P L D 1975 Supreme Court 574 (PLP)

The earliest extract of 1875 (Exh. P‑2) reads as follows: "Five generations ago, Hetu, common ancestor, migrated from Mauza A (village) Paniala, Tehsil Dera Ismail Khan, and took possession of the land in this village. Afterwards the common ancestors of different tribes became owners of the Chahi land by sinking wells and of the Barani land by reclamation (of waste land) with the permission of the descendants of the ancestor. Before the advent of the British Rule, the descendants of the said common ancestor were known as Zamindars and the members of other different tribes as tenants and the Zamindars used to get one Pai per Path of grain yielded by land of both kinds, i.e., Chahi or Barani under the cultivation of tenants, a Zamindari dues. During the British Rule, the Zamindars were declared as Ala Maliks (superior owners) and tenants as Adna Maliks (inferior owners) of the land in their possession and instead of on Pai per Path of grain, the Taluqdari dues were fixed at the rate of Rs. 1‑12‑0 percent of Jama (revenue) assessed by the Government during the present settlement, the entire Ghairabad (unfit for cultivation area, which was often used for gazing cattle. was considered owned by the Government, and only .a portion of it, which exists no was left over for grazing cattle. According to the order of the Assistant Settlement Officer, dated the 31st March, 1876, a boundary of the village was fixed, and the Taluqdari dues from the Adna Maliks to the Ala Maliks were fixed at the rate of Rs. 1‑12‑0 per cent. As no partition has taken place between the Ala Maliks the tenure of the village is Bilijmal Joint? according to their Rasmi (customary) shares. T lie shares being Rasmi, the statement of the proprietors is entered opposite the pedigree‑table. Every common ancestor of the Adna Maliks owned land whatever he possessed art different times. Hence one family has no concern with the other family regarding (the measure of) ownership except that of possession. Particulars regardind changes in a family are given in `remarks' appearing against it. The village Shamilat measures 9800.4.7.0. Hence the tenure of the village with due regard to possession of the Ala proprietors is Zamindari Bilijmal according to customary shares. and with due regard to possession of Adna proprietors, it is imperfect Bhavva Chara Ghair Mukamrnal. As the well known as Tinda is well‑known and the abadi of the village is situate near it, the name of the village is known after the name of that well. At first this village was included in Mauza Hetu and known as Cholistan. During the recent settlement this village has been separated as per detail given in paragraph 2 dealing with the general remarks regarding the said Mauza." The next extract (Exh. P‑8) of 1878 which relates to village Hetu, is as follows: "Formerly this area was lying as desolate jungle. Five generations, i.e., 150 years ago, Hetu, ancestor of the Ala proprietors, came from village Paniala, Tehsil Dera Ismail Khan, and acquired ownership by making this village Abad. Subsequently he, who wanted to sink a well, got the site approved by the said ancestor or his descendants and sank a well either on payment of Tappa Lagwai dues or Ihsanan, (gratis) and also took possession gratis, by reclamation of the Banjar land wherever he liked with permission of the ancestor. In this way the persons sinking a well‑acquired ownership of the area attached thereto and the occupants of the Barani land acquired ownership of tire land in their possession. The remaining Ghair Abad area was considered as Shamilat Deh, but no Pukhta (permanent) boundary of the Ghair Abad land was fixed. During the present settlement by order, dated the 31st March 1876, of the Assistant Settlement Officer, the present Ghair Abad area was granted for the grazing of cattle and a boundary of the village was fixes. Before the advent of the British rule, the descendants of Hetu, ancestor were known as Zamindars a as all the other occupants of wells and Barani land as tenants. The Zarmntiars used to receive from the tenants one Pai per Path of grain out of the entire produce. During the previous summary settlement the Zamindars were declared as Adna proprietors and the tenants as Adna proprietor of their respective possessions. The rate of Taluqdari dues was fixed at Rs. 1‑12‑0 per cent of the net land revenue instead of one Pai Per Path of grain. Hence tire tenure of this village with due regard to the proprietary possession of the Ala proprietors is Zamindari Bilijmal and with due regard to the possession of the Adna proprietors it is incomplete Bhayyachara. " It would appear from the above that by the order of the Assistant Settlement Officer, dated 31st March 1876, whatever was found Ghairabad at that time was considered as Shamilat Deh and was granted for grazing of cattle after fixing the boundaries of the village. Now before that the ownership rights were acquired in the village by other persons who, with the permission of the said ancestor or his descendants, ark a well either on payment of Tappa Lagwai dues or Ihsanan (gratis) and also took possession by reclamation of Banjar lands wherever he liked with the permission of the ancestor or his descendants. The ancestor and his descendants were known as Zamindars and all other occupants of wells and Barani lands were known as tenants and the Zamindar used to receive from the tenants one Pai per Path of grain out of the entire produce. It was only during the summary settlements under the British that the Zamindars were declared as Ala proprietors or Ala Maliks are the tenants were declared as Adna proprietors or Adna Maliks of the areas in their respective possession and the rate of Taluqdari was faxed at Rs. 1‑12‑0 per cent of the net land revenue instead of one Pai per Path of grain. Hence the tenure of the village after the settlement was divided into two categories Zamindari Bilijmal described the tenure of the Ala Maliks and incomplete Bhayyachara described the nature of the rights of the Adna Maliks. In the Punjab Settlement Manual, prepared by Sir James M. Doure, Zamindari tenure is described in paragraph 136 as being of the landlord type or estates possessed in full proprietary right" and Bhayyachara tenures are described in paragraph 139 of the same Manual as tile tenure "of inferior proprietors in villages is the south‑west of the Punjab, consisting of groups of wells where the waste belongs to the superior owners" and imperfect Bhayyaehara differs from a perfect Bhayyachara in exactly the same way as imperfect Pattadari differs from perfect pattadari. The distinction between the Pattadari and Bhayyachara is not very clear, for, at the earlier stages, Pattadari included both i.e., Bhayyachara (custom of the brotherhood) and Pattadari (estate held on ancestral shares), but in the Punjab Bhayychara is "restricted to tenures in which possession has become the measure of right, and all villages held on ancestral or any other well-known claims of shares are called Pattadari". Similarly, in paragraph 143, Douie states that: "Where the proprietary right is divided, the superior owner is known in settlement literature as Ala Malik or Taluqdar and the inferior as Adna Malik." In such cases, of divided ownership, according to Douie, "the pro prietary profits are shared between the two classes, who have an interest in the soil. The proprietary rights of Adna Maliks are of a superior nature than those of occupancy tenants, because, in the case of the latter, rents are liable to enhancement in certain circumstances and, their rights of transfer are Subject to limitation based on the superior rights of another person, who is recognized as landlord. Again, in paragraph, 146, Douie expresses the view that the rights of inferior proprietors sometimes do not extend to the waste lands of the village. The waste land in such cases is at the disposal of the Taluqdar or Ala Maliks subject to certain rights of user enjoyed by the village community. Douie is also of the view, as expressed in paragraph 145, relating to Taluqdari rights, that in cases of the villages with which we are now concerned, such rights arose by reason of the fact that the ancestors of the present Taluqdars "once exercised political sway or enjoyed a lordship over the soil". The Sikhs however, during their regime ousted them from this right and attempted to collect the harvest dues "with greater or less regularity by way of some small proprietary fee, such as a seer for every full maund of the produce (sermani) from the persons in actual possession of the land. In some cases, however, the Taluqdars were officials who, under the then rulers, had been granted Jagirs. These Jagirs were originally only grants o revenue and the Jagirdar was only a revenue farmer, but later they came to own the proprietary rights as well. This position is also reflected in the first Wajibul Arz, prepared during the first regular settlement of 1878, in respect of Mauza Hetu (vide Exh. D‑9, page 61, Vol. II). In paragraph 13 of this Wajibul Arz, it is stated that: "Formerly the entire Ranjar land was regarded as held by the Government. But the Government set apart as Rakhs (reserves) as much area as it deemed proper and left the remaining Banjar area situate in the boundary of each village for the Zamindars of that village. But the Government reserves the right for itself in each village that no compensation will be given for any Banjar land acquired by the Government at any time. The proprietors and tenants, whose cultivated land has been acquired by the Government, will be entitled to compensation for that land. The persons, whose land has been acquired, will not claim, an equalization of their area with that in possession of others." In paragraph 10, of the same Wajib‑ul‑Arz it is stated that: Ghairabad Shamilat land will not be partitioned, because, if it is partitioned, there will inconvenience regarding tire grazing of cattle and the people who do not own land in the village but are otherwise entitled to grazing cattle on the ground ref their being residents of that village, will tie materially prejudiced thereby. However, if any person files an application for partition, and the officer to whom the applica tion is presented, considers such partition to be in the interests of justice ‑for any reason, the said officer will be competent to pass an order for the partition" (vide also Exh. D‑2) Paragraph 11 of this Wajibul Arz also declared Sardar Khan and other descendants of Hetu, the "superior proprietors" as per order of the Extra Assistant Commissioner. Munshi Gopal Das, dated 4th May, 1862, and further declared that such "superior proprietors" were entitled to Rs. 1‑12‑0 per cent on Government revenue. It was further declared in this paragraph that: "According to the entries in the Wajibul Arz, attached to the Settlement record for 1862, if a person sinks a new well without payment of Tappa Lagwai dues, and without the permission of the "superior proprietors", he will be regarded as "inferior proprietor" for doing when it is thought advisable to sink a well at a new place; tire superior proprietor's right to sink it will be superior to that of the Adna Maliks. If inferior proprietors refuse to sink a well, superior proprietors will be then at liberty to permit any other person to do so. But the superior proprietors should obtain orders of the district authorities before granting permission to any other person, so that the rights of inferior proprietors may not be unjustly injured. But it will not be proper to sink a well or cultivate Barani land, if the following facts are proved: (a) If the persons whose right of grazing their cattle is interfered with, raise an objection and their objection is sufficiently proved. (b) 1f a new well is sunk at such a place or Barani area is cultivated with the result that the passage of the rainwater flowing to a well already sunk is obstructed and fife proprietors of that well raise an objection. At the time of the First Settlement, the Shamilat Deh of Hetu measured about 2,45,664 kanals. After the inclusion of this Wajibul Arz, which was signed by Sarwar Khan ore behalf of superior proprietors arid a number of other persons as inferior proprietors and Kamins, some unnumbered paragraphs were added at the bottom and in the penultimate paragraph, which is above the final memorandum, signed by the Superintendent, it is stated as follows: Rights of Tirniguzars in respect of Banjar lands according to order, dated the 13th July, 1878, passed by the Settlement Officer with reference to the Settlement Commissioner's order in English. Formerly the Banjar lands of this village were not considered to be the exclusive property of the inhabitants of the village, though they had certain kinds of right therein. Hence, there has been no established custom regarding the partition of Shamilat lands from the very beginning. Now lands in question have been the exclusive property of tire inhabitants of the village according to the order of the Government. If, in future, the partition of any village area is effected at the time of the cancellation of the agreement under the Sind Sagar Doab Coloniza tion Act, Tirniguzars shall also be entitled to a share in the Shamilat land, no matter whether they have cultivated land or not. The measure of ownership according to which partition is effected, will be deter mined at the time of the institution of a suit in a Revenue Court where it is filed except in the case where the parties fix share with mutual consent." ( Vide Exh. D‑3)." This addendum is obviously of a much later date, because, it refers to the cancellation of the agreements under the Sind‑Sager Doab Act yet it was attached to the First Regular Settlement (Vide Exh. D‑3). The next stage is the proposed acquisition under the Sind‑Sager Doab Colonization Act of 1902. Under this Act, as pointed out in the order of Mr. M. W. Fenton, Financial Commissioner, dated the 24th April, 1913, (Ext. P.8, page 79 part II), the first question, which the Officer entrusted with the work (Mr. Hailey) had to decide was with whom should Government enter into agreements relating to the Shamilat lands. It is stated that Mr. Hailey, by an order dated 4th February, 1907 (not on the record), reviewed the whole history of the village and found that the position in the village Hetu, as regards the rights in the Village Hetu at waste lands differs from that of any other village and, in the end, he came to the conclusion that "the Ala Maliks, as such, are not owners of the waste land". He, therefore; decided for the purposes of the Sind‑Sager Doab Act, 1902, that the Adam Maliks should be treated as owners of the waste land and agreements should be entered into with them. Learned counsel appearing on behalf of the appellants has relied very strongly on these findings and on the Wajibul Are attached to the record of rights prepared at the Third Regular Settlement of 1924‑

25. The Second Regular Settlement was made in 1904, but the Wajibul Arz entries attached to this Settlement have not been relied upon, presumably because they, as opined by Mr. Fenton, had "no bearing on the present cases". It seems they dealt with only the Shamilat lands measuring 3313 acres recorded in Khata No. 211 as the rest of the Shamilat came tender the Sind‑Sagar Doab, Act, 1902, andiwas rendered' subject to new conditions. But from the Wajibul Arz attached to the Settlement of 1924‑25 (Exh. D‑5, pages 82 to 86 Pt. II), the following paragraph, being paragraph 5, at page 85, Volume II, has been strongly relied upon by the learned counsel. This paragraph reads as follows: "Several judgments have been passed in respect of Barani land. The conclusion drawn from these decisions is that nobody can acquire proprietary or occupancy rights in the reclaimed area on the ground that he bas reclaimed it, vide judgment No. 95, passed by the Settlement Officer of Dera Ismail Khan in 1899, judgment No. 13, In re: Muhammad Bakhsh v. Gaman etc., passed by the Settlement Officer, Mianwali, on the 18th October, 1907, and a judgment passed in appeal (No. 63) by the Settlement Commissioner on the 23rd April, 1908. As the Shamilat area has been left very small, in future no one shall be competent to reclaim any other plot. The remaining entire area shall remain reserved for grazing purposes." Learned counsel has also relied on the last sentence in the succeeding paragraph at page 86, which is to the effect: "But the Ghair Abad Shamilat shall not be partitioned so long as the agreement under the said Act subsists. The right of Triniguzars, as per order of 13th July, 1878, is again reiterated in this document and it is declared in the last paragraph, at '` page 86 that: "if in future the partition of any village area is effected at the time of cancellation of the agreement under the Sind‑Sagar Doab Colonization Act, Tirniguzars shall also be entitled to a share in the Shamilat land irrespective of the fact that they had culturable land or not. The measure of ownership according to which partition is effected will be determined at the time of the institution of a suit in a Revenue Court where it is filed except in the case where the parties mutually fix shares." Next comes the Sind‑Sagar Doab Act. Under section 3 of this Act, all rights "whether as land owner, tenants or right‑holder" were acquirable. All such persons were entitled to enter into an agreement with the Govern ment to surrender their rights upon the conditions prescribed by the Government under section 5 of the said Act. Section 7 dealt with rights held in common and therein it was provided that if not less than 2/3rd of the whole of such persons agreed to surrender their rights to the Government by an agreement entered into under the said Act, then the right in such common land even "of every person who has not entered into the said agreement, shall be deemed to be subject to a similar agreement to surrender the same to the Government in accordance with the condition applicable to the case of each such person, accordingly, as he is a land‑owner, tenant or right‑holder therein, and every such person shall be bound by the conditions". But subsection (2) of the section is important. This reads as follows: "Whenever in respect of any common land, there are persons having any rights therein as inferior land owners, the Deputy Commissioner shall determine whether the superior land‑owners or the inferior land‑owners shall be deemed to be such land‑owners." Now it will be seen from this that the decision made by Mr. Hailey for the purposes of Sind‑Sagar Doab Act, 1902, was limited to the purposes o the said Act and did not affect the right and interest of the superior land owners and inferior land‑owners, which might have been available to them, dehors the Act of 1902. Hence the contention of the learned counsel that since agreements were entered into only with Adna Maliks, the rights of Ala Maliks disappeared, does not appear to be valid, because, the provisions o section 7, as indicated above, were limited to the purposes of the Act and did not affect the rights of superior and inferior proprietors, which they other wise possessed under the general law. The agreement executed under the Act of 1902 in favour of the Govern ment has been attached to the Wajibul Arz to the Second Settlement made in 1904 and has again been attached to the Third Settlement of 1923‑24 and one of the terms thereof is: "We, the proprietors of the village, put our signatures on the agreement under Act 1 of 1902, i.e., the Sind Sagar Doab Colonization Act, that the Government would take possession of the village Shamilat (common land) on the introduction of canal. The Government will give us back th of the village Shamilat. We will exercise old rights as before in respect of the th share which is to be given back by the Government. No one can acquire proprietary rights in the village Shamilat up to that time." (Vide Exh. D‑5) Thus, it will be observed that the bar was only a temporary bar, namely, until the lands were taken possession of by Government on the introduction of the canal project. Unfortunately, the project of the canal never materialised and the excavation of the canal was never begun. In 1929 the scheme was abandoned and the Sind‑Sagar Doab Colonization Act, 1902, was repealed by Punjab Act VI of 1929. There is no saving clause in this repealing statute, therefore, after the repeal of the statute, the status quo ante was restored. This in any event, would have been applicable even under the agreements to the th share to be returned by Government to the proprietors. Hence, in on opinion, the special conditions or changes introduced during the period between 1902 and 1929 have no material baring now except to the extent that during this period, no proprietary rights could have been acquired by any one in the Shamilat lands. The final position, therefore, that emerges from a careful examination of these documents, which constitute the only evidence in this case, is that the rights of the parties are to be controlled by the various Wajibul Arzes prepared at the successive settlements. These do not disclose that the right of the Ala Maliks in the Shamilat had, at any stage, been altogether abolished. None of the Wajibul Arzes show that any rights in the Shamilat Deh as such were acquired by the Adna Maliks. They certainly did acquire rights ova portions in their possession if they had brought the same under cultivation or sunk a well therein, whether with the permission of the superior landlords or) without such permission but neither the Adna Maliks nor the Tirniguzars acquired any specific share in the Shamilat proper which could entitle them to claim its partition. The earliest extract of 1875 clearly states: ' "Every common ancestor of the Adna Maliks owned land whatever he possessed at different times. Hence one family has no concern with the other family regarding (the measure of) ownership except that of possession." The Adna Maliks, therefore, bad only a common right to take certain benefits from out of the Shamilat lands in common with other residents) of the village, but no defined share therein. Their ownership extended only to the lands in their possession subject to the payment of the Taluqdari dues as fixed by Government. They were not co‑sharers of the Shamilat Deb and could not claim partition thereof. Similarly, the Tiriniguzars also had only a right to graze their cattle on B such waste laud as was available to the village, but this again did not give them any Nested proprietary right as co‑sharers in the Shamilat which would entitle them to share in the partition of the Shamilat. The rights given to them by the order of the Settlement Officer passed on the 13th July, 1878, were only in the nature of a restriction on the right to partition the Shamilat in order to preserve their grazing rights. Ties is evioent frcnx the fact that the partition of the Shamilat was to be in the description of the Revenue Authorities and if the Revenue Authorities felt that, by reason of the changed, situation, the waste land or the Shamilat was no longer necessary, it was open F to them to permit the partition thereof. The extent to be reserved for the Tiriniguzars was to be determined by the Revenue Authorities in each case in which partition was claimed. This disposes of points Nos. 1. 2 and 4, raised by the learned counsel for the appellants. There has been no misreading of the Wajibul Arzes by the High Court, nor has the High Court failed to give effect to the Revenue records. Exhs. D‑2, D‑3 and D‑5, which are, in fact, extracts from the Wajibul Arles. The fact that the agreements under the Sind‑Sager Doab Colonization Act, 1902, were entered into only with Adna Maliks did not transform them into Ala Maliks, nor did it extinguish altogether the rights of the Ala Maliks. We are in agreement with the High Court with regard to the interpretation of the various Wajibul Arzes and Revenue records. It now remains only to consider the point No. 3, raised by the learned counsel for the appellants with regard to the effect of the various judgments in earlier proceedings and in particular Exhs. D‑1, D‑8, D‑10 and D‑

11. We have carefully examined these judgments and in none of them was the question of the partition of the Shamilat put in issue. Exh. D‑t at page 165 of Volume II of the Records is a judgment of an Extra Assistant Commissioner, Bhakkar, dated 25‑5‑1937, in a suit for the recovery of Zamindari dues for the Sambat year, 1917, in respect of Chah Hetu Wala from two Abadkars of the said Chah. The claim was disallowed, because, it was fund that the plaintiffs had never, since the British Rule, held cultivating possession of the lands or received any proprietary dues. The lands were found to be held under the Government. Exh. D‑8 is a judgment passed by Mr. M. W. Fenton, Financial Commissioner, Punjab, on the 24th April, 1913, (vide page 79, Vol. II), in revision in a suit filed by an Adna Malik of Mauza Hetu to contest a notice of ejectment issued by the defendants Ala Maliks in respect of 3 kanals, 11 marlas of Barani lands which, prior to its cultivation, was part of the Shamilat Deh. The suit was decreed on the ground that there was no reason to doubt that the land was, in fact, broken up by the plaintiffs and not by the defendants. Hence, the defendants had only the right to collect the Ala Milkiat or the Jhuri at 1/12 per cent of land revenue. Exh. D‑10 is also an order passed by an Assistant Collector, 1st Grade, on the 24th September, 1911 (vide page 72, Vol. II), in a suit filed by some 31 Adna Maliks, age in contesting notices of ejectment issued to them claiming to be Ala Maliks. The plaintiffs again here contended that they were persons who had broken up the lands and irrigated the same from their own wells for over 12 years. The defendants, on the other hand, claimed that they were only tenants at will. The Court found that they were Adna Maliks of the said lands and so could not be ejected by the Ala Maliks. The last document, D‑11, is a judgment of the District Judge, Mianwali, delivered on the 10th February, 1932 (vide page 146, Vol. 11). in an appeal from a suit which again was for a declaration that the plaintiffs therein were Adna Maliks of Khasra Nos. 1047 and 1948 of Mauza Hetu and the defendants had nothing to do with it. There again, it was held on the basis of the Jamabandi of 1902‑1903 that the plaintiff had brought the piece of a Shamilat land under cultivation before 1902 and they had ever since been holding the land in their cultivating possession. It will thus be seen that none of these judgments has really any bearing on the question now before us. In none of these cases has it been decided that an Adna Malik, who brought the land under cultivation before 1902 became also the Ala Malt. On the other hand, the cases consistently held that the Ala Maliks, though not entitled to eject the Adna Maliks, are entitled to receive the Jhuri or Malikana as fixed by the Government. For these reasons, I have come to the conclusion that these appeals should be dismissed, and 1, accordingly, dismiss the same but make no order as to costs, as one of the respondents, represented on the first day by a learned counsel, did not ultimately continue to appear or to advance any arguments in support of the High Court judgment. If Ala Malik's rights have been abolished under Martial Law Regulation 164, all the areas which would have been available for partition would now be resumable by Government. This will not, of course, include any area which has been before 1902 brought under cultivation by any Adna Malik or in which a well has been sunk by any inferior ‑proprietor. If lands for grazing cattle are still required in these villages the Land Reform Commission will demarcate and maintain the area so required for grazing purposes. SALAHUDDIN AHMED, J.‑-I agree. ANWARUL HAQ, J.‑‑I agree. MUHAMMAD AFZAL CHEEMA, J.‑-I agree. S. A. H. Appeals dismissed.