Ownership in Urbanized Shamilat

OWNERSHIP IN URBANIZED SHAMILAT OWNERSHIP IN URBANIZED SHAMILAT By Muhammad Masood Asghar1, Civil Judge, Punjab Background It's unfortunate that in our country, where an immovable property cannot exist without an owner2, some people are found saying that they have only rights to possession and no title. Their property is transferred through contracts with incomplete transactions--without transfer of legal title3. Problems arise when revenue record is not kept in detail for an area either due to the fact that it is located in 'shamilat'4 or 'abadi deh'5 and with the flux of time and increase in population, urbanization takes place. We come across 'fards'6, showing some land as shamilat deh, although entire land has become urbanized. The area falls within the limits of a municipality and becomes subject to property tax assessment. People occupying such kind of places have to rely on record of Excise and Taxation Department in the shape of P.T.1 Form7 as they cannot trace their names or those of their predecessors in the revenue record8. It is held by our Supreme Court9 that P.T.1 Form is not a title document. So, persons in occupation think that they cannot formally transfer, inherit or divide this kind of property and they enter into agreements without transfer of a formal title. This article deals with point of ownership in common lands (which is a purely agricultural and village-related concept) when it becomes urbanized on ground and no village exists but in the revenue record it stays classified as shamilat and not formally out of scope of The Punjab Land Revenue Act, 1967.This work attempts to highlight misconception of the people and suggest solution. For some, it may serve as a starting point for discussion on the problem. Shamilat We need to know that concept of shamilat is a concept that is dependent on the existence of a body of land owners, agricultural land and a village. When urbanization takes place and neither agricultural land exists nor does any village or its proprietary body, what's the use of having a concept of a piece of land meant for the common use of village owners? In the situation, concept of common lands cannot exist except for creating confusion in the minds of persons concerned. Moreover, concept of shamilat applies due to application of The Punjab Land Revenue Act, 1967. After urbanization, Revenue Authorities need to issue necessary notification10 and update revenue record accordingly but if they donot perform their obligations under the law, courts cannot continue to treat the land as shamilat indefinitely. There have been instances when our Superior Courts treated land as outside the scope of The Punjab Land Revenue Act, 1967 despite absence of a formal notification by the Board of Revenue.11 Our Supreme Court observed12 that real test is to see whether or not the land has lost all the characters of agricultural land and has changed into residential or commercial property. If a land is neither assessed to land revenue nor cultivated for some time and permanent structures have been built, that are not used for any purpose subservient to agriculture13, it loses all characteristics of agricultural land14 and consequently fiction of shamilat land. Similar instances from Indian Courts are also available.15 Further, Lahore High Court observed that it is not necessary that an urban property be incorporated in revenue record.16 Status of an urbanized shamilat land became complicated due to the fact that land owners have not been conscious about their proportionate and joint ownership in shamilat. Many of them transferred their titles in the land without specific mention of corresponding share in shamilat. Under the law17, share in shamilat is not included in a transfer of property unless it is specifically mentioned in the subject matter of the disposition. As land changed more and more hands, without mention of share in shamilat deh land, it became increasingly difficult to trace an actual owner of the land in an urbanized shamilat. Law18 envisaged that even if whole of land owned by a person in a village was sold without sale of corresponding share in shamilat, he would retain right to graze his cattle in the old pasture of shamilat. But, what if no pasture or cattle existed any more? What if that owner is absent for at least seven years?19 Concept and all the legal fiction attaching to shamilat would vanish. Shamilat came into being by a resolution and understanding of the original owners at the time of settlement of a village that some land will be used for common purposes like graveyard, Masjid and other community activities. (i) When the land was sold and resold without corresponding share in shamilat land, (ii) no land remained for exercise of their right to graze their cattle but only a cluster of residential and commercial property and (iii) when the land owner is a long time absentee, the court may bury the very concept of shamilat and infer that a private partition of the land has taken place and people in possession have exclusive ownership. This can be done if transfer in their favour can be sourced back in a series of sellers or if they have a long occupation. In this scenario, PT.1 form may have to be relied upon in absence of any other claim of title.20 Authorities banning title on the basis of adverse possession21 do not cover the case of a bona fide possessor. Bona fide possession gains significance when there is neither any private person claiming any kind of ownership on the property nor the state. Ownership is a concept akin to possession. Historically, the notion of possession emerged first, with the concept of ownership gradually evolving from it. According to Dr. Sethna22, the relationship between ownership and possession is same as that of body with soul. Just as existence of body is necessary for the realization of soul, likewise possession is necessary and useful for the expression of the ownership. Ownership is not dependent on any particular entry in the revenue record as people owned property even when no such record was kept. Ownership is a guarantee of law. According to Kocourek23, ownership is a matter of legal protection. It is the duty of courts in its plenary jurisdiction to declare who is owner of a property and that jurisdiction gains even more significance in the position discussed above. What is that courts are expected to do in scenario discussed above? When it comes to courts, we can be rest assured of one thing that they can never be helpless; otherwise they would not fulfil their role as courts. Courts have inherent power to do an act that is needed to be done for the sake of doing an obvious justice in a case. This power of courts exists independently of any statutory recognition. While many judges and lawyers prioritize certainty in legal proceedings, it is essential to remember that a litigant knocking the door of a court is almost always under an expectation that justice will be served to him. That justice is sometimes quite opposite to certainty, that is obtained through strict adherence to the letter of the law. "Law has no definition except in a particular context"24. Over the years, jurists have not been able to agree on a single and all encompassing definition of law. I suggest that keeping this broadness of concept of law in mind, courts should endeavor to avoid an undisputed injustice. So, courts should step in to do equity if a plaintiff is able to make out sufficient grounds. Abadi Deh Abadi Deh is included in Shamilat.25 If the property is lying in an area that was once an abadi deh, we should know that state has conferred ownership rights to occupying non-proprietors. As state is owner of all unclaimed properties26, grant of ownership by state is one of the best forms of ownership. The Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act (The Act) was enacted in 1995. It says that all rights, title and interest in 'abadi deh' land situated under the house of a non-proprietor, vested in him on the passage of the Act.27 It meant maturity of an originally non-proprietary interest into a proprietary one despite absence of proprietary grant from Khewatdars.28 However, this evolution of a non-proprietary interest into a proprietary one is only for landless people and not for the ones having other land in the 'Khewat'.29 The evolution is not that uncommon. Even the original land owners of a village at first merely made an unattended waste land cultivable by digging up a well etc. Gradually, their interest in the land matured into ownership. A person, who wants to get his ownership rights acknowledged, may approach collector of the area30, who is in a good position to decide given that he has access to the record of abadi deh. If he commits some legal mistake, his decision can be challenged before civil court31. A person seeking benefit of the enactment, may approach civil court for declaration of the rights accrued in his favour by operation of law. The person seeking to establish his proprietary rights will have to prove that; 1. The land claimed by him is within abadi deh, 2. He has been in possession before 13th February, 1995 (The date of commencement of The Act), 3. That his possession is bona fide (as law does not protect trespassers), 4. He has built a house on it before 13th February, 1995, 5. He does not own any other land in the khewat. In the end, I would like to clarify that this article does not aim at laying down a definitive rule that ownership of a possessor in an urbanized shamilat should always be acknowledged. Of course, every case has to be looked into on the basis of its particular facts and circumstances. However what I intend to suggest through this work is that (i) courts should not depend on revenue record when it has no relevance, (ii) they should promote equity to avoid a clear injustice (iii) that there is a genuine possibility for a declaration of ownership and consequential reliefs concerning this kind of property and (iv) there is need of legislation on the regulation of the shamilat. 1 Author is a Civil Judge working in Punjab under Lahore High Court. This Article has been accomplished by the Author in his personal capacity. The opinions expressed in the article are author's own and will not reflect the view of the Organization wherein he is working. 2 See article 172 of The Constitution of Islamic Republic of Pakistan, 1973 which states that 'Any property, which has no rightful owner shall, if located in a province, vest in the Government of that province and in every other case, in the Federal Government'. It follows from it that if either the federal or the Provincial Government does not own a property, then private individuals shall own it. 3 A title of property complying with all the formalities prescribed by law and recognized & enforceable at law as opposed to only an equitable title to which a person is entitled only in equity. 4 See section 2 of The Punjab Land Dispositions (Saving of Shamilat) Ordinance, 1959 which states " "Shamilat" means land described as such in the Record of Rights, and the land so described, shall be deemed to be Shamilat, notwithstanding that the whole or a part of it is in the possession of one or more of the proprietors in the estate, or of any other person." It is a land in a village which is jointly owned and possessed by the landowners of that village and is meant to be used for the common purposes of the village community. Sometimes referred to as common lands. 5 See section 2(1) of The Punjab Conferment of Proprietary Rights on Non-Proprietors In Abadi Deh Act, 1995, which states that "abadi deh' means and includes an area which is recorded as abadi deh in the record of rights prepared under the Punjab Land Revenue Act, 1967(XVII of 1967) but does not include an urban area;" It is an area where village owners set up their dwelling and was collectively owned by them. It is also known as 'Gol Kara'. 6 It is an official document that provides information about a piece of land, including its area, location and ownership details and is prepared on the basis of revenue record. 7 PT.1 register is the basic document in property tax record, where particulars, descriptions, ownership, possessions and rental value of properties are mentioned. 8 Record of ownership, rights and revenue related matters of land property maintained under The Punjab Land Revenue Act, 1967. It serves as the largest database and most relied upon record of ownership. 9 In case law reported as 2007 SCMR 181, declaring that P.T.1 Form is not a title document and no decree can be passed on its basis except a decree of protection of possession. Although it is a leave refusing order, technically having no precedential value, but it has been relied upon by our High Courts in a number of rulings. 10 Under section 3 of The Land Revenue Act, 1967 11 The authority empowered to issue notification (under section 3 ibid) that a particular area is not subject to assessment and collection of land revenue. 12 In case law reported as 1997 SCMR 1792 13 See case law reported as 1989 SCMR 1564, 1987 SCMR 1426 and 1974 SCMR 356 wherein use of building for any purpose subservient to agriculture has been taken as a consideration for determining nature of land and thereby the applicable laws. 14 See case law reported as PLD 1965 Lahore 429 15 See Patram v. Gram Panchayat Katwar (2020) and Jai Karan and others State of Haryana and others (2023) 16 See case law titled Qasim Ali alias Muhammad Qasim v. Muhammad Ashraf etc. with Civil Revision No. 1523 of 2014 date of hearing/decision 20.11.2018 17 See section 3 of The Punjab Land Dispositions (Saving of Shamilat) Ordinance, 1959. May also see rule 18.16 of Land Record Manual. 18 The Punjab Land Dispositions (Saving of Shamilat) Ordinance, 1959 as interpreted in case law reported as 2019 YLR 1287 19 See paragraph No. 281 of the Settlement Manual read with rule 7.21 of the Land Record Manual. 20 See case law titled Qasim Ali alias Muhammad Qasim V Muhammad Ashraf etc. with Civil Revision No. 1523 of 2014 & date of hearing/decision 20.11.2018. In this case honorable Lahore High Court relied solely on PT.1 Form for decreeing a suit for partition. 21 Case law reported as 1991 SCMR 2063 is the mother judgment on the point that is relied upon in a few later rulings. 22 Dr. M.J. Sethna, a famous Indian Jurist and author of Jurisprudence: Its Nature and Scope. 23 Albert Kocourek (1875-1952) was a professor of law and author of various books on law. 24 Sir Ivor Jennings, a prominent British lawyer and academic, said this in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press, 1933 (page 83) 25 See case law reported as PLJ 2004 Lahore 1004 26 See footnote No. 2 above. 27 See section 3 of The Punjab Conferment of Proprietary Rights on Non-Proprietors In Abadi Deh Act, 1995. 28 A term used to refer to original land owners in a khewat with proportionate joint ownership in the shamilat. 29 A unit of agricultural land independently owned and holdings of owners is recorded separately, traditionally on the basis of distinction of a particular family. 30 See section 4 of The Punjab Conferment of Proprietary Rights on Non-Proprietors In Abadi Deh Act, 1995. 31 See case law reported as PLD 1965 SC 671, 1974 SCMR 356 and PLD 1960 SC 113