' Vide registered gift dated 6-11-1972 Malik Gulistan, defendant No.2 (respondent No.13 herein) gifted land measuring 13 marlas and 2 marlas respectively out of Khasra Nos. 386 and 395 situated in the estate of Fatu Abdur Rahima, in favour of Shafiq Ahmad, defendant No.1 (petitioner herein). This deed was given effect to in the Revenue Record vide Mutation No. 1848 attested on 9-7-1973. Haji Malik Ghulam Rabbani plaintiff (since dead, represented by Malik Wazir and others, respondents Nos.1 to 12 herein) filed a suit for declaration to the effect that he is co-owner in the said Khasra numbers and that the aforementioned gift deed dated 6-11-1972, being in violation of Martial Law Regulation No.64, is void and does not confer any title on defendant No.l. In the alternative it was asserted that if the suit for declaration is held to be not maintainable then the alleged transaction of gift is in fact sale and that the plaintiff, being possessed with superior right of pre-emption, is entitled to decree for possession through pre-emption of the suit land. The defendant No.1 contested the suit and in his written statement raised preliminary objections including the point of jurisdiction of the Civil Court to entertain the prayer for declaration in view of the prohibition contained in Martial Law Regulation. On factual side the defendant No.1 denied the allegation of the plaintiff in toto and contended that the transaction is that of gift and not sale. Ten issues were framed in the case but unfortunately the material issue regarding the jurisdiction of the Civil Court was advertently omitted by the learned trial Judge. Evidence of the parties was recorded and the learned trial Judge, vide his judgment and decree dated 26-5-1982 held the transaction void, being in violation of provisions of Martial Law Regulation No.64 read with Martial Law Regulation No.115 and at the same time declared the transaction as one of sale and in consequence granted decree for possession through pre-emption of the suit land in favour of the plaintiff against the defendants in lieu of Rs.500. Dissatisfied with the same Shafique Ahmad defendant No.1 preferred appeal before the learned District Judge, Peshawar who vide his judgment and decree dated 20- 2-1984 concurred with the learned trial Judge to the extent of his finding that the gift was void under Martial Law Regulation No.115 but disagreed with him regarding his conclusion that the transaction was a sale and hence pre-emptible and resultantly set aside the decree for possession through pre-emption passed by the learned trial Judge and declared the gift as void, ab initio. Hence the instant revision petition calling in question the judgment and decree of the learned Appellate Court.
2. I have heard Mr. Saeed Baig, Advocate for the petitioner, Syed Rafaqat Ali Shah, Advocate for the respondents and have perused the record of the case with their assistance.
3. The learned counsel for the petitioner vehemently argued that the gift in suit was made when Martial Law Regulation No.115 had already been enforced on 11-3-1972 repealing the earlier Martial Law Regulation No.64 and, therefore, the validity of the gift deed had to be determined on the touchstone of the provisions of Martial Law Regulation No.115 and not Martial Law Regulation No.64.
According to him para. 24 of Martial Law Regulation No.115 placed certain restrictions on alienation of holdings and as per amendment in the said para. Vide Act XLVIII of 1976, an owner holding area less than a subsistence holding was permitted to alienate any part of his holding by way of gift to any of his presumptive heirs or exchange with, or mortgage or otherwise alienate to, other owners or landless tenants of the same village, deh or mauza. Thus he emphasised that the petitioner, being an owner in the village, the alienation in his favour through gilt even if ho was not presumptive heir, was not hit by the provisions of para. 24 as amended. He also, relying on the dictum of the Supreme Court in case `Nasii Ahmad Khan v. Mst.Ismat Jehan Begum' reported as 1968 SCM R 667, urged that only Land Commission or officers appointed by the Land Commission had the jurisdiction to annul the transaction being violative of Martial Law regulation and that Civil Court's jurisdiction in the matter is ousted. The learned counsel for the respondents, on the other hand, submitted that the defendant/petitioner has failed to lead any evidence to show that he was either the presumptive owner of the donor or was an owner or landless tenant in the same village, deh or mauza. Additionally he submitted that the original text of Martial Law Regulation No.115 debarred the alienation of part of holding by an owner owning area less than a subsistence holding to any body and that instant transaction, having taken place prior to the amending Act ibid, was void ab initio. According to him amending Act XLVIII of 1976 had no retrospective effect. As regards the jurisdiction of the Civil Court, he explained that since the matter was linked with the prayer for pre-emption in the instant suit as well as the connected suits for pre-emption, lower Courts rightly assumed the jurisdiction.
4. I have anxiously considered the learned arguments of the learned counsel for the parties. As stated earlier, no specific issue regarding the jurisdiction of the Civil Court was framed, therefore, both the learned lower Courts did not dilate on this aspect of the case. I have minutely gone through the judgment of the august Supreme Court cited above in which it is declared in unequivocal terms that in the light of paragraphs 3, 4 and 27 read with para. 25 of the then Regulation No.64, the question whether para. 25 thereof invalidates the transaction or not is one falling within the exclusive functions of the Commission or of the Chief .,Land Commissioner who are charged with the duty of implementing the provisions of the Regulation. The aforesaid dictum of the august Supreme Court is fully applicable to the instant case. So far as the prayer for declaration is concerned I have no option but to hold that the lower forums had no jurisdiction to grant the declaration prayed for by the plaintiffs/respondents. In the normal course I would have returned the plaint for presentation to the proper forum but since it also includes the prayer for possession through pre-emption which fell within the jurisdiction of the Civil Court and about which a decision has already been given by the lower forums, the plaint cannot possibly be returned to the plaintiffs/respondents. Consequently a direction can only be made to them to approach the proper forum for the redress of their grievances.
5. In view of what has been stated above I accept this revision petition, set aside the judgments and decrees of the learned lower forums so far as the grant of declaration prayed for is concerned and direct Malik Wazir and others, respondents Nos.1 to 12 herein (the heirs of Haji Malik Ghulam Rabbani deceased plaintiff) to approach the Chief Land Commissioner with a fresh plaint/petition for seeking declaration that the registered gift deed dated 6-11-1972 on behalf of Malik Gulistan in favour of Shafique Ahmad, defendant No.1 (petitioner herein) in respect of the suit land, is void under para. 24 of Martial Law Regulation No.115, as early as possible. Since the matter is very old and the connected Revision Petitions Nos. 100 and 101 of 1984 against the pre-emption decrees between the same parties are being kept pending till the result of the adjudication by the Chief Land Commissioner, it is expected that the learned Chief Land Commissioner will decide the matter on priority basis.