but he chose not to do so. It is thus crystal clear that in the absence of any acceptance by the donees and verification of their existence, the Mukhtiarkar did not find legally justifiable to authenticate the entry. (5) There is also no mention of names of female donees in the state ment. Only daughter No. 1 and daughter No. 2 have been shown. It, therefore, cannot be said to which daughters gift was made and whether there was existence of these daughters only or many more. (6) The gift of land made by Mir Nabi Bux (one of donees) has also been cancelled by the Land Commissioner, Sind. Under these circum stances it is difficult to say that the possession was also delivered to the donees as alleged by the advocate for the declarant. (7) It would also be ridiculous to believe that 2 daughters of Mir Ali Ahmed Khan, the declarant, obtained the possession themselves. The very fact that he was shy to disclose their names proves that possession was not handed over to them physically. So far as to the powers of the Mukhtiarkar to cancel the entries in the Record of Rights which he considers to be incorrect, we have no hesitation to hold that if he were to do so without giving a reasonable and adequate opportunity of hearing to the person in whose favour the mutation has been recorded, action taken being contrary to the principle of natural justice would have to be struck down without any hesitation. In regard to the conclusions at Serial Nos. 3 and 4, we have already expressed in the earlier portion of the judgment that these findings are totally unwarranted by the record. We were not pointed out any provision made under the Revenue Laws that the donee is required, in the cases such as this, to make a statement in regard to the acceptance of the gifted property, except for what is required to be done by any person under section 135-C of the Code. We have already pointed out in this connection that in the absence of report from the person who is required by section 135-C to make it, action is to be taken by the Tapedar a his own instance. In any case, we have already held that the donees by their conduct of taking possession of the respective portion of land givers to them by the petitioner No. 1 as gift, impliedly accepted the gift, and there was conceivably no lacuna as would make the gifts invalid, or the proceedings leading to the change in the mutation entries in the Record of Rights as illegal. The observation made by learned Deputy Land Commissioner, Sanghar in regard to the omission of the names of the female donees in the statement obviously amount to misreading of the records. We have already perused the statement of the petitioner No. 1 made on 14-1-1967. Its bare perusal reveals the names of the female donees. We do not see how shyness of female donees is at all relevant. In the case of land in physical occupation of the Haris, it is not necessary that donee should be put in actual physical possession by the donor. These are not matters that are foreign to the Revenue Officer. Indeed, they are concerned with such cases as of duty and they are expected not to be ignorant that the owner is deemed to be in possession of an immovable property let to his tenant or to his Haris. This position in law is so obvious that it needs no re-statement. It is, therefore, difficult to hold the order passed by the learned Deputy Land Commissioner, Sanghar has any legal support. The same is true of the order passed by the learned Assistant Land Commissioner, Sanghar dated 23-2-1974 as it is just the bare repetition of the order passed by his Superior Officer, the learned Deputy Land Commissioner, Sanghar. We have also no hesitation in rejecting the tall claim made by the learned Advocate-General in regard to the immunity in respect of the orders passed under the provisions of the Land Reforms Regulation, 1972. The position of this Regulation before the promulgation of the Constitution of 1973 was no doubt different, but now it is as good as an other ordinary statute. We may usefully reproduce the position pointed out, by their Lordships of the Supreme Court of Pakistan regarding the West Pakistan Land Reforms Regulation, 1959 which would apply with equal force to the Land Reforms Regulation, ? 972 in the case of Haji Ali Bux and 3 others v. The Chief Land Commissioner, West Pakistan, Lahore and 2 others (1974 S C M R 98) :

Mr. Abdul Sattar Pirzada, learned counsel for the appellants, has contended that the decision of the Supreme Court in the above case of Mst. Bibi Ayesha, related to an order which was passed by the Land Commission before the promulgation of the Constitution of 1962 and, therefore, it was distinguishable. According to the learned counsel, para. 27 of the Martial Law Regulation, which is as under, could not be a bar for the High Court under Article 98 of the Constitution to consider the question whether such an order was passed with lawful authority ;

"Paragraph

27. Bur of Jurisdiction.

(l) 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 have jurisdiction in respect of any matter which the Commissioner or an Officer acting under the authority of the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any Officer exercising any power or discharging any function under this Regulation or the rules or order made thereunder, in relation to anything done or intended to be done by or at the instance of the Commission or such Officer." In this connection he has referred to a decision of this Court in Nawab Haji Khair Muhammad Khan v. The State. It was ,observed in that case as under ;- "As a result of the above discussion, we are satisfied that the order of Mr. I. U. Khan is not one that can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but, "any order made" and therefore the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June, 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. I. J. Khan was made without lawful authority and was, therefore, of no effect." In view of the above decision, the bar of jurisdiction under para. 27 is limited after the promulgation of the Constitution to orders which were in substance and form made in l compliance with the Regulation. In the present case, the order not recognising the decree passed against the heirs of Mir Budho Khan was communicated on the 30th October 1962 much after the date of the promulgation of the Constitution of 1962. The second order dismissing the application for review was also passed on the 23rd September, 1963. It will be seen that this order was also passed after the promulgation of the Constitution. It was, therefore, open to the High Court to consider the validity of the above two orders and to come to a conclusion whether the order of the Land Commission was passed in substance and form in compliance with the Regulation. The High Court was, therefore, wrong in not entertaining the application and in dismissing the writ petition. We would now consider the question whether the order of the Land Com mission was within the regulation of the Land Commission. It will be noticed that the appellants filed Suit No. 28 of 1959 on the 4th February 1959, before the Martial Law Regulation No. 64 was promulgated. The heirs of Mir Budho Khan were served and they did not put in appearance. The suit was decreed on the 22nd August 1959. This decree was sought to be set aside by the heirs of Mir Budho Khan. A civil suit was filed for setting aside the ex parte decree but it was withdrawn on the 18th July 1961. The rights of the appellants were also challenged by their haris before the Mukhtiarkar and Tribunal Tenancy. Their application was accepted by order dated the 19th October 1959. The appellants filed an appeal before the Collector which was allowed by order of the Collector which is at page 61 of the record. Thereafter, the tenants challenged the rights of Zamindari of the appellants to two suits, namely, No. 272 of 1959 and No. 285 of 1959. These suits were dismissed on the 16th February 1961 and 31st August 1961, respectively. In addition to this, the mutation was effected in favour of the appellants in the Revenue record on the 28th September 1959. The documents placed on the record further show that Sardar Hira Singh compromised and recognised the appellants as Zamindars and issued bills to them as Khatedar and accepted the land revenue by receipt, Exh. 16/5, which is at page 24 of the Supplementary paper book. The appellants have also filed land revenue receipts and land revenue bills in their favour which show that the land revenue was realised from them. The above mentioned facts proved beyond doubt that the appellants are the Zamindars of the land in dispute and their rights had been recognised by the civil Court. It further shows that the decree obtained by them against the heirs of Mir Budhu Khan was not collusive or fraudulent and their title bad been recognised by the civil Court in other proceedings also. In view of this, the Land Commission 0ould have recognised the decree and released the land in dispute. After carefully considering the facts of the present case, we are satisfied that the Land Commission did not pass the impugned order in accordance with the provisions of Martial Law Regulation. Under rule 12, promulgated under Martial Law Regulation, it is clearly provided that if the land as a result of the civil suit, is awarded to a person other than the declarant owner, the rent realised from such land shall be given to such person. It will be further noted that the order passed by the Land Commission was passed in the absence of the appellants and suffers from the principles of natural justice. We would, therefore, set aside the order of the Land Commission and direct that the land in dispute be released in favour of the appellant. The case before the Supreme Court of Pakistan seems to be parallel to the present one before us. In that case the mutation was effected in favour of the appellants in the Revenue Record on 28th September 1959. The documents placed on the record before the Court, like in the present case consisted of Land Revenue bills which showed that the land Revenue was, realised from the appellants. The appellants produced decree of the civil Court which according to their Lordships was not collusive or fraudulent. But on these facts what their Lordships of the Supreme Court held is noteworthy and we therefore reproduce the relevant portion :

"The mutation was effected in favour of the appellants in the Revenue record on the 28th September 1959. The documents placed on the record further show that Sardar Hira Singh compromised and. recognised the appellants as Zamindars and issued bills to them as Kbatedar and accepted the Land Revenue by receipt, Exh. 16/5, which is at page 54 of the supplementary paper book. The appellants have also filed land revenue receipts and land revenue bills in their favour which shows that the Land Revenue was realised from them. "The above mentioned facts proved beyond doubt that the appellants are the Zamindars of the Land in dispute and their rights had been recognised by the civil Court. It further shows that the decree obtained by them against the heirs of Mir Budhu Khan was not collusive or fraudulent and their title had been recognised by the civil Court in other proceedings also. In view of this, the Land Commission should have recognized the decree and released the Land in dispute. After carefully considering the facts of the present case, we are satisfied that the Land Commission did not pass the impugned order in accord ance with the provision of Martial Law Regulation. Under rule 12, promulgated under Martial Law Regulation, it is clearly provided that if the land as a result of the civil suit, is awarded to a person other than the declarant owner, the rent realised from such land shall be given to such person. It will be further noticed that the order passed by the Land Commission was passed in the absence of the appellants and suffers from the principles of natural justice. We would, therefore set aside the order of the Land Commission and direct that the land in dispute be released in favour of the appellants." In the case before us the impugned order .was passed by the learned Deputy Land Commissioner, Sanghar long after the promulgation of they Constitution of 1973 and it does not enjoy the protection of the provision made in Article 269 (2). Since the Law Reforms Regulation 1972 is now just an ordinary Existing Law, the order passed thereunder, after the promulgation of the Constitution of 1973, cannot enjoy better status than that of those passed under any other legislative measure and must, therefore, fall within the scope of the scrutiny available to the High Court under its constitutional jurisdiction. It would be further seen that the alienation of land which was the subject matter of the examination before the learned Deputy Land Commissioner, Sanghar pertained to 10-12-1966, and was not hit by the provisions of para graph 7 of the Regulation. The mutation entries, therefore, did not fail within the scope of scrutiny under paragraph 7 of the Regulation, and in dealing with such a case the Land Commission can have no better power, if at all, than any other tribunal which is bound to follow all norms of ordinary legal procedure, and is otherwise bound by law relating to the subject-matter. In the case reported as "Syed Makhdoom Nazar Hussain Shah and 2 others v. The Chief Land Commissioner and 11 others, (P L D 1974 Note 55 at p. 94) Karam Ellahi Chohan, J. quashed the order passed by the learned Chief Land Commissioner under the provision of the West Pakistan Land Reform Regulation, 1959 on the ground that the evidence on the record was mis-read and factum of gift of the property was refused to be recognized by the learned official. The learned Deputy Land Commissioner Sanghar in the case before us has done likewise. We therefore, for the reasons given above, quash the impugned order passed by him. The subsequent order passed by the learned Deputy Land Commissioner, Sanghar dated 20-3-1974 must automatically disappear with the impugned order. The basic order in pur -nuance to which these orders were passed is the order of the Mukhtiarkar of Shahdadpur dated 14-1-1974, which we have already held to be without lawful authority. Not only this order is, therefore quashed, but also the one that upheld it viz. order passed by the Assistant Commissioner, Sanghar dated 23-2-1973. In the result, this petition succeeds, and is accordingly allowed with costs. KHUDA BAKHSH MARRI, J.-I agree. S. A. H. Petition allowed.