P L D 2002 Supreme Court 200 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑The above appeal with the leave of this Court calls in question the dismissal of the revision petition under section 115, C.P.C. by a learned Judge in Chambers of Peshawar High Court, Abbottabad Bench, on 19‑2‑1994.

2. The question involved is whether entry "Bila‑Lagan‑Bawaja‑Seri" in the column of rent in the Settlement Record regarding character of possession of the appellants is of any help to them if it comes in conflict with an entry in the column of cultivation and it. had arisen in the following circumstances: A representative suit was filed in the Court of learned Senior Civil Judge, Batagram by the respondents against the appellants for possession of the land measuring 450 K, 9 M situate in village Beshkot, Tehsil and District Batagram, N.‑W.F.P. on the averments that the plaintiffs/respondents were the owner of the disputed land while the defendants‑appellants were in occupation thereof as tenants, "in accordance with Riwaj of the area". It was further alleged that the respondents repudiated the title of the plaintiffs -respondents and had also declined to render customary services, to the respondents and were, therefore, liable to be dispossessed from the disputed land. In their written statement, the respondents repudiated the claim of the respondents' title to the suit‑land and averred that they were "Seri Khors" and, therefore, they had become owners of the land and also pleaded adverse possession. The pleadings of the parties were reduced into as many as 11 issues including the relief and an additional issue. For the purpose of this appeal, however, the following issues are relevant:

7. Whether the suit‑land is not village Shamilat if so, its affect?

8. Whether the suit‑land has been given to the defendants by the plaintiffs and other owners of village Shamilat as remuneration of their services?

9. Whether the plaintiffs are entitled to the decree prayed for?

3. The learned trial Judge took up Issues Nos. 1, 7 and 9 together and answered them in the affirmative. Issue No.8 was also decided in favour of the respondents and as a cumulative effect of these findings, the suit of the respondents was decreed.

4. In the appeal before the learned District Judge, the case of the appellants was: (1) that the impugned judgment and the decree of the learned trial Court was the result of misreading and non‑reading of evidence; (2) that the appellants were in possession of the suit property as "Seri‑Khors" but they could not lay claim to adverse possession over the suit‑land and that they had neither paid mesne profits to the respondents nor had rendered customary services, therefore, they were liable to ejectment. It was also held by the learned Appellate Court that in the Extract Exh.PW‑1/1 from the Register Haqdaran‑e‑Zamin for the year 1971‑72, the suit‑land was recorded as 'Shamlat Deh' whereas Hikmat Shah and other appellants were recorded in cultivation column as 'Ghair Dakhilkaran' but in the column of rent, they stood recorded as "Bila Lagan Bawaja Seri". Similarly in the subsequent Jamabandi extract Exh.PW‑2/1 the same entry has been repeated. From this discussion, the learned Appellate Court concluded that there was neither mis reading nor was there failure to read any material evidence having any bearing on the fate of the case.

5. On the second question regarding "Seri Khoran", the learned Appellate Court observed that the reliance of the appellants on the case of Azizur Rehman and others v. Attai Khan and others (PLD 1976 Peshawar page 60) was inapt inasmuch as the facts of precedent case and those in the case in hand were distinguishable and made reference to definition and import of "Seri" in the Punjab Settlement Manual by Sir James M. Douie, Fifth Edition and concluded that the appellants were blacksmiths and having refused to perform the duties as 'Ahingars' and also having repudiated the title of the respondents as also having failed to give to the respondents the share of the mesne profits, they were liable to ejectment and upholding the judgment and the decree of the learned trial Court dismissed the appeal. These findings of the learned Appellate Court were affirmed by learned Judge in Chambers of the Peshawar High Court who drew a sharp distinction between implications of the two categories of Seri Khors, namely, those who discharged the duties of Imamamate or those who helped the owners in wars against the other tribes on the one hand and on the other hand the "Kari Gars", "Kamis" and "Kameens". The learned Judge in Chambers of the Peshawar High Court after great deal of discussion in the impugned judgment reached the conclusion that he was very clear that if both the categories either repudiated the title of the owner or, for that matter, failed to perform their duties on account of which they were enjoying the usufruct of the "Seri land", they were certainly liable to dispossession/ejectment.

6. Leave to appeal was granted in this appeal to consider, whether the land in dispute was in the nature of "Seri" which once given could not be revoked‑‑it being a grant and not tenancy and the occupants were treated as "Malikan Qabza" and that in the absence of any general or special custom it could neither be claimed nor was proved in the case of village Bishankot and that, therefore, the learned High Court was legally not correct in holding that the appellants though "Seri Khors" whereunder the appellants could not be termed as "Maalikan‑e‑Qabza" and were not liable to be dispossessed on that score.

7. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court contended that the "Seri" was a grant and not a tenancy and as such after the grant of land as Seri it could neither be revoked inasmuch as the "Seri Khors" and were thus "Maalikan‑e‑Qabza" nor they could be denied the status aforesaid as they had acquired all the proprietary rights therein becoming full‑fledged owners thereof. He, therefore, urged that on the above score, the appellants were not liable to be ejected from the suit‑land on any ground including their refusal to render to the grantors the customary services and, therefore, the findings of the learned two Courts below and those of the learned Judges in Chambers of the High Court were not sustainable. The learned counsel for the appellants further submitted that the learned Judge in Chambers of the High Court misconstrued the word "Seri" inasmuch as there was no difference between the "Seri Khors" who were rendering religious services or those who were helping the owner in their wars against other tribes on the one hand and those who were rendering services like blacksmiths on the other.

8. Conversely, Syed Sajjad Hasan Shah, learned Advocate Supreme Court representing the respondents contended that strictly speaking the Douie's Punjab Settlement Manual was a general law made applicable to the settlement process in the area of Punjab during the last quarter of 19th Century and was not in its true perspective applicable to the area in dispute, namely, Battagram District of N.‑W.F.P. In this context, he maintained that the Governor‑General in exercise of powers under section 290 of the erstwhile Government of India Act, 1935, areas of Indus Kohistan, Allai, Thakot, Hill, Nillishang, including the area in dispute of Batagram District were declared to be forming part of the North‑West Frontier Province by virtue of North‑West Frontier Province (Enlargement of the area and Alteration Boundary) Order, 1955 (G.G.'s O.I. of 1952) and the North-West Frontier Province (Enlargement of the Area and Alteration of Boundary; Order, 1955 (G.G.'s O.XIII of 1955) respectively issued firstly on 7tt February, 1952 and re‑affirmed on 6th July, 1955 and thus any observation, made in the Douie's Punjab Settlement Manual which was published on 16tt October, 1899 would not be relevant to these areas. Nonetheless, he conceded, that when the first ever settlement of land was carried out in these areas, the general principle of settlement law in the Douie's Manual were invoked but otherwise the entries of Wajib‑ul‑Arz were relevant. According to him, and rightly so, the very entries of the Register Haqdaran Zamin recorded in consequence of the First Regular Settlement o lands in the disputed areas would finally determine the rights of the lane owners, cultivators and Seri Khors. On this hypothesis. Syed Sajjad Hasai Shah, learned Advocate Supreme Court, made reference to the law laid down in Shamsur Rehman v. Hukmat Shah PLD 1967 Peshawar 304 which was approved later in Tehmas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629 to argue that the entry of Bila Legan Bawaja Bai or Bila Legan Bawaja Seri in the Legan column in the records of rights regarding the character of possession of the appellants‑defendants would not be of help to them if it comes into conflict with an entry of column of cultivation. In the case of Tehmas (supra), this Court observed as under:‑‑ "Ordinarily, it has now been held authoritatively that an entry in the column of Lagan would not be preferred over an entry in the column of possession/cultivation, or for that that matter the column of ownership. However, it was held in the case of Shad Muhammad referred to above that depending upon the circumstances of each case the party relying on the column of Lagan as against the cultivation column would be entitled to produce evidence independent of the entry itself to show that the entry in the column of Lagan had a separate contemporaneous support from other reliable evidence, which of course together with the disputed entries would have to be put in juxta-position to the entry in column of cultivation."

9. Keeping in view the 'factual background of the controversy as narrated in the preceding paragraphs, the question involved was whether the land in dispute was in the nature of grant which once given could not be revoked‑‑it being a grant and not tenancy and that the occupants were treated as (Malikan-e-Qabza) and that in the absence of general or special custom, it could neither be claimed nor was in the case of village Bishkot any general or special custom supporting the claim of the appellants and that accordingly the learned High Court was legally not correct in holding that the appellants though "Seri Khors" whereunder the appellant could not be termed as (Malikan-e-Qabza) and were not liable to be dispossessed on that score. The evidence brought on the record does not bring into force anything which prohibits that the land in the nature of "Seri" which was once granted could not be revoked on the ground that it was a grant and not tenancy. The appellants also failed to convince the learned two Courts below and the learned Judge in Chambers of the High Court as to how the occupants/ appellants were treated as (Malikan-e-Qabza). Again there is not an iota of evidence to prove on the file that there was any general or special custom in village Bishkot to show that the "Seri Khors" who were recorded in the column of cultivation as tenants and in the column of rent as (Bila Lagan Bawaja Seri) could claim the title of land particularly when the entries of column of rent were irreconcilable with those of the columns of cultivation or for that matter those of proprietary column. The term incorporated in the leave granted order carries different connotation in the Punjab Settlement Manual by Sir James M. Douie, Fifth Edition Malekan‑e‑Qabza according to the Manual are those owners of the land who had purchased it without share of Shamilat in the village. Such vendees are recorded in the column of cultivation as (Malikan-e-Qabza) and not as a tenants. The appellants have been misdescribed to be (Bila Lagan Bawaja Seri) because they stand recorded in the column of rent as (Bila Lagan Bawaja Seri) therefore, the learned Judge of the High Court was legally correct in holding that the appellants though "Seri Khors" could not be termed as (Malikan-e-Qabza). They have repudiated the title of those recorded in the proprietary column and, therefore, they, were rightly adjudged as liable to be dispossessed.

10. There is another aspect of the case as well which is purely on legal plane. The learned Judge has rightly answered the proposition that has been settled by this Court that if the entry of (Bila Lagan) in the column of rent in the record of rights is irreconcilable with those of the column of cultivation, it is not of any help to those recorded in the column of cultivation as tenants. In this context reference was trade to the law laid down in Tehmas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629 wherein it was observed as under:‑‑ "Ordinarily it has now been held authoritatively that an entry in the column of Lagan would not be preferred over an entry in the column of possession/cultivation, or for that matter the column of ownership. however, it was held in the case of Shad Muhammad referred to above that depending upon the circumstances of each case the party relying on the column of Lagan as against the cultivation column would be entitled to produce evidence independent of the entry itself to show that the entry in the column of Lagan had a separate contemporaneous support from other reliable evidence, which of course together with the disputed entries would have to be put in juxtaposition to the entry in column of cultivation. "

11. The proposition as aforesaid, for the first time came up for consideration before a learned Judge in Chambers of Peshawar High Court in the case of Shamsur Rehman v. Hukmat Khan and others PLD 1967 Peshawar

304. The question that arose in the case of Shamsur Rehman (supra) was whether the entries in the column of cultivation are to prevail over the entries in the column of rent, or whether both the entries are to be read together as in the present case. The learned Judge resolved the proposition in the following paragraph: 'It is well‑established principle of law that to constitute adverse possession the burden of proof lies on the person setting up adverse possession that he was holding the property adversely to the rightful owner and when the entries are irreconcilable the person setting up adverse possession must fail. It is equally well‑established principle of law that non‑payment of rent for any length of time alone does not constitute adverse possession."

12. In the terms of the entries of the "column of Lagan" and those of "column of cultivation', in the instant case which are inter se irreconcilable the appellants could not have repudiated the title of the proprietary body recorded in the record pf rights. The implication of the entries of the column of rent and those of the column of cultivation being irreconcilable is that the "Seri Khor" were not entitled to remain in possession of the land, by virtue of their status as tenants in the column of cultivation and (Bila Lagan) in the column of rent. The longstanding entries of the Revenue Record in the instant case would show that usufruct of this land was to be enjoyed by Seri Khors and that the proprietary body of the village could take possession thereof if their rights were repudiated by Seri Khors. Another implication of these entries is that the proprietary body of the village notionally remained owners of the land.

13. The findings of the learned two Courts below duly affirmed by the learned Peshawar High Court are thus well‑founded and warrant no interference by this Court in its jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.

14. We have there fore, no hesitation to dismiss this appeal as without merit. The parties are, however, left to bear their own costs. S.A.K./M.A.K./H‑48/S Appeal dismissed.