1. ' ABDUL HAYEE KURESHI, C.J.--The present petition has been filed by Nawab Qadirdad Khan and twelve others to challenge an order passed by the Chairman, Federal Land Commission on 18-9- 1976, whereby alienations of agricultural land made by petitioner No,1 in favour of the remaining petitioners were held to be void. By the said impugned order, the Chief Land Commissioner, Sind, was directed to determine the holding of petitioner No,1 afresh and resume the excess area for distribution among deserving Haris.
2. ' It is admitted case that the petitioner owned large tracts of agricultural land in Deh. Khambro and Deh 8 Nusrat in Sakrand Tehsil of District Nawabshah. The petitioner states that petitioner No,1 alienated land on 25-2-1967 in favour of his wife, his sons, his daughters and even to some strangers. The alienations were made by statements before the Revenue Officers, and consequently possession was transferred to the transferees viz. Petitioners Nos. 2 to 13. On the date of alienation, the petitioner made a statement before the Mukhtarkar of Sakrand, which was recorded in the register of statements. After the alienation, the petitioner was left with land within the permissible limit. It seems the Khata was not changed, but subsequently viz. After 1-1-1972, the Khata was also changed. However, with the coming in force of the Land Reforms Regulation of 1972, the petitioner No,1, out of abundant caution, filed his declaration in the prescribed form, wherein he disclosed the alienations made in 1967. On the basis of such declaration, the then Land Commissioner, Sind, by an order, dated 12-8-1972 (Annexure 'F') held the alienation to be valid, so that the matter was closed. After more than three years, Mr. Shaikh Muhammad Rashid, the Chairman of the Federal Land Commission, sitting singly, took cognisance of this case on a report of the Inspection Team of the Federal Land Commission. He issued suo motu revisional notice under paragraph 29 of Martial Law Regulation 115.
3. ' The petitioner has stated that, after the making of the statement on 25-2-1967, the Revenue Officers did not affect mutation in spite of his efforts on the plea that permission of the Collector had not been obtained. However, by an order, dated 16-1-1972, even such permission was obtained from the Assistant Commissioner of Nawabshah. To cut the matter short, the Khata had also been changed.
4. ' By the impugned order, the Chairman of the Federal Land Commission came to the conclusion that the documents in this case had been forged, the statement purportedly made by the petitioner before the Revenue Authorities on 25-2-4967 was also forged, that the price paid was inadequate, and that the alienations were violative of section 54 of the Transfer of Property Act. It may here be stated that the petitioner No,1 had sold the land at Rs,470 per acre in Deh Khambro and at Rs,542 per acre in Deh Nusrat, but the Chairman of the Federal Land Commission took the view that the average price was Rs,1,200 per Acre. Aggrieved by such order, the present petition has been filed.
5. ' In order to appreciate the contentions raised on behalf of the petitioner, it appears to us proper that we re-produce paragraph 4 of the admission order by the Division Bench of this High Court on 13-6-1977. It reads as follows:- "4. This petition involves certain alienations of agricultural land, situated in Deh Nusrat and Deh Khumbro, which according to the petitioner No,1 were made by him on 25-2-1967 by way of oral sale to the petitioner Nos.2 to 13. These alienations were held valid by the Land Commissioner Sind by his order, dated 12-8-1972 holding that the same had been made bona fide for adequate consideration and that the allenees had been in possession of the land and appropriating the produce and paying the land revenue since thereafter. These alienations were subsequently declared void by the Chairman Federal Land Commission on the grounds (i) that the entries in the revenue record regarding the land in question, made after the crucial date, were forged and fabricated of which the petitioner could not be allowed to take advantage; (ii) that if the alienations were actually made by the petitioner No,1 on 25-2-1967, the declarant would not have filed this declaration as minus these alienations the P.I.Us. Retained by the petitioner No,1 fell below the permissible ceiling and did not require filing of any declaration; (iii) that these alienations made orally were invalid in view of section 54 of the Transfer of Property Act; and (iv) that the consideration for the sale was inadequate. Mr. A.K. Brohi, learned counsel for the petitioners, has assailed this order, inter alia, on the following grounds:--
(1) That the learned Chairman has in fact misread this document. This declaration was filed by the petitioner out of abundant caution so that he might not be prosecuted and penalised for the omission, since till then change of Khatas had not taken place and had specifically mentioned that sales were made on 25-2-1967. Further, the petitioner had also filed forms RL I giving full details of the transactions and specifically stating that these sales were made on 25-2-1967. In view of these clear statements, the conclusions drawn by the learned Chairman are perverse.
(2) That the learned Chairman has remarked that the mutation entries appeared on pages which appear to have been added to the register and these bear the number of the register in hand and not in print. From this also no inference can be drawn against the petitioner since that too is official record maintained by the Revenue Department and these pages contain entries relating to several other parties. However, the Tapedar was present at the hearing and he was examined by the learned Chairman and he had explained this but neither his deposition was recorded nor considered by the learned Chairman.
(3) That the learned Chairman has observed that another statement regarding these transactions was recorded on th reverse of these pages and from this he has wrongly inferre' that the statement was recorded subsequently, whereas, the fact is that the statement was recorded first but it was recorded on the reverse as the front side was left blank for mutation entries. Further, a perusal of the statement would show that it was merely a corroborative statement of the original statement of 25-2-1967 and hence is not the basis of mutation entries and as such it Is immaterial whether it was written on the front or back page.
(4) That the finding of the learned Chairman that, sale consideration was inadequate is based on no evidence, In this connection it may be pointed out that the learned Land Commissioner, Sind had held that the price was adequate. There was no evidence before the respondent No,1 to show that sale consideration was inadequate. The petitioner also files herewith the certificate of Mukhtiarkar (Anex. H) to the effect that no sales are recorded in village 8 Nusrat and as regards Deh Khambro the petitioner has filed statement Annexure '1' which shows sale transactions by registered sale-deeds which would show that sale considerations were not inadequate.
(5) That the learned Chairman has also drawn adverse inference from the fact that on 10-1-1972 permission for transfer was sought from Assistant Commissioner. The fact is that the Revenue Officers concerned insisted that the mutation would not be effected unless permission was obtained from the Collector for sale and hence this application was made. It is significant that the mutation was effected on the very day permission was granted and this circumstance supports the petitioners' versions. Presumably this was done to cover up their own default in not effecting mutation for such a long time.
(0) That the learned Chairman has erred in holding that till 10-1-1972 mutation had not been effected as the mutation entry was made by Tapedar on 30-12-1971 and verified by supervising Tapedar and Mukhtiarkar on 1-1-1972 as has been stated in the impugned order itself. Further, the sale having taken place on 25-2 1987 delayed mutation entry would not invalidate the sale,
(7) That the learned Chairman has wrongly, held, that the oral sale was void in view of section 54 of the Transfer of Property Act in that the Transfer of Property Act was not in force in Sind at the relevant time in view of amendments introduced in the Transfer of Property Act in 1939 and again in 1960, which required a fresh "notification by Provincial Government to extend and apply the Transfer of Property Act to Sind. Which notifications had not been made, The grounds raised require consideration. Admit, Notice."
6. ' A counter-affidavit has been filed by Muhammad Dawood Khan, the Assistant Legal Adviser of the Federal Land Commission. The case of alienation, as put forward by the petitioner, has been challenged on the ground that the alienations are not according to law and are bad for want of proper registration. It was stated that the record indicated manipulation and interpolation, and the petitioner was put to proof bout the genuineness of the transactions. However, some such alienations were by registered deeds, and the same were admitted. It was averred that the dates of statements made by the petitioner No,1 in the matter of alienation were not proper, or, according to law. It was also stated that the Chairman, while sitting singly, was competent to pass the orders.
7. In regard to the grounds raised in the petition, a denial was entered in the counter-affidavit.
8. ' We had directed Mr. Nasrullah Awan to produce before us the register of statements, so that we may be able to satisfy ourselves in regard to genuineness of the said statement. Such registers of statements were not produced. However, it seems that such register was produced before the Land Commissioner, who had originally dealt with the case and held the alienations to be valid. In fact, the order of the Land Commissioner states as follows:-- "All these alienations mentioned above are by way of sale either through statement, or, registered deed."
9. ' A photostat copy of a. Certified copy of the statement has, however, been placed on the record, and we find that this document bears the date "5-2-1967", not only under the signature of petitioner No,1, but also under the signature of the then Mukhtiarkar of Sakrand. This document Consists of two leaves, which are serially marked as pages 51 and 53. The certified copy was also granted on the same date, and it is signed by the Mukhtiarkar of Sakrand. Mr. Nasrullah Awan had, however, produced the original mutation register maintained in Taluka Sakrand, and, at pages 46 to 55 of Book No,23704, each one of these alienations has been given effect to, and, in the margin, it was stated that the mutation had been effected on the basis of statement, dated 25-2-1967, the price paid by each one of the vendees has also been mentioned, and the entry further reads that Martial Law Regulation had not been infringed, and therefore, the mutation is being made. No doubt, these documents are signed by a different Mukhtiarkar, presumably because the Mukhtiarkar, who had recorded the statements on 25-2-1967, had been transferred in the meantime.
10. The moot point in this case is in regard to the genuineness of the statement of alienation made by petitioner No,1 on 25-2-1967 before the Mukhtiarkar of Sakrand. The learned Chairman of the Federal Land Commission foundfault with the mutation register. He stated that, for the reason of the entries in the revenue record having been recorded in the last ten pages of Register No,23704, the entries were not genuine, had been ante-dated and made unauthorisedly. We fail to see how such a conclusion could be arrived at, because this register appears to be document, which comes from official records, and there is nothing t show that these last ten pages have been planted in this register. Fact, no useful purpose could possibly have been served by such planting of these ten pages, because even the entries in these ten pages show that the mutation had been effected in pursuance of the statement made on 25-2-1967. These ten pages further show that the mutation was done on 20-12-1971 viz. Before the coming into force of the Martia Law Regulation. It seems the Chairman of Federal Land Commission was confusing the document relating to the statements made by the petitioner No,1 with the register of mutations. Such statements, as were made by the petitioner, have not been produced by the respondents either before us or before the Chairman of the Federal Land Commission. We have, however, photostats of the certified copy of the statement, and the same clearly shows the dates. The other reason advanced by the Chairman of the Federal Land Commission for disbelieving the alienations is what would appear from the following sentences appearing in the order:-- "As a general rule and the prevailing practice the statement is recorded first and thereafter entries are made subsequently but in this case as explained above, it is manifestly evident that the entries of mutations were made first and the statements were recorded afterwards. Moreover, it is also interesting to note that the Dakhil Kharij Register bears Book No,23704 is printed on all original pages."
11. ' On a reading of the above passage, it would seem that the learned Chairman had completely misconceived the situation, because it is the case of the petitioner that the statement was made before the mutation, but the Chairman thought that the mutations were made first and the statements were recorded later. We fail' to see how he has arrived at such conclusion, and the petitioners would never be interested in showing the mutation having been effected earlier than the statement. The learned Chairman also stated in paragraph 3 of his order that there was interpolation and forgery, which was "visible even to the nacked (naked) eye and require no further proof". We have seen each one of these ten pages in the register of mutations, and we are unable to find any interpolation.
12. The petitioner has produced certified copy of his statement, which is duly attested by the keeper of the record. It is established law that certified copies of official documents are receivable in evidence. If a party seeks to dislodge, the truth, or, genuineness of the content of such document, the burden is wholly on him. In the instant case, that burden could have been displaced only by production of the original register containing the statement. In this case, that register is no forthcoming. The keeper was revenue authorities, and it is for them t account for the loss, or, misplacement of the document. On the other hand, the tenor of the order of the Land Commissioner, Sind, seems t indicate that such register of statements was available.
13. ' The next point, that persuaded the learned Chairman of the Federal Land Commission to hold the alienation invalid, was a statement filed by petitioner No,1 before the Provincial Land Commission.
14. The learned Chairman seems to be under the impression that, if the holding of the petitioner No,1 was less than the permissible limits, it was not necessary for him to file a declaration under Martial Law Regulation 115. Even this argument completely loses sight of the fact that th petitioner was faced to the situation that the Revenue Authorities though that permission of the Collector was necessary before mutation of the record of rights, and therefore, they did not mutate the record.
15. However, the position is that the petitioner simply disclosed the alienation made before the prescribed date, and, for such reason, he could not be penalised, and what is more that the Land Commissioner, Sind, has stated in his order that the petitioner NO. 1 had sold his land to the remaining petitioner and others by making a statement on 25-2-1967. No adverse inference could, therefore, be drawn from the mere fact of the petitioner having field a statement. On the contrary, his bona fides are manifest by such action.
16. The next ground, which persuaded the Chairman of the Federal Land Commission, is in regard to the price received by petitioner No,
1. To say the least, there is no material on the record from which an inference could be raised that the price received by petitioner No,1 was inadequate. The Chairman of the Federal Land Commission has stated on a mere conjecture that the price should be Rs,1, 200 per Acre. On what basis, or, data he arrived at such conclusion is not stated in the order itself.
17. The next point, finding a place in the order of the learned Chairman, is that the alienations were violative of section 54 of the Transfer of Property Act. The order states that alienation was of land, which was on restricted tenure. This conclusion is also completely misconceived, because prior permission of the Assistant Commissioner had been obtained, and such document is available on the record as Annexure 'D'.
18. On consideration of all the reasons advanced by respondent No,1 for disbelieving the averment of petitioners that the land had been alienated in 1967, we are of the view that each one of these reasons is insubstantial, besides being conjectural in nature. I cannot stand to reason that a person would state that he had alienated land in favour of strangers, in case such averment was untrue. After all, it is adequately established that a substantial portion of the alienate land was in favour of total strangers.
19. For the above reasons we declare that the impugned order is of no legal validity, and we quash the same. No order as to costs.