P L D 1968 Lahore 1145 (PLP)

A. R. SHEIKH, J.‑

The facts leading up to this writ petition are these: On the demise of one Nawab Muhammad Din Khan of village Rukhanwala, Tehsil Kasur, District Lahore, in August 1948, mutation of inheritance of his holding was sanctioned under custom in favour of his son Khizar Hayat Khan, the petitioner (a minor at the relevant time), to the exclusion of female heirs. This mutation was subsequently reviewed in the year 1954, in view of the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, and the property was mutated according to Shariat Law shares in favour of the petitioner, his four sisters, namely, Mst. Kalsoom Begum, Mst. Shamim Begum, Mst. Manzoor Begum and Mst. Rashidah Begum (minor), as also their mother Mst. Inayat Begum. On the 21st of November 1954, all the aforementioned females, excepting Rashidah Begum, are stated to have orally gifted their shares in favour of Khizar Hayat Khan petitioner and an entry of even date, to this effect, appears in the Roznamcha Waqia'ti of the Patwari Halqa. When the mutation proceedings came up before the Revenue Officer on the 11th of May 1955, Mr. Muhammad Arshad Khan, father of Javed Ahmad Khan and Mst. Parvez Kausar (minors) respondents Nos. 3 and 4, and husband of Mst. Kalsoom Begum (who had died in the meantime), supported the factum of the gift of her share having been made by his deceased wife and accordingly mutation No. 734 of gift by the three sisters and the mother was sanctioned in favour of the petitioner. At this state it will be pertinent to mention that this oral gift was repudiated by Mst. Shamim Begum four days after its sanction and sub sequently she filed a suit challenging the same and obtained a compromise decree in her favour and her share in the property of her father was restored to her by the Chief Land Commissioner on 18‑9‑61 in exercise of suo moto revisional powers.

2. With the enforcement of the West Pakistan Martial Law Regulation (No. 64) of 1959 (herinafter called the Regulation) the petitioner submitted a declaration of his holding both as owner and as donee from his three sisters and mother in Forms L. C. I and L. C. I of an area measuring 771 acres. He was allowed to retain 500 acres of land under the Regulation and was made to surrender the balance of 271 units to the Govern ment, under orders dated the 30th of September 1959, of the Land Commissioner. On the 15th of February 1962, respondents Nos. 3 and 4 filed an appeal before the Collector challenging the aforesaid mutation of gift No.

734. This belated appeal was rejected. Their revision petition before the Commissioner also failed and the same has been the fate of their revision petition before the Board of Revenue on the 18th of September 1963. They have also remained unsuccessful in review proceedings. Thereafter, they brought a civil suit against the petitioner, as also the other heirs of Nawab Muhammad Din Khan for constructive possession of 1,030 kanals, 9 marlas of land out of 16,716 kanals, 8 marlas, as inheritance of their mother (Mst. Kalsoom Begum) on the ground that the alleged gift to the exten0of 7/48th share of their mother in favour of the petitioner was void and inoperative as against their rights. This suit was resisted by the petitioner, but the Civil Court while rejecting the pleas of the petitioner has decreed the suit and has allowed the claim of the minor respondents. This decree has not been appealed against by the petitioner, who approached the Land Commission (respondent No. 1) with the prayer that the decree should be held ineffective and of no consequence and in the alternative if the decree is permitted to have effect, the petitioner be given back equal area of land surrendered by him under the Regulation to make the petitioner's 500 acres of permissible land. This prayer of the petitioner was rejected by the Land Commission on the ground that the decree of the Civil Court obtained by the heirs of Mst. Kalsoom Begum as against the petitioner was not binding on the Com mission it being not a party to the said decree. The minor decree‑holders are stated to have started execution proceedings against the land hold by the petitioner and feeling aggrieved by that, he has come up to this Court under Article 98 of the Constitution Act of 1962.

3. Learned counsel for the petitioner assails the decree of the Civil Court on the ground that because the petitioner was an "existing owner" of 771 acres of land, which area included the gift land and his declaration to that extent had been accepted by the Land Commission after proper scrutiny under the provisions of paras. 3 and 4 (6) of the Regulation, read with rule 11 framed thereunder, the jurisdiction of the civil Court was barred under para. 27 of the Regulation and as such it was a case of coram non judice and the decree of the Civil Court is a nullity in the eye of law and the same could not be executed against the holding held by the petitioner. In order to appreciate the argu ment advanced by learned counsel for the petitioner, which argument is supported to some extent by the learned Additional Advocate‑General appearing on behalf of the Land Commission, it will be advantageous to reproduce. the various relevant provisions: "

3. Regulation to override other laws, etc.‑The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document." "

4. Constitution of Land Commission and its powers. . (6) Where any dispute arises in carrying into effect the provisions of this Regulation, such dispute shall be referred to the Commission whose decision thereon shall be final.". "

27. Bar of Jurisdiction.‑(1) 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 Commission or an officer acting under the authority of the Commission is empowered to determine. (2) No such Court or authority a s aforesaid shall be competent to grant any Injunction or other order in relation to any proceedings before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer." Notification No. ASR‑2933‑59/4030‑LC dated 5‑9‑1959 (pp. 302 Land Reforms Manual) "In exercise of the powers conferred on the West Pakistan Land Commission under paragraph 4 (5) of the Martial Law Regulation No. 64, the Commission is pleased to direct that the term `existing owner' used in the Martial Law Regulation No. 64 shall be deemed to mean a person entered as an owner to the revenue records on or before the 7th February 1959, and the person who had become entitled to any land on account of inheritance before the said date although not entered as such in the revenue records." Mala fide Alienations (Chapter IV at pp. 84 to‑ 91 of Land Reforms. Para. 109 (iv) Manual‑"Decree of Civil Courts.‑Alienations as a result of decrees obtained from revenue or civil Courts before the 8th October 1958, should be accepted, but decrees passed after the 8th October 1958, should be scrutinised in to defeat the whether or not the same has been obtained order to determine object of the Regulation." Para. 109 (vi)‑"Mutations.‑Mutations sanctioned before the 8th October 1957 should be considered valid and they need not be reopened unless there are sufficient grounds for suspecting that there has been any antedating or tampering with the records, and applications received in this behalf from the land‑owners should be examined and genuine applications approved. An opportunity be given to the persons to represent their case before the Deputy Land Commissioners and Land Commissioners concerned during examination." Learned counsel contends that by virtue of Notification No. 10/59/14‑L‑C., dated the 10th of February 1959, every person owning or possessing land in excess of 500 acres of land was under an obligation to submit declaration in Form L. C. I. in respect of area obtained by virtue of gift on or after the 14th of August 1947, in addition to areas mentioned in clauses (a) to (d) and (f ) to (h) of para. (i) of the said Notification, and because the petitioner was an `existing owner' of the entire holding including the gift land obtained by him from Mst. Kalsoom Begum, which gift was a valid gift for all intents and purposes and the Land Commission was to scrutinise the said declaration in the manner prescribed by the Chief Land Commissioner under sub‑paras. (h) to (i) of para. (6) of Order of the Chief Land Commissioner (Appendix XIV appearing at pages 368 and 369 of the Land Reforms in West Pakistan, Volume I, of the year 1960, a duty was cast on the Land Commission to determine the extent of total area held by the declarant‑petitioner, the area to be retained by him and the excess area to be surrendered by him. He argued that by virtue of para. 27 of the Regulation determination of this aspect of the case was within the exclusive jurisdiction of the Com mission and, therefore, no Civil Court, including the High Court and the Supreme Court, or any other authority, has jurisdiction in the matter. He also tried to draw support from para. 3 of the Regulation and argued that the provisions of the Regulation were overriding and anything contained in any order or decree of the Court or authority was to yield to the provisions of the Regulation. Reliance was also placed on para. 4 (6) of the Regulation which says that `where any dispute arises in carrying into effect the provisions of the Regulation such dispute shall be referred to the Commission whose decision thereon shall be final' and it was contended on the basis of these provisions of law that if the impugned decree of the Civil Court is deemed to be a valid document, it frustrates the orders passed by the Land Commission with jurisdiction. He has further relied on two decisions of the Supreme Court: Mst. Bibi Ayesha and another v. The Chief Land Commissioner, West Pakistan and another (P L D 1966 S C 84), Mst. Ha4lani and others v. West Pakistan Land Commissioner, Lahore and others (P L D 1966 S C 114). It has been held therein that questions falling under section 11 of the Regulation pertaining to females were within the exclusive determination of the Land Commission and, therefore, were not to be agitated before any other authority.

4. As against this, learned counsel for the minors has invited our attention to para. 12 (a) of the instructions issued by the Commission on the 3rd of March 1960, which reads as under:‑ "Where any land is the subject‑matter of Civil litigation, the surplus area shall be provisionally resumed but shall not be disposed of under paragraph 19 of the said Regulation until the decision of the Civil suit." He has also referred to a recent decision of Lordships of the Supreme Court reported as: Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1). He further says that the two decisions in Mst. Bibi Ayesha and another v. The Chief Land Commissioner, West Pakistan and another and Mst. Hajiani and others. v. West Pakistan Land Commission, Lahore and others are not an authority for the view that questions of title inter se the donor and the donee or alienor and alienee, or the co‑sharers fall for determination by the land Commission.

5. A plain reading of para. 27 shows that if the question involved in the case is not covered by the various provisions of the Regulation, it is not a matter falling for determination by the Land Commission and, therefore, despite the overriding nature of the Regulation as contained in para. 3 or para. 4 (1968SCMR262) or the exclusion of powers of the Civil Court, the High Court and the Supreme Court, the matter will be determinable by the Civil Court, which is a Court of general jurisdiction. The mere fact that a person is a declarant and does make a declara tion as an existing owner does not empower the Land Commission to give a verdict in respect of the title of that person. Cases may be visualised where‑ entries in the name of the existing owner of the land, legally belonging to persons other than the declarant exist in the revenue record. In such cases the mere fact that the declarant does declare all those lands as his and such a declaration is accepted by the Land Commission A will not clothe the declarant with title in that property, nor will the acceptance of that declaration by the Land Commission deprive the real owners of the land to agitate their rights in respect of that land before the Civil Court. If the interpretation, as suggested by learned counsel for the petitioner, is placed on these provisions of law, it will mean negation of the rights of real owners of the land, who will be considered to have been condemned unheard by the Land Commission merely on the declaration filed by the declarant purporting to be an `existing owner' of the said land. No doubt, the questions of gift made by donors to defeat the provisions of the Martial Law Regulation were invariably gone into by the Land Commission, the reverse proposition of going into the title of the donor claiming to be the existing owner was not determined by the Land Commis sion and from that angle also the acceptance of the declaration by the Land Commission as entered by the petitioner in Forms L. C.1 and L.C.II does not oust the jurisdiction of the Civil Court to determine the legality or validity of the alleged transaction of gift challenged by the minor children of the donor before the Civil Court. Following with respect the law laid down in Nawab Muhammad Farid Khan v. Muhammad Afzal Khan which case is directly in point, we hold that the decree of the Civil Court is not without jurisdiction and as the petitioner has not assailed the same before any higher forum, he cannot challenge it before this Court in writ jurisdiction.

6. The next question that arises is as to the binding nature of this decree against the Land Commission. We entirely agree with the learned Additional Advocate‑General that because the Land Commission was not a party to the proceedings before the Civil Court, the decree is not binding against it and the minor decree‑holders are at liberty to execute the same against the petitioner in respect of the land held by him, because the decree was with regard to an undivided share of the donor in the land in question, a part of which was surrendered by the petitioner and it was not with regard to certain specified Khasra numbers, which are now claimed to have been surrendered by the petitioner to the Land Commission.

7. Coming to the question of relief, which can be claimed by the petitioner before this Court, we agree with the contention raised by learned counsel for the petitioner that even if the decree is not binding on the Land Commission, yet as a conse quence of the Civil Court decree, the holding declared by the petitioner at the relevant time will be considered to have been reduced to the extent of the share of the minors in the property of their mother and it will be for the Land Commission to reconsider the question of declaration made by the petitioner, which will be deemed to have been reduced by 96 acres. With these observations the writ petition is disposed of. However, the parties are left to bear their own costs. A.E. Order accordingly.