(b) Land Reforms Regulation, 1959 [M. L. R. 641- -- Para. 25 read with Land Reforms Regulation, 1972 [M. L. R. 115], para. 7 [as amended by Land kefoims Regulation (Amendment) Act (XLV11I of 1976)]-Land owner, in case of subsistence holding, empowered to sell his entire holding even to an outsider or give it by way of gift either in part or in whole to any of his presumptive heirs-Land has, however, to be exchanged or mortgaged to a person of same village and not to an outsider-Exchange of land less than subsistence holding with land of owner of another village, held, void. [p. 2218 ORM ' ZAFAR ALI KHAN, MEMEBER).-Learned counsel for both the parties are present and their arguments have been heard.
1. ' The facts of the case reveal that the land in dispute situated in village Urmar Miana Tehsil Nowshera, District Peshawar was Evacuee Property and subsequently allotted/transferred to Syed Abbas All Shah son of Syed Mubarik All Shah, who sold it vide Mutation No, 2688, dated 14-4-1971. To Haji Zildar respondent. The petitioner brought a pre-emption suit in respect of this land. During the pendency of this pre-emption suit, it came to light that the land in this partioular area could not be sold under the North-A est Frontier Province, Kabul River Project (Control and Prevention of Speculation in Land) Act, 1948. The Civil Court, therefore, decided that the pre-emption suit could not lie. The respondent then adopted another method of exchanging his land situated in Garhi Faizullah with that of Syed Abbas All Shah involving the suit land. In pursuance of this exchange Mutation No, 2688 in village Urmar Miana and No, 552 of village Garhi Faizullah were attested on 14- 4-1971 in Mozah Urmar Miana by the Revenue Officer concerned.
2. ' The petitionees counsel has objected that this exchange is not allowed in M. L. R. 64 as amended, which reads as follows:- "5. Amendment of paragraph 24 of the Land Reforms Regulation 1972.-In the said Regulation in paragraph 24-(a) in sub-parae graph (4) for proviso the following shall be substituted, namely:- ' Provided that he may alienate the entire holding or, in the case of holding which is less than a subsistence holding, be may alienate any part of his holding by way of gift to any of his resumptive heirs or exhange with, or mortgage or otherwise alienate to, other owners or landless tenants of the same village, deh or mausa.
3. ' A preliminary objection was raised by the counsel for respondent that under the Tenancy Act the Board of Revenue, has no powers to entertain a second Revision in a case which has, on the Revisional side, been once decided and Board of Revenue and Commissioners have been given same powers under section 56 of the North-West Frontier Province Tenancy Act, 1950 and are still in force. Subsection (5) of section 56 says that the Board of Revenue or the Commissioner may interferewith proceedings of en order or decree passed by the lower Revenue Court on any ground on which the High Court in the exercise of its Revisional jurisdiction may do so, if the justice demands. This equation of the Board of Revenue with the High Court in cases falling under the Tenancy Act, has been further elucidated in section 60 of the Tenancy Act, where it is clearly laid down in subsection (a) that the Board of Revenue shall, in respect of those provisions, be deemed to be the High Court within the meaning of the Code of Civil Procedure and shall, subject to the provision of this Act, exercise, as regards the Court under its control all the powers of High Court under the Code. Therefore, it is abundantly clear beyond any shadow of doubt that, although a revision under section 51 can lie before the Commissioner, it can also lie before the Board of Revenue even after that stage is over. But, there is no bar to a petitione putting in a revision petition directly before the Board of Revenue and in bypassing the Commissioner. This view appears correct with reference to a need that may arise for disposition of justice where its miscarriage has commenced in the Court of the Commissioner. As a last supervisory Court on the Revision side, the Board of Revenue has therefore, got the powers of hearing of the Revision Petition under the Tenancy Act, against the orders of the Commissioners. This view has been supported by the judgment of the West Pakistan Board of Revenue as quoted in PLD 1961 W. V (Rev.) 96 and in the PLD 1957 Lahore 950 in Writ Petition No, 593 of 1957, decided in the High Court of Lahore under Article 170 of the Constitution of Pakistan which says that the order passed by the Board of Revenue against the order of the Commissioner in Revision is not invalid under the Tenancy Act. Let it be made clear, therefore, that the Commissioner is subordinate to the Board of Revenue as is evident from West Pakistan Board of Revenue Act, 1957. The powers of Board of Revenue to pass orders in Revision against the order of the Commissioner, though those officers may have passed orders in exercise of the powers of Revision given to them by section 56 of the North-West Frontier Province Tenancy Act, is so obvious that it can hardly be doubted. The objection of the learned counsel for the respondent that the Board of Revenue has no powers to hear the second Revision against the order passed in Revision by the Commissioner under Tenancy Act is therefore, overruled.
4. ' Now we come to the main case. Khasra Nos, 2220, 2153, 2157 and 3401 measuring 22 kanals 18 marks situated in village Urmar Miana, owned by Syed Abbas Ali Shah, has been exchanged with 23 kanals 5 marlas out of Khasra Nos, 1708 and 1441 measuring 93 kanals 1 marla owned by Zildar in village Garhi Faizullah, vide Mutation No, 7688 of village Urmar Miana and 552 of Garhi Faizullah. It has to be seen whether this exchange is allowed under the law or not because Kabul River Project (Control and Prevention of Speculation in Land) Act, 1948, is no more applicable in the present. The law to cover this case would be the M. L. R. 64 and M. L. R 115 as amended by the Laud Reforms (Amendment) Act, 1976 (Act No, XLVIII of 1976).
5. ' In the ease of an area which is less than a subsistence holding, the position under the law is that a person may alienate his entire holding to any one even out side the village, and he can also sell a genuinely required piece for building a house to any person even outside the village i,e, "Mauza", but there is no provision for exchange or mortgage to the other owners out side the village. In short, therefore, in the case of subsistence holding, the land owner may sell his entire holding even to an outsider or give it by way of gift eider in part or in whole to any of his presumptive heirs. But the land is to be exchanged or mortgaged to a person of the same village, deh or Mauza and not to an outsider. In the present case, sicce the exchange of land being less than a subsistence holding has taken place with the land of an owner of another village it is therefore, void. The result Is that the Revision Petition is accepted and it is held that the transaction of exchange made through Mutation No, 2698 of village Urmar Miana and Mutation No, 552 of village Garhi Fair ullah is void and these mutations stand cancelled. Consequently, the orders of the Lower Courts are set aside.