1. ' MUHAMMAD AFZAL ZULLAH, C.J.---These two appeals by leave of the Court have arisen out of the same case relating to the operation of the Land Reforms Regulations, 1972 and 1977. The High Court having allowed the Constitutional (Writ) Petition depriving the appellants in CA. 224-P/90 of the benefit granted to them by the Federal Land Commission and restoring the orders whereby the respondents/vendees from the declarant were held entitled to retain the land in dispute, leave to appeal was granted as under:-- "Ihsanullah Khan, respondent, as per Mutation No, 237 attested on 17-1-1972 sold land measuring 194 Kanals 4 Marlas situate in village Qasam, Tehsil and District Mardan to Shad Muhammad Khan etc. Simultaneously, on the same day vide Mutation No,238, the vendee mortgaged the suit land to the vendor Ihsanullah Khan. Under Martial Law Regulation No,115, the Land Commission authorities declared the sale mutation as void, as the same was attested after 20-12-1971. Ihsanullah Khan also challenged Mutation No,237 through a suit brought on 9-12-1976 on the basis of fraud. In the meantime in 1977, another Martial Law was proclaimed in the country, the said Ihsanullah Khan again was hit by the provisions of Land Reforms Regulation and while filing a declaration he surrendered the said land. On its resumption, land measuring 64 Kanals was allotted to the appellants as sitting tenants. This allotment was challenged by Shad Muhammad etc. By way of an appeal before the Land Commissioner, Peshawar, who vide order dated 28-5-1981 set aside the order of the Deputy Land Commissioner and the land was ordered to go back to Shad Muhammad etc. The revision petition filed by the appellants before the Chief Land Commissioner N.-W.F.P., was dismissed on 16-7-1981 but on further revision before the Member, Federal Land Commission, Government of Pakistan, Rawalpindi, the appellants succeeded and they were declared to be the owners of the land validly allotted to them by the Deputy Land Commissioner, Mardan as per order dated 6-1-1983. Shad Muhammad etc. Filed a writ petition which was allowed on 23-1-1990 and the order of the Federal Land Commission dated 6-1-1983 was set aside and that of the Land Commissioner, Peshawar and Chief Land Commissioner, N.-W.F.P., were restored."
2. ' The question, inter alia, which was noted for the grant of leave was that admittedly the Land Commission Authority had declared the alienation of the land in favour of Shad Muhammad etc. Respondents as void, under MLR 115 of 1972. This order was not challenged by the said respondents for a very long time and was set aside much beyond the period of limitation. This aspect, it was further argued, was not taken into account by the High Court in the impugned judgment.
3. ' We have heard the arguments addressed by the learned counsel for both sides. The main reason which prevailed with the High Court was that under sub-para. (3) of para. 7 of the MLR 115 of 1972 any alienation of the present type of land in excess of the permissible limits under para.8 after the alienor had surrendered to the Government the land in accordance with the provisions of the Regulation, would not be affected by sub-para.(1) of para.7; because it would affect the transfer of such land which is in excess of such limits. It was further observed that the alienor having already made the declaration which would be assumed to have included surrender of the excess of the land, it did not fall within the power of the Land Reforms Authority to render a decision on the validity of such a transfer. Hence without setting aside the fmdings by the Civil Court as well as by the Federal Land Commission that the transfer was fraudulent and thus in law it could not be deemed to have existed, the writ was issued in favour of the respondent/alienees against the appellants/tentants.
4. ' Learned counsel for the appellants has extensively read from the Civil Court decision as well as the order of the Federal Land Commission. The following observations by the Federal Land Commission are pertinent for the decision of the controversy; whether the Land Commission Authorities were competent to decide the question of validity of the alienation in question: "The learned District Judge has held in the case that the issue involved namely Sale Mutation No,237 is not a matter of adjudication by a Civil Court, whose jurisdiction is explicitly barred. He has further reiterated and I quote 'that it will be for the land reforms authorities of which they are already seized to adjudicate as to the very nature of sale mutation No,237 in the light of para.7 of MLR 115 and further to ultimate disposal/ownership of the above land; so it would either partly or wholly fall to the lot of the new allottees'.
5. ' In view of the judgment of the learned District Judge, the issue about the ownership of the land in the light of para. 7 of Land Reforms Regulation 115 is to be decided by this forum.
6. ' It is disclosed during the course of the arguments and also mentioned in the orders of the learned District Judge that the very bona fides of Mutation No,237 is full of suspicion and doubt because on the same date this very land was mortgaged by the so-called vendees in favour of the vendor for the same amount of money. This transaction was perhaps entered into by the parties to hoodwink the provisions of the land reforms laws. As soon as this transaction came into notice of the Land Commissioner, he struck it down by his orders dated 29th June, 1972, which in course of time became final. Those orders could not be challenged by the Land Commissioner or the Chief Land Commissioner in 1980 after a lapse of eight years. I, therefore, declare the order of the Land Commissioner dated 28-5-1981 and that of Chief Land Commissioner dated 16-7-1981 to be without lawful authority and therefore null and void. Consequently the order that remains in the field is that of the DLC Mardan dated 21-12-1980 under which 10 acres 2 !Canals 13 Marlas of the resumed land was allotted to the petitioners."
7. ' The effect of the decision of the Civil Court in this case would be twofold. One, that although the transaction was fraudulent it could not be interfered with by the Civil Court. And secondly, that the subject-matter was such which was within the ambit of the power and jurisdiction of the Land Commission Authorities. This decision of the Civil Court that the Land Commission Authorities were competent in he circumstances of this case to resolve the controversy regarding the validity of transaction was not challenged any further and the decision of the District Court became final.
8. Hence with respect, it was not a case of lack of power of the Land Commission Authorities. The Civil Court verdict had already been rendered that they had the power to adjudicate upon the validity of the transaction. Secondly, the Civil Court as well as two authorities, the basic and the final, in the hierarchy of the Land Reforms System had declared the transaction as fraudulent. In a way it never existed; therefore, there would be no relevance of the permission of the alienation purported to be available under para.7(3). There was no alienation at all. Moreover, the same land has been the subject-matter of a subsequent surrender under the 1977 Regulation as excess land. It would further confirm the aforementioned facts and reasons.
9. Lastly, it needs to be observed that the findings of the Civil Courts and the Federal Land Commission regarding the fraudulent nature of the transaction not having been disturbed by the High Court it was not a fit case for exercise of discretion in the writ jurisdiction under Article 199 of the Constitution. We, accordingly, allow CA.224-P of 1990 and set aside the impugned judgment of the High Court. Civil Appeal No,225-P of 1990 is dismissed as infructuous. There shall be no order as to costs.