' The case has been remanded to the Federal Land Commission for fresh hearing after notice to the parties vide High Court of Sind's order, dated 3-10-1983 in Constitutional Petition No, D-252 of 1977 whereby the High Court of Sind has also set aside the F.L.C. Order, dated 27-12-1976 in a revision petition filed by the petitioner against the order of the Additional Chief Land Commissioner, Sind, dated 26-11-1974.
2. Briefly, facts of the case are that the petitioner Syed Gul Muhammad Shah declared his holding under paragraph 12 of Martial Law Regulations, 1972 as 1390-30 Acres (equivalent to 30216 PIUs) on 1-3-1967 and claimed to have made a number of alienations during the crucial period of which the following alienations only are in question at present :- {{TABLE}} Deh Name Relationship Area Nature Entry in record Abri 1. Syed Khuda Dino Shah (son) - do - 2. Mst. Bibi Amirzadi (wife)
Katiar 3. Mst. Shehr Bano (mother)
Alipur 4. - do - - do - 248-06 123-09 35-04 1-24 Gift 18-12-71 ,, - do - ,, - do - 13/15-3-73 {{TABLE}} ' These alienations were first declared as vaild gifts in favour of his heirs by the Land Commissioner, Hyderabad vide his order, dated 27-12-1972. This order, however, was later reviewed by the Land Commissioner vide his order, dated 5-6-1974 according to which the alienations were declared void on the ground that these were not genuine and were not supported by entries in the record of rights. On appeal the Additional Chief Land Commissioner, Sind vide his order, dated 26-11-1974 upheld the Land Commissioner's decision on the same grounds together with the additional ground that possession over the lands in question had not been transferred to the donees within the crucial period. A revision petition before the Federal Land Commission also failed vide Land Commission's order, dated 27-12-1976. A constitutional petition before the High Court of Sind, however, succeeded and as stated in para. 1 above, the High Court of Sind has remanded the case to the Federal Land Commission for fresh hearing.
3. Petitioners Nos. 2, 3 and 4 Mst. Shehr Bano, Mst. Amirzadi and Syed Khuda Dino Shah) have not appeared in spite of services of notices upon them. The case was, therefore, heard ex parte in so far as they are concerned. Counsel for the petitioner No, 1, Syed Gul Muhammad Shah, has been heard and the record of rights and the judicial record of the lower Courts in respect of the case has been examined. Counsel for the petitioner contended that the procedure prescribed for effecting mutations under the Land Revenue Act through Form VII and Form XV could not be followed because, with the enactment of the West Pakistan Land Revenue Act, 1967 procedure in respect of sanctioning of mutations was being changed from the existing system in so far as the Province of Sind was concerned. The counsel claimed that during this period of transition the old system had been suspended and ad-hoc procedures as for instance report of transactions through affidavits, were being followed pending adoption of the new procedure under the West Pdkistan Land Revenue Act, 1967. The counsel cited in support of his contention the fact that Mr. K. M. Malichani, who was Settlement Mukhtiarkar of Tando Muhammad Khan, District Hyderabad at the time when these alienations had taken place, was following , the revised procedure as a settlement official in place of the regular revenue officials. At the counsel's request Mr. Malkhani (at present Secretary, Board of Revenue, Government of Sind) was requested to appear before the Land Commission to explain the procedure which was in fact followed and to produce Government orders, if any, suspending the procedure laid down in the West Pakistan Land Revenue Act, 1967 and adoption of ad-hoc procedures during the transition period as claimed by the counsel for the petitioner. Mr Malkhani, who appeared before the Federal Land Commission, stated that it was not correct to say that the procedure under West Pakistan Land Revenue Act had been suspended in the Province of Sind and that in fact the procedure requiring reporting and sanctioning of alienations through Forms VII A & B and Form XV was followed in the Province of Sind from 25-6-1968. He explained that this work was being done by the Settlement staff including himself as Settlement Mukhtiarkar during those days in the District of Hyderabad because of the currency of settlement operations in the district, and that it was the normal practice that during the settlement operations in a district the normal revenue functions were also performed by the settlement staff who were given the necessary powers under the Land Revenue Act for this purpose. This, however, did not mean that the procedure prescribed in the Land Revenue Act was in any way changed or that a different system was followed.
4. Toe counsel for the petitioner further argued that under the Muhammadan law the gift was complete if the facts of the donor's making the gift and the donee's accepting of the gift were established. He said that in the present case this was done through affidavits sworn on 24-12-1970 before the Head Munshi, Taluka Tando Muhammad Khan by the petitioner/declarant, Syed Gul Muhammad Shah making the gifts and by Mst. Bibi Amirzadi, wife of Syed Gul Muhammad Shah, Mst. Shehr Bano, mother of Syed Gul Muhammad Shah and Syed Khuda Dino, son of Syed Gul Muhammad Shah, accepting these gifts. Even if the procedure regarding entry and attestation of the mutation under the Land Revenue Act was not completed until after the expiry of the crucial period the affidavits of the donor and the donees should, the counsel argued, be sufficient to establish the factum of the alienations.
5. I have carefully considered the arguments of the counsel for the petitioner and the position of law in this respect. It is clear that the point made by the counsel for the petitioner that a different procedure for entry and sanctioning of mutations was being followed in the Province of Sind even after the promulgation of Land Revenue Act, 1967 is not tenable and examination of record-of- rights produced before me and of the various orders of the lower Courts shows that the transactions were not entered in the record-of-rights until after the crucial date viz. 20-12-1971. I, however, accept the evidence of affidavits sworn by the donor and the donees on 24-12-1970 in so far as the making and accepting of the gifts in question are concerned. There are a number of decided cases according to which in the face of such evidence absence of entry and sanctioning of A mutations in the record-of-rights does not render the transition as void for purposes of the Land Reforms Regulations. However, there is something more to the concept of a gift under the Muhammadan law than simply making and accepting of the gift. The third, and an equally important and essential, ingredient of such a gift is the transfer of possession of the gifted property from the donor to the donee. Even in a genuine case of a gift validly made and accepted by the parties, the gift is not complete under the Muhammadan law if, for whatever reasons, the actual transfer of possession could not be made. No evidence has been produced in respect of such transfer of possession of the lands in question from Syed Gul Muhammad Shah in favour of various donees. Entries in village Form VII A & B and in village Form XV and other documentary evidence in respect of payment of land revenue relate to the period after the crucial date of 20-12-1971. For these reasons I cannot hold that the gifts in question were completed in accordance with the requirements of Muhammadan law before 20-12-1971. It appears that the gifts were completed later after the crucial date which would mean that the alienations of land in question was made after the crucial date and cannot be used as a ground for excluding the lands from the holding of the declarant under the Land Reforms Regulation 1972 on 20-12-1971. I do not, therefore, see any reason for interfering with the order of Additional Chief Land Commissioner, Sind, dated 26-11-1974 and hereby, accordingly, dismiss the revision petition against that order.
6. Judgment in this case was reserved when it was last heard on 17-4-1985. It should, therefore, be communicated to all concerned through Deputy Land Commissioner, Hyderabad.