1. I. The facts briefly are that Mst. Iqbal Bibi, who owned 16 kanals 18 marlas of land sold vide Mutation No, 245, attested on 15-6-1971, 8 kanals out of it for residential purposes to Khuda Bakhsh and Mohammad Yar. The same day she sold through another mutation the remaining area to her brother. II. On 21-10-1986 Mst. Iqbal Bibi applied to the Deputy Commissioner/Collector, that the land sold to Khuda Bakhsh and Muhammad Yar, was being cultivated, which was a violation of MLR-115.
2. III. The Deputy Commissioner/Collector obtained a report from the Tehsildar and on 6-8-1988 accepted the application of Mst. Iqbal Bibi and ordered the cancellation of Mutation No, 245.
3. IV. There was an appeal to the Additional Commissioner by Khuda Bakhsh and Muhammad Yar.
4. The Additional Commissioner on 15-1-1989 dismissed the appeal with the observation that Mst.
5. Lqbal Bibi should pay the prevailing market price of the land to the appellants Khuda Bakhsh and Muhammad Yar.
6. V. The present revision petition by Khuda Bakhsh etc. Is against that order; whereas Mst. Iqbal Bibi etc. Have come to this Court against the observation of the Additional Commissioner regarding payment of market price. ARGUMENTS ' The merits of this case will be determined on the following arguments. I. Both the Collector and the Additional Commissioner have wrongly referred to MLR-115, whereas the cause of action arose under MLR-64. Under para. 25 of MLR-64 the entire holding of an owner can be sold, even if it is below a subsistence holding. The law does not say that it must be sold to one party. The fact of this case is that the entire holding was sold on the same day by Mst. Iqbal Bibi etc. Therefore, this alienation was good, whether for residential purposes or not, unless it could be shown that the sale could not be made to one party, which has not been argued by the opposite counsel. II. If sale to the present party is bad, then the sale by her to her brother would also be affected by para. 25 of MLR-64 but this has not been assailed by Mst. Iqbal Bibi. This shows that her intention is not quite the enforcement of the law in the present case.
7. I. The counsel for Khuda Bakhsh etc. Has argued that in case of violation of MLR-64 the application can be made only to the Chief Land Commissioner (and not to the Deputy Commissioner as in this case), and he has cited 1968 SCMR 667 in this respect. II. MLR-64 was repealed by MLR-115 on 11-3- 1972. The application was made on 26-7-1986. Para. 32 sub-para. (3) of M L R 115 saves only pending e applications i,e. Those pending on 11-3-1972. The present application is of much later date, therefore, it could not be entertained, because the law has been repealed and on the date of the repeal it was not a pending application.
8. ' As regards the effect of para. 32, sub-para (2) (A to D), they relate only to past and closed proceedings and not to fresh proceedings, as otherwise distinction between pending and new proceedings would be rendered meaningless. In 1975 a new provision was made in MLR-115 (para 29) which enables the Government or any person authorised by it to review anything done under MLR-115 or MLR-64 but even this power has ended on 15-11-1976.
9. V. When the inspection was made by the Tehsildar he found a wall and some construction on the land. Since the vendees were poor landless people, who acquired four kanals each, it would not be unsafe to assume that even if the law still applied that they have obliged it. VI. The application was made to the DC. If he was acting as Deputy Land Commissioner he not only had to say so, but had to prove his jurisdiction under MLR-64 read with MLR-115, which he has failed to do. If he was acting as c Collector/Deputy Commissioner, apart from the point of jurisdiction, he should not have ordered the cancellation of a 17 years old mutation which had found place in successive jamabandis.
10. VII. Khuda Bakhsh and Muhammad Yar, who were brothers, each acquired 4 kanals under the mutation. It does not make sense that they would buy this land only for cultivation and not for residential purpose. However, they cannot be expected to use the entire four kanals for residence only. In Lahore and other cities people have their residences in area much larger than four kanals, part of which is used for orchard/vegetable growing/fodder growing etc. This does not mean that the area ceases to be under residence. The nature of grounds attached to residences is different from agricultural land, to whatever use the grounds attached be put.
11. ' I, therefore, accept the revision petition of Khuda Bakhsh and Muhammad Yar and set aside the order of the Additional Commissioner dated 15-1-1989.