1. ' ABDUL HAFEEZ MEMON, J.-This petition is directed against the order -dated 17th November, 1976, passed by the Officer-on-Special Duty/Joint Secretary, Federal Land Commission, namely, Mr. Muhammad Irshad Khan, in exercise of his suo motu powers under paragraph 29 of the Land Reforms Regulation, 1972, whereby he set aside the order passed by the Land Commissioner, Sind, validating gift alienations made by petitioner No, 1 to his minor sons, petitioners Nos. 2 to 5 herein.
2. ' Briefly stated, the relevant facts are that the petitioner No, l Sain Bux alienated 36.7 acres of agricultural land situated in Deh Lundo, Taluka Shadadpur, District Sanghar, to his minor son Hassan Mahmood, petitioner No, 2 herein, by way of an oral gift through the statement recorded by the Mukhtiarkar Shandadpur on 2nd March 1970, in the Book of Statements of Gifts at page No, 39.
3. Thereafter, the entry regarding the said gift was also duly made in the Dakhil Kharij Register on 5th March 1970, after two days, and change of 'Khata' was also duly effected in the name of the donee petitioner in the Village Form VIII-A.
4. ' Subsequently in the year 1971, the petitioner No, 1 made another oral gift to his other minor sons, Amanullah, Gul Mir and Gul Mohammad, respectively. Petitioners Nos. 3, 4 and 5 herein, out of his other 491.10 acres of land situated in Deh Khatoori, Taluka Shandadpur, District Sanghar,, in the share of 25 paisas each and to effect mutation in their names.-made such statement of gift before the Mukhtiarkar on 5th April 1971, who duly recorded the same in the Form XV Dakhil Kharij Register.
5. The remaining 25 paisas share in this land was, however, retained by the petitioner No, 1 with himself and he continued to be shown as 'Mukh Khatedar' in the Village Form VIII-A.
6. ' On the promulgation of M.L.R. 115, presently known as Land Reforms Regulation, 1972, petitioner No, 1 Sain Bux filed his declaration wherein he disclosed his holding of agricultural land as well as the aforesaid gift alienations made by him to the petitioners 2 to 5. On scrutiny, the Land Commissioner, Sind, by his order dated 20th June 1972, upheld all the gift alienations as being covered by Explanation-I to Paragraph 7 (1) (b) of the Regulation.
7. ' Later, the case of the petitioner Sain Bux was re-opened by the O.S.D. Federal Land Commission in exercise of his suo motu powers under Paragraph 29 of the Regulation and he, by his order dated 17th December, 1976, set aside the said gift alienations validated by the Land Commissioner, Sind.
8. Hence this petition.
9. ' Mr. Imam Ali Kazi, learned counsel for the petitioners, submitted that in so far as the gift alienation made by petitioner No, 1 to petitioner No,
2. In respect of the land situated in Deh Lundo was concerned, the O.S.D. Held it invalid on the ground that he found the entry made regarding the gift at page 39 of the Book of Statements of gift to be non-genuine for the reason that an entry at the previous page 33 of the same Book was found by him to have been interpolated and anti-dated which led him to believe that all the subsequent entries shown at pages 33 to 46 of the Book were also non-genuine and, secondly, the entry regarding the gift was not made in Dakhil Kharij Register, but both these grounds, learned counsel submitted, were based on facts contrary to the record and were not available to the G.S.D. As, firstly, the interpolated entry at page 33 did not relate to the gift made by the petitioner No, 1 to the donee petitioner No, 2 but related to a gift made by some one else and, secondly, after the statement of gift was recorded at page 39 of the Book of Statements, entry regarding the said gift alienation was also made in Dakhil Kharij Register after two days, on 5th March, 1970. As such, the impugned order of the O.S.D. Was based on facts contrary to the record.
10. ' Learned counsel next contended that the entry regarding the aforesaid gift was also duly made in favour of the donee petitioner No, 2 in the Village Form VIII-A and the 0. S. D. Could not in law disregard the said important entry on the mere ground of not being supported by the Roznamcha of the Tapedar, with which the petitioner had nothing to do.
11. ' The learned counsel lastly submitted in this connection, that the same O.S.D. Had earlier accepted as genuine similar entry made by the Mukhtiarkar at-page 38 of the same Book of Statements of Gifts in respect of the gift made by Ghulam Mustafa, brother of the donor petitioner No, Sain Bux, to his heirs. Consequently, the adverse finding of the 0. S. D. Regarding the gift entry at page 39 of the same Book relating to the petitioner No, 2 was self-contradictory and unsustainable both in law and equity.
12. ' As to the gift alienations made by the petitioner No, 1 Sain Bux to his other minor sons petitioners Nos. 3, 4 and 5 in respect of the land situated in Deh Khatoori, the learned counsel contended that these gifts had been made by the petitioner Sain Bux through a statement made before the Mukhtiarkar and recorded in Form XV Dakhil Kharij Register itself, and not in the discontinued Book of Statements of Gifts as was assumed by the O.S.D. ; consequently, the order passed by the O.S.D.
13. Invalidating the gift alienations to petitioners Nos. 3 to 5 was also based on facts contrary to record and was therefore void and of no legal effect.
14. ' As to the other ground given by the O.S.D. Regarding no change of khara having been made in the name of the donees in Village Form VIII-A, the learned counsel contended that since the petitioner No, 1 continued to own 25 paisas share in the land in Deh Khatoori and his name continued to remain in the said Form as 'Mukh Khatedar' and the mutation had been made in Dakhil Kharij Register, non-making of the change of donees' names in the said Form was immaterial and in consequential in law.
15. ' In order to examine the contentions of the learned counsel for the petitioners and verify the facts regarding interpolations etc. The learned counsel for the respondents was directed on the last dates of heating to produce the relevant record but the same has not been made available to this Court even today, nor has any counter affidavit been filed on behalf of the respondents controverting the above-said assertions specifically made by the petitioner in the petition. Mr. Ansari, learned counsel for the respondent No, 1 on the other hand stated that he had not been able to obtain the record and that the petition be disposed of on the basis of the existing documents filed with the petition.
16. ' On merits, learned counsel for the respondents submitted that he found it difficult to controvert the contentions raised by the learned counsel for the petitioners as the order of the O.S.D. Was based on misconception of facts on record and, therefore, he conceded to the petition being allowed. He, however, prayed that it be left open to the Federal. Land Commission to re-examine the matter in their suo motu revisional jurisdiction by considering the facts not taken into consideration by the O.S.D. If they so wished.
17. ' We find the contentions raised by the learned counsel for the petitioners to be well founded.
18. Perusal of the impugned order passed by the O.S.D. Would appear to show that he set aside the gift alienations of lands in both the delis on the assumption that they had been all made through statements recorded in the Book of Statements, and not in Dakhil Kharij Register which had been introduced by them for both the delis. It is, however, an admitted position that in so far as the gift alienations made to the petitioners 3, 4 and 5 of the land situated in Deh Khatoori is concerned, the same were made by the petitioner No, 1 through a statement made before' and recorded by the Mukhtiarkar Shandadpur on 5th April, 1971, in Dakhil Kharij Register itself, and not in the Book of Statement of Gifts, as was assumed by the O.S.D. The certified copy of the relevant page of the Dakhil Kharij Register filed on record would further show that persuant to the statement of gift so recorded by the Mukhtiarkar, necessary mutation entries were also duly made on the same day in the names of the donees of the gift, namely, the petitioners 3, 4 and 5, in the relevant Column No, 8 of the Dakhil Kharij Register showing them as the owners of the land to the extent of 25 paisas share each, as gifted to them. That being so, holding of the gift as 'non-existent and void' by the O.S.D. On the said ground that the gift statement was not recorded in the Dakhil Kharij Register was, indeed, based on facts contrary to the record.
19. As to the other ground assigned by the O.S.D. Regarding no change having been made in the Village Form VIII-A in the names of the donees, mutation entries having been duly recorded in their names in the Dakhil Kharij Register, which is the register for recording such mutations, and the genuineness of the said entries not being shown to have been doubted, mere absence of change of their names in Village Form VIII-A was not material in the circumstances and could not operate in law to invalidate the entries in the Dahkil Kharij Register and the making of the gift. A Further, the donor petitioner No, I had, admittedly, retained 25 paisas share in the land with himself and his name continued to remain in Village Form VIII-A as `Mukh Khatedar'. Such being the case, this was yet another reason which rendered immaterial the absence of change of the names of the donees in the From VIII-A, apart from the fact that Village Form VIII-A is maintained by the Revenue Department as harvest inspecting register primarily for enabling them to levy land revenue, etc. On the basis of crops cultivated.
20. ' As to the gift alienation to petitioner No, 2 of the land situated in deh Lundo, it is conceded that the interpolated entry at page 33 of the Book of Statements related to certain different person and had nothing to do with the gift alienation made by petitioner No, 1 to the petitioner No,
2. It is also not disputed that after recording of the statement of gift by the Mukhtiarkar on 2nd March 1970 in the Book of Statements, entry regarding the gift was also duly made in Dakhil Kharij Register of Deh Lundo after two days, on 5th March 1970. Certified copy of the relevant page of the Dakhil Kharij Register would further show that on the basis of the statement of gift so recorded, necessary mutation entry was duly recorded in the name of the donee petitioner No, 2 Hassan Mahmood in the relevant Column No, 8 of the Register showing him as the owner of the land gifted to him. That being so, and the genuineness of the said entries in the Dakhil Kharij Register not being shown to have been doubted, the O.S.D. Indeed proceeded on assumption of facts contrary to the record by invalidating the gift on the ground that the gift was not recorded in the Dakhil Kharij Register. It may further be added that even with regard to the finding of the O.S.D. Doubting the genuineness of the statement of gift recorded at page 39 of the Book of Statements in favour of the petitioner No, 2, it is conceded that the same O.S.D. Had, in the case S. M. R. No, 119/FLC/75 State v. Rais Ghulam Mustafa and others, validated the gift alienation made by Ghulam Mustafa, brother of petitioner No, 1 Sain Bux, to his heirs through a similar statement recorded by the Mukhtiarkar at the previous page 38 of the same Book of Statements of Gifts. Now, if the O.S.D. Validated the gift entered at page 38, his invalidating the gift entered at the next page 39 on the ground that all the gift entries made at pages 33 to 46 of the said Book were non-genuine because of the interpolation noticed by him in the entry at page 33 was, indeed, self-contradictory and untenable, more so, when the mutation entry regarding the gift to the petitioner No, 2 also stood similarly recorded in the Dakhil Kharij Register of the same deh and the charge of Khata was also similarly made in the Village Form VIII- A in favour of the petitioner No,
2. As t the O.S.D. Disregarding the entry in the Village Form VIII-A on the mere ground that it was not supported by the Roznamcha of the Tapedar, th B said entry in Village Form VIII-A being supported by the Dakhil Khan Register, the O,S.D. Indeed had no legal justification for disregarding it on the said ground with which the petitioner had nothing to do.
21. ' We thus agree with the learned counsel for the respondents that the impugned order passed by' the O.S.D. Was based on facts contrary to the record and that none of the grounds on the basis of which he exercised his jurisdiction by interfering with the orders of the Land Commissioner, Sind, were available to him.
22. ' Accordingly, we allow this petition, declare the impugned order of the O.S.D. To be of no legal effect and quash it. In the result, the order dated 20th June 1972 passed by the Land Commissioner, Sind, will stand restored. In the circumstances, we make no order as to costs.