' This is an appeal against the order dated 16-8-1972 passed by Land Commissioner, Sargodha Division, whereby the appeal preferred by the appellant against the order of Deputy Land Commissioner, Sargodha was rejected.
2. The alleged facts of the case briefly are that the appellant, in his L. R. Form I, mentioned the sale of 467 Kanals 19 Marlas of his Agricultural land having been made by him in favour of Mumtaz Khan son of .Atta Muhammad, Muhammad Sher and Rab Nawaz sons of Ahmad and Dost Muhammad son of Atta Muhammad on 28-8-1971 in lieu of Rs, 58,500. The transaction had been effected through an unregistered deed between the parties on 28-8-1971. The land was reportedly in the actual cultivation of the vendees. No mutation could be entered because the village was under consolidation operations. The vendees applied to the civil Court for a declaratory decree in respect of this land stating that it had been purchased by them and they were its owners. A decree was passed in their favour on 17-1-1972. The Deputy Land Commissioner was requested to exclude the P.
I. Us. Of this land from the holding of the appellant but he observed that the vendees were not in cultivating possession of any land in the estate and the declaratory decree passed on 17-1-1972 was based on a compromise. Such decrees were not binding on the Land Reforms Authorities. In view of these considerations, the claim of the appellant was disallowed by the Land Commissioner, who vile his impugned order dated 26-8-1972 observed that the agreement executed between the parties was not a registered one and no report about the transaction was made even to the Patwari for incorporating the same in the Roznamcha. Aggrieved by that order, the appellant has come up in appeal in this Court.
3. In the grounds of appeal it has been mentioned that the vendees were not related to the vendor and the exclusion of the names of the vendees in the Fard Qabza, was due to an order passed by the Board of Revenue in consolidation proceedings. Also, the transaction had the blessing of the competent civil Court, which passed the declaratory decree on 17-1-1972.
4. The learned counsel has produced in original the Iqrarnama dated 28-8-1971 : which I have seen.
The Iqrarnama refers to {{URDU TEXT}} receipt of Rs, 2,000 about 2 months prior to the agreement and further acknowledges receipt of payment of additional Rs, 30,000 out of the total sale price of Rs, 40,968 and thus acknowledging the receipt of a total of Rs, 32,000 as advance. It also states that now only Rs, 8,968 are left to be paid which will be paid within 2 months either at the time of attestation of the mutation or at the time of giving a statement in favour of the said Malik Muhammad Sher through Malik Dost Muhammad (Uncle's sons) in the civil Court and that in the case of non-payment of the remaining amount within this stipulated period, the advance money will be treated as forfeited and the agreement of sale will become infructuous. Relevant extract from this agreement is as follows :- {{URDU TEXT}} ' The whole of the agreement refers only to payment of amount in respect of the sale. This is the only document the learned counsel is relying upon prior to the decree of the Court.
3. The learned counsel has also produced copy of an order dated 17-1-1972 given by the Administrative Civil Judge 1st Class, Sargodha. This order reads as follows :- {{URDU TEXT}} ' According to this, it is not stated in the order as to which is the date of the statement. The inference from the above order appears that the statement was given before the Civil Judge on 17- 1-1972 when this order was passed. The learned counsel has not produced any document or the statement in original to rebut this inference.
6. A reference to Khasra Girdawari shows transfer of possession in favour of Muhammad Sher, Rab Nawaz, Dost Muhammad, Mumtaz vendees with effect from Kharif 1972. Reference to Dhal Bachh of Kharif 1970 and Rabi 1971 shows the name of Fazal Elahi as the owner. According to the statement of the Patwari the Dhal Bachh is still being prepared in the name of Fazal Elahi because the mutation has not been sanctioned. Since the land is not irrigated by the Canal, there is no Canal Khatuni The mutation. No, 2172 in respect of the land was entered on 12-8-1972 as a result of decree of the civil Court dated 17-1-1972. With regard to possession, the learned counsel has stated that on 14-1-1970, the M. B. R. In a suo motu review had passed an order that possession should not be changed till the A. D. C.(C) passed the final order regarding the consolidation scheme. This decision is reported in PLD 1971 Pb. (Rev.)
1. It has been pointed out to the learned counsel that nowhere in the whole of the agreement for sale on which he is relying, there is any mention that the possession had been given to the vendee. In fact, the inference that can be drawn from the agreement is that till full price has been paid, the possession could not be changed, because otherwise it could not have been stipulated in the agreement that the whole of the advance will get forfeited to the vendor if the balance A of the amount was not paid to the vendor within 2 months. The learned counsel has referred to the order of the Administrative Civil Judge dated 17-1-1972 wherein he has referred to the fact that the plaintiffs were owner and possessors of the land in dispute. It is however obvious that this is a decree by consent and there is no reference to the date on which any statement was made by the vendor and the vendees as to when the possession has changed or would change.
7. The learned counsel has further urged that as it was a consent decree it has more force than normal decree. There is no force in this point because consent decree was passed on 17-1-1972 and vide paragraph 7(1)(a) of M. L. R. 115 read with paragragh 3 of M. L. R. 115, all decrees which are inconsistent with the provisions of M. L. R. 115 are to be ignored.
8. The learned counsel for the vendees has adopted the arguments of the counsel for the vendor.
He further urges that he has not been heard by the Land Commissioner. He has, however, been given full opportunity to present his point of view before the Legal Adviser anti now before me. He further states that if he had been given an opportunity by the Land Commissioner he would have produced tenants before the Land Commissioner to prove that they were his tenants. Similarly, he would have produced the revenue staff to establish that the vendees had not been incorporated in possession because of the ban on such entries. The question in this is that in the matter of land reforms it is not the oral evidence which has to be relied upon so much as other evidence, since the oral evidence could be produced on either side of the story. The learned counsel further urges that the vendees are totally strangers to the vendor and therefore there is no question of manipulation.
But the point to be established in this case is whether the sale transaction had been completed and the possession had passed before 20-12-1971 which is not proved by any of the documents produced and relied upon by the counsel for the appellant and the vendees.
9. In view of all the grounds stated above and the reasons given by the Legal Adviser in his report dated 31-1-1973 I regret I cannot accept the contention of the appellant that the transfer in question pertaining to 467 kanals and 19 marlas should be accepted for purposes of paragraph 7(1)(b) of M.
L. R. 115 as bona fide. In fact, for all the reasons stated above, it is hit by paragraph 7(1)(b) of M. L. R.
115 and therefore has to be treated as void. Choice form has been given to the learned counsel.