1. S. USMAN ALI SHAH, ACTG. C. J.-As these four writ petitions bearing Nos. 503, 504, 505 and 506 of 1980 have raised common questions of facts and law, we propose to dispose them of by this one judgment.
2. Syed Abdul Khaliq Khan petitioner in Writ Petition No. 504 of 1980 owned considerable landed property. On the promulgation of Land Reforms . Regulation, 1972, he filled in the declaration form in which he showed that he had already alienated by way of gift deed dated 5-7-1979 an area' measur--ing 556 acres equivalent to 23004 PIUs in Badragga, Malakand Agency, in favour of his three sons, namely, Zamurrad Shah (major), Ahmad Ali Shah and Muhammad Ali Shah (minor), his wise Mst. Shah Sultana and his four married daughters, namely, Mst. Roshan Ara Begum, Mst. Jahan Ara Begum, Mst. Asmat Ara Begum and Mst. Nusrat Ara Begum. The transaction of gift was put to the test of scrutiny and as it was found genuine, the Land Commissioner, Malakand Division, declared it valid, vide his order dated 7th April, 1973. However, in the events that happened, the Inspection Team, Federal Land Commission, N: W. F. P. Peshawar, also subsequently examined the case and it reported that the three ingredients of gift, viz. Offer, accept--ance and delivery of possession requisite under Shariat have not been satisfied. The Inspection Team also reported, that according to the revenue record the donor Sayyed Abdul Khaliq petitioner is still in possession of the gifted land and has not parted with the same in favour of the petitioners. The report of Inspection Team is dated 26-9-1975 and is Annexure `C'. Upon this report Mr. I. U. Khan, learned Member of the Federal Land Commission, took cognizance of the matter and in the exercise of his suo motu revisional powers vested in him under paragraph 29 of the Land Reforms Regulation, 1972, he agreed with the findings of the Inspection Team. Con--sequently, he held that the gift deed, so far as it relates to the major heirs of the donor other than his wife Mst. Shah Sultana as well as his minor sons Ahmad Ali Shah and Muhammad Ali Shah, is void. In this respect, he observed that ; "In this case the gift was made in favour of the wife and two minor sons Ahmad Ali Shah and Muhammad Ali Shah as well as other major sons and daughters. So far as wife and the minors are concerned, change of possession is not necessary when the gift is made in favour of the wife by the husband or by the father in favour the minor sons."
3. As a result, the learned Member, Federal Land Commission, passed the following order on 1-10-1976 (Annexure D) :- "In these circumstances, the gift is validated only to the extent it was made in favour of the wife and minor sons. So far as other donees are concerned, the gift will be declared void. The area involved will be added to the holding of the declarant which will be re-determined but he will be given an opinion of excercising a fresh choice, if he likes."
4. Those major heirs of the donor Sayyed Abdul Khaliq who were affected by the above order moved a writ petition bearing No. 529/76 in this Court for declaration that the impugned order dated 1-10- 1976 passed by the learned Member, Federal Land Commission, in suo motu revision is against law, facts, based on incorrect interpretation of law, without lawful authority and inoperative against the rights of the petitioners.
5. The above writ petition, after its admission to regular hearing, came up for disposal before a learned Division Bench of this Court. The learned Judges of the Division Bench found that before passing the impugned order the petitioners in the said writ petition were not heard by the learned Member, Federal Land Commission. Therefore, the learned Judges remanded the case and in this respect the following order was passed by the learned Judges on 21-1-1979 :- In the instant case the donee petitioners were not made party to the proceedings before respondent No. 2 the Federal Land Commission. They were not heard and the impugned order was passed at their back and not given an opportunity to explain their position and to prove their possession at the time of creation of gift. As such we accept the writ petition, set aside the impugned order and remand the case back to respondent No. 2 Federal Land Commission with the direction that the matter be decided after hearing the petitioners both on point of law and facts."
6. After remand, Mr. Abdul Qayum Khan, Senior Member, Federal Land Commission, proceeded to decide the case. On going through the evidence in the case and hearing the learned counsel, he formed the opinion that the gift deed dated 5-7-1979 was never executed and it was a fictitious document the purpose of which was an attempt on behalf of the donor Sayyed Abdul Khaliq to save the land which was to be found in excess of the land which he could retain under the Land Reforms Regulation, 1972. In. Support of his opinion, he mainly relied upon the revenue record in which there was no mention about the fact that the land gifted by the donor came in possession of the donees until the crucial date 20-12-1971. He ruled out the contention raised on behalf of the petitioners that there was no regular procedure according to which entries regarding possession of the gifted land in favour of the donee was to be made .In the revenue record or that according to the Riwaj in the area mere declaration of gift of land in favour of the donee was sufficient to confer right on the donee to be. Regarded as owner of the land. Therefore, while holding the gift deed in the present case as fictitious, the learned Member, Federal Land Commission deprived all the donees of the land allegedly gifted to them and passed the following order on 15-6-1980, vide Annexure F :- "The claim of any gift having been made to any one before 20-12-1971 is, therefore, rejected. The order of the lower forums validating the alleged gifts ate set aside, and it is directed that the area involved in the gifts shall be added to the holding of the declarant: An area, which becomes resumable from him on this account shall be resumed after giving the declarant due opportunity to retain the area of his entitlement according to his own choice."
7. It is in this background that the petitioners have filed the present writ petitions in this Court with a prayer that the impugned order passed by Mr. Abdul Qayum Khan, Senior Member, Federal Land Commission be declared to be without lawful authority and of no legal effect and a direction be issued to the learned Member to treat the gift deed by which the donor alienated the land to the petitioners as subsisting and valid and to refrain from resuming the area in question under the Land Reforms Regulation, 1972.
8. In the course of arguments on 20-9-1981, the learned counsel for petitioners Ahmad Ali Shah and Muhammad Ali Shah (minor) submitted that it is wrongly stated by the learned Member, Federal Land Commission in his impugned order dated 15-6-1980 that the said minors were present before him and further the donor Sayyed Abdul Khaliq represented petitioner Mst. Shah Sultana. It is, therefore, contended that the impugned order of the learned Member, Federal Land Commission, so far as it relates to petitioners Ahmad Ali Shah and Muhammad Ali Shah (minor) and Mst. Shah Sultana is a nullity in the eye of law. On merit, the learned counsel for the petitioners in all the writ petitions argued that the learned Member, Federal Land Commission, has not appreciated the peculiar circumstances of the case. It is submitted that the area of Malakand Agency in which the gift transaction was effected was governed by the Riwaj. The learned counsel submitted that not a single instance exists to show that while the donor has gifted land to the donee, it is essentially mentioned in the official record of the Agency. Therefore, the learned Member, Federal Land Commission, was wrong to hold that as the gifted land in favour of the petitioners does not find mention in the revenue record, the transaction was fictitious. The learned counsel pointed out that the subordinate functionaries of the Land Commission, after undertaking the process of scrutiny as required under the provisions of the Land Reforms Regulation, 1972, found that the gift deed was correct and genuine and as this was -the condition laid down by the law in the matter which was satisfactorily proved, the learned Member, Federal Land Commission would have no justification in law to upset the order of the subordinate functionaries of the Land Commission in the exercise of his suo motu revisional power under paragraph 29 of the Land Reforms Regulation, 1972.
9. As before us the learned counsel for the petitioners claimed that nobody had represented petitioner Mst. Sultana and Ahmad Ali Shah and Muhammad Ali Shah petitioner were not present before the learned Member, Federal Land Commission, while he passed the impugned order ; we asked the learned counsel appearing on behalf of the Land Commission Authorities to explain the position. He submitted that he would obtain the affidavit of the. Learned Member of the Federal Land Commission, if he had anything to say in rebuttal of the claim of the learned counsel for the petitioners. He sought adjournment to file the affidavit of the learned Member, Federal Land Commission: We accordingly adjourned the case.
10. Despite his submission, Mian Muhammad Ajmal, the learned counsel for the Federal Land Commission seems to have not been able to procure affidavit from the learned Member, Federal Land Commission who had passed the impugned order. Instead he has filed the affidavit of his Reader. The affidavit of the Reader is not acceptable in the circumstances of the case. We regret that the affidavit of the learned Member, Federal Land Commission, was not placed on the record.
11. In his affidavit, the Reader has stated that Sayyed Abdul Khaliq had made a statement before the learned Member on the date of hearing that he was representing his wife Mst. Shah Sultana petitioner, that the presence of Ahmad Ali Shah and Muhammad Ali Shah petitioners shown in the impugned order was a typo--graphical error and that the concessions, which the learned counsel for the petitioners have denied had been made by them before the learned Member, Federal Land Commission. We have already observed that in the circumstances of the case, the affidavit of the Reader is not acceptable. The alleged concessions were made before the learned Member, Federal Land Commission and it was for him to have stated that these were made by the learned counsel before him. Sayyed Abdul Khaliq was not holding any power o attorney on behalf of his wife Mst.
12. Shah Sultana and thus the learned Member, Federal Land Commission, was not justified to allow him to speak on her behalf in the case. It is admitted that Ahmad Ali Shah and Muhammad Ali Shah petitioners were wrongly shown to have been present before the learned Member, Federal Land Commission, on the date of hearing. Thu we are obliged to consider the statement of the learned counsel for the petitioners as correct that they had not made any concessions in the case before the learned Member, Federal Land Commission and that the impugned order was passed by him at the back of Mst. Shah Sultana, Ahmad Ali Shah and Muhammad Ali Shah petitioners without hearing them. The learned Advocate-General appearing for the Land Commission conceded that the impugned order, in so far as it relates to Mst. Shah Sultana, Ahmad Ali Shah and Muhammad Ali Shah, cannot be sustained in law, as the learn Member, Federal Land Commission, disregarded the principles of audi altera parten in their case.
13. Even otherwise, we consider, and the learned Advocate-General concedes, that as Mr. I. U. Khan the predecessor of Mr. Abdul Qayyurn Khan as Member, Federal Land Commission, had already held that the gift transac--tion in the present case in favour of petitioners Mst. Shah Sultana, Ahmad Ali Shah and Muhammad Ali Shah (minors) was valid, Mr. Abdul Qayum Khan was not justified to revise the order of his predecessor in the exercise of same suo motu powers and to hold that the gift transaction in their favour was fictitious.
14. Although we consider that the impugned order of the learned Member, Federal Land Commission is a nullity in the eye of law, in so far as it relates to petitioners Mst. Shah Sultana, Ahmad Ali Shah and Muhammad Ali Shah, we even consider that the learned Member, Federal Land Commission, while passing the impugned order, has assumed as if Riwaj was not the rule of law in Malakand Agency where the gift transaction in favour of all the petitioners had allegedly been executed. As we have already indicate above, the learned Member, Federal Land Commission, while holding the gift transaction in the present case in favour of the petitioners as fictitious placed reliance upon the revenue record. He made reference to the record of Irrigation Department and observed :- "However, there was elaborate record by Canal Patwaris in the form of regular Khataunis which had all the details of irrigated area, maintained for the purpose of calculating demand for Abiana. The record showed beyond doubt that the declarant never parted with even an inch of land and the demand for Abiana continued to be raised against him alone for a long time after the crucial date of 20-12-1971.
15. He further made reference to certain mutations to show that no gift mutation was entered in the present case until the crucial date of 20-12-1971. He observed : - "The Revenue Officers concerned with the custody and maintenance of revenue record were summoned. They have produced a mutation register. This Tribunal, therefore, finds that there is no basis for the assertion that no land records are maintained in the area. In fact this Tribunal has itself examined several. Mutations duly reported, entered and attested by Revenue Officers, both before the date of 5-7-1969 (on which the impugned gifts are claimed to have been made) after that date. There is for example a Mutation No. 116 entered on 26-8-1969 and attested on 28-8-1969.
16. There are some current transfers also being recorded, the last one having been made. On 3-3- 1980.
17. The mutation record is in a properly bound register such as is maintained elsewhere in the Province of N.-W. F. P. And has been duly produced before and attested by Revenue Officers from time to time in the ordinary course."
18. We observe that it is a matter of common knowledge that the Canal Laws as well as the Revenue Laws were not in force in the Malakand Agency and for that matter it cannot be said that the records of the Irrigation Department as well as the Revenue Department were authentic documents for the proper decision of a case of a present type. This principle has been followed by the Federal Land Commission in the decision of similar cases. We may refer to one such case entitled State v: Mst. Zubeda Begum decided earlier by the same learned Member, Federal Land Commission. In that case, the learned Member while giving no value much less legal value to the record of the Irrigation Department observed :- "As regards the enhancement of PIUs on the basis of Canal Khataunis, the law is very specific on the point and requires that PIUs. Have to be based on the classification of soil given in the revenue record. The question, therefore, is whether Canal Khataunis can be considered revenue record.
19. Revenue record is prepared under the Land Act and the Canal Khataunis under a different law. The revenue record is. Subject to verification and approval of a whole chain of Revenue Officers going upto the Collector. The Canal Khataunis are not so subject. The Canal Khataunis are accordingly held not to be revenue record and the entries in them are, therefore; not -to be taken into account in working out PIUs. The point made by the Inspection Team in this matter is, therefore, disregarded and no orders required on it."
20. Very curiously, in one case, while dealing with the record of the Irrigation Department, he considers it so worthless that he disregarded it and observes that no orders are required on it, while in the other case (i.e., the present case) he forms the record of the Irrigation Department basis for his order holding that as the Khataunis makes it clear that the declarant used to pay Abiana until after the crucial date 20-12-1971 it shows that gift transaction was fictitious. We observe that even if the declarant used to pay the Abiana, as he was the father of the donees and husband of another donee Mst. Shah Sultana, he was morally bound to pay the Abiana when demanded from him by the Irrigation Department and no exception can be taken against his doing so, the moreso as there was no law which stands in his way of paying Abiana on behalf of his children and wife.
21. As regards mutation register to which the learned Member, Federal Land Commission has referred for reliance in support of his impugned order, we have already observed that it was not the law in the Malakand Agency that each and every land transaction was to be entered in therevenue record: In other words, if some parties wished to enter their transaction in the revenue record, they were at liberty to approach the revenue staff for that purpose, but they were not bound to do so as d matter of legal necessity, because the area was governed by Riwaj ail there was no stipulation in the Riwaj which, obliged the parties to take their land transactions to the revenue estate for entering the name in the .Revenue record. Thus it can be said that there may be many transaction; which do not find mention in the revenue record and yet the same would be valid. Same would be the position in the present case. We have. Been referred to case State v. Sayed Muhammad Shah decided by a learned Member, Federal Land Commission, on 1-9-1979 which is directly in point to the controversy in the present case. The learned Member, while giving no importance to the entries in the revenue record pertaining to the protected area of Malakand Agency, observed :- The counsel for the donee has established that in the protected area of Malakand Agency where the land is situated the revenue record is at best perfunctory and no regularity exists in the maintenance and upkeep of record. A large number of transactions of land are conducted orally without any recourse to its entry in the revenue record. In this case whatever record with regard to the gifts is available was the result of the deceased's donor's extra-precuation in making entry of his gifts in whatever little revenue record was available in the area..."
22. We find that the subordinate functionaries,, while putting the gift transaction in the present case to the test of scrutiny and holding that the gift transaction in question was genuine and correct according to the Riwaj of the area, seem to have taken into account the precedent cases decided by the superior authorities of the Land Commission. In this connection, we would refer to paras. 3 and 4 of the order dated 7th April 1973 of the learned Land Commissioner, Malakand Agency in which he observed "Taking into consideration a transfer deed executed on plain paper by the declarant on 3-1-1967, wherein lands measuring 556 Acres (equal to 23004 calculated P. I. Us.) was transferred by the declarant to his sons, daughter and wife, the Deputy Land Commissioner, Mala--kand, in his order dated 6-3-1973 observed that on scrutiny and examination enjoined by paragraph 12 of M. L. R-115, no such excess area was discovered with the declarant which could vest in the Government in terms of para. 13 of the said Regulation. He accord--ingly permitted the declarant to own and possess the area declared by him. The case was remanded to the Deputy Land Commissioner.
23. Malakand, vide my detailed order dated 21-3-1973 for : Completion of records. Enquiry under para. 7 of M. L. R.-115.
24. Verification enjoined by para. 8(2) of M. L. R: 115.
4. In his order dated 30-3-1973, the learned Deputy Land Commissioner Malakand, has discussed in detail the inadequacy of the available records of this area prepared in 1.925-26. 'These records have not been subjected to revision in any form such as the preparation of "Charsala" to give effect to the transaction having taken place so far on any account. The Deputy Land Commissioner, referring to the Riwaj prevalent in the area, has further remarked that the Land Revenue Act not having been extended to this area, all land transac--tions are invariably made on plain paper.
25. Mutations have been totally omitted and wherever they have taken into account and attested they hardly carry any weight against what has been entered on a plain paper. He has concluded that the transactions carried out between 1-3-1967 and 20-12-1971 in this case were found to be correct and genuine."
26. It is not the case of the respondents before us that while the subordinate functionaries of the Land Commission were holding the gift transaction in the present case as valid, they ignored to comply with any legal require--ment stipulated by the provisions of the Land Reforms Regulation, 1972. It is conceded that all legal formalities as ordained by the law of Land Reforms were observed and thereafter they reached the conclusion that the gift transaction in question was genuine. In the circumstances, w consider that the learned Member, Federal Land Commission, was no justified to substitute his own contrary conclusion for the conclusion of the subordinate functionaries reached by them after they were satisfied that in the facts and circumstances of the case the gift transaction was genuine and correct. We therefore hold that the gift transaction executed in the present case on a plain paper would be a valid transaction according to the Riwaj of the area which has not stipulated any condition that the parties were bound to enter the same in the revenue record. Correct that under Shariat in that case of alienation by way of gift, the three conditions, viz. Offer, acceptance and delivery of possession, are sine qua non. But as it was a transaction between a donor and his children and wife and there is no dispute about it between them, we do not see any reason as to how the gift transaction should be disbelieved and held fictitious. In other words, how a question can be raised that offer of gift was not made by the donor in favour of his children and wife and there was no acceptance and delivery when all of them are alive and they testify to the factum of gift to have been satisfied according to Shariat. This question can at best be raised if a stranger makes gift in favour of a stranger and thereafter the donor/stranger denies the factum of gift and a dispute about gift arises between them or that after gift the donor dies and thereafter his heirs agitate the question that the conditions of offer, acceptance and delivery under Shariat were not satisfied in favour of the donee/stranger in the lifetime of the donor. We therefore consider that as the subordinate functionaries had found the gift transaction to have been validly effected between the donor and his children and wife in the present case according to the Riwaj of the area, the learned Member, Federal Land Commission, was not justified to upset their decision, the moreso as he has not quoted a single instance that the gift transaction in question militates against the recognized system of Riwaj in the area.
27. We may also make mention of a case from Malakand Agency in which the learned Member, Federal Land Commission, upon almost identical, facts held that the gift deed by which the donor alienated land to his heirs/donees was not valid and directed that the excess land be resumed from him. The said order of the learned Member, Federal Land Commission, was challenged before this Court in Writ Petition No. 259 of 1976 (Nek Muhammad v. Member, Federal Land Commission) and a learned Division Bench of this Court declared the impugned order to be without lawful authority and not sustain--able, vide judgment dated 10th May, 1978. We refer to this judgment of this Court in the above writ petition to re-inforce ourselves in our conclusion reached by us in this case.
28. As a result, we allow these writ petitions and hold that the impugned order of the learned Member, Federal Land Commission, to be without lawful authority and of no legal effect. No order as to costs.