P L D 1961 (W (PLP)

2. The dispute is between two villages of Kohat District, Chanda Khoram and Chakhtu, in relation to their respective shamilats. According to the wajib‑ul‑arz of village Chakhtu prepared in 1903‑04, the proprietors and non‑proprietors of the village "can cut wood and grass for themselves" in the hill belonging to the village. "Similarly the proprietors and other residents of this village can cut grass and wood for their own ‑purposes in the hills of the adjoining villages mentioned in para. 2, while the inhabitants of those other villages can own can cut grass and wood in the hill belonging to this village." The wajib‑ul‑arz of Chanda Khoram is in still stronger terms "Both proprietors and non‑proprietors have power to cut grass and wood in tile shamilat hill and other shamilat area for the own purposes Similarly, proprietors of the adjoining villages mentioned in para. 2 have power in respect of the hill belonging to this villages, and the. inhabitants of this village are entitled in respect of the hills belonging to the other villages‑to cut grass arid wood for their own purposes."

3. Nadir khan and eight other parsons of the village Chanda Khoram, suing in a representative capacity, brought a suit against the proprietors and non‑proprietors of the village Chakhtu for a declaration that they had the right of grazing cattle, cutting wood and bringing grass from the shamilat of village Chakhtu, comprised in Khasra Nos. 240 to 244 and 241/

1. They did not deny the reciprocal right of Chakhtu village to use the shamilat of Chanda Khoram. The defendants, however, denied the existence of any such right, and the two Courts below supported them, holding that the right stated in the wajib‑ul‑arz was in the nature of a licence which could be abrogated. The plaintiffs have, therefore, come in revision.

4. To begin with, Mr. Abdul Latif Khan, counsel for the defendants, objected that the Khasra numbers over which the right of grazing and cutting is intended to be estab lished do not belong to the shamilat of village Chakhtu and that they belong to private owners. For this he relied on the statement of the patwari and a copy of the jamabandi. It is D pertinent to observe, however, that these Khasra numbers are recited in the wajib‑ul‑arz of 1903‑04, in addition to others, as constituting the shamilat of the village Chakhtu. It may be that subsequently a part of the shamilat came under private ownership by some arrangement, but since the right is stated in respect of these Khasra numbers also, the fact that they are not now shown to belong to the shamilat does not curtail the right. Mr. Abdul Latif Khan also agreed that this would be the correct view of the case.

5. The decision of the Courts below is largely based on a judgment of the Judicial Commissioner's Court reported as Syed Galun Shah v. Nawab Ali (A I R 1934 Pesh. 96). In that case, there was a similar provision in the wajib‑ul‑arz of three adjoining villages; Musakhel, Torwari and Landi, with this difference, however, that the wajib‑ail‑ariz of Landi, stated that ".so long as they do not forbid us, we also will not forbid them." In other words, there was power in one village to forbid the use of the shamilut by the other. Without building any special argument on this recital, however the learned Judges assumed that since this was not a case of easement, it must be in the nature of a licence. Consider the following passage :‑ "Applying the law of easement to the case, the only head under which the concession referred to in the statement can be classified is that of a licence. Easement necessarily connotes the existence of a dominant tenement and a servient tenement. The shamilat of village Landi maybe a servient tenement, but the residents of Torwari and Musakhel did not enjoy that shamilal for the benefit of any particular dominant tenement." It was further observed: "It is not denied by the appellants' counsel that if each individual case be taken to be that of licence, the village to which the shamilat belongs being the licensor and the villagers who are allowed to use it being tike licensees, the licence is revocable and the revocation cannot be questioned by the other side. Consequently, the villagers of Landi were well within their rights to stop the plaintiffs 'from using their shamilat and thereby revoking the licence which was granted by their forefathers long long ago."

6. It is respectfully pointed out that the law of easements is not the only law which should necessarily apply to the present case. It is true that if we have to go by the Easements Act only, then, as the learned Judges have said, "the only head under. Which the concession referred to in the statement can be classified is that of a licence," on the assumption that the right recited in the wajib‑ul‑arz before us is either an easement or a licence, and in any case, one of the two. "Licence" has been defined in section 52 of the Easements Act as follows:-- "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and 'such right, does not amount to an easement or an interest in the property, the right is called a licence."

7. It will be seen that a licence is granted by one person and the grant is either to one person or, "to a definite number, of other persons." In the present case, the right is granted by an entire village, which does not consist of a single villager, toll a number of other villagers who cannot be described as "a definite number." We do not, therefore, agree that the right in question is is the nature of a licence.

8. But the. Easements Act itself states in section 2 ;‑-- "Nothing herein contained shall be deemed to affect any law not hereby expressly repealed, or to derogate from‑ (a) . (b) any customary or other right (not being a licence) in or over immovable property which the Crown, the public or any person may possess irrespective of other immovable property" This means that the Act itself has recognised a customary right in or over immovable property which is different from an easement or a licence.

9. Statements in a wajib‑ul‑arz have always been recognised as statements of rights in respect of the village land, and if a right over that land is given to a neighbouring village, it is not H on any lessor footing. In some villages the rights are qualified by permissive phrases such as "non‑proprietors will be entitled to graze their cattle in the shamilat land until it is partitioned", or "the non‑proprietors can break land with the permission of the proprietors." In the present case, there is no qualifying phrase, and the sight to graze and cut wood is, therefore, absolute in the residents of each village respecting the shamilat of the adjoining village.

10. We, therefore, accept this petition, decree the plaintiffs suit for a declaration that they have right over the grass and wood of Chakhtu, as Chakhtu has a right over the grass and wood of Chanda Khoram, and grant an injunction that they shall not be prevented from exercising that right. In view of the fact that the decisions were based on Sayed Galun Shah v. Nawab Ali, we make no order as to costs. K. M. A. Petition accepted.