1. ' This is a revision petition against the order, dated 0-10-1969 passed by the Additional Commissioner, Hyderabad whereby' he rejected the petitioner's appeal in respect of mutation of agricultural land situated in Deh Jherruck, Taluka and District Thatta.
2. The facts of the case are that the disputed land belonged to the respondent Mir Aijaz Ali Khan and two ladies Msts. Bibi Bani and Zeenat-un-nisa. Mir Aijaz Ali Khan vide oral statement recorded before the Mukhtiarkar, Thatta on 14-7-1964 sold the land on his behalf and on behalf of the other two ladies claiming to be their attorney, to the petitioner ladies in the sum of Rs, 2,55,830.
2. Subsequently on 19-5-1969, one Ahmad Khan Akhtar on behalf of Msts. Bibi Bani and Bibi Zeenat- ur-nisa challenged the alienation on the ground that the mutations were illegal as these were without execution of registered deed of conveyance. The Deputy Commissioner, Thatta made a reference to the Commissioner, Hyderabad, for orders under section 164(4) of the West Pakistan Land Revenue Act, 1967, but the Commissioner vide his order, dated 17-7-1969 asked the Deputy Commissioner, Thatta to pass orders in the first instance at his level. The Deputy Commissioner, Thatta, vide his order, dated 28-7-1969 set aside the mutation mainly on the ground that these were without a registered deed of conveyance. The petitioner preferred an appeal to the Additional Commissioner, Hyderabad which was rejected in the impugned order.
3. I heard the counsels for the parties and had also the benefit of their exhaustive written arguments. The main points urged by the counsel for the parties are as follows:- A. Counsel of the Petitioners.
(i) The authority of Mir Aijaz Ali Khan holding the general power-of attorney was not denied by the lady respondents and they had even admitted the application made to the Deputy Commissioner that Mir Aijaz Ali Khan Talpur was their Mukhtiar.
(ii) The unregistered statement by Mir Aijaz Ali Khan was acceptable vide Standing Order No, 17(6) and Para. 15(a) of the remarks on village Form No, VII for the purpose of record of rights. No further proceedings under clause 3(a) of section 135(D) of Land Revenue Code, 1879, was necessary as there was no dispute with respect to the mutation of the land. Even according to section 42 of the Land Revenue Act, 1967, mutation can be made on the authority of unregistered sale-deeds. The possession of the land was transferred to the petitioners soon after the sale transaction as would appear from the bills and receipts of land revenue assessment paid by the petitioners in respect of the land. The registration of the transaction would appear from the bills and receipts of land revenue assessm ent paid by the petitioners in respect of the land. The registration of the transaction was not necessary vide section 53(A) of the Transfer of Property Act.
(iii) The provisions of Chapter XIII of the Sind Land Revenue Code do not apply to any decision or order made under Chapter X(A) of the Code vide section 135-L of the Land Revenue Code. There is only one appeal and no second appeal in the record of right matters vide rule 108(5) of the Land Revenue Rules. The order passed in appeal is final. As there was no appeal within the time prescribed in rule 108(5) or even upto the time the Sind Land Revenue Code, 1979 was replaced, the mutation in the record, being unchallanged, become final. The mutations could not be revised under the provisions of West Pakistan Land Revenue Act, 1967, as it has no retrospective effect.
3. According to section 45 of the Act, there is a bar to change mutations which have continued in Jamabandis for certain circumstances, which do not exist in the present case. The action of the Deputy Commissioner, Thatta, revising the mutation under the new Act was, therefore, illegal.
(iv) The order passed by the Deputy Commissioner was ex parte and against the natural justice.
(v) My attention was also drawn by the counsel for the petitioners to the following rulings from Revenue rulings.
4. 1960-66 Vol. II.
5. (a)Nasir Ali and others v. Muhammad Ali and others Revenue Rulings (1960-1966) Vol. II, p.
6. 98.
7. (b)Rahim Gul and others v. Fazal-ur-Rehman Revenue Rulings 19601966) Vol. II, p.
8. 287.
9. ' These rulings lay down that the mutation proceedings are summary in character and shifting the onus of proof does not determine the question of title.
(c) Pir Bux alias Piranditta ' v. Allah Diwayo Revenue Ruling (19601966) Vol II, p.
10. 397.
11. ' The ruling lays down that the entries in record of rights should not be altered on the ground of fraud and that the parties should seek redress in civil Court.
(d) Qamaruddin v. Muhammad Nawaz and others Revenue Rulings (1960-1966) Vol. 11, p.
12. 417.
13. ' The ruling lays down that in case of a mutation based on the oral sale in which the parties have affirmed the transaction alongwith transfer of possession by making statement before the Assistant Collector and in which later on the vendor sold the land by means of registered sale- deed, it was held by the Member, Board of Revenue, that the subsequent sale was ineffective.
(e) Khushi Muhammad v. Abdullah Shah Revenue Rulings (1960 1966) Vol. II, p.
14. 427.
15. ' In this ruling it was held that in case of mutation effected through oral sale in which the parties admitted sale and transfer of possession before Assistant Collector and then alleged aggrieved party may go to civil Court.
16. B. Counsel of the Respondents :
(i) The Deputy Commissioner has ample powers to call for the record of any case at any time of his own motion or on application made to him vide section 164(2) and (3) of the West Pakistan Land Revenue Act, 1967. There is no period of limitation for suo motu action. Similarly the Commissioner can pass such orders as he thinks fit vide section 164(4) of the Act. The case was, therefore, rightly remanded by the Commissioner to the Deputy Commissioner for passing the orders in the first instance and the order of the Deputy Commissioner is, therefore, proper.
(ii) It is denied that Mst. Bibi Bani and Zeenat-un-nisa had executed any power-of-attorney to sell their land in favour of Mir Aijaz Ali Khan. The ladies deny having received the consideration. The ladies were neither intimated about the sale transaction nor their statements were recorded. Not present before the Mukhtiarkar. The Mukhtiarkar did not observe the relevant provisions of section 135(D) of the Land Revenue Code. The mutations were made on the basis of statement of a person who had no authority on behalf of the ladies to sell or alienate the property.
(iii) Mr. Ali Ahmad Khan stood in fiduciary relationship to the two ladies, who are his sisters and the property was jointly inherited from their father. Besides this, the respondents inherited share in the bungalow situated in Hyderabad and Karachi. It was customary in Talpur family that ladies were not given their share of inheritance which was legally due to them. In order to honour that age long tradition the statement was obtained from Mir Aijaz Khan. Actually no consideration has passed.
17. The only irresistible conclusion that can be drawn is that the transaction was obtained by fraud and undue influence. My attention was also attracted by the counsel for the respondents to A t R 1924 Allahabad, which indicates that sale without the express knowledge and consent of Pardanashin lady is invalid. The counsel contended that in view of this ruling the order of the Deputy Commissioner is quite justified and that he had heard the parties at full length before passing the order.
(iv) The statement of sale involved consideration of more than Rs, 200 lacs and required to be registered under section 17 of Registration Act and since the sale was not registered, no right accrued to the party to entitle to the benefits of section 135 of Sind Land Revenue Code.
4. 1 have given careful consideration to the argument on behalf of the parties. The crucial point involved in this case is whether the statement recorded by Mir Aijaz All Khan on 14-7-1964 on his own behalf and on behalf of Msts. Bibi Bani and Zeenat-un-Nisa before Mukhtiarkar, Thatta selling the land to the petitioners is a valid statement for the purpose of record of rights. The counsel for the petitioners has relied on Standing Order No, 17(6). Para. 15(a) of the remarks on village Form IL section 135(c) of the Sind I and Revenue Code, section 42 of the West Pakistan Land Revenue Act, 1967, section 53(A) of the Transfer of Property Act in support of his contention that the statement is a valid statement for the purpose of record-of-rights. These authorities may be summarized as follows: -
(a) Standing Order No, 17(6) stipulated that oral transaction of land and rights in land are admitted for the purposes of entries in the record of rights if the parties give written statement of agreement.
(b) Para. 15(a) of the remarks on village Form VII provides that mutation due to transfer of land by sale, gift, partition or mortgage with possession, whether made orally or transfer of land by sale, gift, partition or mortgage with possession, whether made orally or by means of document should be effected by the Tapedar.
(c) According to section 135(C) of the Sind Land Revenue Code any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder or assignee of rent or revenue had to report orally or in writing, his acquision of such right to the village accountant (Tapedar) and according to section 135(D) of the Code the village accountant (Tapedar) had to enter in the register of mutation report made to him under section i35(C). Similarly according to section 42 of the West Pakistan Land Revenue Act, any person acquiring right in an estate as land owner etc. Has to report his acquisition of right to the Patwari of the estate and then the Patwari has to enter such report in his Roznamacha and to take further action in accordance with the procedure prescribed therein.
(d) Section 53(A) of the Transfer of Property Act lays down that under certain circumstances even a contract which though required to be registered that has not been registered will be acceptable in case a person contracts to transfer any immovable property for consideration by writing signed by him on his behalf and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
5. It is thus clear from the above that the counsel for the petitioners is relying on such facts and law which are not quite applicable to this case. Although oral statement can be admitted and unregistered contracts can be accepted but there are certain conditions wIlich go alongwith them and such conditions have not been fulfilled in the present case. The statement was given by Mir Aijaz Ali Khan in which he stated that he is selling th land mentioned therein on his behalf and on behalf of Mst. Zeenat-un-nisa and Bibi Bani. Mir Aijaz Ali Khan has claimed in the statement that he had power-of-attorney from the two ladies but that power-of-attorney was not produced by him before the Mukhtiarkar, Thatta and there is no mention about its vertification by the Mukhtiarkar either in the statement or on the entry in village Form VII. Under these circumstances, it is itself not free from doubt whether the power-of-attorney actually existed and A if so whether it was genuine or not and whether it included the power to alienate t.)r sell as well. In absence of determination of these factors I would be unjustified to assume that Mir Aijaz Ali Khan had the proper authority to alienate land on behalf of the two ladies and as such the written statement of agreement by him on their behalf is not a valid agreement for the purpose of entries in record of rights even under provisions referred to by the counsel for the petitioners. This view is further supported by the observation made by Mr. A. M. Leghari, C. S. P., Member Board of Revenue, W. P. Vide his order, dated 12-2-1967 in R.
0. R. No, 718/6566 reported in Karim Din etc., v. Akbar Khan (1), extract whereof may be reproduced here:- "Where the land owner, who could sell or alienate the land, has never appeared before the Revenue Officer and the latter has only recorded statement or an impersonator, the mutation so attested is bogus in that it records no facts and confers no title."
18. In the present case, the two ladies, who are Pardanashin, have neither appeared before the Mukhtiarkar nor gave any statement before him that they propose to sell their property. One of the vendors. Mir Aijaz Ali Khan appeared before the Mukhtiarkar and gave statement on behalf of Msts.
19. Bibi Bani and Zeenat-un-Nisa who are Pardanashin ladies, who neither appeared nor it is known whether they consented to this transaction and it is also not known whether Mir Aijaz Ali Khan had proper authority on their behalf. The sale was accepted on the basis of power-of-attorney, which is not available and its implications are not known whether I envisaged sale of the land of the ladies by him. Consequently in all fairness all precautions should have been taken by the authorities that the mutations being recorded in the record of rights were the result of a valid transaction and that the ladies had full knowledge about it. This view is confirmed by the decision of the Allaha bad High Court in the case of Mst. Aisha Bibi v. Mst. Mahfozinisa Bibi and others (2), referred to by the counsel for the respondents wherein it has been clearly laid down that where a person relies on a document of that nature and is making a claim against a Pardanashin woman, based on document of that kind, it is incumbent upon him to give satisfactory evidence that the document has been explained to and understood by the lady.
20. (1.) P L 0 1967 W. P. (Rev.) 32
(2) AIR 1924 All. 362 The procedure for recording the mutation in record-of-rights was contained in Chapter 10-A of the Sind Land Revenue Code, 1879. According to section 135(D), the village accountant (Tapedar) had to enter in the register of mutations every report made to him under section 135(C) and then to paste a copy of the entry in a conspicuous place in the Tapedars' Dera and had also to give a written intimation to all persons appearing from record of rights or register of mutations to be interested in the mutation and any other person whom he had reason to believe to be interested person. These provisions were obviously made to safeguard the interests of the land-owners from any surreptitious or fraudulent change of entry in the record-of-rights and non-compliance of these provisions can play hell and havoc with the rights of the people who would not know whether the property was sold fictitiously and whether they continue to enjoy their rights. In the present case, no notice was served on the lady owners who were kept completely in dark and were deprived of the knowledge of transaction. These mandatoty and obligatory parts of performance were ignored in this case.
21. ' There is nothing available on record to indicate that the Mukhtiarkar made any scrutiny with a view to satisfy that Mir Aijaz Ali Khan had any valid and legal authority on behalf of the two ladies to sell their land and whether the ladies had any knowledge about the transaction and as such Mukhtiarkar had no authority to act on the basis of the statement without going into these questions. It will have very disastrous consequence if property belonging to anyone is allowed to be sold and mutated on the basis of a statement of a person who may have no such authority to do so or where authority may be of a very questionable character. The objective of making mutation proceedings which are summary in character does not give unfettered discretion and powers to the revenue authorities to throw away all care, caution and procedure to the winds and mutate anyone's property on the basis of anyone else's statement. I am glad that the mischief indulged in by the Mukhtiarkar in collusion with interested persons came to surface and that the Deputy Commissioner intervened to rectify the wrong.
22. According to section 17 of the Registration Act, the documents purporting to transfer the rights of value of Rs, 100 or more require to be registered under the Registration Act. According to section 49 of the Act, no document required to be registered under this Act shall operate to create any right, title or interest in the immovable property. The right in the immovable property can, therefore, be created only when these formalities of law are complied. In this case these mandatory and statutory provisions of law have either been ignored or violated the sale cannot, therefore, be considered as legal in the eye of law.
23. ' The statement of Mir Aijaz Ali Khan also does not specifically and clearly say that he is disposing of his own lands to the petitioners and whether he had received the money for the same although in the details given therein the S. Nos. Belonging to him have also been included in the sale transaction.
24. ' The counsel for the petitioners has also raised plea that the Deputy Commissioner was not competent to revise the mutation either under the provisions of the old Sind Land Revenue Act. In the present case, the parties were not informed about the order sanctioning the mutation. The interested parties were not informed by the Tapedar about the entry of mutations as required by section 135(D) of Sind Land Revenue Code and it was not, therefore, possible for the parties to know what had happended to their rights and title in the record. Consequently order was passed in this case by the Deputy Commissioner, who set aside the mutation. This point has been exhaustively dealt with by the Additional Commissioner in the impugned order in which he has clearly and rightly enunciated the legal position.
25. ' There is no force in the contention of the counsel for the petitioners that the order of the Deputy Commissioner is ex parte as the order passed by the Deputy Commissioner makes it abundantly clear that the parties were heard through their counsel before such an order was passed by him.
26. ' I have also gone through the rulings referred to by the counsel for the petitioners mentioned at para. 4 (a) (v) above. These rulings are not of much relevance to the present case as in the present case the valid agreement of all the vendors is lacking and in absence of valid agreement of all concerned, the revenue authorities are not expected to effect any mutation in the record of rights.
27. ' In view of the above, I see no justification to interfere with the order of the Additional Commissioner, Hyderabad, which is quite justified. The revision petition is, therefore, dismissed and the order, dated 20-10-1969 passed by the Additional Commissioner, Hyderabad in the case is upheld.
28. ' The parties should be informed of the order.