' This is a case of suo motu revision arising out of the order dated 6-11-1983, of the High Court of Sind in Constitutional Petition No, D-55 of 1980, by which the Federal Land Commission's order dated 28-12-1976 in Case No, S. M. R. 1154/F.L.C. Of 1975, was declared as being without lawful authority and the case was remanded to the Federal Land Commission with the direction that the matter be decided afresh after notice to the parties.
2. Of the parties concerned only respondent No, 1, Haji Ahmad Sultan Chandio appeared before the Federal Land Commission through his counsel. Others namely, Nadira Begum, Jamila Begum.
Khalid and Shahid, sisters and brothers of the wife of Haji Ahmed Sultan Chandio respectively and Muhammad Khan, Ali Nawaz and Mushtaq Ahmed, sons of Haji Ahmed Sultan Chandio did not present themselves before the Court in spite of repeated notices through post and the press. It was, therefore, decided to proceed ex parte against them.
3. An objection had been raised that the D. L. C. Larkana in his order dated 25-9-1974 in Case No, L.
R.-172, while determining the holding of Haji Ahmed Sultan Chandio under M. L. R. 115, did not include in it an area measuring 212-26 Acres in Deh Thett, Taluka Warah, District Larkana on the ground that this area had been gifted by Haji Ahmed Sultan Chandio to his three sons under permission granted by D. L. C. Larkana under paragraph 9(f) of M. L. R. 64 vide his order dated 25-1-1960. The point of the objection was that, although permission had indeed been sought and given for the gift of the area in question vide D. L. C. Larkana's order dated 25-1-1960, this permission had never in fact been acted upon and the area was not in fact gifted. The order of the D. L. C. Larkana dated 25-9-1974, was, therefore, wrong and illegal to that extent. It was stated on behalf of the Federal Land Commission Inspection Team that apart from the fact that the area in question viz. 212-26 Acres in Deh Thett was shown in the land revenue record in the name of Haji Ahmed Sultan Chandio 106-29 acres out of this area was sold by him in December, 1971 according to his own declaration filed under M. L. R. 115 to his wife's sisters and brothers, namely, Nadira Begum, Jamila Begum, Khalid and Shahid. It was stated that this was conclusive evidence of the fact that the area in question had never in fact been gifted by Haji Ahmed Sultan to his sons under para. 9(f) of. M. L.
R. 64 as claimed by him and that it continued to be his property upto the promulgation of M. L. R.
115.
4. Counsel for respondent Haji Ahmed Sultan Chandio was heard and he contended that the area of 212-26 Acres had in fact been gifted by Haji Ahmed Sultan Chandio in favour of his three sons who were minors at that time and, therefore, under the Muhammadan Law their father, the donor, was authorised to accept the gifted land and continue to manage it on their behalf. He explained the sale of 106-29 Acres by Haji Ahmed Sultan Chandio in favour of Nadira Begum, .Jamila Begum, Khalid and Shahid in December, 1971 by saying that this was out of the total area of 352 Acres in Deh Thett which was retained by Haji Ahmed Sultan under M. L. R. 115 after gifting 212-26 Acres of land to his sons and after surrendering the balance for resumption under M. L. R.
115. The fact that the field numbers of the land sold in December, 1971, were the same which are claimed to have been gifted to his sons under M. L. R. 64 was explained by the counsel by saying that there had been private partition between the father and the sons and these numbers were exchanged as a result of that partition.
5. I have examined the record of the judicial cases under M. L. R. 115 and M. L. R. 64 and the revenue record very carefully and thoroughly and have also given due consideration to the points raised before me. From an examination of these records I find that the Record of Rights continues to show area measuring 212-26 acres permitted to be gifted under M. L. R. 64 to his sons in the name of Haji Ahmed Sultan up to present and there is no record showing possession of this area having been transferred to the donees, namely, Muhammad Khan, Ali Nawaz and Mushtaq Ahmed, sons of Haji Ahmed Sultan Chandio. The sale of 106-29 acres out of this area in December, 1971, in favour of Mst.
Nadira Begum, Jamila Begum, Khalid and Shahid is a further proof of the fact that this area had continued to be owned and possessed by Haji Ahmed Sultan Chandio upto the time that he sold part of this area to these persons. The point made by the counsel regarding private partition as a result of which the numbers were changed is not acceptable in the first place because there is no documentary evidence of such a private partition and secondly because in the eyes of law partition carried out in accordance with the provisions of Land Revenue Act alone can be recognised for purposes of the legal consequences and implication of such partition.
6.For reasons in the preceding paragraph I have no hesitation in holding that the permission granted to Haji Ahmed Sultan Chandio under paragraph 9( f of M. L. R. 64 vide D. L. C. Larkana's order dated 25-1-1960 was never acted upon by Haji Ahmed Sultan Chandio and the land in respect of which this permission was granted continued to be under his legal and de facto ownership and possession. As such this should have been regarded as part of his holding on the crucial date under M. L. R. 115 and should not have been excluded therefrom. The order of D. L. C.
Larkana dated 25-9-1974, is accordingly set aside to this extent and he is directed to redetermine the holding of respondent No, 1 in the light of this order and take further consequential action under M. L. R.
115.
7.Judgment in this case was reserved when it was last heard on 23-1-1985, it should, therefore, be communicated all the parties cited in the case through the D. L. C., Larkana. va