1. MUHAMMAD HALEEM, J.-The petitioners seek special leave to appeal against the judgment dated 26-5-1976 of a Division Bench of the erstwhile High Court of Sind & Baluchistan, Karachi by which Constitutional Petition No. 178 of 1976 was dismissed.
2. Shrimati Asuda Bai owned 488.39 acres of agricultural land in several Dehs of District Mirpur Khas. It is the petitioner's case that she bad orally alienated her entire land holding in 1960 in favour of her son, petitioner No. 1 and her grand-sons, petitioner No. 2, Dileep Kumar, Bhagwandas and Mahadev.
3. 199.28 acres in Deh Kak was transferred to petitioner No. 1 while 106.3 acres in Dehs 100, 106 and 126 in Taluka Mirpur Khas were transferred to petitioner No. 2 and the remaining land to the others. Due intimation of the transfers were given to the Revenue Officers. Shrimati Asuda Bai also filed objections against the assessm ent and the recovery of agricultural tax from her for the years 1965 and 1966 before the Deputy Commissioner, Tharparker. The petitioners also executed an agreement on 8-4-1966 evidencing private partition of agricultural land and other properties.
4. Thereafter petitioner No. 2 gave in writing on 14-2-1968 that he would alone be responsible for the liabilities of the properties which have come to his share. On the promulgation of Martial Law Regulation No. 115 Shrimati Asuda Bai gave a declaration of the alienations made in favour of her heirs, as required by para. 7(1) (b) of the said Regulation. On verification of the record of rights it transpired that the transfer in favour of petitioner No. 2 was mutated in the record of rights of three Dehs, i.e., 100, 106 and 126 and as for the transfer in favour of petitioner No. 1 and others, no mutation was effected in the record of rights. Petitioner No. 2 was also found to be in effective possession of the agricultural land alienated to him. The Land Commissioner, Sind by order dated 29-5-1971 held that the alienation made in favour of petitioner No. 2 was not void under para. 7(1) (b) of the said Regulation and in the case of the others the declaration of alienations made in L. R.-I was not approved and, therefore, the transfers were not held to be binding on the Land Commission.
5. Shrimati Asuda Bai and others filed two appeals against the same order. The Chief Land Commissioner, Sind held that the alienations and partition of the property were not established from the record of rights and that as for the documents dated 8-4-1966 and 14-2-1968 on which reliance was placed, they related to partition and alienation in favour of petitioner No. 2 and were not helpful to support the case of partition and alienation in favour of the ethers. It was further held by him that the simple copy of the application dated 19-9-1967 alleged to have been written by Shrimati Asuda Bai in which she had acknowledged having transferred possession of the land to the first petitioner in Deh Kak was neither an actual document of alienation nor it had legal sanctity as no competent authority had passed any order accepting the alienations. The Land Commissioner also held that in the face of the will alleged to have been executed on 11-2-1968 in favour of Rewachand without earlier revoking it. He accordingly upheld the order of the Land Commissioner, Sind and at the same time ordered that the alienation made in favour of the second petitioner should also be re-examined suo molu. Accordingly he dismissed the appeal on 26-7-1972. On remand the Land Commissioner, Sind held that the alienation in favour of petitioner No. 2 was void ab initio under the proviso to para. 7 (1) (b) of the said Regulation and thus recalled his earlier order confirming the said alienation. This order is dated 28-3-1973 and an appeal against it was filed before the Additional Chief Land Commis--sioner who also declined to interfere with it by order dated 31-5-1973. Finally a revision was preferred before the Federal Land Commission and a learned Member of the Federal Land Commission declined to interfere by order dated 11-1-1974.
6. The petitioners thereupon assailed the legality of these orders in the High Court but did not succeed and the petition was dismissed as before mentioned. It was contended before the High Court that since the alienations were made in favour of the heirs before the crucial date, i.e. 1-3- 1971, they were outside the ambit of Martial Law Regulation No. 115. In contending so the learned counsel relied on the admission of Shrimati Asuda Bal in regard to the alienations made by her in favour of the petitioners who were in possession of the alienated land pursuant to a private partition on the strength of being co-parceners and entitled to a share in the joint Hindu Family property. This contention was rejected on the footing of a will by which Shrimati Asuda Bai had bequeathed all her property in favour of her heirs which was to take effect on her demise. It was held that till then the agreement which showed private partition and separate possession of specific shares in the property did not have any legal effect. It was further held that the alienations were not entered in the record of rights nor were they approved by the `Land Reform Authorities' and consequently they were void ab initio and that this conclusion in the orders assailed was unexceptionable.
7. The learned counsel for the petitioners contended before us that the Chief Land Commissioner before ordering the suo motu re-examination of the alienation made in favour of the second petitioner did not hear him. It was next contended that the revision could not be decided by a Member of the Federal Land Commission in violation of para. 4 of Martial Law Regulation No. 115.
8. The learned counsel contended that these contentions were raised in the petition but they were not dealt with by the Division Bench. We are unable to accept this contention, for, if they had been raised there was no reason why the Division Bench would not have dealt with them, more so when nothing substantial was brought to our notice to show the correctness of the statement. However, at the leave stage we are not inclined to entertain these contentions in the absence of an expression of opinion by the Division Bench.
9. The learned counsel next contended that the private partition and separate possession of the shares is apparent from the objections dated 21-9-1966 filed by Shrimati Asuda Bai in which she stated that agricultural tax for the year 1965-66 be levied and recovered from the parties separately. Again reliance was placed on the memo. Dated 10-1-1967 in which it was stated that the recovery be stayed till her objections were finally decided and also on the communication dated 30-6-1967 in which the same request was made. The record shows that the objections were dismissed by the Deputy Commis--sioner by his memo. Dated 10-5-1967 and such intimation was communicate through the Mukhtiar kar, Mirpur Khas. The Deputy Commissioner in rejecting the objections of Shrimati Asuda Bai failed to accept the alienation in favour of the heirs and, therefore, nothing can turn on it. Besides the Land Commission Authorities have rejected the material on which the petitioners had relied to establish private partition and separate possession of their shares. What is of significance is that in para. 2 of her affidavit she had admitted having executed a will on 11-2-1967 by. Which she had be--queathed her entire land holding in favour of the heirs and the High Court rightly held that in the face of this will the documents showing alienations, private partition and separate possession of shares were meaningless and w agree with this finding. The Land Commission Authorities were justified to examine the bona fides of the alienations in terms of explanation 3 to section 7(1) (b) and their findings being one of fact, it is inappropriate to interfere with it according to the well-settled rule that they had the exclusive jurisdiction to determine -the questions of fact.
10. On this view of the matter judgment of the High Court is unexception--able. There is no substance in this petition which is dismissed.