' AJMAL MIAN, J.---Leave was granted against the judgment dated 5-10-1982 passed by the Lahore High Court, Lahore in Writ Petition No,3196 of 1982, whereby the appellant's above petition was dismissed in limine by a learned Single Judge against the order of a learned Member of the Federal Land Commission dated 17-1-1982 declaring the gift in respect of certain agricultural land in favour of appellants Nos.1 and 2 made by their father as void but upholding the gift in favour of their mother, respondent No,4, as valid, to consider the questions:
(1) Whether decision of the Lahore High Court dated 20-3-1978 given in Writ Petition No,2776 of 1977 had attained the finality viz-a-viz the Federal Land Commission authorities and the present appellants;
(ii) Whether the Federal Land Commission after having sent for the record for its scrutiny on 20-8- 1975 and after having passed the order before 30-11-1976 had become functus officio and, therefore, could not have re-decided the matter by re-summoning of the record after 30-11-1976.
2. The brief facts are that Malik Rah Nawaz hereinafter referred to as the `deceased declarant' owned 3981 Kanals 7 Marlas of land in villages of Hadali and Chak No,25/NB in Tehsil Khushab, district Sargodha. He filed a declaration under M.L.R.115 hereinafter referred to as the M.I..R. Declaring his total holdings, in which he claimed to have gifted 1440 Kanals 17 Marlas of land in village Hadali by oral gift in favour of his wife, respondent No,4, and his two sons, appellants Nos.1 and 2, through mutation No,1383 dated 30-5-1969. Upon scrutiny of the above declaration, the Land Commissioner, Sargodha, by an order dated 14-6-1972 accepted the above gift as valid. However, the respondent No,1 re-opened the matter in exercise of suo moto revisional powers under Para 29 of the M.L.R. And by an order dated 19-8-1976 held that mutation of gift in favour of the appellants to be void but upheld the gift in favour of their mother, respondent No,4. It may be observed that the deceased declarant, the appellants and respondent No,4 were not represented before respondent No,1 when the above order was passed. Against the above order the deceased declarant and the appellants filed aforesaid Writ Petition No,2776 of 1977, which was allowed on two grounds, namely, that the learned Single Member, who had passed the impugned order was not competent to act singly under Para 29 of the M.L.R. In view of the judgment in the case of Ashiq Muhammad Khan Mazari v. Chairman, Federal Land Commission PLD 1977 Lah. 461 and, therefore, the order was without jurisdiction and, secondly, that the appellants and respondent No,4 were not heard when the impugned order was passed which violated the rules of natural justice. The Member, Federal Land Commission, Rawalpindi, filed Civil Petition for Special Leave to Appeal No,56-R of 1978 in this Court against the above judgment of the Lahore High Court dated 20-3-1978, in which leave was granted to consider the question of competency of a Single Member of the Federal Land Commission to exercise suo moto revisional power under Para 29 of the M.L.R. While the above appeal was pending respondent No,1 on 17-1-1982 issued notices to the appellants and to the deceased declarant in order to re-hear them. He also sent for the record on 17-1-1982. In response to the above notice, the appellant appeared before respondent No,1 on 17-2-1982 and raised two objections, namely, (i) that he had no jurisdiction to send for the record after 30-11-1976 in view of the provision of Para 29 of the M.L.R. And (ii) that the aforesaid judgment of the Lahore High Court dated 20-3-1978 was the subject-matter of litigation before this Court in the aforesaid appeal. Thereupon, respondent No,1 withdrew his appeal before this Court arising out of the aforesaid C.P.L.A. No,56-R of 1978 and proceeded to hear the matter after notice to the appellants and respondent No,4 and passed the aforesaid order dated 17-1-1982 declaring the gift in favour of the appellants as void and upholding the gift in favour of respondent No,4. Against the above order the appellants filed the aforesaid Writ Petition No,3196 of 1982, which was dismissed in limine by a learned Single Judge of the Lahore High .Court through the aforesaid judgment dated 5-10-1982.
The appellant being aggrieved by the above order/judgment filed the aforesaid petition for leave in which the leave was granted to consider the questions referred to hereinabove.
3. Before dealing with the contentions of the learned counsel for the appellants, we may observe that the question, whether the Chairman or a Member of the Federal Land Commission sitting singly could exercise suo moto revisional power under Para 29 of the M.L.R. Stands settled by virtue of a curative statute i,e. The Land Reforms Regulation (Validation of Orders) Ordinance, 1978 (Ordinance No,XXIX of 1978) gazetted on 25-6-1978 validating the orders passed by the Chairman or by a Member of the Federal Land Commission retrospectively. The above provision has been subject-matter of a number of decisions of the High Courts as well as of this Court. Suffice to refer to the case of Mst.Aisha Begum and others v. Chairman, Federal Land Commission reported in 1982 SCMR 1074, the case of Mst. Tayyaba Khanam and others v. Chairman, Federal Land Commission and others reported in 1984 SCMR 1110, the case of Ghulam Mustafa and others v. Omaid All and 9 others reported in 1984 SCMR 1126 and the case of Chairman, Federal Land Commission and another v. Sardar Ashiq Muhammad Khan Mazari reported in 1985 SCMR 317, in which it has been held that the above validation Ordinance was in the nature of curative legislation validating the orders passed by the Chairman or a Member of the Federal Land Commission sitting singly.
4. Maulvi Sirajul Haq, learned counsel for the appellants, has vehemently contended that the Lahore High Court while passing the order dated 20-3-1978 in Writ Petition No,2776 of 1977 declaring the Federal Land Commission's order dated 19-8-1976 as being without jurisdiction had not remanded the case to the Federal Land Commission for re-hearing and, therefore, by virtue of Clause (a) to the third proviso to Para 29, the Federal Land Commission could not have reinitiated the proceedings after 30th day of November, 1976. In this regard, it may be pertinent to observe that above Clause (a) to proviso 3 to Para 29 of the M.L.R. Prohibits calling of the record of any case or proceeding in which a Commission or other authority has passed an order after the 30th November, 1976. The moot question, which requires consideration is, as to whether the instant case is covered by the above provision of the M.L.R.
5. As observed hereinabove Writ Petition No,2776 of 1977 was allowed by the High Couri by a judgment dated 20-3-1978 against the order of the learned Member of the Federal Land Commission on two grounds, namely, that the learned Single Member was not competent to hear the case in view of the decision reported as Ashiq Muhammad Khan Mazari v. Chairman, Federal Land Commission PLD 1977 Lah. 461 and, therefore, his order was without jurisdiction and, secondly, that the same was in violation of the rules of natural justice and hence was of no legal effect. The above first ground as pointed out hereinabove in para 3 was nullified by the Land Reforms Regulation (Validation of Order) Ordinance, 1978, which Ordinance has been upheld by this Court in the cases already referred to hereinabove in para 3 and, therefore, the only ground on which the aforesaid order of the learned Member of the Federal Land Commission dated 19-8-1976 could have been said to be of no legal effect was on account of the violation of the principles of natural justice. In our view, the effect of the above High Court judgment was that the aforesaid order of the learned Member of the Federal Land Commission dated 19-8-1976 was removed from the scene and the parties were put back to the position in which they were prior to the passing of the aforesaid order. In other words, status quo ante obtaining prior to the passing of the above order dated 19-8-1976 was restored. In this view of the matter, the Federal Land Commission was competent to proceed with the matter from the stage at which when the aforesaid order dated 19- 8-1976 was passed. The stage was that the Federal Land Commission had already called the record in exercise of suo moto revisional power under Para 29 of the M.L.R. On 20-8-1975. The re- calling of the record by the Federal Land Commission on 17-1-1982 after the above judgment of the High Court dated 20-3-1978 and the withdrawal of the appeal from this Court against the above judgment, in our view is of no consequence as the Federal Land Commission was already seized of the matter. We are unable to subscribe to the submission of the learned counsel for the appellants that the above High Court judgment dated 20-3-1978 had attained the finality vis-a-vis the Federal Land Commission authorities and the present appellants. The factum that the High Court while setting aside the aforesaid order of the learned Member of the Federal Land Commission had not remanded the case to him did not divest the power of the Federal Land Commission to proceed with the case from the stage at which it was pending when the aforesaid impugned order was passed.
6. It was then contended by Maulvi Sirajul Haq that since the gift in question was in favour of the specified heirs in terms of sub-clause (1) of Clause (b) of para. 7 of the M.L.R., the Federal Land Commission was not competent to examine the question of validity of the gift. On merits, it was urged by him that as the gift in favour of respondent No,4 was held to be valid, there was no plausible reason not to have held the gift in favour of the appellants also valid as it was one gift made by the deceased declarant in favour of his wife and two sons, and that if the deceased declarant could accept the gift and the possession on behalf of his wife, there was no justifiable reason, why he could not have done so on behalf of his two sons. It was also urged that since the land was undivided the acceptance of the gift and the acceptance of possession by the deceased declarant on behalf of his wife would include the acceptance of the gift and the possession on behalf of his sons as well.
7. Reverting to the above legal submission that under sub-clause (1) of Clause (b) of para. 7 of the M.L.R., the Federal Land Commission was not competent to examine the validity of the gift made by the deceased declarant in favour of the appellants and respondent No,4, it may be observed that the Federal Land Commission has been debarred under sub-clause (i) to the first proviso to Clause
(b) of para 7 of the M.L.R. From enquiring into the bona fides of a transaction but it has not been debarred from examining the question, whether the transaction was complete in accordance with law. It was, therefore, open to the learned Member of the Federal Land Commission to have examined the above question. In this regard reference may he made to the case of Sultan Muhammad Khan and another v. Federal Land Commission and 4 others 1983 SCMR 797, the case of Faqir Muhammad and others v. Deputy Commissioner and others 1983 SCMR 812, and the case of Federal Land Commission and others v. S. Ghulam Nabi Shah and others 1989 SCMR 210.
8. We may also refer to the case of Syed Ali Ahsan and another v. Federal Land Commission and others reported in 1989 SCMR 764, in which a petition for leave was converted into an appeal and the same was allowed. The orders of the Land Commission Authorities and the High Court were set aside and the case was remanded to the Collector to determine the legality of the entry in the mutation dated 5-4-1972 cancelling the gift. In the above case Land Commission Authorities had examined the validity of the gift effected by a mother in favour of her minor son and it was held that the same was not valid as there was no evidence to establish delivery of possession for acceptance of gift by the natural guardian of minor. The Land Commission recorded the above finding though the very question was pending for adjudication before the Collector as the Revenue Officer had cancelled the entry of the gift in favour of the minor. In our view, the facts of the above case are distinguishable from the instant case.
9. Admittedly, appellants Nos.1 and 2 were major at the time when the gift in question was made as they attained the majority before 30-5-1969. The deceased declarant as the father could not have accepted either the gift or the possession of the land on behalf of the appellants even if the land was undivided. However, he was competent to accept the same on behalf of his wife, respondent No,4. It is, therefore, evident that the conclusion recorded on the above question by the learned Member of the Federal Land Commission and which has been upheld by the High Court is in consonance with law. If the appellants would have been minor at the relevant time, the deceased declarant could accept gift and the possession on their behalf. Reference may be made to the case of Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121.
' The appeal has, therefore, no merits and it is dismissed with no order as to costs.