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Land Reforms Regulation, 1972 [M. L. R. 115]---

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----- Para. 7(1)(b) read with Constitution Pakistan (1973), Art. 199-Writ ---Tribunal not giving any categorical finding whether it at all believed: transaction of gift as alleged or whether in its view though transaction took place yet it was not bona fide-Bona fides of transaction in favour of heir not required to be gone into under second proviso to, para. 7(1)(b),----Distinction between two concepts to be clearly noticed.

Abdul Aziz Qureshi for Petitioners.

A. S. Najam, A. A.-G. II assisted by M. Saleem Malik for Respondents.

Date of hearing : 27th March 1974.

KARAM ELAHEE CHAUHAN, J.-On 2nd November 1971-, Hayat Muhammad, petitioner No. 1, allegedly executed an agreement wherein he recited that he had to pay dower of Rs. 1,00,000 to his wife Mst. Alam Khatoon, petitioner No. 2 and that he would transfer land to her in lieu thereof. On 17th November 1971, one Imdad Ali Shah son of Najaf Shah; who posed himself as a Karinda' of Hayat Muhammad allegedly made a report to the Patwari which was entered as Report No. 123 in his Rozanamcha Waqiati, which reads as follows:----

As is self-evident from the aforesaid report the Patwari did not enter any mutation and the things remained as they were. However, on 11^th March 1972, came into force Land Reforms Regulation-(M. L. R. 115) of 1972, in Para. 7(1)(b) whereof it was written that any transfer made by a declarant between the 1st March 1967 uptill 19th December 1971 shall be deemed always to have been void and the land so transferred shall be deemed always to have been owned or possessed by the vendor. Realising this, Mst. Alam Khatoon filed a civil suit on 28-4-1972 in which he claimed that the land in dispute had already been gifted to her and prayed that a declaration about her ownership regarding the land in dispute may be granted. This suit was decreed on 30-5-1972 with the consent of her husband Hayat Muhammad.

2. The case of the husband was taken up for scrutiny by the Deputy -Land Commissioner, who, by means of his order dated 18-6-1972, opined against the transfer hereinbefore mentioned and sent the matter to the learned Land Commissioner, who, by means of his order dated 12-7-1972 rejected the transaction mentioned hereinbefore. The matter was taken up in revision/appeal to the Additional Chief Land Commissioner where it was first vetted by his Legal Adviser on 1-6-1973 who recorded a note in favour of the validity of the transaction. However, the learned Additional Chief Land Commissioner rejected this transaction on the ground that the possession was not transferred and the gift was not complete. His order is dated 27/28-7-1973. A further revision was filed before the Federal Land Commission but without any success, as the same was dismissed on 1-12-1973. The husband and wife have come up in writ petition against the aforesaid .proceedings and orders to this Court.

3. We have heard learned counsel for the parties at length and in our view the case, is such which needs to be remanded to the Federal Land Com mission. The reason for our view is that the Federal Land Commission has not given any categorical finding whether it believed the transaction herein before mentioned at all to have taken place or whether its view was that the transaction did take place but otherwise it was not a bona fides transaction. The distinctions between these two concepts have to be succinctly noticed inasmuch as under Second Proviso to Para. 7(1)(b) of the Regulation bona fides of a transaction in favour of an heir are not to be gone into. The learned Federal Land Commission had made certain observations regarding the amount of dower in lieu thereof the present transfer was made but those observations are not clear to indicate whether it was the bona fides of the transaction which was being disputed or the existence of the transaction otherwise was not being accepted.

4. The result is that due to the fallacy hereinbefore mentioned the order of the Federal Land Commission in this case is hereby set aside and the writ petition is accepted to that extent. The case should be remanded to the learned Federal Land Commission for deciding the revision petition afresh in accordance with law after keeping in view the distinctions above highlighted and after hearing the parties and allowing them to raise such pleas which they may like to raise before it. There shall however, be no order as to costs.

S. A. H. Petition accepted. Case remanded.

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