Mst. SHARIFAN Versus FEDERAL LAND COMMISSION, ISLAMABAD
1. CH. IJAZ AHMAD, J.‑‑‑ We intend to decide the following writ petitions by one consolidated judgment having similar facts and law and arising out of same order:‑
2. W.P.No. 2774 of 1976 and W.P. No.2775 of 1976.
2. The brief facts out of which the present writ petitions arise are that respondent No.5 Sardar Rafiq Ahmad Khan gifted land measuring 206 Acres and 4 Kanals situated in Village Thatta Khairu Matmal, Tehsil Hafizabad, District Gujranwala in favour of the petitioners vide Mutation No.485 which was attested by the Revenue Officer on 25‑3‑1971. Respondent No.5 submitted his declaration form before the Deputy Land Commissioner under the provisions of Land Reforms Regulation No.115 of 1972. Under the provisions of aforesaid regulation, the Deputy. Land Commissioner scrutinized the declaration form of aforesaid declarant and came to the conclusion that the aforesaid gift was valid vide order dated 9‑6‑1972. The Deputy Land Commissioner sent the papers to the Land Commissioner under the provisions of the aforesaid regulation for approval. The Land Commissioner vide order dated 13‑6‑1972 held that the transaction was complete but he declared it void on the basis of Para.7(1)(b) Explanation‑II of the aforesaid regulation. The original declarant being aggrieved filed a Revision Petition before the Chief Land Commissioner. The was amended during the pendency of revision petition. The Chief Land Commissioner sent the case to the Land Commissioner for disposal who upheld his earlier order vide order dated 18‑10‑1972. The original declarant being aggrieved tiled review petition before the Land Commissioner who dismissed the same vide order dated 14‑12‑1972. The original declarant being aggrieved filed revision petition before Chief Land Commissioner which was entrusted to the Additional Chief Land Commissioner who dismissed the revision petition vide order dated 17‑5 1973. It is pertinent to mention here that during the pendency of the revision petition of the original declarant the petitioner came to know of it and therefore, they also filed revision petition being aggrieved by the aforesaid orders before the Chief Land Commissioner which was also entrusted to the Additional Chief Land Commissioner. The learned Chief Land Commissioner dismissed the revision petition of the petitioners on 22‑9‑1973 without hearing the petitioners on the basis of his earlier order dated 17‑5‑1973 passed in the revision petition tiled by the original declarant. The petitioners and original declarant being aggrieved by the aforesaid order filed two revision petitions before the Chairman Federal Land Commission who dismissed both the revision petitions by one consolidated order dated 27‑3‑1976. Hence these writ petitions.
4. Learned counsel of the petitioners submits that Tribunals below have decided the cases against the petitioners without applying their mind. They further urge that orders of the Tribunals below are result of misreading and non‑reading of the record. They further submit that impugned orders are in violation of the mandatory provisions of. Para.7(1)(b) Explanation‑II of the aforesaid regulation. They further urge that Tribunals below erred in law to non‑suit the parties on the ground that the parties were governed by custom before 1947 and the land could only be inherited by the male heirs and not by the petitioners. They further urge that Tribunals below misconstrued para.46 or 46‑A of the Rehabilitation and Settlement Scheme which I clearly reveals that the case of inheritance of the deceased right holder would be governed by Shariat Law. In support of their contentions they relied upon the following judgments:‑‑
(1) Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791)
(2) Muhammad Qasim Khan v. Mst. Mehbooba (1991 SCMR 515).
(3) Muhammad Aslam v. Abdul Hameed (1991 SCMR 552).
(4) Ali Begum and others v. Zardad Khan and others (1994 SCMR 1140).
3. They further provided following family tree of the parties to show that the case of the parties falls within the parameters of Para.7(1)(b) Explanation‑II of the aforesaid regulation
4. Maula Bux
5. (Petitioner)
6. Muhammad Taqi real uncle of the petitioners and respondent No.5 died in 1927 and his entire estate passed on to his widow Mst. Janat Bibi as limited owner under the customary law. Mst. Janet Bibi died in 1947 on her way to Pakistan. A mutation of inheritance was sanctioned on 18‑2‑1953 in Village Sansra Goraya Tehsil and District Gujranwala giving half share to respondent No.5 and remaining half share of other collaterals of last male owner but the petitioners had been excluded in utter violation of provisions of the Rehabilitation laws according to which such mutation of inheritance was to be governed by Shariat law. The petitioners being aggrieved filed appeal before the Deputy Commissioner/ Deputy Rehabilitation Commissioner. Gujranwala against the aforesaid mutation who accepted the same vide order dated 14‑3‑1974. They further submit that another mutation of inheritance was sanctioned on 11‑11‑1964 by Deputy Rehabilitation Commissioner where a part of the land had been allotted to the heirs of Sardar Muhammad Taqi. This mutation was also sanctioned by the Rehabilitation Authorities in violation of the rehabilitation and settlement scheme. Mst. Qureshan and Nafees Ahmad heirs of Mst. Aisha, a deceased sister of respondent No.5 challenged the said mutation in the Court of Additional Settlement and Rehabilitation Commissioner, District Jhang on 8‑3‑1975 wherein the petitioners, respondent No.5 and other heirs of Sardar Muhammad Taqi the last male owner were made parties. The rights of the petitioners in the inheritance of Sardar Muhammad Taqi was admitted by all the parties and finally a family settlement arrived between the parties before the Additional Settlement and Rehabilitation Commissioner on 8‑6‑1966 as is evident from order dated 8‑6‑1966 and the revision petition had been finally withdrawn as compromised vide order of Additional Settlement and Rehabilitation Commissioner Jhang dated 8‑6‑1966. It is pertinent to mention here that the petitioners stated in the grounds of writ petition that the aforesaid order is on the record of Courts below. This fact was not specifically denied by the respondents in report and parawise comments and simply stated that it is for the petitioners to prove. They further urge that name of Hajran Bibi is mentioned in Registrar Haqdaran Zamin for the year 1987/88 and name of Khair‑un‑Nisa in Register Haqdaran Zamin for the year 1987/88 as is evident from P.3 and P.8 filed by the petitioners before this Court through C.M. No.946 of 2001 in W.P. No.2775 of 1975. They further urge that Register Haqdaran Zamin also contain the name of the petitioners and respondent No.5. They summed up their arguments that Mst. Hajran was admittedly a widow, therefore, her case is fully covered under Para. 7(1)(b) Explanation‑II. Mr. Fowzi Zafar, A.A.‑G submits that all the Tribunals below have given concurrent finding of fact against the petitioners. Therefore, writ petitions are liable to be dismissed. He further submits that case of the petitioners does not fall within parameters prescribed under Para.7(1)(b) Explanation‑II. He further submits that mutation in question does not reveal at all that same was executed in view of the settlement arrived between the parties in the year 1966. He further submits that petitioners and respondent No.5 failed to bring any material on record to show that family settlement arrived between the parties. He further submits that petitioners have failed to place on record Mutation No.485 dated 25‑3‑1971. He further submits that this Court has no jurisdiction to substitute its own findings in place of the findings of Tribunals below. So far as the documents filed by respondent No.5 through application before this Court have no relevancy to resolve the present controversy as the aforesaid documents were not before the Courts below.
5. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. It is admitted fact that Mst. Hajran petitioner No.3 was a widow at the time of execution of gift through Mutation No.485 dated 25‑3‑1971. Therefore, her case is fully covered under Para.7(1)(b) Explanation‑II as per principle laid down by the Honourable Supreme Court in Mst. Suraya Mamdot and others v. Member Federal Land Commission, Rawalpindi (PLD 1992 SC 196). It is pertinent to mention here that petitioners failed to place on record following documents:‑‑
(1) Mutation No.485 dated 25‑3‑1971.
(2) Family settlement/compromise arrived between the parties before the Additional, Settlement and Rehabilitation Commissioner Jhang on 8‑6‑1966.
(3) Order of Additional Settlement and Rehabilitation Commissioner Jhang dated 8‑6‑1966.
7. The Land Commissioner mentioned the fact of compromise in para.2 of the impugned order. Similarly Chairman Federal Land Commission also mentioned this fact in para.7 of the impugned order. The petitioners have taken a specific ground in ground (iii) that order of the Additional Settlement and Rehabilitation Commissioner Jhang dated 8‑6‑1966 is on the record of the Courts below but the respondents did not deny this fact specifically. The reply of ground (iii) submitted by the respondents is to the following effect:‑‑
8. "It is for the petitioners to prove."
9. The respondents also did not attach Mutation No.485 dated 25‑3‑1971 along with the report and parawise comments.
10. These two documents are necessary to resolve the controversy between the parties. The impugned order of the Chairman Federal Land Commission reveals that he had countersigned the orders of his subordinates without applying his independent mind. Therefore, the same is not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in Ghulam Mohyuddin's case (PLD 1989 SC 829).
11. In view of what has been discussed above, these writ petitions are allowed, the impugned orders are set aside and the case is remanded back to the Chairman Federal Land Commission except the case of Mst. Hajran. The Chairman Federal Land Commission is directed to decide the case afresh after scrutinizing all the material available on record with cogent reasons.
12. H.B.T./S‑392/L Petition allowed.