' This is an appeal against the order dated 5-7-1972 passed by the Land Commissioner, Sargodha Division, whereby mutations Nos. 32, 60, and 61 were declared void.
2. The alleged facts briefly are that the D. L. C., Jhang, recommended the validation of gifts made jointly by the appellants in favour of Ghulam Ahmad, Abid Hussain son of Muhammad Shafi, appellant (1/3rd share), Asmat Panah, Ziafat Paaah, Zafar, and Maratab Ali sons of Ahmad Shafi, appellant (1/3rd share) and Liaqat Hayat, Khalid Hayat sons, Mst. Balqis Fatima, daughter of Ata Ullah Khan appellant (1/3rd share) out of their joint holding of 3595 kanals 13 marlas of land in village Tali Daulat Khan, Tahsil and District Jhang. An area of 2836 kanals 14 marlas in equal share out of the said total area was gifted through mutation No, 32 which was entered on 8-2-1970 and attested on 13-5-1970. The balance jointly left with the appellants was thus 758 kanals 19 marlas i,e, 94 acres 6 kanals 19 marlas. Later on the D. L. C. On 22-7-1972 withdrew his recommendations in respect of mutation No, 60 of village Kot Mohla of the same party. The Land' Commissioner, however, took up the alienations of the appellants in respect of three mutations Nos. 32, 60, and 61 involved in this appeal and scrutinized the entire case of transactions made by the appellants during the period 1-3-67 to 20-12-1971. Regarding mutation No, 32 the learned Commissioner observed that the holding of each declarant in village Daulat Khan was 1198 kanals and 10 marlas.
Each of them transferred 945 kanals and 12 marlas in favour of his heirs, reducing each individual holdings to 252 kanals and 18 marlas which became less than the economic holding. The transaction was, therefore, hit by the provisions of Para 25 of M. L. R.
64. He, therefore, declared this mutation as void.
3. Regarding Mutations Nos. 60 and 61 of village Kot Mohla it was observed by the learned Land Commissioner, that the original mutations (Parat Sarkar) were not traceable. The Part 'Patwar' showed that the signatures of the Naib Tahsildar were forged. He, therefore, also declared both these mutations as void. The present appeal is against this decision.
4. The report of the Legal Adviser regarding mutation No, 32 runs as under : "So far as mutation No, 32 is concerned it was declared invalid on the consideration that the holding of each declarant in the village was reduced to less than an economic unit. In this connection it Was pointed out by the learned counsel for the appellants that the appellants have a joint holding. The gift was made by them in favour of their heirs out of this khata. The area left with the appellants jointly in this khata was not less than an economic holding. The learned Land Commissioner had erred in invalidating these transactions on this point. In this connection reference was invited to para, 126 of the Land Reforms in West Pakistan, Vol. III which deals with alienations of land in a joint khata. The matter was considered by the Land Commission and it was decided that so long as the joint holding continued to have the prescribed area of a subsistance or economic holding the provisions of para. 25 of M. L. R. 64 were not attracted. In this connection reference was also invited to the observations contained in Revenue Rulings 1960 to 1966 Vol. II page 483- Ahmad Din and others v. Chiragh Din by Mr. I. U. Khan, which runs as follows : 'The record however shows that this is a joint holding and has to be regarded as one Unit. 'Person' mentioned in para. 25 (3) of M. L. R. 64 includes persons and joint owners. So long as the joint holding is not partitioned, and all the co-sharers make an alienation, it would be void only if after the sale, the joint holding is itself reduced to an area less than a subsistence holding.
' In the present case also the area left in the joint holding after deducting the area transferred by mutation No, 32 is not less than an economic holding. The transaction was not therefore hit by Para 25 of M. L. R 64 and the transaction cannot, therefore, be regarded as void."
5. I have perused para. 126 of the Land Reforms Vol. III, and Revenue Rulings, Vol. II, page 483 and I am inclined to agree with the report of the Legal Advisor. Mutation No, 32 of village Daulat Khan is therefore declared valid and the order of the Land Commissioner, Sargodha dated 5-7-72 so far it relates to mutation No, 32 is set aside.
6. Regarding mutations Nos. 60 and 61 of village Kot Mohla the following documents have been examined and the result is as noted against each : ROZNAMCHA WAQIATI FOR THE YEAR 1969-70 ' There are entries at serial Nos. 111 and 112 dated 24-1-1970 in respect of mutations Nos. 60 and 61 which read as follows : {{URDU TEXT}} ' ROZNAMCHA KARGHUZARI OF THE PARTWARI FOR 1969-70 ' The Roznamcha Karghuzari of Abdul Hamid Patwari against 24-1-1970 indicates the following entry ' This refers to earlier entry of 23-1-1970 which reads as under : {{URDU TEXT}} ' There is no reference in this entry about the recording of mutations. At the end of the month of January 1970 the Patwari has recorded Goshawara Intaqalat which reads as under : {{URDU TEXT}} ' According to this entry of the Patwari no mutation was recorded during the month of January, 1971.
The mutation is alleged to have been compared by the Field Kanungo on 29-1-1970. In the Roznamcha of the Patwari against serial No, 117 dated 29-1.1970 the following entry appears : {{URDU TEXT}}- ' In the Roznamcha Karghuzari of the Field Kanungo against 29-1-1970 the following entry appears : {{URDU TEXT}} ' There is no reference of comparison of mutation in this village Kot Mohla by the Field Kanungo. In the Roznamcha of the Patwari at serial No, 125 against 10-2-1970, there is the following entry : {{URDU TEXT}} ' The learned counsel has stated before me that on this date the Naib Tehsildar had recorded the statements of the donors and donees on mutations Nos. 60 and 61 in question and he based his argument on the fact that on the same day in another village. Tali Daulat Khan in respect of mutation No, 32 the same Naib Tehsildar had recorded the statements of the donors as well as one of the donees who more or less are common in all the three mutations namely 32, 60 and 61, and had deferred the attestation for the comparison of the Field Kanungo. This comparison of the Kanungo in respect of mutation No, 32 was done on 5-4-70 which was finally sanctioned on 13-5-
70. In the case of mutations Nos. 60 and 61, on the other hand, I find that the comparison of the record had already been done by the Field Kanungo on 29-1-1970, which means that when the Naib Tehsildar went in the village and recorded the statements of the donors and donees in respect of mutations Nos. 60 and 61 the attestation by the Field Kanungo was already there and there could therefore be no reason for him only to have recorded the statements of the donors and the donees and not to attest the mutation on that very day. The inference would therfore, be that no statement of the donors and donees was recorded by the Naib-Tehsildar in respect of mutations Nos. 60 and
61. The learned counsel have urged that may be the Naib-Tehsildar wanted to go to the village concerned for attestation and therefore he did not attest the mutation. But if this is so then the entry of Patwari on 10-2-1970 that the Naib-Tehsildar visited village Ghoriwala would be a false entry. The learned counsel has further urged that there might be some other hitch in its attestation on 10-2-70. This argument cannot also be accepted because once it is conceded as alleged by the learned counsel that the Naib Tehsildar recorded the statements of the donors and donees on 10- 2-70 in respect of the gifts involved in mutations Nos. 60 and 61 there could be no hitch for their attestation on that very day. It is, however, mentioned that the Roznamcha Waqiati was closed on 19th jSawan Samat 2027 (3-8-70) whereas it should have continued upto 15th Bhadon.
' TOUR PROGRAMME OF THE NAIB-TAHSILDAR ' The tour programme of the Naib-Tahsildar for June, 1970 has been seen. It indicates completion of his tour on 18-6-70. There is no mention of Halqa Ghoriwala in which village Kot Mohla is situated in the Tour Programme of the Naib-Tahsildar.
' MUTATION BAHI ' In the Mutation Bahi of the Naib Tahsildar, there is no mention of mutations Nos. 60 and 61 of Kot Mohla having been sanctioned on 30-6-70.
' REGISTER DASHT DAKHIL KHARIJ ' In this Register against village Kot Mohla there is no entry of mutations Nos. 60 and 61 in dispute having been received in Tahsil Office.
7. With respect to Bahi Mutations and Register Dasht Dakhil Kharij the learned counsel have urged that their main contention in this case is that the Naib Tahsildar concerned had misplaced and lost the two mutations which he attested on 30-6-70 and to cover up this loss he has denied the attestation by himself and the presence of these two mutations. On reference to the Mutation Register itself. I find that mutations Nos. 60 and 61 are entered at pages 8 and 9 of the mutation Register. There is no interpolation of the serial Nos. But the only other mutation entered subsequent to this mutation is the one entered at pages 10 and 11 which was attested on 29-12-1971. This date is subsequent to the crucial date of 20-12-1971.
' REGISTER HAQDARAN ZAMIN FOR THE YEAR 1969-70 ' The Patwari's copy of this village in respect of Khata No, 6/6 Khatauni No, 20 contains the following entry in the ownership column : {{URDU TEXT}} ' The original Register Haqdaran Zamin which was consigned in Sadar Office and has been obtained from the Sadar Kanungo's Office contains the following entry : {{URDU TEXT}} ' The comparison of the two entries show that whereas in the copy retained by the Patwari he has given effect of the mutations in dispute and entered the names of the donees in the ownership column, no such names of the donees appear in the original Register Haqdaran Zamin consigned in Sadar Office.
' FARD DHAL BACHH ' Fard Dhal Bachh of the Canal Department for the harvest Kharif, 1970 and Rabi, 1971, and Kharif, 1971 and Rabi, 1972 show the name of only Muhammad Shafi donor and do not show the names of the donees.
' KHASRA GIRDAWARI ' The entries in Khasra Girdawari in the ownership column show the name of {{URDU TEXT}} ' The entry does not help either way because in case if a mutation had not taken effect, there being more than one owners among the donors, the same entry holds good.
8. The learned counsel has in addition made the following assertions :
(i) The alienations were in favour of heirs and therefore there could be no intention on the part of the donors to defeat any provisions of the Land Reforms as the alienations were much before the promulgation of M. L. R.
115.
(ii) That the mutation has been effected in the revenue record.
(iii) The concerned Patwari had been suspended on account of this case and after necessary enquiry the Police has not found anything against him.
(vi) The allegation that the signatures of the Naib-Tehsildar have been forged is incorrect as the signatures on mutations Nos. 60 and 61 (Part Patwar) are those of the Naib Tahsildar concerned and can be certified by comparing these signatures with his other signatures in the record.
9. Mian Muhammad Akhtar Advocate on behalf of donees argued that transfers get effect from the date of entry and not from the date these are sanctioned or attested by the Revenue Officer. He relied on PLD 1966 W. P (Rev.) 14 and 16. He also quoted PLD 1961 B J 34.
10. I have given careful thought to all the arguments advanced by the learned counsel and find that the evidence and material that has come on record is much too overwhelmingly against accepting mutations Nos. 60 and 61 in dispute as having been entered, or attested on the dates they are alleged to have been so entered and attested. The alienations are therefore hit by provisions of para. 7 (1) (a) of M. L. R. 115 and are to be treated as void. The appeal against the order of Land Commissioner in respect of these two mutations is, therefore, rejected.
11. So far as mutation No, 32 is concerned, as indicated in paragraph 5 above, it is to be declared as bona fide. The order of the Land Commissioner dated 5-7-1972 treating mutation No, 32 as void is, therefore set aside.
' Parties to be informed.