' The case has been remanded by the High Court of Sind vide their order, dated 11-10-1983 in Constitutional Petition No. D-315 of 1977 with the direction that the matter should be decided afresh after notice to the parties to the petition before the learned High Court. All the parties to the petition before the High Court were duly served with notices for hearing of the case by the Federal Land Commission. Of the parties served respondents Nos.2 to 7 were present through their counsel.
Respondents Zahoor Mehdi and Ibn-e-Hasan were reported to have died, respondent Dhiromal did not appear. Notices through Press were issued to the legal heirs of Zahoor Mehdi and Ibn-e-Hassan deceased and to Dhiromal for the hearing on 20-7-1986 but nobody turned up on their behalf on the scheduled date. Ex parte proceedings were, therefore, taken in so far as they are concerned.
Vendees Faiz Muhammad, Abdul Qudoos and Sher Muhammad in one sale transaction and vendee Ghulam Nabi in the other sale transaction were also present through their counsel.
2. Head of the Federal Land Commission's Inspection Team and counsel for the parties to the writ petition before the High Court of Sind except those against whom ex parte proceedings were taken were heard and the relevant judicial and land revenue record was examined. Head of the Federal Land Commission Inspection Team contended that sales of 100-05 Acres and 226-11 Acres in Deh Nian of Taluka Khipro, District Sanghar alleged to have been made by the declarant Mst. Hidayat Fatima in favour of Ghulam Nabi and Faiz Muhammad, Abdul Qudoos and Sher Muhammad respectively were, firstly, merely agreements to sell and not final sale-deeds and, secondly, that these sales could not have been made without permission of the Collector under paragraph 10 of the Scheme framed for disposal of evacuee surrendered land under M.L.R. 89/91 as instalments towards the repurchase price of the surrendered land had not been paid in full to the Government.
He contended, therefore, that the transactions in question should be ignored for the purpose of determining the holding of the declarant Mst. Hidayat Fatima as it stood on the crucial date viz. 20- 12-1971. The counsel for the respondents, on the other hand, contended that the land in question had been sold by the declarant to the vendees through registered sale-deeds dated 4-2-1967 in case of 226-11 Acres in favour of Faiz Muhammad, Abdul Qudoos and Sher Muhammad and dated 8-1-1970 in case of 100-05 Acres sold to Ghulam Nabi. They produced the registered sale-deeds concerned in original in support of their contention. The counsel further contended that the requisite Collector's permission under paragraph 10 of the scheme had been obtained and produced a photo copy of the permission of Deputy Rehabilitation Commissioner/ Deputy Commissioner, Sanghar dated 22-6-1972.
3. The registered sale-deeds were examined and found to be proper sale-deeds and not agreements to sell as claimed by the Inspection Team. On the basis of these sale-deeds Mutations Nos. 138, dated 13-4-1967 and 151 dated 25-2-1970 respectively were sanctioned. These mutations were cancelled on 28-7-1973 on the ground that full payments towards the repurchase price had not been made by the declarant at the time of the sales. Vendees Faiz Muhammad and others filed a writ petition against this cancellation before the High Court which was disposed of as withdrawn with the directive that the possession of the lands in question shall be handed over to the petitioner in case payments had been made in terms as directed by the Board of Revenue in their order, dated 7th November, 1975. The entire outstanding dues including interest thereon having been paid by the declarant/repurchaser, the Board of Revenue directed the Deputy Commissioner, Sargodha in their letter No.5616/75/3871/KB.IV, dated 27-12-1975 to restore possession of the land to the petitioners as ordered by the High Court. In compliance with this order Mutation Nos. 138 and 151 were restored in the names of the vendees Faiz Muhammad, Abdul Qadoos Qazi Sher Muhammad and Ghulam Nabi on 22-5-1976.
4. On examination of the land revenue record and the documents produced by the counsel the position taken by the counsel was found to be correct. Possession of the land in question is also found to be with the vendees in the land revenue record and the counsel also produced original receipts for payment of land revenue in respect of this land from the date of purchase onwards.
Head of the FLC Inspection Team conceded all the points made by the counsel in respect of the sale-deeds, transfer of possession, payment of land revenue by the vendees etc. But he continued to insist that since payment of repurchase price had not been made by the declarant in full the sale could not have been made and even the permission for sale could not have been granted by the Collector under paragraph 10 of the scheme framed for disposal of the evacuee surrendered land under M.L.R. 89/91. There are a number of decided cases upholding the decision of the Federal Land Commission conveyed in their Letter No. F.7(4)/FLC/73, dated 20th August, 1973 and circulated for compliance by the Sind Land Commission in their Letter No. SLC-7861/72/4525, dated 10th December, 1974 laying down that in case of sale or sale agreement where prior permission of the Collector was not obtained, all such transactions were to be reopened and thoroughly scrutinised by the Land Commissioner and, if found genuine, these were to be confirmed in spite of the fact that permission of the Collector had not been obtained. There are also cases in which it has been held that a sale agreement in respect of repurchased land under M.L.R. 89/91 of which the full price had not been paid by the claimant was a valid transaction for the purposes of para. 7 of M.L.R. 115, as the repurchaser received possession of the land after paying consideration of the claim and also instalment towards the price to the Government. This is the accepted legal position even in case where the permission of the Collector was not available and repurchase price had not been paid in full. In the present case even the Collector's permission is available and the entire outstanding dues including interest in respect of the land in question have been paid by the declarant/repurchaser vide Board of Revenue Sind letter, dated 27th December, 1975. The sale transactions in question are, therefore, found to be valid for purposes of land Reforms Regulation 1972 M.L.R. 115 and notices issued under paragraph 29 of the said Regulation are hereby vacated. .