' This is an appeal against the order dated 18-12-1979 of the learned Commissioner, Sukkur Division' cancelling mutation of the land bearing S. Nos. 107, 115 and 116 of Deh Garkano, Taluka Ubauro, purchased by the petitioner and ordering mutation of the said land in favour of the respondent Attal Khan Ali Hassan, Wahid Bux and Muhammad M.Urad all brothers.
2. The facts leading to the case are that the disputed land belonged to one Mubarak Ali and after his death, it devolved on Mst. Ghulam Fatima (widow) and his two sons, Moinuddin and Muhammad Hussain. Later on Mst. Ghulam Fatima died and her share was inherited by Moinuddin and Muhammad Hussain both cited as respondents. Thus, these two respondents had become the full owners of the said land and the Khata was mutated in the revenue r cords on 3-4-1974 accordingly. They sold the said land to the petitioner Godho by way of oral statement on 5-4-1976 and the record of right in respect of the disputed land was accordingly changed in favour of Godho.
3. On the other hand it has been contended that the said land was purchased by the respondents named in para. 1 above from one Muhammad Usman, attorney of Mst. Ghulam Fatima and her sons Moinuddin and Muhammad Hussain by way of a registered sale-deed on 21-3-1974. The said respondents purchasers approached the Mukhtiarkar Ubauro for effecting mutation on the basis of the said sale-deed who declined to do so and the Deputy Commissioner, Sukkur had also rejected their appeal on 7-5-1979, ignoring the said registered sale-deed. These two concurrent findings of the revenue authorities below having been upset by the learned Commissioner vide his order impugned here, the petitioner Godha has preferred the present appeal.
4. Heard the counsel for the parties and perused the case papers. The petitioner's plea is that he purchased the said land from the vendors Moinuddin and Muhammad Hussain whose names were entered in the record-of-rights, through their oral statement on 5-4-1974 and the Khata was also mutated in his favour. It is also contended that Mst. Ghulam Fatima died on 1-1-1970 and, therefore, the power of attorney also ceased to operate by the death of its executant Mst. Ghulam Fatima. In the result the said registered sale-deed through the mediations of the said attorney Muhammed Usman was not competent.
5. The opponent's claim is that they purchased the said land through a registered sale-deed on 21- 3-1974 from the said attorney of Mst. Ghulam Fatima and her two sons Moinuddin and Muhammad Hussain.
6. The learned Commissioner declared the said registered deed as valid for the purpose of keeping entries in the record-of-rights in preference to the oral statement made by the vendors Moinuddin and Muhammad Hussain for the following reasons :
(a) Firstly it was prior to the oral statement and the Revenue Officers are bound to keep such entry in record-of-rights.
(b) Secondly the oral sale is not legal as each and every sale of any property exceeding Rs, 100 is to be registered under section 54 of the Transfer of Property Act which is applicable to Sind since 1915 and the Government of Sind, Revenue Department issued such notification on 7-7-1976 to that effect.
(c) Thirdly the oral sale entry in favour of Godho was to be kept in record-of-rights after inviting objection in Jalsa-e-Aam at the site where the land is situated.
7. I am not inclined to agree with the findings of the learned Commissioner for the following reasons :-
(i) Mst. Ghulam Fatima died in 1970; her fotikhatabadal was effected on 2-4-1974 and by that date it was not possible as per practice that the sale Fard of the registered sale dated 21-3-1974 should have reached the Mukhtiarkar. Naturally it would have reached the Mukhtiarkar after 2-4-1974 when the said Khata already stood in the names of Moinuddin and Muhammad Hussain heirs of deceased Mst. Ghulam Fatima. In that case, bona fides of the registered deed executed by the said Attorney Muhammad Usman on behalf of dead persons Mst. Ghulam Fatima became doubtful.
Although it is not within the scope of a Revenue Officer to determine the bona fides of an Attorney as the mutation proceedings are summary in character, yet in the present case the conduct of the said Attorney is prima facie not tenable as he apparently acted on behalf of a dead person. The Mukhtiarkar was, therefore, justified in ignoring the said registered sale-deed executed by the Attorney on the strength of obsolete and expired power. The oral state made by the full owners of the said land were, therefore, rightly preferred vis-a-vis a doubtful registered deed.
(ii) The notification of the Government of Sind dated 7-7-1976 relied upon by the learned Commissioner, by which the provisions of the Transfer of Property Act, 1882 to the Province of Sind were B extended, has been rescinded vide Notification dated 24-9-1979 as if it was never issued in so far as the issue involved herein is concerned.
(iii) As regards verification of the oral sale entry in Jalsa-e-Aam, it would not be necessary when the parties affirmed the transaction alongwith transfer of possession by making statements and there is no dispute about the identity of the transferors. Jalsa-e-Aam is necessary in case in which probability of suppression of facts is apprehended to the exclusion of persons having vested interest in the property, e. g. Fotikhatabadal. In the instant case, the parties agree to the sale in favour of the petitioner Godho.
8. In view of the foregoing discussion, I hold that this is a fit case for intervention. I therefore, set aside the order of the learned Commissioner and maintain the order dated 7-54979 of the Deputy Commissioner, Sukkur. The appeal is allowed accordingly.