MIAN BURHANUDDIN KHAN, J.-Leave was granted by this Court in Civil Petition for Leave to Appeal No, 1143/1976 (C. A. No, 135/78) vide order, dated 21-6-1978 on the grounds inter alia that the Chairman, Federal Land Commission could not sit singly to deal with the matter, because the power in the relevant respect was conferred on the 'Chairman and Members' of the Federal Land Commission as a whole and not upon any single person, Reliance was placed on Sardar Ashiq Muhammad Khan Mazari v, Chairman Federal Land Commission (1) wherein the contention raised in the matter of the exercise of the Chairman, F. L. C.'s revisional jurisdiction had also been raised.
2. According to the facts stated in the appeal Col. Sardar Hamid Hasan Khan gifted his entire land situate in village Thither, Tehsil and District Lahore measuring 6,193 Kanals and 13 Marlas in favour of the appellants in the year 1969. Accordingly mutation of tamleek was entered on 1-9-1969. The Colonel died on 31-10-1974 when M. L. R. No, 115 had already been promulgated in the year 1972. He however, failed to file a declaration required under the said Regulation on the ground that the land owned .And possessed by him did not excaed the limit of 12,000 produce Index Units and according to him, it was, therefore, not necessary to file a declaration because he did not own more than 10,000 P. I. Us. And secondly because he had transferred his land in the year 1969 to his daughter and grandchildren the appellants, and as such he was no longer owner of the land in question. It may be mentioned that his son Sardar Ahmad Khan had died in 1958 and appellant No. 1 Mst.
Tayyaba Khanum is widow of the said Sardar Ahmad Khan.
3. Mst. Tayyaba Khanum moved the Chief Land Commissioner, Punjab for declaring the alleged gift of the land to be valid. It is admitted that mutation relating to tamleek entered on 1-9-1969 was never presented to any Revenue Officer for attestation before the promulgation of M. L. R.
115. Subsequently, with the promulgation of the said Regulation the Revenue Officer was hesitant to sanction it as it appeared to be hit by the provisions of the Regulation. But the learned Chief Land Commissioner directed the mutation to be sanctioned declaring the gift to be valid for the purpose of land reforms and also dropped the criminal proceedings against the late Colonel and his property. Respondents Nos. 2 and 3, who also claimed to be the heirs of the late Colonel, moved the Chief Land Commissioner questioning the genuineness of the mutation of gift. According to them, it was a devise resorted to by the appellant No. 1 to deprive them of their due share in the property of the late Colonel. The learned Chairman, Federal Land Commission, however, was satisfied that respondents Nos. 2 and 3 were the heirs of the late Colonel but independently he decided the question of the validity of the gift, exercising his suo mot.. Revisional jurisdiction and reversed the finding of the Chief Land Commissioner declaring the gift to be invalid and directed that the land, in excess of the permissible limit, be resumed and the remaining land be left to be inherited by the legal heirs of the late Colonel.
4. Aggrieved by the aforesaid order of the learned Chairman, Federal Land Commission appellant No. 1 filed Writ Petition under Article 199 of the Constitution questioning the authority of the Chairman, F. L. C. To declare the gift to be 'invalid' and holding respondents Nos. 2 and 3 to be the legal heirs of the late Colonel per order, dated 8-1-1976 passed by the learned Chairman, F. L. C.
5. Contentions of the learned counsel before us are that after the entry of Mutation No, 354 on 1-9- 1969 was made, it was checked by the Field Qanungo on 22.11-1969. He required it to be presented with the R. L.-II and field number ; that as the late Colonel had already gifted away the entire holding in the aforesaid village to the appellants, he was not affected by M. L. R. 115 ; that in that bona fide belief he did not file a declaration before the Land Commission ; that it is proved from the record {{FOOT NOTE}}
(1) PLD 1977 Lah. 461 {{FOOT NOTE}} ' that the consolidation proceedings had started in the village and the Mutation Register was handed over to the Consolidation Staff, that when the late Colonel came to know that the mutation has not been sanctioned, he moved an application before the Tehsildar and as M. L. R. 115 had already come into force, the Revenue Officer, vide his order, dated 8-9-1972, expressed his inability to sanction the mutation and sought guidance/ instructions from his higher authorities ; that after the death of the Colonel on 31-3-1974 appellant No. 1 widow of his pre-deceased son, moved an application to the Chief Land Commissioner, Punjab praying that the transaction of the said gift be declared 'valid' and mutation be sanctioned ; that in order to gain undue advantage and to deprive the appellants of their legal rights two persons by the names of Muhammad Afzal and Mst.
Zamurrad Begum, who were in illegal possession of a bungalow left by the late Colonel, wanted to pressurize the appellant No. 1 widow and other being female except petitioner/appellant No, 2 who was a minor ; that the said two persons manipulated, in collusion with the Circle Patwari, in the area of land originally gifted by the late Colonel and then Muhammad Afzal and Mst. Zammurrad indirectly inter-meddle in the proceedings before the C. L. C.
6. The learned Chief Land Commissioner summoned the entire record and after holding thorough inquiry, came to the conclusion that although the original Mutation No, 354 had been tampered with, reducing the area of the appellant's predecessor-in-interest, yet the certified copy of the said mutation obtained by him from the D. C.'s file and also from the file of the Inspection Team clearly showed the correct position prior to tampering, including the area and the figures. The learned C. L.
C. After satisfying himself, ordered the mutation to be entered.
7. The learned counsel further submitted that the learned High Court Judges have misread the evidence on record holding that the mutation in question was never presented to any Revenue Officer for attestation before the promulgation of M. L R. 115 and it was, in fact, presented before the Tehsildar for attestation on 3-12-1969 ; that the learned Judges, in the impugned judgment, held the mutation to be invalid as being a forged document and that the declaration of gift was not followed by the delivery of possession, and as such was ineffective. It was further submitted by learned counsel that the learned Judges had perused the original record namely the Mutation No, 354, its certified copy and roznamcha karguizari of the Qanungo ; and in addition to this even the Patwari, who had made the said entry on 1-9-1969, was examined% who stated tnat the said mutation was entered by him at the instance of Col. Hamid Hasan Khan yet the learned Judges held that there can be two opinions about the finding of forgery, which is serious error in law and has resulted in grave injustice to the appellants ; that even on the point of alleged non-delivery of possession the learned Judges fell into error in coming to the conclusion in disregard of the provisions of law ; appellant No, 2 admittedly being a minor son of the pre-deceased son of the late Colonel, was under the guradianship of the grandfather who was exercising control and supervision over the minor, and, therefore, no formal delivery of possession was required ; that the grand-daughters of the late Colonel were also under the control of their grandfather after the demise of their father in 1958, also did not require formal delivery of possession. The same principle applied to the case of daughter to whom the donor stood in a fiduciary capacity. It was further urged that in any case, there was abundant and unrebutted evidence in proof of the delivery of possession and the intention of the donor to make the gift without reservation was abundantly clear; the learned Judges overlooked this aspect of the case. Lastly it was contended that Shaikn Muhammad Rasnid acting as Chairman of the Federal Land Commission had no jurisdiction to exercise revisional powers under paragraph 29 of the Land Reforms regulation. The powers under the said para. Vest in the Federal Government or any person authorised by it in this behalf. The Federal Land Commission consists of a Federal Minister nominated by the Federal Government to be its Chairman and three Members to be appointed by the Federal Government under para. 4-A
(II) to assist the Federal Government in the exercise of its revisional under powers under paragraph 29 of M. L. R.
115.
8. We have examined the contentions raised by the learned counsel for the appellants and refer to the finding in para, 3 of the impugned judgment which is as under : "We may, however, examine whether the learned Chairman, Federal Land Commission, exceeded his authority in scrutinizing the alleged gift and declaring it invalid. The gift having allegedly been made in the year 1969 was open to scrutiny by the Land Commission authorities under column (b) of paragraph 7 (i) of the Land Reforms Regulation, 1972. In fact, since the genuineness of the mutation was being doubted and the charge against the late Colonel was that he had the mutation entered after the promulgation of the Land Reforms Regulation, and had it back-dated in order to save his property from resumption and also to save himself from prosecution for his failure to file a declaration, the mutation was open to scrutiny also under clause (a) of para. 7 (i) of the Regulation. Since this question was examined in the first place by the Chief Land Commissioner, the result of the examination was subject to revision by the Federal Land Commission under paragraph 29 of the Regulation.
(4) Therefore, all that this Court is required to decide is whether in the exercise of the revisional jurisdiction the learned Chairman, Federal Land Commission committed any such error as can be said to have rendered his decision legally ineffective."
' The learned High Court Judges further observed : "There can certainly be two opinions on this issue. But simply because a contrary opinion is also possible, the finding of the Federal Land Commission, cannot necessarily be held to be without lawful authority as laid down by the Supreme Court in Muhammad Hussain Munir v. Sikandar and otho s PLD 1974 SC 139. But apart from the question of genuineness of the mutation which, at best, can serve only as evidence of gift, there is ample indication on record that the late Colonel remained in possession of and managed the land in question right uptil his last days."
9. While examining the two concluding paragraphs of the impugned judgment of the learned High Court following facts are to be noted Sardar Hamid Hasan Khan made an oral gift on 1-9-1969 in favour of his heirs named below : ' Bibi Shah Khanum, daughter 1/3rd ' Sardar Khan, grandson of pre-deceased son 1/3rd ' Bibi Qudsia Khanam and Naila Khanam, daughther 1/3rd
10. The said factum of making of gift was reported to the Patwari Halqa who entered a report to that effect on 1-9-1969. Mutation No, 354 was entered and the Field Qanungo made an entry on the said mutation on 22-11-1969 asking for certain records as well as Register R. L. H. The said Field Qanungo made the necessary entry of his having examined the roznamcha karguzari the same day. He, however, died later on. The Field Qanungo maintained the diary under paragraph 2.52 of the Land Records Manual. According to this paragraph which reads as follows : "Every Field Qanungo shall keep a diary in which he will state day by day the manner in which he has been employed, the entry of each day shall be made not later than the following morning." ' the contents of the diary shall contain the date and day of work and name of the village visited and the work which has been done by the Qanungo concerned.
11. On 3-12-1969 the Mutation No, 354 was presented before the Naib-Tehsildar who observed that it should be presented after completion of necessary formalities for approval. Col. Hasan Khan had made the gift on the 1st September, 1969 in favour of his heirs as defined in Explahation I of paragraph 7 (i) (h). The donees, in the present case, fall within the definition as given in M. L. R.
115. The mutation in question was entered incorporating the factum of making of gift, the said mutation was not yet sanctioned when M. L. R. 115 was promulgated in 1972. The donees Sardar Adnan Ahmad Khan and his sisters, were minors at the time of making the gift and the donor was the legal guardian of their property. It is in the evidence that the mutation could not be sanctioned as the village where the property was situated, came under the Consolidation Scheme and during the consolidation proceedings mutation cannot be sanctioned.
12. That on 8-9-1972 the mutation was presented before the Assistant Collector II-Grade for confirmation, and the donor had appeared before him but the said A. C. II declined to confirm the mutation on account of the bar imposed by M. L. R. 115, and an application was made by the donees before the Chief Land Commissioner, Punjab to call for the record ; examine the transaction and confirm the mutation. The learned Chief Land Commissioner in his order dated 24-6-1974 validated the gift under the provisions of M. L. R. 115 under paragraph 7 (b) thereof as the powers to validate were vested in him. During the course of proceedings before him it was suggested that Mutation No, 354 could be fraudulent but the learned C. L. C. Duly considered the entries in the roznamcha karguzari, and sent it to the Field Qanungo, who made the entries, and died in 1970.
There was, therefore, no possibility or chance of making any fictitious entries after the promulgation of M. L. R. 115 in 1972. The learned Chief Land Commissioner passed an order after considering all the facts before him and held that the present appellants had satisfied him on the factum of making the gift and once a gift has been established there can be no further scrutiny in respect of the transaction in favour of the heirs.
13. The learned Chairman, Federal Land Commission took up the case under para. 29 of M. L. R. 115 on an application made by one Muhammad Afzal Khan and Mst. Zumarrad Begum to the effect that they were also the heirs of Col. Hamid Hasan Khan. On the preliminary objection being raised that the learned Chairman F. L. C. Had no jurisdiction to make a declaration on the civil status of a person, the Chairman procceded to examine the case under his suo motu revisional powers. It may be mentioned that the application on behalf of Muhammad Afzal etc. Was moved by Mr. Ibrar Hussain Naqvi who during the course of proceedings, was appointed legal advisor to the Chairman, Federal Land Commission and was present during the subsequent proceedings of the case. This was objected to by the present appellants. The learned Chairman F. L.
C. Relied on the fact that the mutation register, apart from page 17, contained pages 17/1 to 17/13 but it may be mentioned that as far as Mutation No, 354 is concerned which pertains to the case of the appellants, it is entered at page No, 17 and there is no relevancy of the addition of pages bearing Nos. 17/1 to 17/13. Even if these pages were added subsequently, it would not affect the mutation in question on page No,
17. The other fact that the village where the property was situated, was under Consolidation Scheme, was overlooked by the Chairman.
14. The next question which falls for determination is the completion of a gift in favour of the minors who were heirs of the donor? In these circumstances it was not necessary that there should be specific transfer of g possession because the donor was the legal guardian of the property of the donees. I may observe here that the finding of the learned High Court Judges are : "The mutation of the tamleek entered on 1-12-1969 was never presented to any revenue officer for attestation before the introduction of the Land Reforms."
' This itself is incorrect as the mutation was presented to the Revenue Officer in 1969 and it could not be sanctioned on account of lack of certain information regarding R. L. II and subsequently it could not be presented because the village came under the Consolidation Scheme. The learned Judges followed PLD 1974 SC 139 and came to the conclusion that they could not enter into the question of facts and as such, upheld the order of the learned Federal Land Commission and further held that the High Court that though Sardar Adnan Ahmad Khan was a minor but in his case as well as in the cases of grand-daughters, the mother should have taken possession of the land.
15. The Federal Land Commission, while exercising suo motu powers, under paragraph 29 of M. L. R.
115, had only limited powers to examine the correctness and propriety of the order of the learned Chief Land Commissioner being explicit and detailed on the subject, the limited powers under paragraph 29 could not be exercised in the manner in which these have been so exercised. The wording of paragraph 29 corresponds with the wording of section 435 of Cr. P. C. And the limitation in force thereon would also be applicable to the exercise of powers under paragraph 29. Reliance was placed on Chief Land Commissioner v. Maula Dad (1), Abdul Hamid Khan v. Officer on Special Duty, Federal Land Commission (2), Sain Bux and others v. Officer on Special Duty (3).
16. The dictum of the Supreme Court in PLD 1974 SC 139 is only applicable where there has been no ignoring of record or misreading thereof. Moreover, the Land Reforms Regulation No, 115 being {{FOOT NOTE}}
(1) 1978 SCMR 264 (2) 1979 CLC 211
(3) 1980 CLC 1395 {{FOOT NOTE}} ' confiscatory in nature and appropriation without any compensation, the Supreme Court and the High Court, in order to do complete justice, had the jurisdiction and the powers to go into the facts and this is to be done in a far more effective manner.
17. Under the Muslim Law the moment Sardar Hamid Hasan declared his intention of making of gift in favour of his heirs, there could be no further scrutiny. In this behalf reference is made to Ashfaqur Rahman Khan v. Ch. Muhammad Afzal, Mutwalli, Wagf Property and another (1), Hayat Muhammad and another v. Member, Federal Land Commission, Rawalpindi and 2 others (2), Zulfigar Ali Khan v.
Additional Chief Land Commissioner, Punjab and 2 others (3), Sardur Abdul Ghafoor Khan and 3 others v. The Federal Land Commissioner, Islamabad (4), Jehan Khan etc. v. Member, Federal Land Commission (5). In PLD 1979 Lah. 375 it was held by the learned Judge (Shafiur Rahman, J. As he then was) that "Commissioner or a Member of it had no jurisdiction in law to consider the merits of the transaction made in favour of the heirs during the period prescribed in clause (b) paragraph 7 of the Regulation". Second proviso to paragraph 7 (i)(b) reads as follows "Provided further that nothing in this clause (b) of paragraph 7 shall apply to :
(i) any transfer of land or creation of any right or interest in or encumbarance on any land, by way of gift or otherwise, made by a person in favour of his heirs, or (ii)
' At this point it would be pertinent to reproduce the relevant paragraphs from the order of the learned Chief Land Commissioner, Punjab, dated 24-6-1974 : "After entry of Mutation No, 354 on 1-9-1969 the Field Qanungo made a report, dated 22-11-1969 which reads as follows : {{URDU TEXT}} ' The Roznamcha Karguzari of the Qanungs for 22-11-1969 has been seen which contains the following entry : - {{URDU TEXT}} ' It is reported that the Field Kanungo has been dead for for years. There is no interpolation in this entry and the entry with regard to comparison of Mutations Nos. 352 to 365 is very clear. The signatures of the Field Qanungo in six Mutations namely 353 to 358 have been checked and they are identical of same date of 22-11-1969. There is, therefore, no doubt that the entry of Mutation No, 354 on 1-9-1969 and the checking by the Field Qanungo on 22-11-1969 is according to fact. {{FOOT NOTE}}
(1) PLD 1959 Lah. 59 (2) PLD 1974 Lah. 456
(3) PLD 1975 Lah. 158 (4) PLD 1979 Lah. 375
(5) 1981 CLC 1200 {{FOOT NOTE}} ' There is an order by the Naib-Tehsildar on 3-12-1969 which reads as under :- ' This refers to the observations of the Field Qanungo regarding preparation of `Tatimma Tarminsi Shuda' as there are some part Khasra numbers in the mutation.
' It has been stated by Muhammad Sharif Field Qanungo that after this, the village came under consolidation and hence the papers were passed on to Consolidation Patwari and apparently the Consolidation Patwari did not present the said papers to the NaibTehsildar. The mutation was finally put up before the A. C. II on 8-9-1972 who took the statement of the donor who confirmed the alienation of the gift and requested that the mutation should be sanctioned. The donor also stated that he was never summoned for attestation or giving statement about the alienation before ' In the concluding paragraph of his order, dated 24-6-1974 the learned Chief Land Commissioner, Punjab observed as follows :- "In this case the alienor not only had the mutation of gift entered in the mutation register on 1-9- 1969 but also confirmed the gift in his statement before the Revenue Officer. There is ample evidence to establish that the gift was in favour of the heirs allowed under M. L. R. 115 and pertains to whole of the holdings of the owner namely 785 pieces of fields (Qittaat) with total area of 6,193 Kanals, 13 Marlas. I, therefore, direct that Mutation No, 354 should be attested forthwith by correcting the Field numbers and the area as given in the copy, dated 27-9-1972 of the Deputy Commissioner's file and also produced by the petitioner. The deceased having already gifted his land, is not affected by M. L. R. 115 and proceedings against him for default in filing a declaration should be filed."
18. In the order of this Court, dated 21-6-1978 leave was granted, inter Wks, only on two points viz. That an individual member of the Federal Land Commission could not exercise the powers exerciseable by the Commission as a whole; and that the interpretation of paragraph 7(b) of the Land Reforms Regulation, as put by the Chairman, Federal Land Commission is untenable. So far as the first point is concerned, it stands disposed of in view of the validation clause inserted by amendment made vide Ordinance XXIX of 1978. Regarding the second point, I would allow this appeal and, declare the impugned order of the learned Federal Land Commission dated 8-1-1976 to be of no legal effect and would, therefore, quash the same. In the result, the order dazed 24-6- 1974 passed by the learned Chief Land Commissioner, Punjab will stand restored. In the circumstances of this case I would make no order as to costs.