1993 PLP 381 (SCMR)

JUSTICE SHAFIUR RAHMAN (MEMBER) ‑‑‑Haji Qudrat Ali has appealed, as of right, under Article 203‑F of the Constitution of Islamic Republic of Pakistan, 1973 against the decision of the Federal Shariat Court dated 19th January, 1988 whereby his petition filed under Article 203‑D(1) of the Constitution challenging certain entries of the Wajibul Arz of village Bhooja, Tehsil and District Mansehra was dismissed. "'

2. According to the appellant, the Wajibul Arz prepared at the‑ first Regular Settlement of 1872 and thereafter in 1904‑1905 and finally in 1.946 1947 of village Bhooja, Tehsil and District Mansehra contain certain customary rights with regard to village common property which are repugnant to Injunctions of Islam. The specific provisions challenged were the following:‑‑ "(i) Whenever Shamilat land would be divided, it will be divided in accordance with the ancestral shares of the proprietors among them only. (ii) All other residents of the village, occupancy tenants or tenants‑at‑will or even the owners of land who acquired ownership rights after 1872 or 1904‑5 who are known as Malik Qabza would not be entitled to any share in the common property of village Shamilat or its benefits. (iii) The restrictions on the residents of the village to make unculturable land cultruable by bringing it under plough (notor ). (iv) The denial of a share in the Malikana of trees or other valuable forest produce."

3. The exact words in which these restrictions are spelt out in Wajibul Arz of 1946‑47 are reproduced hereunder:‑‑

4. The historical background of the first entry was provided by the appellant in his petition in the following words:‑‑ "(4) That the owners of culturable lands of the village, who were recorded as original owners under Customary Law prevalent before Settlement of 1872 had divided among themselves the lands of the village in three equal portions, which in the Revenue term is known as taraf or atraf . Each taraf was headed by a Headman called Lumbardar . It appears that there were three families who had conquered the old local population of the village and distributed the land among themselves in three equal shares. Then they further sub‑divided their areas into plough‑measure (jori) and thus total culturable land was divided into 18 plough‑measures (jorian‑ 18). In this way the Headman of each lumbardar had 6 Jories (joriam‑ 6 ) of land. (5) That besides the above distribution of land, it was further provided in Wajibul Arz that whenever Shamilat land would be divided, it will be divided in accordance with ancestral shares of the proprietors among them only. All other residents of the village, occupancy tenants, or tenants‑at‑will or even the owners of land who acquired ownership rights after 1872 or 1904‑5 who are known as Malik Qabza would not be entitled to any share in the Common Property of Village Shamilat or its benefits."

5. The Federal Shariat Court had in the first round decided this matter on 5‑11‑1984 and dismissed the petition on the ground mainly that "the silence of the petitioners in this case for such a long period brings their case within the scope of "un taraz munkim" (by mutual agreement) in Verse 4:29." By the appellate judgment dated 3‑3‑1987, the earlier judgment of the Federal Shariat Court was set aside and the matter remanded for fresh decision.

6. At the rehearing of the matter before the Federal Shariat Court, it appears the appellant further restricted his challenge to the Wajibul Arz as has been mentioned by that Court in paragraph 8 of its judgment as hereunder:‑‑ "During the course of arguments, the learned counsel for the petitioner made a statement to the effect that he challenges the Ist condition of Shariat Wajibul Arz for the year 1946 only on the ground that Shamilat land cannot be jointly owned by their owners exclusively, but is to be owned by every resident of the village. He further stated that the persons who are being called owners of the village could not have become owners, under the Muslim Law. He further stated that condition No.II concerning the right to graze for every resident of the village was, however, not being challenged in the petition."

7. The Federal Shariat Court by its impugned judgment held as hereunder:‑‑ (i) The fact that Islam recognizes the individual's right of ownership to property is further evident from the following verses of the Holy Qur'an:‑‑ 4:32 and for men is the benefit of what they earn and for women is the benefit of what they earn. 4:2 and give to the orphans their property and substitute not worthless (things for their) good ones. 3:186 Assuredly ye will be tried in your property and in your persons ......... 4:5 Give not unto the foolish (what is, in) or (keeping of their) wealth which Allah has given you to maintain ......... 4:34 Men are in‑charge of women, because Allah has made the one of them to excel the other, and because they spend of their property (for the support of women) ......... 4:28 And know that your property and your children are a test, and that with Allah is immense reward. 63:9 O, ye, who believe! let not your wealth nor your children distract you from remembrance of Allah. 4:29 O, ye! who believe! squander not your wealth among yourselves in vanity; except it be a trade by mutual consent... (ii) Islam also recognises the right of protection of one's property ..as stated in the following verses of the Holy Qur'an:‑‑ 5:41 and (as for) the man and woman addicted to theft, cut off their hands as a punishment for what they have earned, an exemplary punishment from God. 2:188 and swallow not up your property among yourselves by false means." The Court finally concluded as hereunder:‑‑ "From the discussion made above and the reasons stated, we are of the well‑considered view that the impugned entries appearing in the Wajibul Arz or Surat Dehi are not repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. A careful perusal of the entries made in the light of prevalent practice would show that they were made through mutual agreement by the owners/parties at the time of settlement. These entries were apparently made to prescribe and declare a course of action which was acceptable to the land owners and to which they agreed at the given time to be valid for the future and these entries were repeated in the same manner in the subsequent settlements of 1904‑5 and 1946‑47 by mutual consent which were never challenged. In the circumstances if the petitioner had any claim to certain rights, the entries could be challenged in a proper forum as this Court is not competent to inquire into, investigate or determine all such rights and liabilities of the parties and to grant relief. This Court is empowered only to examine and decide either by its own motion or on the petition of a citizen of Pakistan or Federal Government or Provincial Government, whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet and as such the jurisdiction of this Court extended only to the question whether the entries so made were repugnant to the Injunctions of Islam. As already stated above, we have found the impugned entries of Wajib‑ul‑Arz not in conflict with the Injunctions of Islam."

8. The appellant still feels and insists that unlike movable and other property, land cannot be owned by an individual, because ownership of it vests in God Almighty. The use of village common, cannot on that principle be limited to a few, particularly so when the grass, water and trees normally growing thereon are for the use of all. However, the appellant has again particularised the issue raised by him as hereunder:‑‑ "That leaving aside the broad concept of ownership of land the limited question of which this august Court is seized with is that whether Shamilat land can be owned by one or few individuals who happen to be the original proprietors under the Customary Law of the country? To determine this question we have to apprise ourself as to the nature of Shamilat land ‑‑‑ that it is kind of land which is either Banjar or mountains, or only grass growing. A very small part of it is made culturable through notor by needy persons living near :hat area. But the irony of fate is, that those persons who make the Shamilat land culturable have to face so many embargoes and restrictions to‑ call that land as their own under the prevalent Customs. The trees growing in Shamilat land are reserved only for the benefit of few proprietors. Although it is known as Common Property of the village, yet its benefits are limited to few persons. Islam does not admit such Customs or Laws."

9. In the petition, and during the course of the argument, the appellant has termed the impugned entries of the Wajibul Arz as custom having the force of law. If that be so, then the entries will qualify as law under clause (c) of Article 203‑B of the Constitution and for that reason will be open to challenge. The Federal Shariat Court in the impugned judgment made an observation that "entries have sometimes been made which do not profess to embody existing usage, but to declare a course of action which the land owners agree to follow for the future". Without examining further whether the impugned entries fell in the category of custom and usage or agreement and declaration, it proceeded to deal with them as law. The appellant also treated it as custom and usage having the force of law and attacked it for that reason. All the same, the appellant explained the origin of it in his petition as quoted above in paragraph 4 of the judgment.

10. The established law on the subject was expressed as hereunder in Mst. Bhag Bhari etc. v. Mst. Bhagan (PLD 1954 Lah. 356 at 360):‑‑ "Entries in a Wajibul Arz may be of two kinds. They may be statements of local custom or usage or they may be recitals of agreements. As statements of custom or usage they are strong evidence of the existence of such custom or usage but they have only an evidentiary value. Agreements incorporated in the Wajib‑ul‑Arz are however binding but only on the parties to the agreements, and even in such cases it is open to a party to prove that in fact no such agreement was entered into though the task would be difficult." This observation was approved in Sajawal Shah and another v. Syed Rahim Shah (PLD 1975 SC 325 at page 327).

11. A reference to the Gazetteer of the Hazara District yields the following information (at page 93 onward) relevant to the discussion:‑‑ "The village tenures of Northern India are commonly divided into three classes, Zamindari, Pattidari, and Bhaichara. Those of Hazara mostly belong in their origin to the first two ‑‑ that is to say, the villages, when they came into possession of the ancestors of their present proprietors, were held either by a single owner or a single family of owners in individual shares (Zamindari), or they belonged to one or more sections of a single tribe, who divided the land among themselves on the basis of ancestral or customary shares, and paid their revenue in the same fashion (Pattidari). At the First Regular Settlement this system was in a great measure maintained, and the revenue was distributed accordingly ..Many still retain a large area of village common, or Shamilat Deh, which in the hills is especially valuable, but, as noted in the previous chapter, there is an increasing tendency to partition this among the proprietary body. Such partition, if it takes place, is now usually on the basis of the revenue which each proprietor pays on his private property, and not on ancestral or customary shares; and, if the Shamilat remains joint, its income is distributed over the proprietors in the same fashion. Malik Qabzas.‑‑‑Another tenure which here deserves notice is that of the Malik Qabza. He is a proprietor with restricted rights, for though he has full control over his own holding, and is liable for the revenue assessed thereon, he is not entitled to any proprietary share in the common land of the village. He is often of a different tribe from that of the full proprietor ‑‑ sometimes a Kamin or a Hindu ‑‑ and has acquired his footing in the village by purchase or by favour. The rights in the Shamilat, especially in hill villages with abundant waste, being valuable and jealously guarded, it is seldom that an outsider can obtain a complete proprietary title. Even a full proprietor purchasing from another may not be able to acquire the share in the Shamfat attaching to the land transferred to him, and will be recorded only as a Malik Qabza so far as' that land is concerned .It may be added that in a few villages there are persons akin to Malik Qabzas who are called Guzarakhors. These are usually `poor relations' of the owner or owners of the village, who have been given a small plot of land for their Guzara or maintenance. They have no rights in the Shamilat, except in the Khanpur tract, where the Gakhar Guzarakhors have a share proportionate to the amount of land in their possession."

12. The copies of the Wajibul Arz of various Settlements placed on record do not show how the village was founded but the reproduction from the claim preferred by the appellant, the recitals in the Gazetteer and the law declared by this Court go to show that the allocation of village common land, the apportionment of rights therein, and the limitations therein had taken place not under any antecedent law applicable to parties or to the property. It had taken place by agreement of all concerned. Once we reach this conclusion that what is challenged as custom and usage was in fact an agreement between those who conquered the area, or founded the village certain material consequences follow. Firstly, such a consensual agreement in respect of one's own property would not come under the definition of law as provided in clause (c) of Article 203‑B of the Constitution. Hence, it will not at all be amenable to challenge under Chapter 3‑A of the Constitution. It would amount to a compact or a contract relating to immovable property. Secondly, even if it was taken to be enforceable as law, it had to be shown to be contrary to Injunctions of Islam.

13. The Qur'anic verses repeatedly emphasize 'the sanctity and. the importance of agreements and covenants, as hereunder:‑‑ `Verse 2:

177. And the virtuous are those who keep their pledges when they make them. 3:

75. Allah loves only such pious people who fulfil their covenants."

14. The original covenant of the settlers of the village with regard to the appropriation and division of the land amongst themselves, reservation of the common land, the exploitation and enjoyment of the rights in the common land and the reservation and limitation with regard to it are not shown to be in any manner violative of the Injunctions of Islam or beyond the capacity of the persons entering into such covenants. Once the arrangement is found to be lawful, not to any extent repugnant to Injunctions of Islam, the successors‑in- interest of such settlers, or those deriving interest from them, cannot claim interest larger than what has come .to be transmitted to them either by reclamation, by purchase or by succession.

15. In the circumstances, we find that the impugned entries of the Wajibul Arz which rest more on agreement than on any custom are not offensive to the Injunctions of Islam. Hence this appeal is found to be without merit and is dismissed. (Sd.) Nasim Hasan Shah, Chairman (Sd.) Shafiur Rahman, J (Sd.) Abdul Qadeer Chaudhry, J "This is the village administration paper ; it contains a specification of village customs, rules of management and everything affecting the government of the estate, the distribution of profits, irrigation, and rights in the waste." (The Land Systems of British India V. 2,1 p. 89, New Delhi 1988.) "The wajib‑ul‑arz, or village administration paper, should be a record of existing customs regarding rights and liabilities in the estate." "The paper declaring the customs and containing the Code of rules for the future management of the manor (called now the administration paper) is always considered a most important document." (Douie's Settlement Manual Paras. 295, 296, 6th Edn., 1982, p. 181, 182.) "The state of the customs respecting rights and liabilities on the estate shall be in narrative form ; it shall be as brief as the nature of the subject admits, and shall not be argumentative, but shall be confined to a simple statement of the customs which are ascertained to exist. The statement shall be divided into paragraphs numbered consecutively, each paragraph describing as nearly as may be separate custom." (Douie's Settlement Manual, p. 37 App. 3 (E).) "The village common land comprises the Shamilat‑deh, including. the uncultivated (banjar) and pasture lands, the abadi or inhabited village site and the gora‑deh or vacant space reserved for extension of the village dwellings, and adjoining the village site. (Rattigan, Digest of Customary Law, Para 223). "The stronger the old proprietary bodies ace, the more jealous they are of the admission of outsiders of the same privileges as their own". (Gazettier of the Hazara District, p. 89.) ORDER OF THE COURT The Court by a majority holds that the entries of the Wajib‑ul‑Arz of the village Bhojah do not come under the definition of "Law" as provided in clause (c) of Article 203‑D of the Constitution. Hence, the Court has no jurisdiction to declare them repugnant or otherwise of the Injunction of Islam as laid down in the Our'an and Sunnah. This appeal is, therefore, dismissed. (Sd.) Justice Nasim Hasan Shah, Chairman (Sd.) Shafiur Rahman, J (Sd.) Abdul Qadeer Chaudhry, J (Sd.) Pir Muhammad Karam Shah, Member (Sd.) Maulana Muhammad Taqi Usmani, Member M.B.A./Q‑47/S Appeal dismissed.