' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order dated 16-10-1986 of the Senior Member, Federal Land Commission, Rawalpindi, whereby he held that Mutation No,22 dated 31-7-1967 in respect of gift of 55.062 acres of land alleged to have been made by Mst. Bhag Bhari deceased-declarant in favour of Abdul Majeed petitioner No,1 in village Johra Skessar, is void as the same was made after the crucial date that is 1-3-1967 and even on the date the mutation was alleged to have been sanctioned, there was no evidence regarding delivery of possession by the donor or acceptance of the gift by the donees.
2. The impugned order was passed in pursuance of the remand order dated 5-5-1986 delivered in Writ Petition No,1586 of 1977, whereby the matter was remitted to the Federal Land Commission for re-hearing regarding validity or otherwise of Mutation No,22 at the relevant time.
3. Mr Khalid Farooq Qureshi, learned counsel for the petitioners argued that the impugned order is violative of the remand order passed by this Court, inasmuch as, the learned Member was required to determine only validity or otherwise of the mutation at the relevant time. In the instant case, the mutation in question was not held to be void and, therefore, the gift made in favour of the donees/petitioners could not be declared as void.
4. Mr. Faiz-ul-Hasan Naqvi. Learned counsel for the contesting respondent argued that remand order of this Court is to be read as a whole and a perusal thereof would indicate that the crucial question involved in the matter was whether there was any proof in respect of the disputed gift before the target date. According to him, the learned Senior Member has legally resolved the same on the existing material and, therefore, re-determination of the same does not suffer from any infirmity.
5. The submissions made by learned counsel for the parties depend upon interpretation of Judgment delivered in Writ Petition No,1.586 of 1977. In paragraph 2, it is stated that there was proof in respect of the gift like entry by the Patwari of mutation on 10-4-1966, its verification by the Girdawar on 15-4-1966, entry in the Roznamcha Waqiati for the same date and payment in the Treasury of District Council Fee on 26-9-1966 and, therefore, the learned Member, Federal Land Commission had erred in annulling the mutation on the ground simpliciter that there was no report to the Patwari about the factum of gift. In paragraph 3 of the judgment, it is stated that counsel for Federal Land Commission conceded that the Commission did not consider the point raised by learned counsel for the petitioner therein and that the question which required consideration was whether the gift vide Mutation No,22 was genuine or otherwise. In this background, the earlier order dated 30-11-1976 of the Commission was declared as without lawful authority and the matter was remitted for decision afresh regarding validity or otherwise of Mutation No,22 at the relevant time.
6. Learned counsel for the contesting respondents has failed to point out that sanctioning of Mutation No,22 suffered from any legal infirmity and on that score alone, the impugned order is liable to be quashed.
7. Be that as it may, even if it is assumed that the effect of remand order was to re-open the whole case, the impugned order is liable to be quashed on the short ground that possession of the land in question was admittedly changed in favour of the donee as per entries in the Khasra Girdawari for Rabi 1967. It is common knowledge that if the Revenue Record reflects change in Rabi 1967 it is with respect to the Rabi sown by the latest December 1966. Thereafter, if the possession had changed in 1966, the same was obviously before 1-3-1967, the crucial date and, therefore, the transaction was complete in this respect. We are not inclined to agree with learned counsel for the respondents that entry in the Khasra Girdawari of Rabi 1967 is indicative of the alleged fact that the possession was delivered in 1968.
8. As regards the question about presence or otherwise of the donor/her representative and the donees, suffice it to say that the Assistant Collector's order dated 31-7-1967 shows that the general attorney had been reminding him for sanctioning the mutation and Brigadier Gulsher admitted before him of taking possession by the' donees. To the same effect arc the affidavits of Brigadier Gulsher Noon husband of Mst. Bhag Bhari declarant and Abdul Majeed Ahmad donee/petitioner No,1. These affidavits were produced before the learned Member, Federal Land Commission. The contesting respondents have not filed any written statement controverting the facts stated in the writ petition. We are, therefore, inclined to hold that the observation made by the learned Member in paragraph 5 of the judgment to the effect that no evidence was produced by either side regarding the making and accepting of the gift", is not sustainable.
9. There is no cavil with the proposition of law advanced by learned counsel for the respondents that gift of immovable property is not complete unless all the three conditions precedent namely,
(i) declaration of gift by donor; (ii) acceptance of gill, express or implied, by the donee and (iii) delivery of possession, are fulfilled. To the same effect is the decision reported in Mst. Eidun Nisa Begum v. Member (Revenue), Board of Revenue, West Pakistan, Lahore (PLD 1973 Pesh. 1). In the instant case, however, we find on the material placed before us that all the three essentials of a gift were available and, therefore the case of Mst. Eidun Nisa Benin does not advance the respondents' case. Reference may also be made to Syed Ali Alisan v. Federal Land Commission 1983 CL C 410, relied upon by learned counsel for the respondents to contend that mere report of the Patwari is not sufficient to prove either making of a gift or delivery of possession. In the instant case, the delivery of possession is clearly proved from entries in the Khasra Girdawari and not on the basis of the report of the Patwari and, therefore, in the absence of any material to the contrary, the precedent case does not help the contesting respondents.
' In view of the above, the impugned order dated 16-10-1986 of the learned Senior Member of the Federal Land Commission, is declared as without lawful authority. The result is that the order dated 25-7-1972 passed by the Learned Commissioner , Sargodha Division, declaring Mutation No,2 dated 31-7-1967 as valid and the order dated 30-11-1976 by the then Member, federal Land Commission, refusing to review his previus order dated 25-7-1972 shall hold the field. The writ petition is accepted, but there shall be no order as to costs.