P L D 2009 Lahore 347 (PLP)

SYED HAMID ALI SHAH, J.

Backdrop of the instant controversy, in a narrow compass, is that land measuring 3277 kanals and 3 marlas, comprising Khasra Nos. 703 to 712, situated in village Dhoke Pore Tchsil Taxila, Dsitrict Rawalpindi, was Shamilat land. Land measuring 1474 kanals and 2 marlas, out of the said land, was meant for Guzara Chirahgah vide settlement for the year 1905-06. This chirahgah as per Shart Wajbul Arz is reserved for the general use of the residents of the village. Predecessor in interest of respondents Nos. 1 to 31, vide mutation No.55, got sanctioned a mutation of partition on 19-5-1910, based upon report Roznamcha No.311 dated 19-5-1910. Afsar Maal, through his decision permitted sanctioning of the mutation. The entries remained unchanged, from the date of it's sanction till 19-11-1997 i.e. the date of filing of the instant suit.

2. Petitioners instituted the suit for declaration and permanent injunction to the effect that the land in dispute, is chirahgah of village, unpartitionable and it's alienation in favour of respondent No.32, is illegal, void and ineffective upon the rights of the petitioners with a further prayer of permanent injunction, restraining the respondent from alienating the land or changing it's nature. Respondents contested the suit, filed written statement, controverted therein the assertions of the plaint and raised various preliminary objections. The plaint, in the earlier round of litigation, was rejected under Order VII, rule 11, C.P.C. The appeal, as well as the revision petition, brought no fortune for the petitioners, but ultimately their appeal (C.A. No.331 of 2004) succeeded and the case was remanded to learned trial Court for decision afresh, after recording evidence of the parties. Learned trial Court, in the post remand proceedings, recorded the evidence and on conclusion of trial, dismissed the suit, vide judgment and decree dated 2-7-2005. The appeal against dismissal of the suit, met the same fate on 27-1-2007. Now this petition against concurrent findings of the two courts below.

3. Learned counsel for the petitioners contended that three (03) witnesses of the petitioners, through their oral testimony, stated with due corroboration that the suit land was for the use of general public i.e. grazing field for the animals and for collecting firewood; that the land was a pasture, it was not partitionable and remained intact as Chiragah in the land settlement for the years 1905-06, 1956-57 and 1984-85. Learned counsel went on to argue that oral testimony of the witnesses of plaintiff, proved the factum of chirahgah and it's nature of being un-partitionable. Concurrent findings of courts below, suffer from the defect of misreading and non-reading of the evidence. Learned counsel referred to Exh.P-1 to Exh.P-9 and contended that in each settlement i.e. 1905-06, 1956-57 and 1984-85, the suit land has been shown as chirahgah, but the courts below, failed to consider these exhibits. It was also contended that as per Exh.P-8, the land is Ghair Mumkin Pahar and has been mentioned as Chirahgah in "Wajib ul Arz". It has been described as the part of land from village up to the mountain and beside the water course i.e. "Nullah". Learned counsel then submitted that suit has not been contested through an authorized person. Statement of D.W.1 (Col.(R) Abdur Rashid, was referred, who admitted in his cross-examination that authority letter (Exh.D-4) pertains to the case before the 'Revenue Authority and not regarding the suit of the plaintiffs (petitioners). It was added that respondent No.32, contested the suit, filed written statement and led evidence through unauthorized person. Learned counsel submitted that Exh.D-9 (copy of mutation No.55) and Exh.D-10 is not the primary evidence, while procedure for leading secondary evidence, within the contemplation of Articles 76 and 77 of Qanun-e-Shahadat, 1984, had not been adopted. Cases of Imam Din and 4 others v. Bashir Ahmad and 10 others PLD 2005 SC 418; Muhammad Aslam and others v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others 2000 MLD 1581 were referred. To support this contention, learned counsel has pointed out that mutation No.55 (Exh.D-9) was attested on 6-4-1910. The entry in it's column 13 reflects that mutation was sanction on the basis of decision dated 3-5-1910 of the court. Learned counsel added that the mutation was entered on 19-5-1910 and the attestation of mutation, as has been shown, is of later date. Learned counsel emphasized that this fact alone proves that mutation is fabricated transaction. While defending the objection of limitation, it was contended that the land was sold in the year 1996 and the period prescribed for assailing the sale is 6 years under Article 120 of the Limitation Act, 1908. The petitioners filed the suit within one year of knowledge of the impugned sale and of illegal partition of the suit land. Learned counsel went on to argue that D. W.1 admitted in his cross-examination that Khasra numbers, which respondent No.32, has purchased, are not Shamilat-e-Deh rather these Khasra numbers comprise of ownership land. Learned counsel then contended that cultivated land could be partitioned without hindrance between the owners thereof, but the land forming part of pasture, could only be partitioned, keeping the purpose of pasture intact i.e. grazing rights of the people. The contention was supported by relying upon the cases of K.B. Muhammad Abdul Rahim Khan v. Humaira and others PLD 1949 Lah. 352 and Lal Hussain and others v. Pakistan and 6 others 1990 MLD

223. Reliance was then placed on the case of Shoukat Zaman Khan and others v. Karam Din 1997 CLC 423 to contend that presumption of correctness is attached to the entry regarding right of grazing recorded in Wajibul Arz, which remained unaltered throughout in various settlements/bandobast. Learned counsel laid considerable emphasis on the entry in Shart Wajibul Arz that suit land is Chirahgah, it is village pasture and it is for the common use of the inhabitants of the village. The partition of chirahgah has no legal sanctity and as such not sustainable. Learned counsel in support of other contentions, placed reliance on the cases of Mian Ali Nawaz and 20 others v. Khalid Hussain and 28 others PLD 1985 Rev. 1 (Punjab); K.B. Muhammad Abdul Rahim Khan, deceased represented by Fazal Rahim and others v. Hussain and others PLD 1949 Lah. 352; Lal Hussain and others v. Pakistan and 6 others 1990 MLD 223; Shaukat Zaman Khan and others v. Karam Din 1997 CLC 423, Maskin and another v. Mst. Bagh Sultan and 15 others PLD 2001 Lah. 481; Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others 2003 SCMR 1857 and Lal Khan and another v. Rehmat 1994 CLC 1419.

4. Learned counsel for respondent No.32, on the other hand, stood behind the concurrent findings of the two court below. He submitted that Mutation No.55 (Exh.D-9) was attested on 19-5-1910, on the basis of order of the Revenue Officer, in the judicial proceedings, who decided that Shamilat land be given to the land owners of the village. None from the village, challenged the mutation from 1910 to 1997. Vehran Housing Society purchased 1500 Kanals of land in the year 1990 out of which, 623 Kanals of the disputed land was included in the impugned sale. Mutation (Exh.D-8) was sanctioned on 21-11-1990 and one of the petitioners i.e. Ellahi Dad (P.W.2), in his cross-examination, admitted that he had knowledge of this sale. The society subsequently sold this land to respondent No.32 and Mutation (Exh.D-7) was attested on 10-11-1993. Respondent No.32 purchased remaining land from other land owners of the village. It was contended that the suit was filed on 18-11-1997. Issue No.3 was regarding limitation. Petitioners admitted that they had the knowledge of Exh.D-8 i.e. mutation dated 27-11-1990, whereby the land was transferred to society. Petitioners could file the suit within six years i.e. by or before 20-11-1996, but the same was filed on 18-11-1997, which is barred by limitation. Learned counsel vehemently contended that Mutation No.55 is unchallenged even in the present suit, therefore, the suit of plaintiffs/petitioners is not competent. Learned counsel submitted that specific land is always reserved for Chirahgah. Such land remains under the control of the Provincial Government and it is necessary requirement that specific Khasras, in which the Chirahgah falls, are to be mentioned in Shart Wajibul Arz. He has submitted that there is not a single Jamabandi, wherein the factum of Chirahgah, with reference to specific Khasra numbers, is mentioned. Learned counsel further submitted that longstanding entries in the revenue record, which remained unchallenged throughout, are not open to exception. Learned counsel, while defending secondary evidence, contended that respondent No.32, applied for certified copies and was informed by the copying agency that the record had been gutted, therefore, secondary evidence was led. He referred to the statement of Saif-ur-Rehman (P. W.1), who admitted that Mutation No.55, was never challenged by any of the residents of the village and the petitioners are inhabitants of the village for the past fifty (50) years. Learned counsel submitted that Ellahi Dad (P.W.2) also admitted that no one challenged Mutation No.55 and that the suit land had not been mentioned in the revenue record as Chirahgah. Suit land stood transferred to various owners of the village, at least four decades, prior to the petitioners' attaining status of village inhabitants. The petitioners have no locus standi.

5. Heard learned counsel for the parties and record perused.

6. Land measuring 1474 kanals and 2 marlas, out of 3377 kanals and 3 marlas of Shamalat-e-Deh, was chirahgah, as recorded in Shart Wajibul Arz, pertaining to the year 1905-1906 (Exh.P-2), Shart Wajibul Arz, pertaining to the year 1956-57 (Exh.P-3) and Shart Wajibul Arz, pertaining to the year 1984-85 (Exh.P-1). The statement of custom/Shart Wahjibul Arz, needs perusal for the resolution of the controversy inter se the parties. The statement regarding rights of grazing/Chirahgah is mentioned in section 4 of Wajibul Arz, it's heading Section 7 deals with partition of the joint land, it's subsection (7) i.e. (Alif) pertains to the partition of Shamilat-e-Deh. It reads: Detail of Shamilat has been mentioned and it includes cultivated passage graveyard pond uncultivable mountain and village population.

7. The procedure for preparation of Wajibul Arz is mentioned in paragraph 7.4(E) of the Land Records Manual. It appears from bare reading of the above paragraph that the statement is prepared in the form XXXVI, of the West Pakistan Land Revenue Rules, 1968. It is simple statement of the customs, which is ascertained to exit. The information contained in Wajibul Arz must not offend justice, equity or good conscience. Nor there shall be an entry, which has been declared to be void. Initially, a preliminary statement (Chitha) is prepared and is attested by Qanungo Supervising Tapedar and Naib Teshildar (Head Munshi). Tehsildar/Mukhtar Kar is authorized finally to attest all the entries in Chitha in Wajibul Arz and he is to fix a date for attestation and shall summon the persons interested to appear on that date at the place in the estate to which the statement relates. The entries, which are found to be disputed, are required to be referred for decision, to Assistant Collector [now DDO (R)], who is to decide the dispute in a manner provided in section 44 of the Land Revenue Act, 1967.

8. Wajibul Arz, prepared by a public servant as above, at the time of settlement, carries statutory presumption of correctness attached to it. Wajibul Arz describes the right sand liabilities among the villagers inter se, such as enjoyment of proceeds of common land and rights of grazing on common land etc. Allahabad High court, in the case of Kallan Khan v. State AIR 1961 Allahabad 207, has held that Wajibul Arzes do not constitute absolute proof. Their value would depend upon the circumstances, which came out in regard to how they were recorded. Wajibul Arzes lose their value because one does not know precisely, who gave that information, which was embodied therein. It was observed in the case of Mian Ali Nawaz and 20 others v. Khalid Hussain and 28 others PLD 1985 Rev. 6 that there is always a danger that some stipulation may be inserted as an agreement on the part of all the land owners, while they might have not concurred the same. It was also observed that Wahibul Arz is always considered as most important document. Indeed, if fairly and properly drawn up, it is all important, but this can so seldom be done that it's value has been much exaggerated. The entries in Wajibul Arz, are capable of rebuttal. Reference in this respect can be made to the cases of Sher Singh v. Thakar Singh and others AIR 1930 Lah. 150; Mst. Bhagh Bhari and others v. Mst. Bhaggan and another PLD 1954 Lah. 356 and Avadh Kishore Dass v. Ram Gopal and others AIR1979 SC 861.

9. An analysis of the statement of custom/Shart Wajibul Arz, reveals that chirahagah was reserved for grazing and for collecting firewood and inhabitants of the village could enjoy this facility/right, free of cost. A joint owner, for the purposes of partition, can file suit. Land in the shape of graveyard, passage/road, Khangah pond and village population/residential is excluded. The land, which is mountain, was left for village inhabitants and for grazing.

10. The properties, which had been excluded from partition, are specific and are pond, passage/roads, Khanqah graveyard and residential land under the use of village population. Mountain has not been mentioned in this category/class Thus Chirahgah/mountain, as per Shart Wajibul Arz is partitionable. Non-mention of Chirahgah, in various categories of unpartitionable land, speaks of the fact that Chirahgah can be partitioned among the owners.

11. While interpreting section 7 (Alif) of Wajibul Arz, I will rely on the maxim "Taut ce que la ne loi defend pas est permis", which means that everything that is not forbidden, is permitted. Chirahgah has not g been excluded specifically from partition, therefore, the land reserved for Chirahgah can be partitioned as Shamilat among land owner of the village. The land, as a result of partition, remained in the uninterrupted use and possession of the landowners. It's use and nature changed altogether. Longstanding entries in the Revenue Record further substantiate this fact.

12. While entering the relevant entries in the Wajibul Arz, at the time of settlement, there is nothing on record to show that the statement was read over in presence of persons in attendance and their signatures or thumb impressions were obtained as provided in paragraph 7.44(E) 6(6). The disputed entries have been incorporated ignoring the ground realities as they exist. The land owners, whom the land stood transferred by virtue of partition, were not associated in the course of preparation of the statement in Waji-bul-Arz, thus, the entries therein cannot be used against these land owners.

13. The revenue record has been examined. Summary of the orders passed in the partition proceedings (at page 589), reflects that partition proceedings were instituted on 30-6-1907 and remained pending for considerable long time. The defendants in the said proceedings, assailed the order of partition of joint land/shamilat in appeal before Commissioner, Rawalpindi. Mr. J.M. Donie, the then Commissioner passed the judgment on 17-7-1908 (page 636), the translation whereof, is at page 634 of his file. Reports of Patwari, Girdawar and Naib Tehsildar are at pages 379, 380, 384 and 312.The record transpires that revenue officers went through the process of checking and rechecking and on completion of. Afsar Mall passed order (page 381) that objection, if any, be filed, failing which partition proposed, will be accepted. There is statement of defendants to the effect that they accept partition. The partition proceedings were carried with the consensus of the parties. No one raised objection at the relevant time. Thus, after going through a lengthy process, impugned mutation was attested on 19-5-1910. The above record regarding partition of Shamilat, is public record and is more than 30 years old. Presumption of truth is attached to it, as envisaged in Article 101 of Qanun-e-Shahadat, 1984. The record, beyond the iota of any doubt, negates the stance of the petitioners that impugned mutation No.55 is fraudulent.

14. The property, eversince it's partition, remained unchallenged for over three quarters of a century. The ownership changed hands, during this period, on a number of occasion. Sale in favour of bona fide purchaser, on the basis of longstanding entries, in the revenue record, is protected under section 41 of the Transfer of Property Act, thus, the concurrent findings of the two courts below, which do not suffer from the defect of misreading or non-reading of evidence and are based on correct appreciation of law, are not open to exception, in the revisional jurisdiction of this Court.

15. There is another angle to view this controversy. The property has been mentioned in the Jamabandi for the year 1912-1913, in column No.4, a. The nature of property as mentioned in the Map/(Alif), is (Shamilat Dahi Hasbay Raseed Khout). The land, after it's partition, in the year 1910, came in the ownership of the landowners of the village and record reflects that it vests in the ownership of respondents Nos.1 to 31 and their predecessor. The entries in Shart Wajibul Arz, transpire that land in question, is commonly used as Chirahgah. But nature and use of land in dispute changed subsequently and it became part of the ownership of landowner of the village for their personal use, to the extent of their respective shares in Shamilat. An entry in Wajibul Arz, prohibiting the partition of Shamlat lands, does not necessarily operates as bar to partition. The duty is cast upon the Revenue Officer, dealing with the partition to decide whether such a clause should prevail or not. Wajibul Arz was drawn up at a point of time, when the land was valued only for the village pasture, but subsequently, it had since been broken up for cultivation and there was reduction of cattle kept by the community. In view of drastic change in the society and for the fact that at the time of partition of Shamilat, none, from the community, contested the partition, the Revenue Officer was justified in sanctioning the mutation.

16. For the foregoing, this petition has no merit and is accordingly dismissed with no order as to the costs. M.H./S-25/L Revision dismissed.