P L D 2001 Lahore 481 (PLP)

6. Anyhow, to disprove the custom, the defendants produced Exh.D.2 which is copy of Shart Wajibul Arz and relates to the conditions regarding the cultivation of Shamlaat land, its management and its income. It appears that for purposes of the suit, Shart Wajibul Arz (Exh.P.2) will be the relevant document.

7. The evidence brought on the file both verbally and through documents, reflects that a part of the land was sold out which was also purchased by the plaintiffs. While some portions of the land were improved. Whereas, the proprietors have leased out some portions to the Forest Department against 25 years lease, and the plaintiffs were using the rest of the land for pasturage, for collecting fuel and for showing water to their cattle.

8. On the portion, which was being used for purposes of pasturage, the finding of the learned First Appellate Court was that this was being done by them lawfully since antiquity.

9. The learned First Appellate Court while waiving the rights of the proprietors of the village as well as of the non‑proprietors, correctly opined that their rights had to be balanced fairly. Obviously, these rights of non- cultivators reflected in the Shart Wajibul Arz did not in any way efface the proprietary rights of the proprietors.

10. Gleaning from the oral testimonies of the witnesses from both sides, it has come on record that the plaintiffs have been grazing their cattle over the property. However, according to Saeed Muhammad (D.W.3), the plaintiffs could only graze their cattle, collect fuel wood and show water to the cattle with the permission of the proprietors. Whereas, the case of the plaintiffs was that they have been exercising their right of grazing etc. with impunity and without any hindrance caused by the proprietors.

11. The learned First Appellate Court while accepting the rights of the plaintiffs, allowed them to use their customary right of grazing their cattle, collecting fuel wood and using the ponds on a limited area and not the entire land and this area, according to the learned First Appellate Court, bearing Khasra Nos.625, 626 and 617 which comprised 362 Kanals, 19 Marlas (Ghair Mumkin Gar), was sufficient for their purposes and restrained the defendants from interfering with such rights of the plaintiffs in these Khasra numbers.

12. Whereas, the defendants were claiming such a right over a vast area comprising on 1712 Kanals, 2 Marlas.

13. This aggrieved the plaintiffs. As according to them, the findings given by the learned First Appellate Court were arbitratory (C.R. No‑54 of 1983), while in C.R. No.209 of 1986. the vendees from the proprietors have challenged the decision on the ground that the conditions set in Shart Wajibul Arz were not correctly appreciated and that the dismissal of the suit was the only answer rather than the partial acceptance.

14. This Court is of the view that the Shart Wajibul Arz, Exh.P‑2, had been correctly interpreted by the learned First Appellate Court and the right: of the non‑proprietors etc. of this village against grazing of cattle, use o water ponds and collection of fuel wood had been correctly appreciated However, it is to be seen whether the learned First Appellate Court was correct in saying that three of the Khasra Nos. i.e. 617 and 626 were enough for catering to the needs of the non‑proprietors etc. The answer is in the affirmative.

15. An identical question arose in the case of Kanshi Ram and others v Muhammad Abdul Rahman Khan and others AIR 1925 Lahore 216, Division Bench of this Court observed:‑‑ "There can, however, be no doubt that though the defendants arc entitled to cultivate the land, the plaintiffs are entitled to have sufficient pasturage left for the use of their cattle and that it appear; to us advisable that a provision to this effect should be inserted it the decree. It will tend to prevent disputes in future and will also prevent the defendants from bringing the whole of the land under cultivation as apprehended by the plaintiffs. We are accordingly o opinion that it should be stated in the decree that the defendants right of cultivation will extend only to so much of the land as will leave plaintiffs a sufficient amount of area for grazing purposes. The right to cut grass is included in the right of grazing as found by the learned Senior Subordinate Judge himself and there is no reason why the plaintiffs' suit in respect of this right should not have beer decreed. We are further of opinion that the plaintiffs should also be given a decree for an injunction restraining the defendants from preventing plaintiffs from the exercise of these rights. The question as to the sufficiency of pasturage to be left for the plaintiffs need no be decided in this case and may be left for execution proceedings."

16. Reference may also be made to the case of Aso and others v. Bishar Singh and others AIR 1927 Lahore

130. The relevant portions of which arc reproduced below:‑‑ "For the appellants Mr. Sundar Das states that he now, admits the correctness of the view taken by both lower Courts of the legal rights of the parties, based as it is on the Wajib‑ul‑Arz, the ruling: Nagina v. Baggu (1881) 100 PR 1881 Hira v. Nathu (1899) 119 PR 1889 and Bhala Nath v. Midnapore Zamindari Co., (1904) 31 Cal 503 = 31 IA 75 = 8 CWN 425 = 8Sar. 611 (PC) summarised it para. 220 of Rattigan's Digest of Customary Law. For the cross objecting respondents Mr. Faqir Chand admits before me that the landlords cannot be restricted from enclosing land according to the wishes provided that an area for grazing sufficient for the real need; of the tenants in respect of grazing and feeding their cattle kept for agricultural purposes and the collection of fuel is left available. That is to say, counsel agree that the law is that the tenants are entitled to exercise these rights in the common land which is not enclosed and that the landlords can partition the land and enclose it so long as a sufficient area for the exercise of these rights remains. Further both counsel admit that for their present needs an area of 283 Kanals is sufficient and Mr. Sundar Das says that his clients are prepared to allow the tenants for their purposes an area of 208 Kanals in addition to the 75 Kanals still un-submerged out of the previously demarcated area. " "On the other hand there appears to me to be force in Mr. Faqir Chand's demand that the decree ought to lay down in clear terms that the proprietors must leave a sufficient pasturage to the tenants. It is consistent with the statement as to tenant rights at p.411 in Hira v. Nathu (1899) 119 PR 1889 and is I think a proper relief in the circumstances. Accepting the cross‑objection to this extent only I order that the decree of the lower Appellate Court be amended by the insertion after the words "necessary for them" the words provided that the proprietors shall not be entitled to enclose or reclaim so much land that there will not remain to the plaintiffs in consequence of such enclosures, or reclamation an area sufficient for the pasturage of the cattle required for their agriculture and 'the collection of grass and fuel required for their ordinary use. In the circumstances of this appeal I pass no order as to costs. "

17. The learned First Appellate Court while determining that the rate comprised in Khasra Nos.625, 626 and 617 was sufficient and suitable for the purposes of exercise of rights by the plaintiffs arising out of Wajib‑ul Arz, has not explained on what basis he thought that this was sufficient nor it can be said that it was excessive and this question which involves a factual determination, is not answered by the verbal statements of the witnesses in these cases nor a Revenue Officer has appeared for giving his views on the matter and this calls for determination.

18. Whereas, this Court maintains the findings of the learned First Appellate Court with respect to the recognisation of the customary rights of the plaintiffs based on Wajib‑ul‑Arz, this Court feels the matter be returned to the learned District Judge, Attock, for factual determination as to what will be the sufficient area for purposes of pasturage, cattle grazing and the pond area for the needs of the plaintiffs. While entering into this inquiry, the learned First Appellate Court shall also keep in mind whether persons who have purchased a part of the Shamlaat Deh needed to graze their cattle and use their rights according to Wajib‑ul‑Arz or having become self‑sufficient, should be left out. Obviously, the area which has Been brought under cultivation and is no longer a Banjar Qadeem, has also to be excluded as well as area leased out to the Forest Department. The judgment of the learned First Appellate Court, therefore,, to the extent that it decrees the suit with respect to three specific Khasra numbers, would be set aside for purposes of re‑determination of the Khasra numbers where the plaintiffs have to exercise their rights under the Shart Wajbul Arz. The revisions are therefore, disposed of in these terms with no order as to costs. Record be returned to the learned District Judge, Attock, for compliance and the parties are directed to appear there on 10th of May, 2001, or they be summoned. M.B.A./M‑595/L Order accordingly.