This is a suo mote revision in exercise of the powers conferred by para. 29 of the Land Reforms Regulation, 1972 and initiated in consequence of a note recorded by the Inspection Team of the Federal Land Commission.
2. As the declarants in both these cases are brother and sister and the facts are similar, identical and linking, these cases have been consolidated.
3. The notice appears to have been issued in ignorance or oversight of the fact that on the objections lodged by the Inspections Team, Federal Land Commission Sukkur, the learned Member-II of the Federal Land Commission has already re-examined this case under suo moto revisional jurisdiction.
' These objections have however, been drawn up by the Sind Inspection Team, Hyderabad. In case of State v. Haji Mohammad Nawaz (S M R 1724) I have expostulated that:- "(3) It will be unfair and indeed harsh to try the identical issues for the second time under identical jurisdiction. In my opinion, the powers of suo moto revision have already been invoked and exhausted and no powers of a further revision subsist. There cannot be an indeterminate or indefinite number of suo mow revisions running counter to the universally established and acknowledged principles of natural justice."
4. In the case of State v. Haji Feltz Mohammad S M R 287 I have observed that:- "In this case inasmuch as in many others the Federal Land Commission have displayed a tendency of an insatiable infatuation for flimsy, though frolicsome objections, causing much ado about nothing."
5. It is therefore with reserve and reluctance that I proceed to consider the merits of the objections concocted by the Inspection Team of the Federal Land Commission. The learned counsel concedes that the land in question stands in the Khata of the late Ghulam Hussain Hidayatullah but asserts that the declarants are and have been for many years, in possession. Originally the land belonged to the declarant's father who for a while, incurred heavy debts and he had to hand over the land to the Manager Encumbered Estates who, in turn sold it in 1935 to the Late Ghuilam Hussain Hidayatullah. Though from its outward appearance the transaction was a sale, it was more in the nature of a mortgage or a charge on the land particularly so because the vendee never obtained possession and he never exercised any dominion over the land which continued to be in the possession, use and enjoyment of the declarant's father, and the declarant after him. This fact is borne out by the declaration of Mr. Anwar Hussain Hidayatullah son of the late Ghulam Hussain Hidayatullah wherein he admits and acknowledges that the said land is in possession of the Israns.
A photostat copy of his declaration has been placed on record. The fact that he does not mention whether the possessor are trespassers, or mortgagees or lessees etc. Goes to establish that the declarants are in rightful possession of the land, for otherwise, he would hay instituted legal proceedings to obtain possession or produce of the land.
6. Prior to the death of Sir Ghulam Hussain Hidayatullah in 1948, the declarant's father paid back the amount to him and had the land released from any encumbrances. However, all this took place without recourse to legal deeds and documents. Meanwhile, the land continued to remain in the Khata of the late Sir Ghulam Hussain Hidayatullah and declarant's father at least upto his death in 1954, did not feel it necessary to have the requisit transfers effected in the Record of Rights.
However, in 1959, under the provisions of MLR-64, his heirs declared these lands as their own. The Deputy Land Commissioner duly accepted the declaration and allowed them to retain this land and surrender other land which stood in their Khata. Para. 32 of Land Reforms Regulation, 1972 also applies.
7. The notices recite only that the land is not in the Khata of the declarants but it does not expressly attack the gifts. The Rozuamcha available only from 1961 neverthless shows that the declarant has been paying the land revenue, and in Mir Ali Ahmed's case it has been held that the record of rights is not better than the title deeds. In any event, uninterrupted possession of land for so many years by itself confers title of ownership on the declarant under section 84 of the West Pakistan Land Revenue Act, 1967.
8. According to section 110 of the Evidence Act, the person who is in possession of land is presumed to be the owner unless proved otherwise by the person challenging it t PLD 1959 Kar. 122 and PLD 1972 Quetta 47.
9. The provisions of Article 144 of the Limitation Act as well the ruling in PLD 1964 Lah. 351 come to the timely rescue of the declarants. Moreover, in Mohammad Khizer Hayat Khan v. Chief Land Commissioner and others Anwarul Haq, J. Ruled thatt- "Cases may be visualised where entries in the name of the existing owner of the land, legally belonging to persons others than the declarant exist in the revenue record. In such cases the mere fact that the declarant does declare all those lands as his and such a declaration is accepted by the Land Commission will not clothe the declarant with title in that property, nor will the acceptance of that declaration by the Land Commission deprive the real owners of the land to agitate their rights in respect of that land before the civil Court. If the interpretation is placed on these provisions of law, it will mean negation of the rights of real owners of the land, who will be considered to have been condemned unheard by the land Commission merely on the declaration filed by the declarant purporting to be an 'existing owner' of the said land."
10. Explanation III to para. 7 (1) (b) lays down certain guidelines for determining whether a transaction is bona fide or otherwise and stresses inter alia :-1 2
(ii) To under whose management the land has remained which is claimed to have been transferred or in respect of such land ;
(iii) who has been paying the land revenue and other charges in respect of such land ;
(iv) who has been receiving the rent for or batai share from such land."
The affirmative answers to these questions raise an impregnable fortification which cannot be shaken or demolished by the frivolous and vexatious objections of the Inspection Team.
11. The objections having succumbed to the mortal blows of the law, both the notices are vacated. PLD 1976 Kar. 316 PLD 1968 Lah. 1145