P L D 1984 Peshawar 28 (PLP)

The learned counsel for the parties confined their arguments in this Court to the issues mentioned above.

3. The facts leading to the filing of the Revision Petition No.15 of 1978 are as follows : Muhammad Farid and Abdul Aziz instituted a representative suit on behalf of malikan‑e‑qabza, who were former occupancy tenants of village Jarid, against Noor Alam and four others, who were sued as repre sentatives of the original owners of the same village, for a declaration to the effect that they were entitled to receive the entire malikana dues in respect of the trees sold out of the land measuring 871 kanals and 1 marls, represented by Khasras Nos. 2642, 2713, 2648 and 2718, situated in the same village, and that the Yard bachh' prepared by the revenue officials in the name of the defendants was wrong and in operative against their rights. A permanent injunction was also claimed against the defendants for restraining them from receiving any share out of the malikana due. The land mentioned above, out of which the disputed trees had been sold, was previously the occupancy tenancy of the plaintiffs, which had become their ownership, by operation of law, on the commencement of the said Act. Effect to this change was given in the annual revenue record subsequently prepared. It was stated in the pleadings of the parties that the plaintiffs bad become malikan‑e‑qabza of the suit land as a result of the transformation brought about by section 4 of the raid Act. The plaintiffs alleged that by operation of law, though being malikan‑e‑qabza, they had acquired full ownership rights in the suit land and had, therefore, become entitled to the entire malikana dues in respect of the trees sold out of that land to the exclusion of the original owners under whom they were previously holding the land as occupancy tenants. The defendants contested the suit on factual and legal pleas. They alleged that the plaintiffs had no share in the malikana dues. They claimed that the original owners of the village were entitled to receive the entire malikana dues in respect of the trees felled from the disputed land. The learned trial Judge framed eight issues in the case, and as a result of his findings thereon, he, by his judgment and decree dated 25‑2‑1974, granted to the plaintiffs the decree claimed for. The aggrieved defendants went in appeal to the Court of the District Judge but with no success. Having failed in both the Courts, the aggrieved defendants have come to this Court in revision. The material issues, which were pressed before the learned District Judge and also before me, are as under : "(5) Whether the plaintiffs are entitled to receive the malikana of the trees marked in the land is suit ? O.P.P. (6) Whether the plaintiffs are entitled to a declaration that the Bachh prepared by the Revenue Department was prepared in collusion with defendants and hence the same is void? O. P. P. (7) Whether the plaintiffs are entitled to a permanent injunction restrain ing defendants from receiving the malikana of the marked trees in the suit land? O.P.P.". The learned counsel for the parties confined their arguments to the issues mentioned above.

4. It is quite evident from the above‑stated facts that upto District Court level two conflicting judgments have been delivered regarding the right of malikan‑e‑qabza (former occupancy tenants) to share malkana dues, in respect of the trees sold from the land of which they have become malkan‑e‑qabza pursuant to the completion of the exercise specified in section 4 of the said Act ; two Courts concurrently holding that they are entitled to share such dues and the other two Courts concurrently holding that they are exclusively so entitled. While giving such decisions these Courts have interpreted the same paragraph of wajib‑ul‑arz differently. This conflict of decisions requires to be resolved, as on the same, question of law and facts the decisions in different suits have to be uniform. (5) In Civil Revision No. 191 of 1972, the former occupancy tenants, who have admittedly become malikan‑e‑qabza, are represented by Mr. Muhammad Hussain Lughmani, Advocate and the original land‑owners, who are respondents in this revision petition, are represented by Qazi Abdur Rashid, Advocate. Civil Revision No. 15 of 1978, has, however, been filed by the original land‑owners. They are represented by Qazi Abdur Rashid, Advocate and the respondents in this revision petition, who previously were the former occupancy tenants and have now become malikan‑e‑qabza, are represented by Mr. Muhammad Hussain Lughmani, Advocate. The position, therefore, is that in this Court, in both the revisions, petitions the former occupancy tenants are represented by Mr. Muhammad Hussain Lughmani, Advocate and the original land‑owners are represented by Qazi Abdur Rashid, Advocate.

6. In both the cases under revision there is no evidence on the record to show as to what kind of trees were felled from the disputed Khasras, the malkana dues whereof gave rise to the present controversy between the parties. Mr. Muhammad Hussain Lughmani, the learned counsel for the former occupancy tenants, made a statement at the Bar that the disputed trees were of the kind of Biar and Diar. Qazi Abdur Rashid, the learned counsel for the original land‑owners, made no positive assertion either way. That being so, we would proceed with the assumption that the present controversy between the parties relates to the malikana dues of Biar and Diar kind of trees.

7. The learned counsel for the former occupancy tenants argued that prior to the coming into force of the said Act and before the extinguish ment of the occupancy rights and their conversion into full ownership rights in consequence thereof, the former occupancy tenants were entitled to receive half of the malikana dues in respect of Biar and Diar kind of trees sold out of their tenancies and the remaining half share was distributed amongst the original land‑owners in proportion to their share in shamilat. While making this submission the learned counsel relied on paragraph 3 of the wajib‑ul‑ arz, of village Jarid, copies whereof are Exh. P. W. 1/2 and Exh. P. W. 2/3 on the original files. He contended that after acquiring full ownership rights, in pursuance of section 4 of the said Act, the former occu pancy tenants became entitled to the entire malikana dues, to the exclusion of the original land‑owners, as it was one of the attributes of ownership that the owners bare a right to the produce of the land. He contended that any interpretation to the contrary would deprive `ownership' of one of its essential attributes, which was not permissible. He further argued that under no circumstances the former occupancy tenants could be deprived of one half share of malikana dues which they were getting according to paragraph 3 of the wajib‑al‑arz when they were occupancy tenants.

8. Qazi Abdur Rashid, the learned counsel for the original land‑owners, argued that the portion f paragraph 3 of the wojib‑ul‑arz relating to the entitlement of the former occupancy tenants became dead the moment the occupancy tenants became malkan‑e‑qabza of the land possessed by them and only the first portion of this paragraph 3 remained alive to regulate the distribution of malikana dues in respect of the trees sold from any land in this village. While making this submission the learned counsel relied on Sajawal Shahs case (P L D 1975 S C 325), and subsequent Civil Review Petition No. 17‑R of 1975 and Civil Review Petition No. 18‑R of 1975, decided by the Supreme Court on 15‑4‑1978 in respect of the same case.

9. Before proceeding further it would be useful to reproduce in extenso paragraph 3 of the wajib‑ul‑arz, on which the case of both the parties rests. The English rendering of the above is as follows :‑‑ "We receive the seigniorage‑fee of the 'deodar' and 'biar' trees which are out in our village. The trees may have been cut from shamilat deh, shamilat tul or from the proprietary land, etc. whatever fee is so received we the owners distribute it amongst ourselves according to the share mentioned in paragraph No.

1. However, the fee of the trees cut from the occupancy land is apportioned half and half by the owners and the occupancy tenants. The fee received by us of the Government Forest finds mention in para. No. 11."

10. Some of the provisions of the Hazara Forest Act, 1937, as would be seen hereafter, are also relevant which may, at this stage, be reproduced as under : "(p) "Waste‑land" includes all uncultivated land except reserved forests, graveyards, sacred places, land recorded at settlement as part of the village site and land shown as follows ("Khali" or "Banjar Jadid")". "Section 27(2) similarly, in the case of trees which are sold from waste lands, the Deputy Commissioner shall credit to the Government as forest‑revenue the seigniorage‑fees, and the balance of the price realised shall be paid to the right‑holders entitled thereto Provided that the trees referred to in this subsection are of one or other of the kinds entered in the seigniorages‑list which is in force for the time being."

11. The only positive piece of evidence on the record in respect of the settlement of the parties to share malikana is paragraph 3 of the wajib‑ul arz referred to above. The oral imprecise statements made by the parties are not helpful in determining the controversy between them. While arguing both the petitions the learned counsel for the parties also laid stress on paragraph 3 of the wajib‑ul‑arz and tried to interpre, the same in their own way. The learned counsel for the former occupancy tenants also relied on section 27(2) of the Hazara Forest Act, which, he said, was relevant in this context.

12. The argument of the learned counsel for the former occupancy tenants that section 4 of the said Act, which declared the occupancy tenants as full owners of their tenancies in the manner prescribed therein, would regulate the entitlement of the parties in respect of the malikana dues is without substance in view of the following observations made by the Supreme Court while disposing of a dispute of similar nature in Civil Review Petition No. 17 : ‑ "It seems to us, therefore, that there is no merit in the submission that the Court had not given full effect to the operation of section 4 of the Tenancy Act, 1950, and rule 6 framed thereunder in regard to the ownership rights acquired by the defendants on the extinction of their occupancy rights. The term `full owner' as used in this provi sion of law does not give them any status superior to the one described by the term malikan‑e‑qabza, who do not share in the shamilat of the village, but otherwise have full ownership rights in the land possessed by them. The question of sharing of the sale‑proceeds of the/ trees is, however, governed by other laws and customs and not by the provisions contained in the Tenancy Act. Petition No. 17‑R is, therefore, dismissed, with no order as to costs." The above‑quoted observations of the Supreme Court have set at rest the "'controversy respecting the entitlement of the occupancy tenants acquiring ownership rights in the land on the basis of section 4 of the said Act. That being so, the claim of the former occupancy tenants that having become full owners of the land by operation of section 4 of the .said Act, they were entitled to receive the entire malikana dues in respect of trees felled from their former tenancies has no merit.

13. I now come to the next argument of ‑ the learned counsel for the former occupancy tenants. His argument was that prior to the reformation brought about by section 4 of the said Act, the former occupancy tenants were entitled to receive one‑half share out of the sale‑proceeds of the trees felled from the land which they possessed as occupancy tenants. While, so submitting the learned counsel relied on paragraph 3 of the wajib‑ul‑arz, the copies whereof on the files are Exh. P. W. 1/2 and Exh. P. W. 2/3. His contention precisely was that this right having been acknowledged by all concerned and finding mention in the wajib‑al‑arz, prepared during settlement operation, could not be taken away from them, no matter the occupancy tenancy which they were holding had been converted into ownership by operation of section 4 of the said Act. His other contention in this regard was that the former occupancy tenants being 'right holders' within the meaning of section 27(2) of the said Act were in terms of that provision of law entitled to share the malikana dues with the original land‑owners and that this would be the inescapable conclusion when the provisions of section 27(2) and paragraph 3 of the wajib‑ul‑arz were read together.

14. There seems to be substance in these contentions of the learned counsel for the former occupancy tenants. It is an undeniable fact that the land out of which the disputed trees were felled was `waste‑land' within the meaning of the expression used in the said Act. The trees felled were also of the kind mentioned in Schedule

1. The provisions of section 27(2) of the said Act were, therefore, attracted to the case. The Supreme Court, in the authorities already quoted, has held that the relevant paragraph of the wajib‑ul‑arz in absence of other reliable evidence on the record, as is the case here,. and section 27(2) of the said Act were to be relied upon in resolving the controversy of the nature now involved. In the cases in hand, para graph 3 of the wajib‑ul‑arz would be relevant, which specifically provides that where `Biar' and `Diyar' trees were felled out of the occupancy tenancies, then half share out of the sale‑proceeds of such trees would be given to those occupancy tenants in whose land the trees before felling stood. This custom or, as the case may be, usage, arrangement or agreement was incorporated in the wajib‑ul‑arz at the time of Settlement of 1946‑47, when the institution of the occupancy tenants was in existence. No one at that time could fore see or foretell that in subsequent years that institution would face extinc tion and the occupancy tenants would have their occupancy tenancies by law converted into ownership. For that reason, most probably, no provision to cater for such a change was got incorporated in the wajib.ul‑arz prepared at the time of the Settlement of 1946‑47.

15. Be that as it may, the controversy between the parties in respect of their entitlement to the sale‑proceeds of the disputed trees has to be resolved, as already pointed out, in accordance with what is mentioned in the relevant paragraph of the wajib‑ui‑arz and section 27(2) of the said Act. So far as paragraph 3 of the wajib‑ul‑arz is concerned, the former occupancy tenants in their capacity as such were entitled to share the malikana dues with the original land‑owners in the ratio mentioned in the said paragraph. Such right having come to vest in them, in my opinion. cannot be taken away from them or destroyed until the parties concerned at any future settlement so contract. The reformation brought about by section 4 of the said Act did in its wake the effect of taking many such rights, as neither was it so intended by that section expressly, nor would the necessary intendment lead to such a conclusion. As far as section 27 (2) of the said Act is concerned, the former occupancy tenants were certainly the `right holders' within the meaning of the said section. Their right to share the proceeds of the kinds of the trees mentioned in this provision of law found place in the relevant paragraph of the wajib‑ul‑arz, referred to above. That being so, they would continue to share the malikana dues in the E ratio mentioned in paragraph 3 of the wajib‑ul‑arz on the strength of this provision of law, no matter section 4 of the said Act brought about a radical change in their status to hold the land. I am, therefore, of the view; that the former occupancy tenants, who have now become ma1kan‑e‑qabza, are entitled to receive one‑half share in the proceeds of the trees, as men tioned in paragraph 3 of the wajib‑ul‑arz, and the remaining one‑half share would go to the original land‑owners and would be distributed amongst them in the manner provided in paragraph 1 of the wajib‑ul‑arz.

16. There is no force in the argument of the learned counsel for the original landowners that the portion of paragraph 3 of the wajib‑ul‑arz relating to the rights of the occupancy tenants has become inapplicable after the conversion: of the occupancy rights into ownership rights. The decision in Sajawal Shah's case, relied upon by the learned counsel for the original land owners, being distinguishable on facts, is not applicable to the cases in hand insofar as this point is concerned. That case, decided by the Supreme Court, related to a different village having a separate wajib‑ul‑arz, which in its paragraph 3 contained a specific recital that the four kinds of trees mentioned therein, situated wherever they may be in the land of that village, shall be treated as owned by shamilat and its sale‑proceeds shall be dis tributed amongst the owners of shamilat. This specific recital is not .present is paragraph 3 of the wajib‑ul‑arz of village Jarid where the disputed trees were situated. It was on that basis that in the reported case the Supreme Court held that malikan‑e‑qabza were not entitled to share malikana dues because in their capacity as such they were not having any share in shamliat. Paragraph 8 of the wajib‑ul‑arz in that case related to the trees which were not in dispute in that case.

17. The net result of the above discussion is that both the revision peti tions should partially succeed. While so accepting both the revision petitions, I direct that the judgments and decrees of the Courts below in both the suits shall stand modified and the former occupancy tenants, who have now become malikan‑e‑qabza and are plaintiffs in both the suits, are declared to be entitled to one‑half share in the malikana dues in respect of .the trees felled from the land of which they are malikan‑e‑qabza, and the remaining one half share would go to the original land‑owners, who are defendants in both the suits, to be distributed amongst them in the manner provided in para graph 1, read with paragraph 3, of the Wajib‑ul‑arz of village Jarid. For partial success, the parties are left to bear their own costs. M. Z. M. Order accordingly.