P (PLP)

3. Though the ala maliks have paid no jhuri hitherto, they will pay it in future for any lands they may clear. There will, however, be this difference between them and the adna maliks that it will be optional with the ala maliks to take jhuri from an adna maliks, in which case he will remain an occupancy tenant only. The indi vidual ala malik, on the other hand, will be entitled, if he chooses, to pay jhuri at a fair rate, and to thus become an adna malik. In such a case the other ala maliks will not be able to refuse to take the jhuri.

4. The question as to the taking of jhuri, or as its amount, will for the future be determined by the ala maliks as a body, and the decision come to be recorded by the patwari.

5. The lambardar will be entrusted with the power of allotting common waste for cultivation. Any persons feeling aggrieved at the way in which he exercises such power, must put in a complaint at once, otherwise persons clearing jungle, with the lambardar's permission, will acquire occupancy rights, and pay rent at the customary village rate to the superior proprietary body.

6. The right to profits from the produce of common waste lands, other than grazing, has been continued to the superior proprietors subject to the right of the adna maliks and cultivators to take first what they want for their own requirements. The ala maliks have been given the option of taking a third of whatever munj grass there may be, leaving the rest to the cultivating body generally, or of leaving the whole to the adna maliks till 1st January after which the ala maliks are at liberty to sell the remainder. In neither case are the adna maliks at liberty to sell any munj grass that they may have cut, or dispose of it to outsiders. All classes of cultivators are entitled to firewood from the common lands. Non‑cultivators, such as traders and artisans, will in future pay 8 annas a year for the privilege of taking grass, and wood and munj from the common lands. Payment under this head will go to meet the grazing jama assessed on such lands, and will not be a perquisite of the ala maliks.

8. In some cases partial partition of the waste may be effected. In such cases, the existing waste can be divided among the superior proprietary sharers without touching the cultivated lands, and it can be provided that the malikana due on the partitioned lands, when these are brought under cultivation, will be paid into the common fund. In this way the right to the malikana will continue to be held undivided as before, but each ala malik will be able to make his own arrangement for taking jhuri, etc., for the lands that may have fallen to his portion. A partition of this sort, though it effectively protects the interests of the sharers claiming partition, is ‑not generally what the ala maliks care for. The great idea of every ala rnalik is to get Patti of his own, with adna maliks over whom he can rule, and a share of the lambardari. The system of tenure described above underwent no substantial alteration between the first and the second regular Settlement which concluded in 1903. In the Kachi tract during this period there was naturally a tendency towards partition of shamilat areas. In the Thal where shamilat areas were large, it was provided in the second regular Settlement that thereafter no rights of adna malkiyat would be acquired by, barani cultivation. Writing of the conditions since the Sindh Sagar Doab Colonization Act, I of 1902., by which partition of the shamilat and acquisition of any interest in shamilat by breaking up the land to cultivation were prohibited the Gazetteer of the District observes. "Agreements under the Sindh Sagar Colonization Act, I of 1902 were executed in respect of their common lands by all the villages in the Bhakkar Thal with the exception of three, Sohajunj, Gorcha and Mehar Imam Shah. The effect of this has been to prevent partition of common lands in the Thai, and also to bar any acquisition of adna malkiyat rights by breaking up new patches to cultivation. Nonetheless since. 1903 there has been an enormous extension of barani cultivation in shamilat lands, especially in the northern Thal, due mainly to the proved suitability of the soil for gram cultivation, but trot entirely confined to this crop. The status of those, who have broken up the shamilat in this way, is at present somewhat indeterminate, inasmuch as they are barred from the acquisition of proprietary rights in the land which they have taken up, while on the other hand, except possibly in those villages where ala malkiyat rights exist, it is doubtful whether they can be said to be in the position of tenants or liable to ejectment. The immense areas at their disposal and the absence of defined limits of cultivation add to this indefiniteness, for it is not an uncommon‑‑custom to take up a new patch for cultivation every year, at the same time abandoning the old. This increase in the cultivated area is very strongly deprecated by those who represent the grazier population, but it seems doubtful whether their opposition to the economic force, which is at work to extend the cultivation, can avail to check it in any appreciable degree." From the aforesaid history of this system of divided owner ship and the principle on which it is founded the following results are deducible:‑

1. Ala malikiyat means the right to give waste land toil cultivation to those who, on payment of an entrance fee called tappa lagwai orjhuri, which consists of the present of a turban and a lamb, and an annual payment, generally Rs. 1‑12 per cent of the land revenue as malikana are willing to break up the land and sink a well. The an having, been broken up and the well sunk on payment of the entrance fee the person breaking up the land and sink except that of realizing his annual malikanan and a possible right of reversion should the adna maliks line become extinct. The adna malik cannot be ejected nor his malikana enhanced and the interest acquired by him is both heritable and transferable. He can therefore rent out the land to tenants.

2. Where only the ala malkiyat of waste land, whether it be common land or not, vests in certain persons, those persons are only entitled to give the land on adna malkiyat on the terms detailed in No. 1 above. They, are not full owners of the land, though any one of them may, subject to the conditions mentioned in No. 1 above, break up the land and sink a well. Those who thus bring a portion of the waste under cultivation become themselves adna maaliks and not full owners of the land as the body of the ala malik and the body of persons, breaking up the waste not being identical, there is no merger in such cases The position of such persons qua the whole body of ala maliks is that of adna naaliks pure add simple, though as being members of the body of ala maliks they are themselves entitled to their share in the jhuri and malikaraa that they themselves pay. 3. where the waste is not common land and the title of the maliks of the village to it and not only to ala malkiyal in it is recognised by Government the waste is the property Of the ala maliks, which they may use in any way they like. Instances of such waste can only, be found where the village was founded by the ala maliks and what is now waste was included in the bound aries of the village and the ala maliks' title to it yeas recognised by Government. This is so because full ownership of the village originally vested in the ala maliks, and what has been taken away from that ownership is only the right acquired by the adna maliks, and an adna maliks acquires no more right than the right to own the area which has been granted to him for development. Unless, therefore, the right to pasture or some other right in the other land was given 'by the ala malik to the adna malik, all that can be subtracted from the full ownership of the ala malik is only what has been, granted to the adna malik. And since that which has not as yet been given in adna malkiyat to any one was originally the property of the ala maliks, it will continue to remain so unless some adna malkiyat is created in respect of it or some other right in it has been given to the adna maliks. The un-appropriated waste in such village therefore would belong to the ala maliks and the occasional observations made in the Settlement Manual and the Gazetteers of the district that the un-appropriated waste belongs to the ala maliks must be understood in this sense.

4. If the un-appropriated waste is common land shamilat‑i- deh), then different considerations arise very fact that the land is shamilat‑i-deh means, it is not the exclusive property of anybody and that other residents of the village, be they ala maliks or adna maliks or mere residents of the village, have some sort of right in it. The nature and extent of such rights will, therefore, depend upon the terms of wajib-ul-arz which incorporates the agreement in respect of this land between the government, the ala maliks, the adna maliks and the other representatives of the village. Before the first regular Settlement of the district the boundaries of villages were not defined and all waste was claimed by the government as its own property. It was in that settlement that village boundaries were fixed and waste was allotted to each village as common land. The rights of the ala maliks and adna maliks and of even those who do not cultivated land have to be determined with reference to the terms on which such waste was allotted. Generally : (i) in the Cis‑Indns Kachi and the villages that are half Thal and half nasheb such common waste, though generally impartible, is the property of the ala maliks ,subject to certain rights enjoyed by the other classes of the community, e. g., the rights of the adna maliks (a) to graze their cattle, (b) to break up the waste without the permission of the ala maliks and acquire occupancy tenancy, and (c) to break up the land with the permission of the ala maliks and, acquire adna malkiyat in it. Every ala malik has the right, without reference to the other ala maliks, to break it up and become adna malik of it and become adna malik of it; the adna maliks and cultivators have the right to take munj and firewood for their needs without any payment; and the non-cultivators have the right to take such produce oil payment of each annas per year; (ii) in the Daggar villages the common wasters held on khewat shares, and (iii) in the pastoral portion of the Thal the common waste is not held on khewat shares and is the common property of all the residents of the village, whether cultivator or not. It is in the light of these principles and considerations that the issue in this case has to be approached and the various documents produced by the parties have to be interpreted. The kaifiyat‑i‑am, nisbat halat-i-dehi complied in the First Retular Settlement of 1878, Exhibit P.59, shows that first founder of the village was one Raja who acquired the urcrllziyal of tire village together With that of mauza khawar, that Raja's descendants continued in possession of the village on ancestral shares for four generation, that some four generation, that some four generations before the settlement of 1878 the ownership of the village devolved on one Umar, who was one of the descendants of Raja, that up to the commencement of that Settlement Umar's descendants were in possession on ancestral shares, that till then there had been no partition of the ala malkiyat, that the ancestors of the adna maliks heard from time to time, with the permission of the ala maliks and either on payment of tappa lagwai or as a matter of grace (ihsasaan) acquired malkiyat according to their possession by sinking wells that the extent of malkiyat of the various families appended on their respective possession, there being no other factor to regulate the measure of their ownership. That before the annexation the ala maliks were called zamindars and adna maliks as riaya that out of the produce of the land under their cultivation the riaya used to pay one Pai in one path to the zamindar as haqq malkiyat ala, that after the annexation the Zamindarr were recognized as ala maliks and the riaya as the adna maliks of the area in their possession, that a surcharge of Rs, 1-12 per cent, on the land revenue was fixed as haqq rnalkiyat‑i‑ala and that since the recognised measure of ownership was the area appurtenant to each well and the uncultivated waste was shamilat of the, whole village according to their shares in the liability to pay land revenue (hasab hisas malguzari), the form of tenure (sigha deh) in view of the ala maliks possession was Zamindari bil ijmal bahisas jaddi and as regards the adna malik interest bhyachara ghair mukammal. This document does not disclose how Raja acquired possession of the village and what was the nature and extent of his rights in the lands. Nor does it show whether the shainilat referred to therein was originally included in the boundaries of the village held by Raja or whether it was subsequently allotted to the village out of the general waste which has always been held by Government. The important point, however is that as far as the adna maliks were concerned, the sigha deh was described as bhyacha ghair mukammal and this could only be if the adna maliks, apart form the lands possessed by them, had some common right to share. The right could obviously be their interest in the common land was declared as shamilat deh of the whole village in accordance with the malguzars shares of liability to pay land revenue. Though the three earlier Settlements were made with the ala maliks. the first regular Settlement in which this kaifiat was prepared was made, as the document itself mentions in section 3, not with the ala maliks but with the persons who were in possession of the wells, whether they, were adna maliks or ala maliks in the village. This document therefore, unmistakably tends to show, that the common land was not recognised by the government or by the adna maliks as the exclusive property of the ala maliks but was held on khewat shares in accordance with the general rule in Daggar villages. The village in question is a Daggar village, named , as the khaifiat itself mentioned in Section 2, after the tribe (aawan) to which the majority of the adna maliks belonged. The next document itlanama Exhibit D. 18, addressed to the owners (malikan) in the First Regular Settlement (1878), states the position in regard to the rights in the waste and the payment of the jama on it. It recites that before that Settlement the entire waste in the Thaal was considered to be the property of Government, that all residents of the village and the transborder tribes graze their cattle in it for which Government used to realise tirni, that in that Settlement the whole waste was measured, a certain area allotted to the village according to its grazing needs and the rest declared to be Government waste (rakh sarkari), and that a sum of Rs. 50 was declared to be the jama on the area so allotted. In regard to the camels' right to graze, however, the document stated that the previous position was to continue, namely, that these animals would continue to graze on or outside the allotted waste and irrespective of the boundaries of the village, i. e., irrespective of whether they belonged to the residents of this village or other villages, and that the grazing dues (kahchari) would be realised by Govern ment through contractors. It is thus clear from the recitals in this document that before rite Settlement of 1878 the whole waste belonged to Government, that the residents of the village irrespective of their status in the village used to graze their cattle in this waste on payment of certain grazing dues and that it was for the first time in that Settlement that a portion of the waste was allotted to that village for purposes of grazing for which a fixed sum teas assessed as the jama. Government, however, still continued to retain the right of realising dues for the grazing of camels and tire owners of the village were not entitled to stop the camels of other villages from grazing in their common land. Consequently it must be held that the waste which is now shamilat-i-deh was not included within the limits of the village which was founded by Raja and that it was allotted to the village for purposes of grazing cattle and taking other produce for the ordinary agricultural needs of the villagers. The next important document to consider is Exhibit D. 35, the wajib‑ul-arz compiled same Settlement. The important provisions of this document are to the following effect : AGREEMENT WITH GOVERNMENT Clause 3‑Sanad Ihsaia Government reserves to itself the right to grant permission to others for the sinking of wells on the common waste, under sanad Ihsan. Such permission will be granted after duly considering the position of the existing wells and the grantee will have to pay .for a certain period half the rate of the revenue assessed on the surrounding wells, whereafter he shall pay full revenue and the amount so paid will be set‑off against the total jama. Thus the benefit of all grants under the sanad ihsan will accrue to the zamindars and not to the government. Clause 6‑ Tafriq‑i-jama: The owners of the cattle will pay grazing‑ dues (kahchari) at certain rates and the income from this source will be divided according to the shares in the khewat (hasab rasad khewat chahat). CLAUSE 10‑Partition of ownership (malkiyat) Malkiyat land that has been entered in the khatauni may be partitioned but the village common waste shall not be partitioned, because if it be partitioned the owners of the cattle will be put to inconvenience in finding pasture for their animals. Even persons who do not own any land in the village are entitled to graze their cattle by reason of their residence in the village and this right of theirs will be affected by the partition. If someone, however, applies for partition and Government considers it ex pedient to partition the shamilat, the land may then be partitioned. In this village Muhammad Bakllsh, etc., caste khawar, are ala maliks. According to the records of the Summary Settle ment of 1862, the ala malks are entitled to realise Rs. 1‑12 (haqq malkiyat) from the adna maliks. Those adna maliks who, with the permisson of the ala maliks and on presenting them a turban worth Rs. 2 asnd lamb worth Rs. 1 as tappa lagwai dig a new well be considered to be the adna maliks of that well but person who dig a well without such permission and without payment of tappa lagwai will be treated as occupancy tenants will pay the land revenue together with the cesses and in addition pay proprietors (malikans) Rs. 1‑12 per cent. of land revenue as haqq, malikiyat ala and Rs. 9‑6 as haqq khati. The ala maliks have the first right to sink a well and the adna maliks come after them. If the adna maliks do not choose to sink a well, the ala maliks will have the right to give permission to an outsider to do so. But before permitting an outsider to sink a well, the ala malkis shall obtain the order of the officer of the district so that the rights of the adna maliks may, pot be deceased. No new well will, however, be sunk if anyone of the following circumstances are, proved (a) if persons who graze their cattle object and it is proved that their rights of grazing are affected ; and (b) if the new well obstructs the flow` of water, of ~a pre‑existing well and the owners of that well object. CLAUSE 13‑Government's power to acquire land : Hitherto all waste was considered to be Government property, but now Government has allotted to the zamindars of each village a defined area within the limits of their village and the rest has been converted, into a Government waste (rakh sarkar). If ever. the waste is acquired by Government, it shall not be liable to pay any compensation for it. At present the fruit of trees of spontaneous growth is enjoyed by all the residents of the village, whether malik or ghair malik. This position will continue in future but malikan‑i‑deh have the power, if they so wish,' to make other arrangement for their own benefit. Any income derived from this source will be shared by the khewatdars of the village according to their share in the liability to pay land revenue and grazing dues. Clause 16‑Rights in standing trees. The following are the rules in regard to the trees growing on the shamilat: (a) The owners of the wells preserve some trees near the" wells to feed their cattle or to use their timber. Such trees are a the disposal of the person owning the well. (b) The trees with the exception of those mentioned in (a) above are at present sold by maliks and ghair maliks. In furture, the ala maliks and the adna maliks will have the right to stop this sale and to make new rules in regard to the disposal of such trees. The foregoing provision of the wajib-ul-arz show, clearly that the area allottee to a village out oft a general waste which hitherto had belonged to Government was intended for the benefit of all the residents of the village whether malik or ghair malik. Persons who owned no land were declared entitled to graze their cattle on the common land on payment of a certain fee. Such persons could also object to the sinking of a new well or to the partition of the common land. The most important circumstance which shows that the ala maliks alone are not the proprietors of common land is that the adna maliks of the village, whithout the permission of the ala maliks and without paying any tappa lagwai to them, can sink new wells in it and automatically acquire the status of occupancy of the tenants. The other circumstances which indicate that the adna maliks have an interest in such land thus detracting them the full title of the ala maliks, is that they are entitled to utilise the produce of the shamilat and to share in its profit according to their share in the liability for the payment of land revenue and grazing dues. It is true that they cannot sink a new well and acquire adna malkiyat without the permission of the ala maliks and without paying tappa lagwai to them. That, however, does not show that the land is the absolute property of the ala maliks. An ala maliks himself cannot, by sinking a well, become the full owner of the land. His position is no better than that of an adna malik because through a member of the body of ala maliks, he still remains an adna malik in respect of the new well qua the whole body ala maliks, the doctrine of merger, as already explained not being applicable in the circumstances. Further the shamilat is not plausible, and this would not have been the position if the shamilat had exclusively belonged to the ala maliks. The common land is shown in the jamabandi under a separate khasra number. This jamabandi has two columns, one describing the ala maliks of the land and the other the adna maliks. In the former the names of the ala maliks of the village are given while in the latter the entry is shamilat‑i‑deh. This document has been considered by the learned Single judge to be inconsistent with the other documents, namely, kaifyat‑i‑deh, the itlanama and the wajib‑ul‑arz, but on the principle on which document has been prepared, I see nothing inconsistent in it and the other documents. In the villages in which proprietary rights are shared by the maliks and the adna maliks in land on which by the permission of the former wells have already been sunk by the latter the jamabandi must necessarily contain two columns, one regarding the ala maliks and the other regarding the adna maliks, of the land. The true effect of such entry is that the land has been broken up tappa lagwi and malikana for the land they may have given for being broken up, and that the land being waste no particular person has as yet acquired adna malkiyat in it and all the proprietors of the village are its potential adna maliks since, every one of them is entitled accordance with the conditions of wajib‑ul‑arz to acquire adna malkiyat in it. These entries do not therefore create any confusion or contradict anything said in the other documents. The entries do certainly no; mean that the ala maliks are full proprietors of this laid in the same sense in which the word malik (owner) is used in relation to those tenures where the system of undivided ownership prevails. On the other hand, their true purport is that from the ownership of this shamilat a certain right, i.e., the right of adna malkiyat, has been cut and vested in the ala maliks, and that the residue is common property of the village and not of ala maliks alone it is true that the ala maliks have the first right to sink wells on this land but that does not make them its full owners. If the land had been their exclusive, property, the entries to the revenue papers would not have been as they are and the land would have been shown a s the property of the ala maliks alone. The manner in which the 'entries occur show quite unmistakably that per other than the ala maliks also have some interest and right in this land. What, these rights are depends upon the terms of wajib-ul-arz. I may now consider the decisions on which reliance has been placed by the learned counsel for the appellants. These are Ghulam Haider, etc. v. Mehr Chand, etc. 39 P. L. R. 265, Hayat and others v. Khan Muhammad and others. C. A. 1806 of 1934, Muhammad Abdurrahim Khan v. Hussaina. 1949 P.L.D 352, and Mitha v. Ghulam Hussain, L. P. Appeal No. 112 of 1945. In the first of these cases, it was held that the adna maliks of village Hyderabad in the Mianwali District had not been proved to be joint owners within the meaning section 111 of the Land Revenue Act so as to be competent to `apply for partition of the shamilat. Bhide, J. definitely held that the ala maliks were the owners of the shamilat and that the adna maliks had no share in it. The other learned judge, Dalip Singh, J., did not disagree though he did pot fully share this view. The dicision was principally based on the prevision of the wajid‑ul‑arz of the second and third Regular Settlements according to which shamilat could be parti tioned if all the maliks joined in asking for it. The village in which the shamilat was situate in that case, was a Thal village. In the present case the only wajib-ul-arz produced is that of the First regular settlement and that contains no such provision, and the village in which the shamilat is situate is a Duggar not Thal, village. In the second case, it seems to have conceded, whether rightly or wrongly one does not know, that the un-appropriated waste in village Kalur Kot was originally the property of the ala maliks and that the adna maliks had failed to prove that subsequently the had become owners of 2/3rd of that land. In the present case, however, we know that when the shamilat was allotted to the village, it was not allotted to the ala maliks alone. In the third case the ala maliks were held to be the owners of the shamilat and as such alone entitled to partition but the decision proceeded on the peculiar terms of the several wajib‑ul‑arz and the history of the village. The fourth case does not have much relevancy because the dispute there was between the ala maliks and the ala khud adna maliks whereas what has to be determined in the present case is the rights of the ala maliks as against those of the adna maliks. The third case is somewhat similar to the present case, though there are distinguishable features between the two. The position recognised in the wajib‑ul‑arz of 1878 in the present case is that whereas ala malkiyat is paritable, the shamilat is not. A partition of the ala malkiyat, including the ala malkiyat of the shamilat, merely means that the rights now held by the ala maliks in defined shares in respect of the whole land will on partition vest in the ala maliks indi vidually or in groups and be distributed over delimited portions of the land. Shamilat, as distinguished from ala malkiyat in the shamilat, is not partible because it is not the exclusive property of one‑ class. Nevertheless, however, the wajib -ul‑arz recognises the possibility of partition of shamilat .if such partition is considered, to expedient by Government. When effecting any such partition, the quantum of, the interest held by each class of persons in the shamilat will have to be roughly determined and area will have to be divided accordingly. This shamilat has now become extremely valuable because of the irrigation project that is nearing completion and which will have the effect of converting what has hitherto been an arid waste into a highly productive soil. The rights of different parties in this land was defined in the various Settlements only in regard to the right to break up the land and sink wells therein, but hereafter there can hardly be any question of sinking wells because most of the area will be commanded by the newly constructed canal. It is for this reason that this scramble for the shamilat has been evident for some time past in this district, but it seems to me be clear that the shamilat in villages of the type with which we are concerned in the present case does no: belong exclusively to any one class and its partition will be an extremely difficult affair. The conditions in the‑‑Wajib‑u1‑arz on which it is held will not he applicable in future in view of the changed circumstances, and it is obviously a matter in which Government either by legislation of through executive instructions should intervene because if the title to this vast area of land in the Thal remains in doubt or undefined, the land will have to be kept out of cultivation and any claim to its cultivation will lead to unending disputes between the various claimants. For the reasons stated in detail above, I hold that land does not exclusively belong to the plaintiffs and that therefore, their claim for possession on the ground of exclusive ownership of the plaintiff's was wrongly decreed by the Subordinate Judge and the District Judge. The learned Single Judge has found that the contesting defendants did not acquire any right in the land in their posses sion because the breaking up of the waste and the sinking of new wells was confined to the period during which the Sindh Sagar Doab Colonization Act was in force. No clear findings have been recorded by the Courts below in regard to the manner in which the shamilat was broken up by the contesting defendants ; whether they brought the land under cultivation merely by breaking up the land for barani cultivation or whether they also constructed wells on it for purposes of irrigation. According to the conditions of the wajib‑ul‑arz mere breaking up of the land for purposes of barani cultivation, apart from the restriction imposed by the Sindh Sagar Doab Colonization Act, conferred no right on the cultivator to acquire adna malkiyat. The position, therefore, is that no matter what they did to the land in question, the adna maliks could neither acquire adna malkiyat nor any occupancy tenancy in the portions broken up by them. They did not even become tenant-at‑will and if they became such tenants, the ala maliks plaintiffs acc4pted their repudiation of the tenancy before the suits were ‑instituted. Thus this class of defendants is in posses sion without any right and the decree for joint possession and declaration given in favour of the ala maliks practically gives them no relief and would necessitate repeated suits for their share of the produce. Even according to the conditions of the wajib‑ul‑arz, the plaintiffs ala maliks had the first right to break up the shamilat reference to anyone else and by the action of the defendants they have been deprived of that right. It is true that the suits were for possession and the ground on which they were based, namely, that the land in question exclusively belongs to the ala maliks, has not been substantiated. This does not, however mean that there can be no decree for the ejectment of the defendants. Undoubtedly the defendants have no right to continue in possession and even though the ala maliks themselves be not entitled to possession without first breaking up the land they are entitled to claim defendants' ejectment. While, therefore, I would dismiss the plaintiffs claim for possession I would, for the decree granted by the learned Single judge, substitute a decree for the adna maliks defendants' ejectment. Parties will bear their own costs throughout. MUHAMMAD SHARIF, J.‑I agree. A. H. Order accordingly,