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Constitutional Petition No. D‑602 of 1978, decided on 19th March, 1986.

‑‑‑Para. 7‑‑Transfer of land‑ ‑Voidness‑‑Transfer of land and creation of any right or interest in, or encumbrance on any land, made between specified dates would be deemed to be void irrespective of legality or otherwise of transaction‑‑Land so transferred between specified dates, held, would be deemed to be owned or possessed immediately before such date‑‑While scrutinizing such transaction, only factor relevant and to be considered would 'be bona fide of such transaction.

‑‑‑Para. 7‑‑Sale‑deed, non‑registration of‑‑Effect‑‑Mere non‑execution) registration of sale‑deed, held, would not invalidate a sale transaction if de fecto purchasers were exercising right of owners after having possession of land in pursuance of oral sale.

P L D 1981 Kar. 393; Abdul Hamid Khan v. Officer on Special Duty, Federal Land Commissioner 1981 C L C 719; Haji Muhammad Umar v. Officer on Special Duty, Federal Land Commission and 3 others 1984 C L C 1868 and Abdul Rehman and 2 others v. Federal Land Commission and 2 others 1984 C L C 2586 ref.

‑‑‑Par. 7‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Alienation of land‑‑Non‑execution/registration of sale‑deed‑‑Transaction by which alienation of any land is made need not be de sure for purposes of Land Reforms Regulation, 1972‑‑Alienation which is de fecto in nature, held, would also be effective even if requirements of registration of de have not been complied with‑‑Order of Authority declaring such transaction void could not be sustained and would be declared to be without lawful authority and of no legal effect in constitutional jurisdiction of High Court.

A.S. Wasvani for Petitioners.

Respondents (absent).

Date of hearing: 5th March, 1986.

This petition is directed against the order, dated 27‑12‑1976 passed by the respondent No. 1 in exercise of suo motu powers vested under para. 29 of Land Reforms Regulations (M.L.R. 115) of 1972 declaring alienations made by the respondent No. 4 in favour of petitioners Nos. 1 and 2 as invalid.

The facts leading to the filing of the petition are that respondent No. 4 is the father of petitioner No. 1 and husband of petitioner No. 2. The respondent No. 4 owned agricultural land in Deh Jamali, Bhutta and Imam Bux which he sold in equal shares to the petitioners for Rs.55,000 on 19‑8‑1971 by way of statement before the Mukhtiarkar and the record was accordingly mutated. It has been averred that the respondent No. 4 transferred his agricultural land to the petitioners 1 and 2 and also his mother Mst. Sewal Bai‑in Deh Ishaq and Deh Quba by way of statement before the Mukhtiarkar and the mutation record was also corrected. It is the case of the petitioners that they became the recorded owners of the said land in their own exclusive rights and they continue to be in possession thereof. It is the case of the petitioners that they had sold their agricultural land to other persons and the mother of the respondent No. 4 also sold her share to other persons in her lifetime. On the promulgation of Land Reforms Regulation, 1972 the respondent No. 4 disclosed the entire holding of agricultural land and the alienations made by him in favour of the petitioners and others during the specified period before the competent authorities as required thereby. The then Land Commissioner accepted the above transactions and held as bona fide vide Order, dated 9‑7‑1972. However, the petitioners and the respondents No. 4 received a notice from the respondent No. 1 under suo motu revisional powers as mentioned above. In consequence thereof the impugned order, dated 27‑12‑1976 was passed and the above transactions were held as void on the grounds of contravention of section 54 of Transfer of Property Act and on the ground of inadequacy of power. The petitioners being aggrieved by the above impugned order have filed this petition on the grounds disclosed in the memo of petition.

Mr. A.S. Wasvani the learned counsel for the petitioners has contended that the ground on which the above transactions have been held void is not sustainable in law.

In order to appreciate the above contention of the learned counsel we may refer to para. 7 of M . L. R . 115 of 1972 which reds as under:‑

117. Certain transfers void.‑‑ (1) Save as otherwise provided in this Regulation‑ (a) The Transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the twentieth dap" of December, 1971 by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to fifteen thousand units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1969 and Rabi 1969‑70) whichever shall be greater shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before that date:

Provided that in the case of a person to whom the provisions of sub‑paragraph (2) of paragraph 8 apply, no such transfer or creation of any right or interest or encun1bsance shall be void unless he was hnlding on the said date an area wore than eighteen forward produce index units;

(b) save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever by any person holding on first March, 1967 an area equivalent to more than fifteen thousand produce index units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1966 and Rabi 1966‑67), shall be and shall be demand always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been owned or possessed, as the case may be, by the person by whom it was owned or possession immediately before that date:

Provided that nothing in this clause shall apply to an alienation made by a person in favour of his heir.

Explanation I.‑‑ For the purposes of this sub‑paragraph and paragraph 10 an heir shall mean the owner's wife or wives, sons, daughters, father, mother,., and sons, and daughters of a deceased son or daughter.

"Explanation II.‑‑Where any ,such transaction as is referred to ire clause (b) of this scab‑paragraph has resulted in the transfer of .' any land or the creation of any right or interest in or encumbrance on any land in favour of a member of the owner's family or the reversion of such land to such owner or member, whether through the intermediation of a third person or otherwise, such transaction shall be deemed to be void, sand the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before such transfer or encumbrance.

Explanation Ill.‑‑In determining whether a transaction referred to in clause (b) of parapgraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors:‑

(1) Whether adequate consideration has been paid by or on be have of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created:‑‑

(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created;

(iii) who has been paying the land revenue and other ‑ charges in respect of such land;

(iv) who has been receiving the rent for or Batai share from such land.

(2) if any question arises whether any transfer or other transaction is or is not void under sub‑paragraph (1) the decision of the Commission thereon shall, subject tai the provisions of paragraph .., 29, be final.

(3) Nothing in sub‑paragraph (1) shall apply to any transfer of land or the creation of any interest or right of encumbrance on any land made by a person who held on 20th December, 1971, land in excess of the permissible limits under paragraph 8, 70 after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits."

A bare perusal of the above shows that for the purposes of aforesaid paragraph, transfer of land and the creation of any right or interest in or encumbrance on any land made between the target dates shall be and shall be deemed to be void, irrespective of the question whether these transactions are legal or not and the land shall be deemed to be owned or possessed immediately before the date. However, when scrutinizing such transactions in terms of para. 7(1)(b) the only factor which appears to be relevant and to be considered is bona fide of the transactions. His contention is that the alienation or transfers in question made by the respondent No. 4 in favour of petitioners 1 and 2 cannot be struck down by the respondent No. 1 on the ground that the transactions suffered from legal technicalities on account of alleged want of registration by section 54 of the Transfer of Property Act and on account of inadequacy of price.

There is force in the above contention of the learned counsel. It would be observed that for the purposes of Land Reforms Regulation M.L.R. 115 of 1972 transactions by which alienation of any land is made need not strictly be de sure, but alienation which is de fecto in nature would also be effective even if requirement of reistration of the deed has not been complied with.

We are of the view that mere non‑execution /registration of sale‑deed would not invalidate a sale transaction if de fecto purchasers were exercising the right of owners after having the possession of the land in pursuance of an oral sale without execution and registration of the sale‑deed. In this regard reference may be made to the case of Sachnand and another P L D 1981 Kar. 393. The other ground, namely, inadequacy of consideration alone itself has been held not sufficient to invalidate the transaction for the purpose of M.L.R. 115. In this regard reference may be made to the case of Abdul Hamid Khan v. Officer on Special Duty, Federal Land Commissioner 1981 C L C 719. This case followed in the following cases:

(1) Haji Muhammad Umar v. Officer on Special Duty, Federal Land Commission and 3 others 1984 C L C 1868.

(2) Abdul Rehman and 2 others v. Federal L Commission and 2 others 1984 C L C 2586. ,

In the above circumstances of the case, we find that the impugned order passed by the respondent No. 1 on 27‑12‑1976 cannot be sustained and the same is declared to have been passed without any lawful authority and is of no legal effect and accordingly the same is quashed.

The above are the reasons for our short order passed on 5‑3‑1986 accepting the petition. Since the petition has not been defended by respondent No. 1, there shall be no order to costs.

A . A . Petition allowed.

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