1992 PLP 1099 (SCMR)

ABDUL QADEER CHAUDHRY, J.

These appeals by the leave of the Court are directed against the order of the Peshawar High Court, dated 21-2-1983. Civil Appeal No.692 of 1984 (Abdul Samad and four others) arose out of Appeal No.156 disposed of by Additional Deputy Commissioner, Chitral, on 5-2-1976, Civil Appeal No.693 of 1984 (Said Muhammad and three others) arose out of Appeal No.170 disposed of by the Additional Deputy Commissioner, Chitral, on 22-1-1976, and Civil Appeal No.694 of 1984 (Arula and three others) arose out of Appeal No.168 disposed of by the Additional Deputy Commissioner, Chitral, on 23-1-1976. The facts are identical and only the point for determination is whether the appellants are owners or tenants of the respondents-

2. The case of the appellants is that they are owners of the land in dispute. The land was Banjar and uneven and was on hilly area. It was levelled and brought under cultivation by the forefathers of the appellants. They and their ancestors have been in possession as owners of the land for the last three hundred years. The appellants used to pay Qalang to the unofficial respondents in the shape of ghee. The State Rule in Chitral was abolished in 1969. The appellants also stopped paying Wang to the respondents Nos.l and'

2. A Commission was constituted by the N.-W.F.P. Government in the year 1971 for deciding the disputes which is called Dir, Swat and Chitral Land Disputes Enquiry Commission. The respondents claimed that the appellants were their tenants. On the other hand, the contention of the appellants was that they were not tenants but were owners of the land in dispute and that Qalang was an oppressive tax. The Commission recommended that the appellants were tenants of respondents Nos.l, and 2 and liable to pay Wang as landlords' share. It was further recommended that in future the appellants should pay Qalang at the rate of 2/5th of the produce for irrigated and 1/4th for un-irrigated land. The recommendations of the Commission were challenged before the Additional Deputy Commissioner, Chitral, who dismissed the appeals of the appellants. The appellants' revision petition before the Chairman, Tribunal Land Disputes, Dir, Swat and Chitral, was also dismissed on 12-4-1982. The appellants challenged these orders in a Constitution Petition before the High Court which was dismissed by it.

3. Leave to appeal was granted to consider the contention of the appellants that they are owners of the disputed land and the Qalang was directly paid to the State and deposited in the State treasury and another ground taken was that the appellants also paid Usher to the State which under the Islamic law was payable by the owners and not by the tenants. The dictionary meaning of Qalang was also noted in the Leave granting order. The society in Chitral composed of the following classes:-- (1) Adamzadas of 1st Class. (2) Adamzadas of IInd Class. (3) Yuft.. (4) Faqir and Miskin. The Yuft is the middle class. According to the appellants, they fell in third category. All the classes mentioned above were liable to Begar in one form or the other, to Mehtar and the Royal Family. The appellants being the middle class could not afford to render begar to the Royal Family and adopted an alternative way of paying Qalang to the rulers which was actually a tax in lieu of Begar. After the State rule was abolished in 1969 the appellants also stopped paying Qalang to the unofficial respondents. The general public in Chitral State had been subjected to three types of services to the ruling family i.e. (i) Begar, (ii) service as bodyguard and (iii) payment of Qalang which was in the shape of tax of the general public. A Dir, Swat and Chitral Land Dispute Enquiry Commission was constituted by a notification dated 13-11-1971 and the following were the terms of reference:-- "(1) To enquire into and identify the nature and extent of the agrarian problems in Chitral District with special reference to the property dispute between:-- (a) the Ex-mehtar of Chitral and the claimants; and (b) the land alleged to be belonging to the Shahzadgan and claims of other individuals particularly those in possession of the land. (2) To make recommendations and suggest measures how best to solve this problem not only with a view to putting an end to the present conflict but also laying down a sound and firm basis for the ultimate land settlement operation at an early date; (3) To determine what is the State property and what is the private property of the ex-Mehtar of Chitral. (4) To determine who are legitimate share-holders in the private property of the' tax-Mehtar of Chitral and what is the extent of their share in each case; and (5) To determine the manner in which to distribute the various items of private property of the ex-Mehtar of Chitral amongst his shareholders; if necessary." By notification dated 24-1-1972 read with notification issued on 20-4-1972, the following terms of reference were added:-- "(6) Landlord-tenant disputes of Chitral District. The claim may be adjudicated whether they are with reference to' individuals as a second party or against the State, the rights of which have now devolved on the Government." The Commission noted in para. 14 of Chapter 1 as hereunder:-- "The land tenure system in Chitral being of a very peculiar nature and there being no land record, we had to study old files of the Office of the Deputy Commissioner, Chitral and to examine some persons having knowledge and experience of Chitral affairs. We also studied the famous I.D. Scott's note on Chitral Military Report and Gazetteers on Chitral, `Tarikhi Chitral' by Mirza Muhammad Ghufran and the relevant portion of the `North-West Frontier of West Pakistan a study in Regional Geography' by David Dichter." (4) In para. 5 Chapter Il, the discussion of the Commission is as follows:-- "To appreciate the difficulties under which agriculture is carried on in Chitral, one has only to look at the marvelous irrigation facilities the people have managed to carve out of the mountain sides. In many cases gravity flow irrigation channels over 10 miles long carry water tapped from mountain streams into oasis type settlements located wherever valleys have widened sufficiently to permit agricultural activities. Such elaborate channels are imperative in view of the limited rainfall amounts and the entrenched nature of most of Chitral's river valleys," According to the Commission, the first three groups, namely, Adamzadas of 1st Class; Adamzadas of IInd Class, and Yuft have permanently held their lands for certain services to the Mehtar which they claim as their property. But the ruling family claim that all landsin the State belonged to the rulers who could transfer them to whomsoever they liked. The fourth group do not own any land but cultivate an owner's land. (Para. 15, Chapter II, page 7). There is no batai system in Chitral. Only service were rendered or Qalang was paid by a tenant for holding an owner's land. (Para 25, Chapter II, page 8). Originally all Qalangi lands and pastures in Shishi Koh belonged to H.H. the Mehtar of Chitral. Sir Shujaul Mulk gave these to Gujars on annual fixed `Ijara'. Later, the Mehtar gave some of these Qalangi lands and pastures to his sons and relatives and retained the others. (Para.30, Chapter II page 9).

6. The Shahzadas and other favoured classes saw the writing on the wall and started ejecting their tenants who in turn started claiming land in possession of Shahzadas. The tenants of the Shahzadas also generally stopped paying Qalang or rendering `Khidmat' to them for the lands that they hold, on one excuse or another. Disputes consequently arose and the problem now involves the whole District... It is remarkable that out of over 5,000 claims originally filed with the Commission, a large number were prima facie cases which had already been decided. The total number of cases dealt with by the Commission is 673. (Para 1, Chapter III page 10). In Chitral, there have been very few transactions of sale or mortgages. Transfers have been made mostly either through inheritance or by grant by Mehtar. (Para. 3, Chapter III, page 11). Chapter VII deals with the landlord and tenant's disputes. It has been observed by the Commission that the system of existing land tenure in Chitral is of unique nature, the parallel of which, perhaps, does not exist elsewhere in Pakistan. But the system is highly confusing. In para.2, it has been stated as follows:-- "Generally, in all cases that the Commission had to deal with seldom was any support drawn by a particular party from the particular denomination of the land affected. Almost invariably either party claimed ancestral ownership of the land involved and seldom referred to the denomination of the land. It is said that a Chitrali is capable of telling many lies but in a dispute about land his lies know no bounds. No particular type of oath can induce him to tell the truth in land dispute cases except oath on `Talaq' which he is always reluctant to take. `They are adept at telling lies and at slandering each other and are never really happy unless they have some petty intrigue with which to amuse themselves'. (Milatory report and Gazetteer of Chitral 1928). `No race is more untruthful or has a greater power of keeping a collective secret' (Sir G. Robertson). It has been observed by the Commission in para. 3 that in all cases the alleged landlord claimed to be the owner of the land and the opposite party to be his tenant. The alleged tenant also claimed that the land was his ancestral property and that he had nothing to do with the alleged owner. These cases were disposed of according to the evidence available. The Commission has also observed that `the Commission has generally based its recommendations on documentary evidence. Oral evidence was considered where documentary, evidence was not available or where the matter in dispute was capable of being proved by oral evidence and the witness was comparatively reliable."

7. In Para. 4, it has been stated as under:-? "In Chitral there is no system of recovering land rent in the form of `batai' or division of produce. In some areas (particularly hilly areas where there are pastures) Qalang in the form of Ghee and goats etc. is recovered for grazing of cattle in the mountain pastures and for the cultivated lands with which the pastures are interspersed. In some areas land is held by a tenant who instead of paying rent in any form rendered `Khidmat' or service to the landlord. In some areas parcels of land are let out to tenants called Shermozh or Khanzad who cultivate the land of the owner and give him the entire produce. He however, cultivates a small portion of such land for himself and enjoys the entire produce. Thus the well-known classes of tenants, are Qalangi tenants, Shermozh, Khanzad, Khidmati and Mehnatgar according to the terms on which land is held by him. In some cases land is given on lease for cash rent; but this is not a common practice. It has been stated already that there is no system of payment of `batai' rent in Chitral. There may be a very few cases in which rent is recovered in the form of share in the produce; but the number of such cases in the whole of Chitral cannot be more than 35." In this para, it has been recommended that the uncultivated land, i.e. Shikargah, Charagah (pastures) and forests may be declared as State property. In para 6, it has been stated that

"Some people will not like this, particularly -the Shahzadas who are getting Qalang, and the Gujars who are dreaming of getting ownership rights; but they will have no genuine grounds because the Shahzadas will still be getting rent for the cultivated areas in these hills and the Gujars will still be enjoying. their rights to graze their cattle there without having to pay Qalang. In para. 7, the recommendation of the Commission is as hereunder:-- "The majority of the tenants asserted their claims to ownership. Even those, who paid Qalang asserted that they were paying Qalang in lieu of `Begar' and since the Begar had been abolished they were no longer liable to pay Qalang. This of course was an unwarranted conclusion. There is no doubt that the majority of tenants (particularly in the? Qalangi areas) had remained in possession of their s for generations and they believed that their continuous would justify their claims to ownership. In making recommendations, however, the Commission had to take many factors into consideration besides long possession as lapse of time alone cannot entitle any one to rights of ownership or even occupancy rights. In paras 8 and 9, the Commission has made the following observations:-- "It goes without saying that the present unique, confusing and cumbersome land tenure system with all its implications has to go. Also the outmoded and outdated system of division of society into strata which, is closely akin to the Hindu caste system, has no place in the future land administration of this District. The rendering of `Khidmat' or service in lieu of rent appears to be an affront to humanity and the' system of Qalang in the form of Ghee etc. which in a way is cess also must not survive long ... In making recommendations in the cases between landlords and tenants we have given full consideration to the length of the period a tenant has remained in possession of his holdings; but as already pointed out, mere long possession cannot confer any occupancy or proprietry rights. In considering the length of possession we have kept in view the principles of sections 3 and 4 of the N.-W.F.P. Tenancy Act, 1950 on the assumption that payment of Qalang or rendering of service by a tenant was in lieu of rent."

8. In para. 11 of the same chapter (P.74) the Commission has observed as hereunder:-- .... Thus, where the tenant has been in occupation of land for a considerably long period and has not paid rent in the form of service or Qalang for a considerably long period we have recommended that he may be declared as owner. Each case has been dealt with according to its particular merits and separate recommendations have been made on each file on each of which Government will also have to pass separate orders." The Additional Deputy Commissioner, Chitral, while dismissing Appeal No.156 on 5-2-1976 has held that "the appellants have been paying Qalang till 1969 despite the fact that the Begar was abolished in 1949" is a clear pointer to the fact that their stand' of Qalang for Begar is without foundation. In the presence of the written undertaking by the appellants to pay Wang, they are barred from claiming ownership. In view of the fact that the appellants have no documents to support their claim for ownership. All these facts go to prove that the appellants are tenants of respondent and they are so held". The Chairman, Tribunal Land Disputes, dismissed the Revision Petition on 12-4-1982. It has been observed as under:-- "The petitioners have admitted that they were paying rent in the form of Ghee to the defendants but this was done by them under coercion. There is, however, no evidence worth the name of coercion and it was not paid in lieu of Begar as well because Begar came to an end in 1949 while the petitioners according to them paid the Ghee till 1969. As a matter of fact some of them executed deeds in favour of the defendants admitting themselves as tenants." Learned counsel for the appellants submitted that Qalang was a tax and not a "rent" paid by the appellants to the unofficial respondents. It was a Begar. `Begar' has been defined in Farhang Asfia, Vol. I at page 467 in the following words;-- ? The unofficial respondents used to take forcibly Qalang from the appellants. The learned counsel made main emphasis on the dictionary meaning of Qalang which has also been noted in the Leave Granting Order. There was no statute determining the rights and liabilities of the landlord and tenant in the former State of Chitral as such dictionary meaning would not help in resolving the dispute between the parties. However, `Qalang' has been defined in the Dictionary of the Pukkhto Language by Henry Walter Bellow, as a `Revenue tax'. The learned counsel submitted that the Gujars were not the original residents of Chitral. They were brought by Mehtars of Chitral from the adjoining places. They were given land by Mehtar, for grazing the cattle. They had to pay Ghee and goats as Qalang. It was an oppressive tax. "Rent" ?according to section 4(3) of the Punjab Tenancy Act, means `whatever is payable to a landlord in money, kind or service by a tenant on account of the use or occupation of land held by him; but it shall not include any cess, village cess or other contribution or due or any free personal service, but it shall not include any cess or other contribution or due or any free personal service, `rates and cesses' have been described in section 4(11) which are primarily payable by landowners. As observed earlier, the matter cannot be disposed of on the dictionary meaning of word `Qalang'. Before the Commission, the parties had led evidence and the Commission after scrutinising the entire evidence made the recommendations which have been challenged in, these appeals. The relevant part of the report of the Commission has been recorded in earlier part of the judgment. The Commission has considered the evidence. Even some of the witnesses of the appellants had admitted that the appellants are tenants of the private respondents. In the alternative, it was argued that the Qalang was a land revenue. There is no evidence on record that the appellants had ever paid Qalang as revenue to the State. The appellants had themselves paid Qalang to the respondents in spite of the fact that Begar had been abolished by the order of the Ruler in 1949. The learned counsel has referred to `Tarikh-i-Chitral, wherein it has-been mentioned as hereunder:-- According to this Farman Qalang on the cattle was abolished. Nowhere it is mentioned that Qalang is either a begar or a tax received by the State or its ruler. It would also be profitable to refer to wherein the word `Kalang' has been used in the context of `Batai' i.e. share of the landlord claimed from the tenant. We may refer to page 157 wherein it has been written as under:-- At page 229, it has been mentioned as follows:- From the above extracts, it is also clear that `Kalang' was in the nature of landlord's share unless otherwise established. According to the Commission, there have been very few transactions of sale or mortgage. The Commission in para 2, Chapter IV made the following observation:-- "Imagine also a girl of the peasant's family being whisked away by the landlord with the ostensible object of working as a maid-servant to the landlord's family, while the peasant and his family sit back helplessly watching all this. Imagine also the peasant collecting ghee for the landlord all the year round to be given to him as Qalang while his own family's only delicacy was dry bread and a cup of butter milk. These things and the slackening of Mehtar's control and the increasing association of Pakistan Government in the administration of the former State and their natural repercussions. The tenants consequently refused to pay Qalang or rent or to do any service for the landlord and laid ownership claims to the lands that they held. The solutions based on evidence in all such cases have been given in the recommendation on each case file separately and the list of all such cases from Appendix II to this report. General recommendations for the solution of the problem have also been given in the relevant chapter. In several cases the alleged tenants have been recommended to be given ownership rights in the land they hold, and where such rights could not be conferred with justice and in conformity with the. generally accepted principles of land tenure, recommendations have been made for the abolition of Khidmat or service the replacement of Qalang and Khidmat on cultivated land by rent in kind or cash rent and total abolition of Qalang on Chragah or pastures. It is hoped that these measures will satisfy the landlords as well as the tenants. But for a permanent future security settlement operations Is a must and it may be started as soon as possible. The taking over of Charagahs by Government direct as recommended in the relevant chapter will eliminate a very fertile source of trouble."

10. The Commission has itself noted the cases where Qalang was being collected as landlord's share. The private respondents had produced certain documents to show that they used to sell the land under cultivation of the appellants. This fact would also establish their title. The appellants have not produced an iota of evidence to substantiate their claim of ownership. No record of rights was maintained in the State. The Commission has also recommended for the settlement of the entire land. In the absence of any record, the matter had to be decided on the evidence produced by the parties before the Commission. The Commission has made a detailed inquiry and the appellants were heard by the Additional Deputy Commissioner, and the Tribunal. In the absence of any other material on record, the entire case had to be decided on the basis of the report of the Commission. There was no error of law in the finding of the Tribunal. . No point of law has been spelt out from the above facts. These appeals have no force and the same are consequently dismissed with no order as to costs. AA./A-911/S ????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.