' AJMAL MIAN, J.-The respondent No, 4's father Capt. Jehangir Baig hailed from Gowaliar, India but upon Partition of India, he migrated to Pakistan in April 1948 and settled in Pano Akil, District Sukkur.
It seems that said Capt. Jehangir Baig had expired on 10th January, 1951. Upon the promulgation of Registration of Claim (Displaced Persons) Act, 1956, Act III of 1956, respondent No, 4 filed an application for the verification of the claim in respect of the agricultural land left by his father in India. It further seems, that after the filing of the application, he got the name of his mother, for brothers, three sisters and one niece added in the above application form. It further seems, that his claim to the extent of 344 acres was verified, against which he was allotted 257 acres in various Delis in Taluka Pano Akil. Upon promulgation of M. L. R. 89, respondent No 4 was allowed to retain 111 acres, whereas he was given option to purchase the balance of the land. It further seems that respondent No, 4, opted to retain 80 acres 25 ghuntas situated in Garhi,' Taluka Pano Akil, District Sukkur. It also seems, that the respondent No, 4 entered into an agreement of sale dated 14th July, 1962 with the petitioner, whereby he sold the aforesaid agricultural land, measuring 80 acres 25 ghuntas (hereinafter referred to as the land). In pursuance of the above agreement, the petitioner was handed over the possessions of A the land and it is the case of the petitioner, that all the instalments then outstanding were paid by him. The last instalment was paid by him on 13th June.
1972. The statement for mutation was recorded on 13th January, 1973 and in consequence thereof, the mutation in the khata concerned was effected in favour of the petitioner on 23rd March, 1973, (Annexures C/2 and C/3 to the petition). It is also the case of the petitioner, that after receiving the possession upon execution of the aforesaid sale agreement, he invested a sum of Rs, 50,000 the details of which has been given in para. 6 of the petition. It also seems that upon promulgation of M. L. R 115 (hereinafter referred to as the M L. R.), the respondent No, 4 filed declaration under para, 12 of the M. L. R. It further seems that the above declaration came up for scrutiny before the Deputy Land Commissioner, Sukkur, who by his order dated 3rd June, 1972 held that the agricultural land measuring 86.07 acres shown in column 2 of form L. R. IV was actually acquired by the declarant through inheritance and that after excluding the above area, the holding of the respondent No, 4 did not exceed 100 acres and, therefore, he was not obliged to surrender any land under the M. L. R.
It also seems that upon the objection made by the Sind Land Commission, the above case was reviewed by the Additional Deputy Commissioner/Deputy Land Commissioner, Sukkur, who by his order dated 22nd February, 1974 upheld the aforesaid order dated 3rd June, 1972. However, the above matter was re-opened under sun motu revisional power under rule 11 (2) of the Sind Land Reforms Rule, 1972 and the Land Commissioner Sind, Hyderabad, by his order dated 27th March, 1974 held that the above land measuring 86.07 acres was self acquired land and not inherited land.
The respondent No, 4 being aggrieved by the above order filed revision petition, in which the petitionen was also impleaded on his own request but the above Revision Petition was dismissed by the Additional Chief Land Commissioner Sind by his order dated 30th August, 1974, whereby the aforesaid order dated 27th March, 1974, of the Land Commissioner, Sind, Hyderabad was maintained. The petitioner being aggrieved by the above order filed Revision Petition before the Federal Land Commission, which was also dismissed on 27th November, 1974 (Annexure to the petition). The petitioner being aggrieved by the above order has filed the above petition.
3. In support of the above petition, Mr. S. Nasiruddin has, inter alia, made the following submissions
(i) That respondents Nos. 1, 2 and 3 erred in holding that the above land measuring 86.07 acres as self-acquired property under para. 10 of the M. L. R. ii) That the said respondents also acted illegally/improperly by not accepting the aforesaid sale agreement dated 14th July 1972 in favour of the petitioner, on the ground, that the permission of the Collector was not obtained and all the instalments towards the price of the land was not paid at the time of the said agreement.
' On the other hand, Mr. M. I. Memon, Additional Advocate-General has urged, that since the respondent No, 4 had filed the claim in his own name and not in the name of his father, the aforesaid land measuring 86.07 acres was self acquired property, within the ambit of para. 10 of M.
L. R. And not inherited. However, he has conceded that in view of the various decided cases, the findings of respondents Nos. 1, 2 and 3, on the question of agreement of sale in favour of the petitioner cannot be sustained.
4. Reverting to the first contention, it may be pertinent to reproduce hereinbelow para 10 of the M. L.
R. Which reads as follows :- "Acquisition of land by Government servants.-(1) No person who is or has been in the Civil Service of Pakistan and has at any time between the first January, 1959, and two years of his ceasing to be in service, acquired any land or any right or interest therein, by any means whatever, either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres : ' Provided that, subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land, not exceeding the area of the land so inherited, which has been acquired by him, in lieu of the land so inherited, whether by exchange or sale, either in his own name or in the name of any other person."
' The perusal of the above-quoted para. Indicates, that for the purpose of above para 10, land which had devolved by inheritance on a civil servant was to be excluded. It has been urged by Mr. Nasiruddin that under section 23 of the Registration of Scheme (Displaced Persons) Act, 1956, the term claim has been defined as means the assertion of right to ownership of or to any interest, in property, which has been treated as evacuee property in India. According to the learned counsel for the petitioner, the respondent No, 4 had filed the claim form in respect of the property left behind by his father which had become evacuee, whereas it has been urged by Mr. M. I. Memon that the respondent No, 4 has filed a claim form in his own name and not in the name of his father.
In or view respondent No, 4 was pursuing his application form for verification as one of the legal heirs of deceased Capt. Jehangir Bai and not in his independent capacity. It may be pertinent to observe that deceased Capt, Jehangir Baig's property has become evacuee upon his migration to Pakistan in 1948 and he expired in Pakistan in 1951. Respondent No, 4 had no personal claim for any evacuee property left by him in India. He was claiming right through his father and, therefore, any land allotted, against the property left by his father in India, which had become evacuee, is to be treated as the property inherited by him from his father. In this view of the matter the two orders of the Deputy Land commissioner dated 8th June, 1972 and 22nd February, 1974 excluding the aforesaid land measuring 86.07 acres from the personal entitlement of the respondent No, 4 was in accordance with the law and whereas the orders dated 27th March, 1974, 30th August. 1974 and 27th November, 1974, by the respondents Nos. 3, 2 and 1 respectively are not in accordance with law.
5. (a) Reverting to the second contention of Mr. Nasiruddin, namely, that the aforesaid agreement dated 14th July, 1962 was acted upon inasmuch as the petitioner was put into possession of the land and that in pursuance thereof, he paid all the instalments and, therefore, the respondents Nos.
1, 2 and 3 were not justified in rejecting the above sale agreement, it may be observed that Mr. M.
1. Memon, Additional Advocate-General for respondents had conceded the above position taken by the learned counsel for the petitioner in view of the case of Ch. Atta Muhammad and 10 others v.
Federal. Land Commission (1), the case of All Khan v. Additional Chief Land Commissioner, Sind Hyderabad and 3 others (2) and case of Mahfoozur Rehman Babar and 10 others v. Federal Land Commission and 3 others (3) and the case of Limo Khan and another v. Member, Federal Land Commission and 3 others (4) in the first case a Division Bench of the Lahore High Court has inter alia, held that for the purpose of the M. L. R. "transfer" is not to be construed in the same meaning as the transfer of an immovable property, under the ordinary law. It was further held, that for the purpose of regulation, it is the de facto position that counts and not the de jure one, except where the validity of the transfer is disputed by one of the other party to the transfer, whereas in the above Karachi case reported in PLD 1980 Kar. 189, it was found by a Division Bench of this Court, that the argument that in the absence of permission of Collector, as prescribed in para. 10 of the Scheme, the transfer could not be operative, is misconceived, as the transactions were protected under the above para.
(b) Reverting to the Karachi case of PLD 1980 Kar. 427 it may be observed, that the facts of the above case are on all fours applicable to the instant case, inasmuch as in the aforesaid case also the petitioner had entered into a sale agreement, in pursuance of which he was given possession of the land and he had also paid the instalments towards the cost of the land to the Government.
In view of the above facts, it was held, that the rejection of the agreement by the Federal Land Commissioner is without jurisdiction.
(c) Whereas in the above PLD 1981 Kar. 114 case, a Division Bench of this Court relying on the above Lahore case reported in 1979 CLC 294, and also the aforesaid Karachi case reported in PLD 1980 Kar. 139, referred to hereinabove, held, that notwithstanding the execution and registration of the sale deed after the target date, namely, 20th December, 1971 the bona fide sale transaction covered under the sale agreement is protected.
6. In this view of the case-law, it is evident, that respondents Nos. 1, 2 and 3 have acted improperly, illegally by rejecting the sale agreement in question dated 14th July, 1972, when it was acted upon inasmuch as the possession of the land was given to the petitioner and that the petitioner had paid the remaining instalments towards the price of the land. It may be pertinent to observe, that the said respondents had not doubted the factum of the above agreement but have not accepted for the reasons. That the permission of the Collector was not obtained. Before entering into sale agreement and that the full price of the land was not paid. These {{FOOT NOTE}}
(1) 1979 CLC 294 (2) PLD 1980 Kar. 189
(3) P D 1980 Kar, 427 (4) PLD 1981 Kar. 114 {{FOOT NOTE}} two reasons have been found not admissible in the above-cited and discussed cases.
7. In view of the above discussions we allow the petition and declare the afonesaid orders dated 27th March, 1974, 30th August, 1974 and 27th November, 1974 without lawful authority and of no legal effect. The respondents are also restrained from acting upon the said orders. There will be, however, no orders as to costs.