' This revision has arisen out of a report dated 5-2-1974 made by the Head of the Inspection Team of the Federal Land Commission which had been passed on for disposal to me in my capacity as Additional Chief Land Commissioner by order dated 13-7-1974 of the then Chief Land Commissioner after he had taken it up in exercise of his suo motu revisional powers. After conclusion of the arguments by the learned counsel for the respondent, orders in this case had been reserved on 13-8-1974 to enable the Land Commission Secretariate to examine the legal issues involved in the interpretation of the term "economic holding" for purposes of Para 25 of M L R
64. As the order was reserved as far back as 13-8-1974, another opportunity was given to the respondent and her learned counsel to present her case, if siie so desired. Fresh arguments advanced by the respondent's counsel have been heard. Altbouh they put forward basically the same points as had already been urged before me during the previous hearing of the case in 1974, they have been given due consideration and the merits of the present arguments have been fully taken into account.
2. The facts of the case briefly are that Mat. Reale Begum respondent is a co-sharer in a joint holding comprised in khata No, 3 of Chak 432-JB situated in Tehsil Toba Tek Singh, Lyalipur District.
The other co-sharers in this khata are her husband Ahmad Yar Khan and mother-in-law Mat.
Ghulam Fatima. The total area of the joint holding was 2901 kanals 1 marla in which the respondent Razia Begum owned 4435/2069th share, measuring 621 kanals and 13 merles. Out of this khata the respondent and her other co-sharers made alienations, which are alleged to have been made jointly by all the co-sharers, through sale and gift mutations Nos, 123 to 126, 128, 129, 131 to 133, 135 to 137 during the period from 21-5-1970 to 21-5-1971. The total area thus alienated was 1753 kanals and 3 marks, leaving a balance of 1147 kanals and 18 merles in the joint holding. Out of the total area involved In these allegedly joint alienations, the area falling to the share of Mst. Razia Begum comes to 344 kanals and 18 marks.
3. The aforesaid mutations came up for scrutiny under Para. 7(1)(b) of M. L. R. 115 before the learned Land Commissioner, Sargodha Division, who, by his order dated 7-4.1972, held the transactions as valid except the gift evidenced by mutation No, 137 sanctioned on 21-5-1971 which was declared to be void.
4. The Head of the Inspection Team of the Federal Land Commission, after examining the record relating to the landed property of the respondent-declarant, made the following observations in his report referred to in para. 1 above.
"On careful scrutiny I have found that the mutations Nos, 128, 131, 132, 133, 135 and 136 were sanctioned in contravention of the provisions of para. 25 of M. L. R. 64, because by transaction of mutation No, 128 the holding of the declarant was reduced to less than an economic holding (445 kanals 2 squares). It was reduced to 439 kanals 13 marks on the sanaction of mutation No, 128 and all the subsequent mutations of sale i,e, mutations Nos, 132, 133, 135 and 136 sanctioned on 21-5- 1971, are void for the purpose of M. L. R.
115.
5. The comments of the learned Land Commissioner, Sargodha were called for on the report of the Head of the Inspection Team. In the comment submitted by him, the Land Commissioner has expressed the view that the remaining 1147 kanals and 18 merles of land jointly owned by the three co-sharers, after accounting for the mutations in dispute, is to be treated as a single unit ; and, construed in this way, it remains more than the size of an "economic holding" and consequently no contravention of the provisions of pars 25 of M. L R. 64 has taken place. The entire land is situated in one Khewat and while determining the size of the economic holding in this case, joint ownership of the total land is to be taken into account instead of the share of each individual included in it. In this connection the learned Lend Commissioner has referred to para. 126 of the book "Land Reforms in West Pakistan, Volume III," and the observations contained in the case reported in Ahrnad Din and others v. Chiragh Din (I), decided by the former Chief Land Commissioner, West Pakistan ; and also to an unreported case Atta Ullah and others v. Ghulam Ahmad and others R.
0. A. No, 259/243 decided by the then Chief Land Commissioner, Punjab. According to him the alienations are fully covered by the provisions of Martial Law Regulation No, 64 and are consequently valid.
6. I have beard the learned counsel for the respondent at some length and have also gone through the record.
7. The learned counsel for the respondent has argued that the sole point involved in this case is whether or not the joint holding from which the disputed mutations were made is to be treated as a single unit for determining its status as an "economic holding" for purposes of para. 25 of M. L. R.
64 ; and that if the alienations made by the co-sharers of a joint khata do not reduce the joint holding Itself below the size of an economic holding, such alienations would not be hit by the provisions of M. L. R.
64. In support of this argument, the learned counsel has referred mostly to the same rulings and decisions of the Land Commissioner in which reliance has been placed by the learned Land Commissioner in his comments. In addition, the learned counsel has referred me also to a case decided by the Board of Revenue namely Appeal No, 25/1970-71 Mulazim Hussain v. Saeed Ahnsad and another, decided on 22-10-1971 by Mr. Aslam Avail,'Member Board of Revenue. The learned Member, Board of Revenue relying largely on the aforesaid observations of the West Pakistan Land Commission and the decision in case Ahrnad Din v. Chiragh Din already referred to, held that the joint holding was to be regarded as one unit and all the co-sharers could make alienations therefrom subject to the condition that the joint holding itself was not reduced to an area of less than a subsistence or economic holding (as the case may be). The learned counsel further maintained that the decision of the then Land Commission constituted under the provisions of M. L.
R. 64, on any dispute or controversy arising in carrying into effect the provisions of M. L. R. 64 was final and had binding effect, as provided in Para. 4(6) of that Regulation. According to the counsel, this interpretation was further supported by the observations made by a Division Bench of the West Pakistan High Court in case reported as PLD 1967 Pesh, 328 which were broadly to the effect that the final authority for the determination of the question as to whether a particular alienation offended against M. L. R. 64, was the Land Commission itself. The Supreme Court also, in earlier decisions in cases Mst. Harji v. W. P. Land Commission (2) and Ferry Shah v. Muhammad Omer Khan (3), had observed that the power of decision in respect of every disputed matter M. L. R. 64 was vested in the Land Commission. Consequently, the learned counsel argued, the observations and findings of the Land Commission reported in para. 126 of the book "Land Reforms in West Pakistan, Volume III" referred to in para. 5 of this order, applied to all alienations made out of a joint holding and would remain in force till they were reviewed by the Land Commission itself. The learned counsel further argued that the word 'bolding' as used in M. L. R. 64 should be interpreted with reference to section 4(10) of the West Pakistan Land Revenue Act, 1967, which reads as follows :- "(10) 'Holding' means a share or portion of estate held by one land owner or jointly by two or more landowners."
(1) (19604966) 2 Rev. Rul. 483 (2) PLD 1965 SC 114
(3) PLD 1966 SC 340 ' The corresponding section 3(3) in the old Punjab Land Revenue Act, 1887 is also couched in identical language. In view of the above definition, the learned counsel argued, a joint holding had been considered as one unit irrespective of the consideration as to how many persons held shares in it. Consequenty, the word 'person' as used in para. 25(3) of M. L. R. 61, includes all persons who are co-sharers and owners in a joint khata I and, therefore, so long as the disputed alienations did not result in reducing the size of the joint holding to an area below the area of an "economic holding", and the holding was not partitioned, the alienations made by the co.Sharers jointly would not be void.
8. The case, therefore, hinges on the interpretation of the term "economic holding" for purposes of paragraph 25 of M. L. R.
64. The terms "economic holding" and "subsistncee holding" have been defined in items (2) and (11) of paragraph 2 of M. L. R.
64. These definitions are as follows t
2. Definitions.-(2) "economic holding" means an area of sixty-four acres of land in the Federal Capital, Khairpur and Hyderabad Divisions, and two squares or two rectangles or fifty acres whichever is more, elsewhere provided further that for the purposes of paragraphs 23 and 25 an "economic holding" shall mean such holding made up of an area or areas comprised within particular estate or rnauza or deh and not made up of the total area owned by a person and spread over more than the village or district.
(11) "subsistence bolding" means an area of sixteen acres of land in the Federal Capital and in Khairpur and Hyderabad Divisions, and half a square or half a rectangle or twelve and a half acres of land, whichever is more, elsewhere.
9. As the present case deals with the interpretation of the term "economic holding" as applied to pares. 25 and 23 of M. L. R. 64, the relevant portions of these two para are also reproduced below for ready reference.
25. Restrictions on alienation of holding.-Sub-para. (1). No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding Provided that such a person may alienate his entire holding.
' Sub-para. (2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding Provided that such a person may alienate his entire holding.
' Para. 23 Restriction on partition of Joint holdings.-Sub-para. (3) A joint bolding with an area equal to that of an economic holding shall in no circumstances be partitioned.
' Sub-para. (4). A joint holding with an area greater than that of an economic holding shall not be partitioned in such a way as to leave no individual holding taken together with the area which the owner may already posses equal to an economic holding, or to leave the individual holding of any one or the joint owners below the area of a subsistence holding.
10. It is fairly clear that the terms "economic holding" and "subsistence holding" as defined in para. 2 of M. L. R. 64 were intended to carry a special meaning in the context of the provisions made in paras. 23 and 25 of the same Regulation, as distinguished from the meaning of these terms in the context of other provisions of M. L. R. 64 For instance para. 8 of the Regulation, which lays down the maximum limit of an individual holding, provides that the land owned or possessed in any capacity by "a person" shall mean the total area of land in his ownership or possession situated anywhere in the country while in case of paras. 23 and 25, the holding of a person is to be interpreted to mean the area or areas of laud owned by him in one estate or mauza/deh. In other words the term 'holding' for purposes of para. 25 of the Regulation, with which we are directly concerned in this case, means the area or areas of land owned by a person in a particular revenue estate or mauza.
It also follows from a plain reading of para. 25 of the Regulation that no distinction has been made for the purposes of this para. Of the Regulation between land which is under the exclusive ownership of a person in any khewat or 'khata' of the village and land which is owned by him jointly with other persons in any other khewat or khata. It is a well-known fact that most of the holdings in the Punjab are comprised in joint 'khatas' wherein the shares of individual owners are well-defined and the extent of each share is clearly set down in the revenue records. Secondly, it is also cleat from the wording of para, 25 (1) & (2) of the Regulation, already quoted, that no person owning area equal to an economic holding can dispose of any portion of his holding (by sale, mortgage, gift or otherwise at all while a person owning more than the area of an economic holding can only alienate such portion of it as would not reduce its size to an area below that of an economic holding. In other words, the area owned by a person (significantly the word 'possessed' is not used in para. 24 of the Regulation) in one revenue estate/mauza, whether in one or in more than one 'khata' is to be treated as the basic unit for determining whether or not he can legally alienate any part of the land owned by him in another revenue estate mauza is not material for this purpose. For instance, if a person owns, say, 10 acres of land in one khaki of the village exclusively and 45 acres of land in another joint khata, his holding for the purpose of para. 25, M. L. R. 64 would come to 55 acres ; legally he can alienate his entire holding or a portion of his bolding up to 5 acres so that the Land remaining in his ownership after such alienation is not reduced below 50 acres, i,e,, below the size of an economic holding. The object of para. 25 would, therefore, appear to be to ensure that no landowner who owns an economic holding of more than an economic holding in a village takes any action which wool 1 result in the fragmentation of that holding below the economic level. The subsequent sub-paras. (3) & (4) of para. 25 apply the same principle to a "subsistence holding."
11. Another point of some interest is that the language used in para. 25 of the Regulation is distinguishable from the language employed in para. 23 of the Regulation. In case of para. 25, the emphasis is on 'a person' who ownes more than the area of an economics holding (or a subsistence holding, as the case may be) whereas in para. 23 of the Regulation, the emphasis 14 on 'a joint holding" with an area equal to or greater than that of an "economic holding" (or a subsistence holding, as the case may be). The Legislature could easily have employed the same language in these two paras of the Regulation as both of them aim at imposing certain restrictions on the subdivision of land holdings, the former through alienation and the latter through parti ion, in order prevent fragmentation into units of less than economic or subsistence size. Whereas for purpose of partition, para. 23 of the Regulation clearly provides that a 'joint holding' would be impartible (except in specified circumstances) if the partition was to lead to its reduction below the level of an economic or subsistence holding, in case of para. 25 the restriction is not in terms of joint or individually owned holdings as such but in regard to the total area or areas of land owned by a person in a revenue estate or mauza. Furthermore, para. 23 provides that joint holdings shall not be partitioned except under certain conditions, and one of the exceptions to the rule is "where the joint holders own other land in the same deh or village and the partition has the effect of such holder owning, whether individually or jointly, a holding with an area not less than that of an economic holding". In other words, it is recognised that partition of a joint holding can be permitted where an individual co-sharer in a joint holding can show that the area falling to his share as a result of partition, combiied with any other land in the same deh or village, taken together, would constitute an economic holding. Otherwise the words "such owning, whether individually or jointly" would become meaningless.
12. From the foregoing discussion it is clear enough that the wording and contents of para. 25 of M.
L. R. 64 read with the definitions of the terms "economic holding" and "subsistence holding" as given in para. 2(2) and (11) of the same Regulation, refer to the total area owned by 'a person' in one revenue estate village. This wording makes it abundantly clear that for pm; poses of restrictions on alienation of land under para. 25 of the Regulation, it is the holding of "a person" in the village/estate and not that of "persons" jointly owning land in one joint khata, which is to be taken into account. For instance, it is quite feasible that a person may own 10 acres of land in a joint holding comprising, say, 60 acres and another 40 acres in another joint holding comprising, say, 90 acres. If the law was interpreted to mean that a person could alienate his share in a joint holding so long as it did not reduce the joint holding to less than an economic unit, he would be able to alienate his shares in both the holdings; whereas if the entire area of land in his ownership in a village/estate was taken together to constitute his holding, he would be prevented from alienating any portion of his land because the total area owned by him would amount to the size of an economic holding of 50 acres. If a landowner was to be permitted to alienate portions of his land situated in different joint khatas on the ground that no damage would be done so long as each of the joint khatas in which he has a share was not reduced below the size of an economic holding, this would lead to many absurd results of this kind. The co-sharers of a joint holding are not a single entity in the eyes of law; a joint holding is not a joint stock company or an institution or a corporate body of persons. In pars 2(7) of the Regulation, the word "person" has been defined to include religious, educational and charitable institution, a trust, a Hindu undivided family, a company or association or body of individuals, and a co-operative or other society, etc. It is quite clear from this definition that, in each case, the 'person' must have one legal entity either as an individual or as an institution or body corporate ; it is significant that a 'Hindu undivided family' has been mentioned that but not a Muslim family, divided or undivided. The persons who are co-sharers in a joint holding, even if closely related or bound by other ties, do not come within the definition of the word "person" as used in M. L. R. 64, except where they are members of a joint Hindu family. Surely, this is not the position in the present case.
17. I have therefore come to the conclusion that it is the plain intention of par seraph 25 of the Regulation that the words "a person" used therein should mean to individual person holding land in a particular village and not co-sharers holding land in a joint khata. There can be, and usually are, a large number of khatas in a village, including both joint and single holdings. Consequently, I further hold that the cases referred to by the learned counsel for the respondent, namely Ahmed Din and others v. Chiragh Din decided by Chief Land Commissioner, West Pakistan, and Abdullah and others v. Ghulam Muhammad and others decided by the then Chief Land Commissioner, Punjab, do not lay down good law. If the interpretation given in the aforesaid cases was to be accepted, it would be quite incomprehensible as to why the Legislature explicitly laid down that for purposes of pares. 23 and 25 of M.L.R. 64, the term "economic holding" would mean such holding comprising an area or areas within one estate or mauza deli. Because, in that case, it could easily have been clarified, by means of an Explanation or otherwise, that in case of land comprised in a joint holding, the alienations could be made by any one or more of the co-sharers, so long as those alienations did not reduce the size of the joint holding or khata as such. The object of the Legislature, however, obviously was to ensure that individual land owners did not fragment the land owned by them in a village, if the total area in their ownership was of the size of 'economic' or 'subsistence' holding. The purpose was not to restrict all the owners of a joint khata collectively (considering that their number may range from three in the present case to three hundred and more in others) from preserving the area of their joint holdings intact and ensuring that any one of such joint holdings did not fall below the level of an economic or subsistence holding, as the case may be.
14. I am therefore of the considered view that the transaction involved in Mutation No, 128 whereby the holding of the declarant Mst. Reale Begum respondent was reduced in Chak No, 432/IB to an area of less than economic holding I e. To an area of 439 leaned, and 13 marles was hit by para. 25 of M. L. R.
64. All alienations of land subsequent to Mutation No, 128 (namely Mutations Nos, 131, 132, 133, 135, 136 of the same village) are also consequently invalid. The land involved in these transactions shall be added to the holding of the declarant, which shall be redetermined by the Deputy Land Commissioner in accordance with the law.
15. The order in this case was reserved. It shall be communicated to the respondent.