2005 PLP 2702 (YLR)

TARIQ PARVEZ KHAN, J.--Petitioner, Gul Haider, became owner of land measuring 12 Kanals, 6 Marlas comprised in Khasra No.204/1 situated in village Roria Mardan, when said land was surrendered by the original owners 10 the Provincial Land Commission, N.-W.F.P. in the year 1968 under Martial Law Regulation No.64 of 1959. Petitioner No.1 being tenant of the surrendered land, grant was created in his favour on 26-3-1973 under M.L.R. No.115 of 1972 through Mutation No.324 attested on 20-7-1974.

2. The petitioner through Mutation No.1471 attested on 24-7-1993 sold the granted land to petitioners Nos.2 to

7. The said transaction was brought to the notice of Land Commission, Mardan being in violation of para.9 of Notification No.474/LC, dated 19-3-1973 whereunder there was restriction on alteration through sale, gift, mortgage or alienation of such land during the period of 25 years from the date of creation of such grant.

3. Learned counsel for the petitioners submitted that by virtue of grant, mentioned above, he became full owner and as certain provisions of Martial Law Regulation No.115 of 1972 were declared repugnant to Qur'an and Shariah by the august Supreme Court of Pakistan, hence no clog/embargo/ restriction existed on the right of the petitioner to alienate the property in the manner he wanted without being controlled by period of 25 years as given in para.9. He also referred to Land Reforms Act, 1977, section 16(a) where period of restriction has been fixed to be 20 years, and submitted that the sale transaction executed by him was after 20 years of the grant created in his favour under Martial Law Regulation No.64.

4. We are of the view that the contention as raised by the learned counsel for the petitioners is not tenable as Land Reforms Act, 1977 and condition/period laid thereunder would be applicable to such tenant who was granted land under the said Act and as far tenant granted land under M.L.R. 64 they are to be governed under M.L.R. 115 of 1972 and para.9 of the Notification, referred to above, was applicable to his case. As it was contended that petitioners Nos.2 to 7 have not been heard who have by now an interest in the property, is also not convincing argument because if the petitioner No.1 could not under the law alienate the granted land, no lawful right has accrued to petitioners Nos.2 to 7 so to make them necessary parties before the land. However, petitioners Nos.2 to 7 if deprived of property purchased by them from petitioner No.1 after its resumption to the Provincial Government could have a cause of action against none except petitioner No.1 which right as against petitioner No.1 they can enforce through having recourse to the Courts of law. This writ petition being devoid of force is dismissed along with C.M. No.2293 of 1998. H.B.T./483/P Petition dismissed.