2000 S C M R 1440

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ
SAYYED HASSAN through Legal Heirs---Petitioner
versus
COMMISSIONER, PUNJAB, LAHORE and others---Respondents
of 1999, decided on 28th December, 1999,
(On appeal from the judgment dated 27-10-1999 passed by the Lahore High Court, Multan
Bench, Multan, in Writ Petition No.332 of
Land Reforms Regulation, 1972 (M.L.R. 115)---
---Para. 7---Exemption---Gift of land---Entry of mutation of gift was subsequent to the
crucial date i.e. 20-12-1970; document of gift dated 4-10-1974 was- not registered one;
entries in the Register of the stamp vendor showed that the stamp paper was not purchased by
the person concerned and the document dated 4-10-1974 could not be proved to be the
genuine one constituting a complete gift under Muhammadan Law---Relevant mutations
were preceded by a narration that the disposition in question was "Tamleeq Zabani" and that
order dated 21-3-1972 passed by the Revenue Officer on all mutations explicitly stated that
donor and donees were present and donor admitted to the making of an oral gift of the land in
question in favour of donees, his: sons---Validity---Donor had neither stated in his
declaration in Form LR 1 that he had made any gift through document dated 7-4-1970 nor the
said document was genuine one in that the disputed entries in the Register of stamp vendor
clearly went against the interest of alleged donor and donees---Absence of any reference to
the, document dated 7-4-1970 in the Declaration Form of donor, thus, created genuine doubt
resulting in refusal to accept the transaction evidenced by the same to be valid in
circumstances.
Malik Abdus Sattar Chughtai, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-
Record for Petitioners.
Nemo for Respondents.
Date of hearing: 28th December, 1999.
JUDGMENT
CH. MUHAMMAD ARIF; J.---Through this petition under Article 185(3) of the
Constitution of the Islamic Republic of Pakistan, 1973 the petitioners have laid challenge to
the dismissal of their Writ Petition No.332 of 1975 by a Division Bench of the Lahore High
Court, Multan Bench, Multan with the result that the failure of their predecessor namely
Barkat Ali Shah to claim exemption of land, measuring 1325 Kanals situated in village
Jarahi, Tehsil Mian Channu, District Khanewal favouring the petitioners who are his sons,
from resumption under MLR 115 before the Land Commission Authorities was maintained.
2. It is an admitted position that the matter in relation to the alleged transfer of 1325 Kanals
of land by Barkat Ali Shah in favour of the petitioners through the mutations entered vide
Rapat No.232 dated 10-3-1972 in the Roznamcha Waqiati and attested by the Revenue
Officer on 21-3-1972, was referred by the Deputy Land Commissioner, Multan to the Land
Commissioner, Multan Division. The plea on behalf of declarants was that he had effected
the gift through agreement dated 7-4-1970 executed in favour of his sons. The Land
Commissioner perused the record of the stamp vendor and found that: (1) according to Entry
No. 1375 of the record of stamp vendor dated 7-4-1970 the stamp was issued to one Syed
Shaukat Ali Shah son of Syed Hukam Khan and (2) there were some cuttings and over
writings etc. in the Register which led him to believe that the document was not genuine. The
Land Commissioner also took notice of the fact that in the declaration filed by Barkat Ali
Shah, he had not declared that the land in question had been transferred by him to his sons
vide the said agreement dated 7-4-1970. The Land Commissioner directed that the area in
question be included in the declarants holdings. This happened on 4-10-1974.
3. Petitioners filed an appeal against the order of the Land Commissioner, Multan Division,
Multan dated 4-10-1974 which was heard by the Additional Chief Land Commissioner,
Punjab who rejected the same on 6-1-1975 with the following observations:
"3. I have considered the arguments of the counsel for the appellant and have seen the
Revenue Record. It appears that the writ petition was pending in the Lahore High Court only
with regard to the land of village Jarahi. The land in the other two Chaks was not involved in
this writ petition. The land in village Jarahi was under self cultivation of the appellant
declarants, while the land in the two Chaks was being cultivated through the tenants. No
satisfactory explanation has been given as to why proper report was not made to the Patwari
concerned regarding the gift with regard to the land involved in these two Chaks where the
mutation could be entered. The land in these two Chaks is being shown as under the
ownership of the appellant declarant, Syed Barkat Ali Shah who has since died. In view of
the clear record that the declarant was the owner of the land involved in the two Chaks on the
crucial date and no satisfactory explanation has been given for failure to report the
transaction ....Patwari for entry in Rozenamcha Waqiati and for mutation the plea of the
counsel for the appellant that this land was transferred by the appellant as gift to his five sons
cannot be accepted: On the crucial date the land claimed to have been gifted is shown as
under the ownership of the late declarant Syed Barkat Ali Shah and the same has to be
counted towards his total land holding. The appeal in respect of the land gifted in these two
Chaks is.
4. There was a writ petition pending in the Lahore High Court with regard to the land situated
in village Jarahi. It is admitted that there was a status quo order with regard to its possession
by the High Court. The land although under the ownership of the declarant was actually
under the possession of the cultivators who had filed the writ petition. In view of this position
of the land at the time of the 'Iqrarnama' no valid gift could have taken place at that time as
the possession could not be delivered to the donees to make the gift complete. The position,
therefore, seems to be that on the crucial date the ownership of the land legally vested in the
appellant declarant and its possession was with the tenants. The donees did not possess the
land. In view of this position it was rightly held by the Land Commissioner, that no proper
gift had been made of this land. The appeal with regard to the land gifted in village Jarahi is
also rejected."
A review petition filed by the petitioners against order dated 6-1-1975 was dismissed on 14-
1-1975.
4. Petitioners resorted to the writ jurisiction of the High Court through Writ Petition No.332
of 1975 with the following prayer-clause therein:
" 13. That the petitioner are the aggrieved person in the light of - order passed by the Land
Commission Authorities and if the aforesaid impugned order are not suspended, petitioners
will suffer irreparable loss. Whereof it is respectfully prayed that an appropriate writ be
issued declaring:--
(a) The impugned order dated 4-10-1974 of the Land Commissioner Multan Division and
those of the Additional Chief Land Commisioner, Punjab dated 6-1-1975 and dated 14-1-
1975 passed in appeal in Revenue respectively are- without lawful &IIho' Y and of
(b) A direction be given to Land Commission Authority via the respondent to validate the
transaction after considering the evidence which the petitioners have placed on record.
It is further prayed that during the pendency of the present writ petition ad-interim order be
granted whereby the operation of the aforesaid impugned orders is suspended. "
This writ petition was dismissed by the High Court through the impugned judgment dated
27-10-1999. .
5. Hence this petition.
6. It appears that the petitioners did not succeed before the Land Commission Authorities as
also the High Court for the reasons that:(1) the entry of mutation on 10-3-1972 was
subsequent to the crucial date i.e. 20-12-1970; (2) document dated 4-10-1974 was not
registered one and that (3) on account of the entries in the register of the stamp vendor the
stamp was not purchased by petitioner's father--Barkat Ali Shah but by Shaukat Ali Shah.
Further, the petitioners'did not succeed in impressing upon the Land Commission Authorities
as also the learned Members of the Division Bench of the High Court that document dated 7-
4-1970 was genuine one and that it constituted a complete gift under the Muslim Law. All
concerned are one on the point that all the three mutations are preceded a, narration that the
disposition in question is Tamleeq Zabani and that I dated 21-3-1972 passed by the
Revenue Officer on all the three mutations explicitly states that Barkat All Shah as well as
the donees are present and former admits to the making an oral gift of the above lands in
favour of his sons. -
7. Mr. Malik Abdus Stattar Chughtai, learned Advocate Supreme Court appearing in support
of this petition, was content with submitting that as the petitioners had been gifted the land
way back in the year 1966 and as the document dated 7-4-1970 was only confirmatory of the
fact that a gift had already been made by the donor in favour of his clients the impugned
decisions cannot sustain themselves.
8. We are afraid the pleas being raised by the learned counsel in support of his clients' case
are of little help to them. The findings of fact that neither Barkat Ali shah had stated in his
declaration in Form LR-1 that he had made any gift through document dated 7-4-1970 nor
the said document was genuine one in that the undisputed entries in the register of the stamp
vendor clearly go against the interests of the petitioners when they state that it was purchased
by Shoukat Ali Shah and not Barkat Ali Shah. The learned Members of the Division Bench
of the High Court were quite right in observing that the absence of any reference to the
document dated 7-4-1970 in the declaration form of Barkat Ali Shah " .... peaks volumes for
the doubts entertained by the Land Commissioner while refusing to accept the transaction
evidenced by the same to be valid .................... .. So far as the observations of the Land
Commissioner regarding the Register of the stamp vendor are concerned nothing has been
brought on the record so as to convince us to hold the said observations to be incorrect."
(Underlining is for emphasis).
9. No other point was urged.
10. Resultantly, the instant petition. fails and is hereby dismissed.
M.B.A./S-7/S Petition dismissed