P L D 1954 Peshawar 69 (PLP)

MUHAMMAD SHAFI, J.‑This is a suit brought by Sher Zaman and Azad Khan as the representatives of the villagers of Shadipur village in the Kohat District, against Aya Gul, Rahim Shah and Masoom Shah in their capacity as the representatives of Torsatni village, in the same District, for a permanent injunction and declaration to thee effect that the plaintiffs were entitled to graze their cattle, and cut the grass and wood from Khasra Nos. 41 to 44 and 46, within the area of Torsatni village as a matter of right, and that the defendants should be stopped from preventing the plaintiffs from exercising the above right. These rights were denied by the defendants. The following four issues were framed in the case :‑ (1) Whether the plaintiffs are entitled to graze cattle and cut wood and grass from the area in dispute ? (2) Whether Azad Khan plaintiff is a co‑sharer in, the disputed area, and its effect ? (3) Whether plaintiffs are entitled to the injunctions prayed for ? (4) Relief. On issue No. 1, the learned trial Judge came to the conclusion that the plaintiffs have failed to prove that they had the rights claimed by them in the Khasra numbers situated in Torsatni village. On issue No. 2 he held that Asak Khan plaintiff was a co‑sharer in the disputed area. As a result of his finding on issue No. 1, which automatically decided issue No. 3, he dismissed the plaintiff's suit with costs. There was an appeal against this decree, which has been accepted by the Senior Sub‑Judge Kohat, holding that the plaintiffs had the right claimed by them, and they were, there fore, entitled to both the injunction and the declaration prayed for. The defendants have come up in revision to this Court. The facts of the case admitted by both ‑the, parties are as follows :‑ The villages of Shadipur and Torsatni are quite distinct from each other, and have their ~ own Wajib‑ul‑arz In the Wajib‑ul‑arz of Shadipur just at the end the following appears :‑ According to the orders of Mr. Tucker, the villagers of Shadipur and Basta Chanda are entitled to claim the Nagha (damages) in the area within Torsatni village known as Ziarat Fateh Gul Sahib. There every year from Sawan to Magar the pasture is preserved and if anybody commits a breach, then he pays four annas per bullock and if the bullock is carrying grass then the grass is burnt, and if a herd is caught then the person committing the breach gives a goat as a penalty. After the Rakh is opened, then both the proprietors and the non‑proprietors of Basta Chanda and Shadipur villages have a right in it, and whoever catches the culprit takes the penalty." This right, if it can be called a right at all, is not repeated in the Wajib‑ul‑arz of Torsatni village. This right, however, is again repeated in the Wajib‑ul‑arz of some other villages, but I do not think it is necessary for the decision of this case to refer to them as the learned lower appellate Court has done. The only question for decision, then. is whether the above writing gives a right of pasture or cutting the grass and wood to the villagers of Shadipur and Basta Chanda villages in the Khasra numbers mentioned in the plaint situated in Torsatni village. The Wajib‑ul‑arz, is a record of custom of a certain particular village. Sometimes it records the statements of the persons who recognize a certain parti cular custom, and at others the Settlement Officer, who prepares the Wajib‑ul‑arz, notes down the result of his own enquiry with regard to that custom. It is now undisputed that the Wajib‑ul‑arz, where the question of existence or non‑existence of the particular custom is involved, must be taken as of great evidentiary value. In fact a presumption in favour of the correctness of the entries is raised, which of course can a be rebutted but by a very strong evidence. The Wajib‑ul‑arz, however, which is ambiguous in its terms and does not give any particular custom, but records the order passed by a certain officer, has no value at all. In the case before me the right which is claimed by the plaintiffs is not based on custom, but on a certain order made by a certain gentleman by the name of Mr. Tucker, and recorded in the Wajib‑ul‑arz of Shadipur alone. What that order is, can only be proved by the production of the original order of Mr. Tucker. What importance should be attached to that order can only be judged when the original order is perused. In this case the plaintiffs have not produced Mr. Tucker's order. Its reproduction in the Wajib‑ul‑arz, may be exact or may not be so. It is definitely a secondary evidence of that order, with all the impediments of such an evidence attached to it. Apart from that, the wordings of the entry are so ambiguous that it cannot be said whether it gives" the right to receive the penalty to the villagers of Shadipur and Basta Chand; or the right to graze their cattle, and cut the grass, The learned counsel appearing for the respondents had to admit that the, right to pasture or to cut the grass has not been specifically given to his clients, but that an inference to that effect can be drawn from the wordings of this entry. I have read the entry over and over again, and I cannot possibly derive the inference which the learned counsel for the respondents wishes me to do. Be that as it may, the Wajib‑ul‑arz containing the above entry is that of Shadipur. It is at the utmost a record of custom of that village, but I have not been able to understand how could it be taken to be a record of custom of Torsatni village which has got its own Wajib‑ul‑arz. If the right of pasture had been created in Shadipur village, then this Wajib‑ul‑arz would certainly be of great evidentiary value, but when it creates the right in some other village, then it has absolutely no evidentiary value for the simple' reason that it would at the utmost amount to an admission by the villagers of Shadipur in their own favour. I am consequently of the opinion that the plaintiffs have hopelessly failed to prove that they have any right much less the right of pasture or of cutting the grass and wood in the precincts of Torsatni village. The result is that I accept this revision petition with costs throughout, set aside the judgment and decree of the learned lower appellate Court, and restore those of the learned trial Court. Orders announced A. H. Petition accepted.