P L D 1949 Lahore 86 (PLP)

Formerly the entire banjar land was considered to be in the possession of the Government. But the Government set aside as much .area for reserve as it thought proper and gave the remaining banjar land, demarcated within the limits of each village, to the zammindars of that village. As regards each village, however, the Govern ment reserves the right not to award any compensation for the banjar land if the same, is acquired by it at any time. The proprietors and tenants of cultivated land shall be entitled to its compensation which the Government grants on its acquisition and the persons whose land is acquired shall not' have any claim against others to make up the deficiency of their land out of land in the possession of such others." Again in the document, Exhibit D. 22, relating to the same settle ment i.e. that of 1878 (being a notice to the right-holders to treat concerning the assessment) it was stated with reference to the banjar land in question as follows :- "Before the present settlement, the whole area of the Thal banjar was owned by the Government. The inhabitants of the village and of other villages used to graze cattle in this area and Government used to realize tirni dues from those persons. In the present settlement, the land of this Thal waste was measured and a portion of it was made a part of this village after considering the necessity of grazing and of supply of fuel etc. and the rest of the land was declared as owned by Government." The point needs to be emphasized that this was not a case in which the founder of the village set the boundaries of his proprietorship himself or settled them with his neighbours ;.it is a case of an expanding oasis in the desert being provided by the Government of the time with a demarcated area in the adjoining desert which was to be regarded as the shamilat appropriated to the oasis. In such a case it would be natural to expect that the rights in the waste land appropriated to the oasis by the Government should be settled by the Government, since the measure of such rights could not be fixed in relation to any pre-existing right. In the words of the kaifiat dehi prepared at the first regular settlement "the tenure of the village was divided into tarafs namely taraf ala malikan and taraf malikan ala Mud adna. In the taraf ala malikan the descendants of Sullah, the ancestor, before the British rule used to realize malkiyat dues from the adna maliks. In the taraf malikan ala $hud adna the wells were owned by their founders and therefore no one had any ala malkiat rights in those wells. As the foundation of both the tarafs was on number of wells and no waste is attached to those wells, no boundary lines of the tarafs were fixed. As between the two tarafs the sole measure of right was on the - basis of possession." The last sentence emphasizes the absence of any shamilat in relaion to which, in an ordinary village, it would have been necessary to specify the measure of right of the two tarafs. In the same document is incorporated an order of the Assistant Settlement - Officer, dated 1st April 1877, whereby the measure of right in the shamilat newly created was laid down ; the words are as follows :- "The existing waste land was granted in relation to the cattle grazing right hasabrasad khewat chahat and was declared shamilat deh, and the boundary of the village was fixed." The words " hasab rasad khewat chahat" means "according to the measure of the revenue-paying cultivated land attached to each well", and they appear not to make any distinction of ala malik or ala khud adna or malik. It is established on the record that land revenue is paid by the ala khud adnas and the adna maliks in respect of their respective holdings. The position thus created, as regards the measure of right in the shamilat of Daggar Aulakh was not varied in any subsequent settle ment record, but it has been brought to our notice that it has suffered prejudice by reason of a judgment of the Assistant Collector, Exhibit P. A., pronounced on the 1st August 1931. This judgment was delivered in a suit filed on the 13th September 1930, by 16 ala khud adna maliks, against 1$ persons representing the ala maliks and 95 others, all ala thud adna maliks whose rights were said to be the same as those of the plaintiffs and was for a declaration that the plaintiffs and the ala thud adna defendants were `entitled to 18/66th share of the right of the superior ownership of the shamilat holding in suit." The learned Assistant Collector, Sardar Ganda Singh, after an examination of the case (which seems in the light of the evidence offered the present proceedings to have been distinctly superficial) came to the conclusion that only the ala maliks were the superior owners and that the plaintiffs had no right in the shmilat, "so far as the superior ownership is concerned" and he accordingly dismissed the suit. No appeal was brought and it seems, therefore, that the decision is res judicata. This .seems regrettable, for apart from what has been said above and from which rights in the shamilat may be deduced in favour of the ala thud adna maliks there is on the record a declaration on the subject in an order by no less an authority than Mr. (later Lord) Hailey, the then Deputy Commissioner of Mianwali, passed on the 4th March 1907, under sections 6 and 7 of the Sind Sagar Doab Colonization Act. It was necessary to determine whether persons competent to form a 2/3rds majority of the land-owners possessing shares in the common land had joined in an agreement with the Government for the purposes of the Act. Mr. Hailey after referring to the order of the Settlement Officer, dated 11th September 1878, (referred to above) stated as under :- "The order of 1878 does not refer to barani land but in practice the order has been extended to barani land and the ala thud adnas break up and acquire proprietory rights in such land without consulting the ala maliks. In these circumstances I have no hesitation in deciding that the ala thud adnas are owners of the waste for the purpose of the Act. This declaration is made without prejudice to the claims of the ala maliks on partition and it is obvious that they have some claim in this event." Mention is made here of the judgment of Sardar Ganda Singh for the reason that it was argued on behalf of the appellants that it had not been noticed by Mehr Chand Mahajan J. in his judgment under appeal, and that it operated to deprive the ala thud adnas of all rights in respect of shamilat. It is true that since this judgment is res judicata it has binding force, but its effect cannot be extended by logical process, particularly in view of the remarks made above regarding its conformity with the evidence on the record. It may be that in so far as a claim to a specific share in the shamilat or to separate possession by partition of such share is concerned, this judgment may be a permanent obstruc tion in the way of the ala thud adnas, but in the present case, there is no question of specification of shares in the cultivated shamilat land, much less of separate possession of any such shares. Consequently, the judgment of Sardar Ganda Singh is without effect. on these proceedings. Since the settlement of 1878 there have been two further settlements, in 1902 and 1924-25, and papers relating to these settlements are on the record. In the wajib-ul-arz prepared at early settlement, the special rights of the ala thud adna maliks were expressly stated in the following words :- "The ala khud adna maliks without permission of the Aulakhs and without payment of jhuri dues can sink wells and reclaim land. But adna maliks without permission of AUlakhs cannot sink wells or reclaim land." It is necessary to note particularly the clear declaration that adna maliks could not reclaim lands without the permission of the Aulakhs and that this is stated -disjunctively as against their similar disability in regard to the sinking of wells, for the question has been raised in this case regard ing the acquisition of rights m barani lands by mere cultivation, without providing well irrigation. Earlier in each of these two wajib-ul-arzs it has been stated on the basis of judicial decisions that "no person by reason of his having reclaimed barani land can acquire ownership and accupancy rights in the reclaimed area" and it was sought to apply this also to ala thud adna maliks on the basis that the latter had not, in respect of the lands now in suit, sunk any wells, but they had only brought such lands under barani cultivation. From what has been said above, it will be clear that by contradistinction with the express disabilities of the adna maliks, the ala thud adna maliks were granted the right both to sink new wells, and, irrespective of wells, to reclaim land without permission from the Aulakhs and without payment of any customary dues, and this can only mean that they were empowered to extend their proprietory rights over land by the method of sinking wells or reclaiming land, and the reclamation need not have been by well irrigation but could have been by mere barani cultivation. This also appears-plainly in the extract from Mr. Hailey's order of the 4th March 1907 reproduced above. But the special feature of the settlement records of 1902 and 1924-25 is that they give effect to certain agreements between the proprietors and right-holders of the village on the one hand and the Government on the other, which were made in contemplation of the passing of the Sind Sagar Doab Colonization Act 1902. In order to explain the particular stipulations in the two wajib-ul-arzs it is necessary to consider the scope and object of that Act. By section 3 it was provided that-any person entitled to land whether as land owner, tenant or right-holder could enter into an agreement to surrender his rights to the Government and provision was made in section 4 for the determination of such rights through Governmental agency. By section 5, powers were given to the Local Government to prescribe the conditions of such agreements which were to include stipulations to the effect that the surrender should only come into operation when excavation of the proposed Sind-Sagar Doab canal should be begun and secondly that when the canal should have been completed the Government should deliver back to each person, being the private party in such agreement, 1/4th of the area Which he had agreed to surrender, the rest becoming thereafter the property of Government. By section 7 it was provided that an agreement embracing an area of common land should bind all persons holding rights in such land if it was made on behalf of persons possessing shares equal to not less than 2/3rds of the whole of such land, and this section also gave power to the Deputy Commissioner to settle rights as between the superior land owners and inferior land owners for the purpose of deciding which should be regarded as land owners for the validation of an agree ment as above. By section 10 it was provided that every such agree ment should have effect against the executant and certain other classes of persons including right-holders covered by section

7. Section 14 expressly provided that agreements for surrender of land executed in advance of the passing of the Act should be deemed to have been executed under the Act. The agreement with respect to the common land of Daggar Aulakh was executed on the 23rd May 1901 (Exh. D. 1), well in advance of the date on which the Act came into force. Term No. 2 of this agreement is important for the purposes of this case. It runs as follows :- "From the date of this agreement till the surrender in question no person shall, notwithstanding any law or custom to the contrary be competent to acquire any right, proprietary or occupancy, in the said lands or any part thereof against the Government by reason of sinking any well, reserving any chahi lands or reclaiming barani land or cultivating melons therein, nor shall such a person be considered a right-holder thereof." It appears that a question arose in this village whether for the purposes of section 7 of the Act, as many as 2/3rd of the land owners in the common land had subscribed to the agreement ; this question ,was decided finally on the 4th March 1907, by Mr. (now Lord) Hailey by means of the order to which reference has already been made. Thus far, the stipulations in the agreement run with the requirements of the Act, and operate only to regulate rights as against the Government. It is noteworthy that nothing is said either in the Act or in the agreement regarding actual reclamation of land or sinking of wells. There is nothing in either of these formal documents restraining persons from performing these acts in accordance with the practice or custom existing prior to the Act. Thus it is impossible to see any hindrance created by the Act or the agreement in the way of an ala malik giving permission to a bunyaddar ala mal:k or an outsider upon the usual charges, to bring land under cultivation or to sink a well, and equally there is nothing to suggest that an ala khud adna malik could not after the making of the agreement exercise his inherent right of sinking a well and bringing land under cultivation, in the shamilat area, as he chose, without let or hindrance on the part of the ala maliks. But by means of entries in the wajib-ul-arz, prepared at the settlements of 1902 and 1924-25 it was made plain that the acquisition of ownership rights in the reclaimed lands by these methods was to remain in abeyance as between the various classes of right-holders in this village. The provisions in the wajib-ul-arz of 1902 on this point are expressed in the following words :- "So long as the agreement under the Sind-Sagar Act is not cancelled, the conditions regarding acquisition of ownership of the shamilat area shall remain in abeyance." (As to partition of ala malkiat land) "Partition shall not, however, be. effected so long as the agreement under the Sind-Sagar Act remains in force." Precisely similar stipulations are contained in the wajib-ul-arz prepared at the next settlement of 1924-25 which is still in force. The act was eventually repealed in 1929 as has been mentioned above, and this gave rise to the supposition among various interested parties that the rights previously reserved under the wajib-ul-arz of 1878 were revived by virtue of the repeal. A large number of cases were instituted by persons claiming adna milkiat rights not only in this village but in a considerable number of other villages, to which the Act had been applied, and where' also acquisition of rights in the shamilat was governed previously by the same principles. These cases were decided uniformly against those who claimed to have become owners of parts of the shamilat by the act of reclamation and finality was given to this view by a decision of the Privy Council published as Kalik Muhammad Ikhtiar v. Himtu Ram A I R 1941 P C 34, from which I. extract the following passage :- "The plaintiffs claim that by reason of the repeal the rights as in 1878 revived and must be taken never to have been affected. They had in fact during the interim period been engaged in reclaiming waste lands, and they now seek to enjoy the right to become proprietors of the lands so reclaimed as though the ' Various agreements had not been made. The Act, it is said, once repealed, is to be taken never to have been passed. One sufficient answer to this contention is that the effect of repeal is now determined in the Punjab by the Punjab General Clauses Act, 1898, section 4, which provides that unless a different intention appears repeal shall not (b) affect the previous operation of any enactment so repealed or anything duly done or. suffered there under, or (c) affect any. right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. But apart altogether 'from the effect of repeal the agreements recorded in the second and third wajib-u1-arzs operate indepen dently of the Act. They expressly determine the rights of the parties during a known period of transition. Until the surrender under the Government agreement the parties agree that the ordinary rights are not to operate. The plaintiffs must be held to their agreements ; a result which is the more clearly just because as pointed out by the Courts in India the other proprietors acting on their agreement have lost rights of preventing the plaintiffs from acquiring the rights over the land they now claim." The conclusion which seems to flow from this passage is that at last during the period from 1902 to 1929, when the Sind Sagar Doab Coloni zation Act was in force, while reclamation of land and sinking of wells by persons in accordance with the procedure applicable before the agree ment of 1901 was not barred, the acquisition of proprietary rights in such land was completely barred. The question of occupancy rights is aJ different one ; such rights are mentioned in the agreement of 1901, which limited the rights of the people as against the Government, but there is no mention of them in the latest wajib-ul-arz, and at the same time, the custom applicable before 1901 does not appear to have made provision for development of occupancy rights, as distinguished from proprietary right of adna malkiat or ala khud adna milkiat. (The point is a difficult one and as its decision is not relevant for the purpose of this case I prefer to express no opinion on it). The suit of the plaintiffs is confined expressly to areas brought under cultivation by ala khud adna maliks during the period that the Sind-Sagar Doab Colonization Act remained in force, and the contention of the plaintiffs was that according to the wajib-ul-arz, no rights could be acquired by the defendants during the period 1902 to 1929, or after 1929, and further, according to the wajib-ul-arz, persons who reclaimed land out of the shamilat without permission of the ala maliks were to be regarded as tenants-at-will. It was stated that the defendants fell in this category, that two months before the suit the defendants had denied the status of the ala maliks as their proprietors and landlords, and conse quently the plaintiffs claimed the right to eject them. The replies of the defendants in the suits all followed the same lines namely that the plaint iffs were not the owners of the shamilat as ala maliks but the shamilat belonged to the whole village ; the defendants had reclaimed land out of the shamilat but their rights were entirely unaffected in respect of such land by the enactment and repeal of the Sind-Sagar Doab Colonization Act, but on the other hand under the wajib-ul-arz prepared at the second and third settlements the . possession of ala khud adna maliks over such land was neither permissive nor as tenants-at-will ; it was denied that the plaintiffs were sahib zamin (lords of the land) or had any right to eject the defendants, and it was averred that the defendants had never paid any seigniorage dues to the plaintiffs, nor did the plaintiffs have any right to levy any such dues from them ; as regards certain entries in the jama bandis (from 1889-90 onwards), which showed the descendants of Sullah as proprietors of the shamilat, it was contended that these were without effect as against the rights of the ala khud adnas being contrary to the conditions set out in the riwaj-i-am ; it was further stated that the defendants were both ala khud adna as well as adna maliks in the village and had expended money for the reclamation of the land and had become owners thereof and had been cultivating it and paying land revenue thereon, and for these reasons the ala maliks, who had never paid land revenue or taken any share of the .crops, were estopped from raising the matter, and moreover any proprietary title which they had was lost through open and hostile possession of the defendants over the period exceeding 12 years ; finally it was stated that the defendants were owners of the land that they had reclaimed and could not be ejected therefrom but in case ejectment was ordered they were entitled to compensation. Reference has already been made to the provision in the wajib-ul-arz on which the plaintiffs relied for the claim that the ala khud adnas when they took possession of barani land without the permission of the alas became tenants-at-will under the latter, and it has been pointed out that this is a contravention of the special provision relating to ala khud adnas contained in the same wajib-ul-arz that they could reclaim land -without, the permission of the alas and without payment of any malikana dues, and from this it appears sufficiently clear that the plaintiffs' contention that the ala khud adnas are tenants-at-will under them in respect of the suit lands is entirely baseless. The further allegation that the cause of action arose through denial by the ala khud adnas of the plaintiffs' title was not supported by any evidence, but this is of no importance since the case involves no question of tenancy at all. The plaintiff claimed to' eject the defendants by right of superior title and the burden was clearly on them to show that they possessed such title which enabled them to eject the ala khud adnas from the land in suit at will. On the other hand the claim of the ala khud adnas that the land reclaimed by them during the period that the Act of 1902 remained in force became their property is entirely opposed to the clear stipulation on the point in the wajib-ul-arz, and cannot be countenanced. Similarly the claim to have become owners by adverse. possession is also untenable since reclamation during the period that the Act was in force was by agreement not to operate to create proprietary rights. Something was sought to be made by learned counsel for the appellants of the claim by the defendants to possess the status of adna maliks as well as ala khud adnas, and the agreement was that this was an admission of inferiority of status. This claim by the defendants appears, upon examination of the history of this village and the rights in question, to be based on some confusion of thought, and it seems clear enough that the conditions necessary for acquisition by these persons of adna milkiat rights are not satisfied in respect of any part of the land involved. Such a contention is in fact entirely opposed to the general claim made in the written statement that the ala khud adna maliks could appropriate land out of the shamilat to themselves without the permission of the ala maliks and without pay ment of malkana and these conditions must of necessity be satisfied by an adna malik. The defendants claim that their rights in respect of land reclaimed by them from the waste were not affected by the enact ment and repeal of the Sind-Sagar Doab Colonization Act is only partially admissible; as seen above, that Act and the consequential changes in the wajib-ul-arz did not affect the right of reclamation and cultivation of waste land, but in a most important respect there was a radical change i.e., by Act of reclamation proprietary rights were not to be acquired so long as the agreements under the wajib-ul-arz remained in force, and as has been seen, those agreements remained in force up to 1929 at least. Again, as regards the claim of the defendants that the shamilat land belonged to the whole village and the plaintiffs were not owners thereof, this is prejudiced to some extent and particularly in relation to the right of separate possession by partition, by reason of the judgment of 1931 delivered by S. Ganda Singh Assistant Collector, to which reference has already been made, but that judgment has no effect upon the present case which is one for possession by ejectment of land cultivated during a particular period by the ala khud adna malik and involves no question of separate possession by partition. Thus, the sole question which required decision in the cases was whether on an examination of the rights separately possessed by the plaintiffs as ala maliks and the defendants as ala khud adna maliks, there was such a superiority of status apparent in favour of the ala maliks as against the ala khyud adna maliks as would justify the plaintiffs' claim for ejectment of the latter from the land here in suit. On this pooiannty, Mehr Chand Mahajan J. has held clearly to the effect that the only point of superiority in favour of the ala maliks is that in excess right possessed by ala khud adnas, the ala maliks have the power of controlling extensions of cultivation and consequent development of title over portions of the shamilat by any person excepting the ala khud adna maliks, the method of control being by the requirements of naurana and permission, the superiority being enforced for all time by the levy of malikana dues. But the ala khud adna maliks are entirely free of control by the ala maliks in these respects and in all other respects they are on a level with the ala maliks, and consequently the latter were not entitled to dispossess the ala Mud adnas from the lands reclaimed by the latter between the years 1902 and 1929. The history of the development of the rights in question and the expression of those rights in the. wajib-ul-arz serve fully to sustain the correctness of this finding. Learned counsel for the appellants attempted to rely on certain circumstances for the argument that there was a distinct superiority of status in the ala maliks over the ala khud adnas and these may be briefly considered. He pointed out that in the iqrarnama of 1861 (Ex. P. 1) it was set out that "the measure of ownership of the ala maliks was according to the shares" by which was probably meant "ancestral shares and sought to argue from this that these shares must apply to the shamilat land. as well. The argument is baseless and unhelpful ; as has been seen, the expression "ala maliks" in the Ex. P. 1 includes the ala khud adnas of 1878, and morever until 1878 there was no land in the oasis which could be regarded as common land of all or any of the occupants, but the only common property held in the village was the right of levy of nazrana etc. from persons wishing to become adna maliks as well as to collect malikana from existing adna maliks and obviously the extract from Ex. P. 1 mentioned above relates to division among the ala maliks of these proceeds. It was next argued that by mere ploughing and cultivating of barani lands no rights at all could be acquired, and the supporting contention was that the defendants had not shown that they had sunk any well e on this point it has already been seen that ala khud adnas unlike the adna maliks could reclaim the barani land without the permission of the ala maliks and, moreover, the question whether or not wells have been sunk by the defendants is one of fact which cannot be raised at the stage of Letters Patent Appeal. Mehr Chand I\tahalan has clearly stated in his judgment that the ale khud adnas had reclaime' land and sunk wells in the area in suit. Then, reference was made t; a statement by Sobha Ram (P. W. 1) Patwari of the village to the effe~: that in respect of the lands in suit the defendants were paying tnahkr~ and it was urged that this could only be to the ale maliks. Sobha Ram has made it clear in his statement that in regard to ale khud adna lands malikana dues are entered in the revenue records but these are received, by the ale khud adnas themselves by short-deduction from the land revenue demand. It was urged that the expression "ale khud adna land" could not include shamilat lands brought under cultivation by ale khud adnas, and therefore, this statement of Sobha Ram could not avoid the inference that in respect of shamilat land so cultivated, malikana was actually paid by the defendants to the ale maliks. Sobha Ram's state ment shows that the revenue records by themselves did not indicate clearly how malikana was received and from whom in respect of particular plots, and the whole matter is thus left in a state of vagueness such that no clear conclusion can be drawn. As to the point raised by learned counsel if there was any force in it, it should have been clarified when Sobha Ram was under examination. As things are, no ground appears for differing from the conclusion reached by Mehar Chand Mahajan, J. that any malikana paid by ale khud adna is payment to themselves. Then the jamabandis from 1889-90 owards in which the names of descendants appear as proprietors of the shamilat were relied upon. This matter also has been dealt with at length by Mehr Chand Mahajan, J. who has found that no conclusion one way or the other for the purpose of this case can be drawn from this single circumstance, and that, therefore, no presumption could be drawn from it in favour of the plaintiffs. It is noteworthy that prior to 1889-90 the ale milkiat in.respect of these lands was, in the revenue papers, shown as vesting in the shamilat deh and no reason is shown for the change brought about in 1889-90. The entry of the latter year runs counter to stipulations in the wajib-ul-arz from 1878 onwards and probably represents the view of some Patwari or revenue official regarding the interpretation to be placed upon those stipulations. No change of circumstances is shown to have occurred in or before 1889-90 from which it could be concluded that whereas before this date, the measure of rights in the shamilat was hasab rasad khewat chahat, in 1889-90 it became exclusively the property of the ale maliks according to their ancestral shares. Con sequently, the conclusions of Mehr Chand Mahajan, J. on this point would appear to be perfectly correct. Finally reference was made to the agreement Ex. D. 1 of the 23rd May 1901 made in relation to the contemplated Sind-Sager Doab Colonization Act, and to a particular stipulation therein that the Government would pay malikana at Rs. 3-2 per cent to the "ale maliks" when the canal came into existence And the argument was put forward .that this established a separate and exclusive right ir, the ale maliks with reference to the shamilat land in question. It is noteworthy that in this document there is no mention of ale khud adna maliks and yet in the attached schedule of signatories a great many persons who held that status appear, and consequently there is a clear possibility that as in the revenue papers of 1861 so in this document the ale khud adnas were confused with the ale maliks. That, in the view of the Government alR khud adna maliks were " owners of the waste for the purpose of the Act " appears clearly from Mr. Hailey s order of. the 4th March 1907 quoted above. Consequently no force can be attached to this contention. It thus appears that there is nothing to be derived from the evidence or the circumstances in this case to justify the plaintiffs' claim to eject the defendants. The, mere fact that the latter have not acquired pro-i prietary right in the suit land by reason of the standing agreement in the wajib-ul-arz, does not make them liable to ejectment at the suit of the plaintiffs or any one else. Their statute in respect of the reclamation of shamilat is in no way inferior to that of the plaintiffs, to whom they owe no duty or obligation of any kind. The situation brought about b the continued existence of the aforesaid agreement is anomalous and from many points of view unsatisfactory, since it appears that large areas out of the shamilat have in fact been brought under cultivation under circumstances which, in the pre-agreement period, would have led to the development of proprietary rights and it is evidently desirable that this unfortunate state of affairs should be remedied at the earliest possible stage. That, however, is a matter for the executive authorities. The present suits were confined to the question of the power of the plaintiffs to eject the defendants from the land in suit, and there seems no doubt whatsoever that the conclusion reached by Mehr Chand Mahajan J: on this point is perfectly correct. There is, however, one matter in regard to which the opinion expressed by Mehr Chand Mahajan, J. is likely to give rise to difficulties and since that opinion does not appear to be necessary for the purposes of the conclusion arrived by him and appears also to be not entirely in consonance with the decision of their Lordships of the Judicial Committee in Malik Muhammad 1khtiar v. Himtu Ram (cited above), it is desirable that we should express our disagreement with it. On page 36 of the judgment under appeal the following passage occurs :- " It is true that these persons dug wells and appropriated the land in suit front the shamilat during the period of the currency of the Sind-Sager Doab Act, when the terms of the wajib-ul-arz were in abeyance. That act on their part in view of the express terms of the wajib-ul-arz of 1902 does not confer upon them any rights whatsoever, but that Act has now been repealed. It was repealed in the year' 1929. The present suits were lodged in the year 1941 more than eleven years after the repeal of the Act. During all these eleven years the defendants have been in possession of the lands which they reclaimed during the years 1902-29. They have not paid any malikana to anybody for the occupation of the land. The rights of the parties must be determined on the basis of the wajib-ul-arz of 1924 which incorporates the terms of the wajib-ul-arz of 1878. That being so, they were entitled as of right without reference to the plaintiffs to dig wells in this shamilat after the year 1929 in any case. Can it then be said that they can be dispossessed of the land, that they occupied between 1902-1929 ? That occupation may not by itself confer any right on them, but if those very persons could, subsequent to 1929, occupy land without the permission of the plaintiffs they can certainly plead that their old occupation may be taken to refer to the right which at the time of the suit they clearly enjoyed." Again on page 38 Mehr Chand Mahajan, J. has observed as follows in regard to the rights of the ala khud adna maliks:- " What they did between 1902 to 1929, they could certainly do between 1929 and 1941", These observations are addressed to the question of the rights which accrued to the parties by virtue of the Sind‑Sagar Doab Act and the view of Mehr Chand Mahajan, J. appears to be that any lands reclaimed by the ala khud adna maliks‑ after 1929 could be claimed to accrue to them in proprietorship under the terms of the wajib‑ul‑arz of 1878 and further that lands brought under cultivation by these persons between 1902 and 1929 and continuously occupied by them could be claimed in proprietorship right if held after 1929, by virtue of the right accruing after 1929. Now, as will be apparent from the extract which has been reproduced above from the judgment of the Privy Council, the view taken by their Lordships is that the agreements recorded in the wajib ul‑arz of the second and third Regular Settlements operate independently of the Act and expressly determine the rights of the parties " duirng a known period of transition." Their Lordships further observed that the plaintiffs "must be held to their agreement". The wajib‑ul‑arz of 1924‑25 incorporates such an agreement. The dictum of their Lord ships of the Privy Council applies directly with reference to lands reclaimed between 1902 and 1929, viz. that .proprietary rights in those lands cannot be regarded as having been acquired by the ala khud adna maliks. As regards lands reclaimed after 1929, also a ratio decidendi may be derived from their Lordships opinion as expressed in the case cited, but this is a matter which is likely to arise in future not only in respect of this village but also in relation to many other villages and it is undesirable that any opinion should be expressed concerning it in advance. It is clear that no expression of opinion on this point is necessary for the decision of the present suits. There appears to be no force in these appeals and I would accordingly dismiss them all with costs. MUHAMMAD SHARIF, J.‑I agree. A. H. Appeals dismissed.