1990 PLP 223 (MLD)

(3) Whether the plaintiff and the residents of the village acquired the right of easement over the Shamlat Deh? (4) Whether the dispute regarding the easement was decided in a previous suit? If so, whether this fact is res judicata between the parties? (5) Whether the defendants 2 to 8 are estopped from raising the objection regarding the rights of the plaintiff? (6) Whether the counsel for defendants 2 to 4 and 7 to 8 made a statement in Court in the previous suit without the consent and permission of the said defendants and they are not bound by this judgment? (7) Whether the order of the Additional Commissioner is not binding upto the plaintiff? (8) Relief. Additional issue: Whether defendants 2 to 8 are not entitled to reclaim any portion of the suit Khasra, which has been reserved as pasture land?

5. The learned Administrative Civil Judge answered issue No. 1 against the defendants. On issue No. 2 his conclusion was that "the land in dispute is Shamlat Deh and was reserved for grazing cattle". On issue No. 3 he observed "but there is no evidence to the effect that the proprietors of the village have acquired any right of easement over the Shamlat of the village". It was also held by him that in the previous suit it had been declared that the land in dispute was Charagah Shamlat of the village and the defendants therein were restrained by way of perpetual injunction from cutting the trees therefrom. So according to him, the question of cutting of the trees (which is not in dispute in the present suit) was res judicata between the parties. He was of the view that the real question involved in the present suit was whether the defendants could break the land (reclamation) for agriculture and this was a fresh point, so was not barred by res judicata nor the defendants were estopped from raising the same. it was concluded by him that the counsel for the defendants in the previous suit had made a statement so they were bound by it. The order of the Additional Commissioner was found to be binding upon the plaintiff. On the additional issue he concluded that there was custom in the village under which every proprietor had the right to reclaim any portion of the land which was reserved as pasture. The learned District Judge did not discuss the evidence at all by observing that "since it is a judgment of affirmation it is not necessary to discuss each and every detail of evidence and give my opinion with regard thereto as observed in PLD 1961 Dacca 841". However, in his discussion he observed that according to Sharat Wajib‑ul‑Arz (Ex. P.5) the suit land was Shamlat Deh Charagah and was available for distribution among owners which could be brought under cultivation without even getting it partitioned. He raised the question whether the owner of the common land can appropriate the entire Shamlat of the village without reserving a reasonable area to be used as pasture and answered this in the negative on the ground that since 1912 common land of the village had been partitioned among the proprietors, 6,560 Kanals of land was still left as common for grazing cattle, so a customary right had accrued to the owners and. those living in the village to graze their livestock in this land which could not be denied altogether by complete appropriation of the land‑by the owners. In this connection, he placed reliance upon AIR 1925 Lahore

216. He, therefore, was of the opinion that though the suit land was Shamlat Deh as pasture but the same could be brought under cultivation by the respondents as even after its being so brought sufficient land was left in the village for pasture.

6. From the pleadings of the parties it is rather admitted that the suit land comprised in the two Khasras is part of the Shamlat land of the village and reserved for pasture. The findings of the two Courts below are also unanimous on this point. It is also clear from the judgment of the Civil Court dated 15‑4‑1968 (Ex.P.2) between the parties, except defendants No.5 and

6. According to this judgment, Noor Khan son of Fateh Khan defendant/respondent of the present suit had challenged the earlier decree in favour of Lai Hussain plaintiff‑appellant whereby it was declared that the suit land was Shamlat Deh Charagah and the defendants therein were refrained from cutting the trees therefrom and had failed. Misal Haqiat for the year 1923‑24, Register Haqdaran Zamin for the year 1954‑55 and Jamabandi for the year 1966‑67 (Exhs.P.6, P.7, and P.8) also show the same. There seems to be no dispute about this conclusion even before the High Court as no contrary argument was raised by the learned counsel for the parties.

7. According to the pleas in the plaint the suit land had been forcibly reclaimed and brought under cultivation by the respondents, which process if allowed to continue would end up the whole of the pasture affecting the right of the appellant and the other residents of the village. The assertion of the defendants/respondents was that the land could be brought under cultivation. In this respect we have to go over the history of the Shamlat land in the village and to appreciate the evidence in detail which seems to have not attracted the attention of the two Courts below.

8. The Shamlat land in the village was desired to be partitioned among the proprietors and the matter was disposed of by S.D.O. Pindigheb vide order dated 14‑5‑1912, proposing the mode of partition. The copy of the order is Ex.P.l. It indicates that the total Shamlat land of the village was 21,209 Kanals and 20% of it i.e. 1/5th was to be reserved for pasture/Charagah. The rest was to be partitioned. 256 Kanals and 17 Marlas was under graveyard, thoroughfares and ponds etc. He, therefore, proposed the mode of partition with the reservation that 4,242 Kanals including 256 Kanals and 17 Marlas for graveyard etc. to kept out of partition proceedings. Copy of Sharat Wajib‑ul‑Arz of the third Settlement of the district is Ex.P.4. It also indicates that 20% of the Shamlat land of the village would be reserved for Charagah/Pasture while the rest can be reclaimed (Nautore). Wajib‑ul‑Arz for the year 1923‑24 (Ex.P.5) shows that the ,proprietors could partition the Shamlat land which if partitioned was to be Hasab‑Rasad Khewat. It also recites that in the village total area of 6,560 Kanals 13 Marlas had been left as Charagah while the rest had been partitioned. 302 Kanals and 4 Marlas are shown as Mufeed‑e‑Aam (for public purposes) i.e. the graveyard, thoroughfares and ponds etc. It is also there in it that the proprietors can get the Banjar land brought under plough. It was perhaps this last recital which induced the two Courts below and the Addl. Commissioner to hold that the suit land could be brought under cultivation. Reading the mode of partition (Ex.P.l) Sharat‑Wajib‑ul‑Arz for the third Settlement (Ex.P.4) and Wajib‑ul‑Arz for 1923 24 (Ex.P.5) it is more than clear that 20% of the Shamlat land of the village was to be reserved for Charagah/Pasture, by 1923‑24 only 6,560 kanals and 13 Marlas plus 302 Kanals and 4 Marlas as indicated above, was left joint, the former was Charagah and the latter for graveyard etc. while the rest had been partitioned. If Charagah land is brought under, plough then it would certainly offend against its very nature and thus the recital in Ex.P.5 simply means that the joint land which is not reserved for pasture, can be brought under plough. I would, therefore, interpret the revenue documents accordingly. The final effect, therefore, is that Shamlat land of the village upto 4,241.80 kanals is to be kept as Charagah reserved for the use of the proprietors and all others living in the village for grazing purposes in addition to the joint land reserved for public purposes/Mufeed‑e‑Aam which cannot be brought under plough, while the land over and above it can be re‑claimed and brought under cultivation as per Sharat Wajib‑ul‑Arz.

9. As observed above, land upto 4,241.80 Kanals from the Shamlat land is to be kept as Charagah reserve. As per Wajib‑ul‑Arz for the year 1923‑24 still 6,560 kanals and 13 Marlas is left as Charagah which is not partitioned. Fard‑e-Intikhab Jamabandi for the year 1966‑67 (Ex.P.8) shows that in the Shamlat Deh of the village Khatauni No.1207 is Maqbooza Malkan in possession of all the proprietors and it measures 5,846 Kanals 11 Marlas while the rest of the Shamlat Deh of the village is in separate possession of the share holders. In the previous Jamabandi for the year 1954‑55 the entry in the column of occupation is Maqbooza Malkan Charagah, and Fard Badar was reported by the Patwari (Ex.P.ll) to the effect that the previous entry of Maqbooza Malkan Charagah needed to be restored in place of Maqbooza Malkan. The suit land comprised in Khasra No.455 Min and 506 Min, measures 422 Kanals and 5 Marlas and so if this land is excluded (reclaimed) from the Charagah land in the Shamlat still more than 20% of the total Shamlat as per Sharat Wajib‑ul‑Arz remains available (for pasture Charagah). Thus it being beyond the limit of 20% reserved for Charagah is available for reclamation/Nautore and can be brought under plough. Finding accordingly.

10. This finding gets further support from the oral as well as documentary evidence on the record. Jamabandi for the year 1966‑67 clearly shows that the various proprietors have brought their respective shares in the Shamlat land under cultivation. Lal Hussain Shah plaintiff (PW.2) stated in examination‑in -chief that the suit land was Charagah belonging to all the proprietary body and none could bring it under cultivation/Nautore nor sell it but he had to admit in cross‑examination that he had sold some land from the suit land (Shamlat Deh) to Ahmad Din (PW.1). Ahmad Din himself admitted in cross‑examination that he had purchased land from the Charagah from Lal Hussain Shah plaintiff which he was cultivating. Noor Hussain, Aitibar Khan and Subaidar Jahan Khan (D.W.1, 2 and 3) have too stated that the land from Charagah has also been brought under cultivation/Nautore. So is the statement of Karam Shah (PWA).

11. The upshot is that the suit land being beyond the 20% limit to be reserved as Charagah/Pasture from the total Shamlat Deh of the village as per Sharat Wajib‑ul‑Arz is still available for Nautore/reclamation and the action of the respondents in this regard cannot be call6d illegal or in breach of the rights of the appellants. The order of the Addl Commissioner is made subject to the above observations and conclusions. The appeal consequently stands dismissed. In view of the complicated nature of the question involved, the parties are left to bear their own costs throughout. AA./L‑73/L Appeal dismissed.