' FAKHRUDDIN G. EBRAHIM, J.-The facts giving rise to this petition are that under an agreement dated 21-12-1976 the petitioner agreed to purchase agricultural land bearing Survey Nos, 175/1, 2, 4, 176/1, 2, 117/4, 118/2, 119/1, 2 and 120/4, admeasuring 30.4 acres situate in Deh Panhwarki, Tapo Sultanpur, Taluka Hata, District Hyderabad for a sum of Rs, 16,610. This land, the vendor Nawab Ali had acquired from the Government under M. L. R. 89-91. The agreement recites that the vendor had put the petitioner-purchaser in possession of the land and that the remaining instalments which were due and payable by the Vendor to the Government totalling Rs, 9,642, will be paid by the Petitioner.
The agreement also stated that the land revenue will be paid by the purchaser.
2. On coming into operation of M. L. R. 115, the Vendor Nawab Ali did not disclose the aforesaid alienation in favour of the petitioner with the result that the land was resumed by the Deputy Land Commissioner, Hyderabad.
3. The petitioner went in appeal before the Land Commissioner Sind, in which his case was that he had agreed to purchase the land as aforesaid from Nawab Ali who had also granted a power of attorney in favour of the petitioner's nominee. The Land Commissioner, Sind came to the conclusion that the sale agreement was a genuine document and that the petitioner was a bona fide . Purchaser for value and accordingly, came to the conclusion that the purchaser's rights were protected and allowed the appeal and directed that the land in dispute be. Excluded from resumption.
4. It would appear, that while the aforesaid appeal was pending a part of the land measuring 8.11 acres being 4.11 acres of Survey No, 119/1 and 4 acres of survey No, 120/4 were transferred in favour of respondents Nos, 3 and 4 under M. L. R.
115. These respondents having come to know of the order made in appeal in favour of the petitioner filed an appeal before the r. Chief Land Commissioner which was by order dated 13-8-1973 dismissed by the Chief Additional Land Commissioner on the ground that it was barred by time.
The respondents Nos, 3 and 4 preferred a review application which was granted. The operative part of this order reads as follows:- "1 have considered the case. The land involved in the alienation was owned and possessed by S. Nawab Ali. He had not mentioned it in his declaration form. Besides, the land was not fully paid up and the alienation could not be operative in the absence of the permission of Collector as prescribed in para. 10 of the Scheme. In view of this position, the alienation of 30-04 aces in Deh Penhwari claimed by Ali Khan was not maintainable and the order of the Deputy Land Commissioner declaring the alienation as void was not proper.
' Obviously, the petitioner was not a party to the case for validation of this alienation pending before the Land. Commissioner and he was not expected to know about its result in time and could not therefore, come against it within the period of limitation.
' Under these circumstances, the review petition is accepted and in exercise of the suo motu jurisdiction vested in me under rule 1 of the Sind Land Reforms Rules, I set aside order dated 11-4- 1973 passed by the learned Land Commissioner, Hyderabad and declare the alienation of 30-4 acres in favour of Ali Khan as void."
5. The petitioner challenged this order in revision before the Member, Federal Land Commission, who dismissed the same on the ground firstly, that the petitioner was only a purchaser under the Qabala agreement dated 26-12-1968 and that the sale deed in his favour was not executed until 24-9-1973 and, therefore, there was no question of validating such a sale under M. L. R.
115.
6. Mr. Abdul Qadir Halepota, the learned counsel for the petitioner challenged the orders made in review and maintained in revision by the Member, Federal Land Commission, on two grounds.
Firstly that the order dated 13-8-1973 rightly rejected the appeal of respondents Nos, 3 and 4 as being barred by time which could not have been in law reviewed inasmuch grounds for review are limited as are provided in the Code of Civil Procedure. Secondly, it was contended that the Additional Chief Land Commissioner while reviewing the earlier order erred' in ignoring the instructions issued by the Federal Land Commission appearing at page 199 of the Manual which read as follows:- "The matter rejecting transfers of land acquired under M. L. R. 89/91, was taken up with the Federal Land Commission.
(2)The decision of the Federal Land Commission taken in this regard as conveyed vide their Letter No, F-7(4)/PLC/73, dated 20th August, 1973, is reproduced below: `In cases of sale or sale agreement, where the prior permission of the Collector was not obtained, all such transactions are to be reopened and thoroughly scrutinized by the Land Commissioner and if they are found to be genuine, they may be confirmed in spite of the fact, that the permission of the Collector was not obtained. However, gifts made by the grantees of land under M. L. R. 89/91, should be treated as void and all such lands should be resumed immediately and a compliance report sent to the Federal Land Commission.
(3)Sind Land Commission has been pleased to decide that the above order of the Federal Land Commission should be complied with."
7. In relation to the order made by the Member, Federal Land Commission the learned counsel contended that paragraph 7 of M. L. R. 115 was completely ignored inasmuch as it is open to the Commission to confirm a transaction of transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made between 1st March, 1967, and 19th day of December, 1971. The argument was that the petitioner had agreed to purchase the subject land, paid its full price, was put in its possession, paid subsequent instalments to the Government, and also paid land revenue since then, and accordingly his transaction ought to have been approved under clause (b) of paragraph 7 read with its Explanation III. Now, we have noticed that in so far as the Land Commissioner, Sind is concerned, the finding given by him was that the transaction was one covered by paragraph 7 and there was no reason not to approve it. In so far as the Additional Chief Land Commissioner is concerned the only reason for not approving the transaction was that the alienation made or purported to have been made by Nawab Ali in favour of the petitioner had not been approved by the Collector under para. 10 of Scheme framed under M. L. R. 89/91. This ground was clearly not available to the Additional Chief Land Commissioner in view of the instructions reproduced herein above. In so far as the impugned order of the Federal Land Commission is concerned it may at once be noticed that the finding given by the Land Commissioner, Sind that the transaction was a bona fide transaction between the petitioner and Nawab Ali and that it ought to be otherwise confirmed under para. 7 has not been commented upon or departed from. The Member, Federal Land Commission was labouring under a misapprehension that only such transactions could be confirmed or approved under para. 7 which were completed sale transactions and not where the transaction created some right, interest in favour of the purchaser. Paragraph 7 of M. L. R. 115 envisage approval of transactions which may not be supported by registered sale deed but which may otherwise reflect a transaction creating right title or interest in a land, which is made further clear by the instructions reproduced above.
8. Mr. Niaz Ahmed the learned counsel for the Additional Chief Land Commissioner contended this is a fit case for remand for there is no finding either by the Chief Land Commissioner or Member, Federal Land Commission that the transaction between Nawab Ali and the petitioner was one covered by para. 7 and, therefore, ought to have been approved. For two reasons we are unable to agree with the learned counsel. Firstly, neither the Additional Chief Land Commissioner nor the Member, Federal Land Commission deemed it fit to vary the finding arrived at by the Land Commissioner, Sind that the transaction was bona fide and was protected in law. Secondly, even before us nothing was alleged much less shown which may pursuade us to hold that this question requires to be re-examined. If the authorities concerned did not deem it fit to revise the order of the Sind Land Commissioner on merits, it will be an exercise in futility to remand the matter to the same authorities.
9. In Ibis view of the matter it is unnecessary to examine the other contention of Mr. Halepota regarding the scope of the review under M. L. R.
115.
10. The result, therefore, is that the petitioner's transaction dated 27-12-1968 was rightly approved by the Sind Land Commissioner and since there was no valid ground for setting aside this order, the impugned orders purporting to do so are declared to be without lawful authority and of no legal effect. The petitioner will also be entitled to costs.