' The case has been remanded by the High Court of Sind vide their order, dated 12-12-1984 in Constitutional Petition No. D-308 of 1984 for decision in accordance with law. Brief facts of the case are that the declarant Farooqur Rehman had claimed, while filing his declaration under M.L.R. 115, that he had executed sale agreements with possession in 1969 in respect of the following lands: Deh. Taluka District Name of vendee Area Dabhro Shandadpur Sanghar Wahid Bakhsh 49-04 Acre -do- -do- -do- Doda Khan 34-12 -do- -do- -do- Tauraiz Khan )
Ghulam Hussain) 356-01 Ahmed Khan ) Shah Muhammad) ' and that, therefore, these lands should not be considered as part of his holding determined under paragraph 8 of M . L . R . 115 for the purpose of application of limits on individual holdings prescribed in that paragraph. These transactions, alongwith the other transactions made by the declarant, had been held valid by the Land Commissioner, Sind for purposes of M.L.R. 115, vide his order, dated 9-8-1972.
2. Counsel for the respondents has been heard and the record of the case has been perused. It was contended by the representative of the F.L.C. Inspection Team, Hyderabad, that the transactions in question were not complete as there was only an agreement to sell which could not create any right, title or interest in immovable property. Moreover, under paragraph 10 of the scheme for disposal of surrendered lands under M.L.R. 99191 the purchaser could not sell any portion of land unless he had acquired proprietary rights therein, and even then he could do so only with the permission of the Collector. The representative of the Inspection Team further argued that under section 15 of the Colonization of Government Lands Act, 1912, which was applicable in case of disposal of lands surrendered under paragraph 8 of M.L.R. 89/91, the purchaser from Government of land who had been placed in possession of the land by order of the Collector shall be deemed only to be a tenant of such land until the full amount of purchase money with interest due thereon had been paid and other conditions of sale had been fulfilled, and similarly under Rule 7(a)(b) of the Conferment of Ownership Rights Rules, 1969 framed under the Act, the Government shall continue to be shown as owner of the land in the column of ownership while the grantees shall be recorded as tenants of Government in the column of cultivation.
3. Counsel for the respondents argued that permission of the Collector as required under paragraph 10 of the Scheme for Disposal of Lands Surrendered under paragraph 8 of M.L.R. 89/91 and payment of full price to the Government for the land granted under the scheme were not necessary for determining the holding of a declarant under M.L.R. 115, and that the actual facts of the sale transaction having taken place and possession having been taken by the vendees in consequence thereof was sufficient for excluding the area in question from the holding of the declarant for purposes of M.L.R.
115. In support of this argument he quoted a number of decided cases. The counsel claimed that the possession of the land in question had been transferred to the vendees who were managing the land, appropriating the produce of the land and paying the land revenue thereon to the Government which, the counsel contended, was sufficient evidence of the fact that the land in question was in possession of the vendees and not that of the declarant on the crucial date under M.L.R.
115.
4. I have considered the arguments from both the sides carefully and have also studied the cases cited by the counsel for the respondents in support of his arguments. While a number of the cases cited were not really relevant to the point in issue, I find that the following cases cited by him are relevant:-- PLD 1980 Kar. 189, PLD 1980 Kar. 427, 1984 CLC 1875 and 1984 CLC 1868.
' In these cases it has been held that the ground that a particular alienation had not been approved by the Collector under paragraph 10 of the Scheme framed under M.L.R. 89/91 was not valid. The case reported in PLD 1980 Kar. 427 also held that the decision of the Federal Land Commission conveyed in their Letter No. F.7(4)/FLC/73, dated 20th August, 1973 which had been circulated for compliance by the Sind Land Commission in their Letter No. SLC-7861/72/4525, dated 10th December, 1974 laying down that in cases of sale or sale-agreement where the prior permission of the Collector was not obtained all such transactions were to be re-opened 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, was the accepted position where applicable. Similarly in the case reported in 1984 CLC 1868 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 purpose of para. 7 of M.L.R. 115, as the purchaser received possession of land after paying consideration to the claimant and also instalments towards the price of the Government. In case reported in 1984 CLC 1875 it has been held that a transaction cannot be invalidated by the Federal Land Commission only on the ground that no permission for transfer of land had been obtained by the declarant from the Collector under para. 10 of the Scheme framed under M.L.R. 89/91.
5. In view of the reported cases mentioned in the preceding paragraph the position of law on this point seems td be very clear and, therefore, the arguments put forward by the representative of the Inspection Team cannot be accepted. I, however, find from the order, dated 9-8-1982 of the Land Commissioner, Sind, which is a very short order, that the Land Commissioner has not thoroughly scrutinised the transactions mentioned in paragraph 1 above in terms of the Sind Land Commission Circular No. SLC-7861/72/4525, dated 10-12-1974. The case is, therefore, remanded to the Land Commissioner, Hyderabad for re-opening all these transactions and scrutinising them thoroughly. If as a result of such scrutiny these transactions are found to be genuine within the meaning of paragraph 7 of M.L.R. 115 these may be confirmed in spite of the fact that the permission of the Collector was not obtained.
6. Judgment in this case was reserved when it was last heard, on 2-9-1985. This order should, therefore, be conveyed to all concerned by the Land Commissioner, Hyderabad.