1993 PLP 1444 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑This Appeal through leave of the court is directed against the refusal by the High Court to exercise its Constitutional jurisdiction regarding a land dispute. It was dealt by the Chitral Land Inquiry Commission as well as by the Additional Deputy Commissioner, Chitral purporting to be in appeal. The decisions rendered upto 1975 in these forums were against the appellants. Learned counsel for respondent has explained how the matter through statutory commands came up before the Chairman, Federal Land Commission in Revision Petition No. RP7 (75)/FLC/76 (Case No. 356/CLC). This and several other revisions were disposed of by a single Blanket order dated 24‑7‑1976 wherein the individual facts/documents relatable to each individual case were neither noticed nor they were examined. It is pertinent to note that Chairman, Federal Land Commission in para 3 of his order criticised the non‑application of mind by the other forums as follows:‑‑ "The Enquiry Commission did not go into the merits of the cases under the direction of the Provincial Government but there was no such prohibition under the Chitral Regulation III of 1974 and as such it was the duty of the Additional Deputy Commissioner and also the appellate authority to go into the merits of the cases particularly when the enquiry Commission did not enquire into this dispute. The cases could be remanded for fresh decision on this short ground. However' since the record is before me it would be futile to direct the parties to go into fresh litigation. I, therefore, proceed to decide the case on merits." With the above criticism in view, it has pained us to note that the Federal Land Commission itself despite several documents having reached before him through the said forums as well as presented by the appellants side before him, did not refer to any one of them. A long, list of documents so presented, having been examined by us during the hearing of this appeal was returned to the learned counsel, for the appellants. The sketchy manner of disposal by the Federal Land Commission without any serious application of mind to record of this case present before him. It is apparent from the following substantive part of his order:‑ "The brief facts are that the petitioners had been rendering service to the respondents but when they refused to render Bagar they were ejected from the land under their occupation. The sole question involved in the case, therefore, is as to whether Khidmat was a Batai or rent. The admitted position in this case is that petitioners‑ as also other persons in possession of the land were ejected by the respondents on the ground that they had refused to render service. Since in Case No.157/CLC I have already held that Khidmat is not Batai or rent but in fact is a Begar which has since been abolished, therefore, for the reasons recorded in that case, I accept these revision petitions and set aside orders of the lower Courts and hold the petitioners as the owners of the land. In exercise of any suo motu powers, I further declare that all the persons in this village who have been ejected from the land in their possession on the ground that they had refused to render service, are owners of the land in their respective possession before their ejectment." Obviously none could have felt satisfied with the aforenoticed disposal except the winning party, the appellants. In due course the review petitions by the respondents side came before the Chairman, Tribunal Land Disputes, Dir, Swat and Chitral in Review Petition No.2, 3, 4, 6 and 119 of 1980. By order dated 4‑10‑1981 this, very complicated case, was decided in favour of the respondents with the observation that the documents produced from the respondents side fully justified the orders passed against the appellants by various authorities and that the Federal Land Commission was not justified in interfering with them. There is no discussion in this order either on the merits of the case nor the material documents were examined/scrutinised or interpreted as has been done before this Court during the lengthy hearing of this appeal. To crown all this, the High Court dismissed the constitutional writ petition filed by the appellants side against order dated 4‑10‑1981 in this difficult case in just nine lines, after noticing the following elements therein:‑ (i) The admission of writ petition for full Court hearing was on the point that the documents relied upon and produced by the petitioner before the Commission were not taken into consideration. (ii) That the judgment of the Commission was gone through which is quite "elaborate" and there is no mention about the documents in it to which reference is made by the learned counsel for the petitioner nor it shows that the point pertaining to the documents was ever "argued". With due respect the above treatment hardly contained any discussion of any dispute in this case. Accordingly leave to appeal was granted by order dated 12‑5‑1990, as follows:‑‑, "The dispute between the parties in this petition for special leave to appeal relates to the ownership of two pieces of land situate in village Nagar of the former State of Chitral. Before the merger of the State, the dispute was taken to the Wazir‑e‑Azam who held that the land belonged to respondents No.1 and 2 and that the petitioners were occupying it as tenants and in lieu of rent they were required to do "Khidmat". Apparently on their failure to perform "Khidmat" they were ejected. Subsequently when the Land Disputes Enquiry Commission was constituted, the petitioners approached the Deputy Commissioner, Chitral, asserting their claim of ownership to the land and restoration of possession. After an inquiry the Additional Deputy Commissioner rejected their petition. They preferred an appeal before the Commissioner but that too failed. Later, they took the matter to the Federal Land Commission. The Chairman of the Commission held that the "Khidmat" which the petitioners were expected to perform was nothing but `begar' which stood abolished and further that they were owners of the land. Accordingly, he directed the Deputy Commissioner to restore the possession of the petitioners. After the promulgation of the Settlement of Disputes of Immovable Property (Chitral) Order, 1980, respondents Nos.l and 2 filed a petition before the Tribunal constituted under the order. The Tribunal set aside the order of the Chairman and restored that of the Additional Deputy Commissioner. The petitioners filed a writ petition in the High Court but that failed. They now seek leave to appeal from this Court. In support of this petition it is contended that the land belonged to their ancestors as was evidenced by the record maintained by the Chitral Administration; further by an order issued by the Ruler of the State on 26th of Shahban,1310 A.H. They and their progeny had been exempted from "Khidmat" and payment of Qulang for ever. These documents which were entirely ignored by the Tribunal as well as by the, High Court unmistakably established their title to the land in dispute; consequently, they could not be ejected therefrom on failure to provide "Khidmat" to respondents No.1 and

2. The contentions raised in support of this petition need examination. Leave to appeal is granted." The learned counsel for the appellants in order to show that the land in dispute is in the ownership of appellants side relied upon various documents including what is described as Sanad given to ancestors of the appellants about a century ago by no less person the then ruling Mehtor of Chitral Sardar Nazamul Mulk. We have seen a published book which shows that he was the ruler when the Sanad was executed. Badshah and others (appellants) appeared as witnesses during the initial inquiry and made the following statement about the grant:‑ "The land in dispute measuring 27 jaribs is situated in two plots one 15 jaribs and the other of 12 jaribs. The land is our ancestral property and our ancestors have never rendered any service to them nor have we paid Qalang. The land in dispute was taken from us by the father of the defendants. In exchange of that land he gave us other land slightly exceeding the area of this land and includes Chiragah. About 15 years ago the defendants seized that land also from us so that now they are in possession of our original land as well as the land given to us in exchange. We want our original land. We produce Exh. PA which is attested copy of the Sanad given by the Mehtar for this land and Exh.PB and PC which are lists of properties of various owners in Nagar. In the list Exh. PB our father has been shown at S.No.7 as being owner of 15 Chakoram land and said Zafar, uncle of Habibullah as owner of 12 chakorams land at item No.11. We produce witnesses. The land which had given us in exchange is close to the given of this against in Nagar. XX:‑ NIL." The respondents side also examined the two defendants themselves who deposed as follows:‑ "The lands in Nagar including the land in dispute are out ancestral properties for ages. No one else has any right in these lands. In 1927 all this property was given by the late Mehtar Shujaul Mulk to my father in inheritance, Up to 1944 the land remained in possession of our father and the plaintiffs were his tenants rendering khidmat. Khan our father died in 1944. The plaintiffs continued to serve us as tenant till 1952. In 1952 as a result of political against the plaintiffs seized our land. We brought a case in the Judicial Council which was decided in our favour and the pltffs. were ejected by Government in execution of our decrees. We produced Exh.DA and Exh. DB in proof of this. Exh.DC is Sanad of late H.H. Shujaul Mulk Exh.DD is Will of the late Mchtar Shujaul Mulk in favour of our father in respect of the lands of Nagar, including the land in dispute. In 1947/48 we partitioned or inherited property amongst ourselves including this property and there was no objection from the plaintiffs. The decisions in our favour relates to the land which the plaintiffs allege to have been given to them in exchange. We do not want to adduce witnesses. XX: NIL". Some other persons including Rustam Gul aged 70 years and Mirzada Khan aged 75 years also appeared as witnesses. Their deposition read as follows:‑ "The land in dispute is the ancestral property of the plaintiffs. This was taken away from them by the father of the defendants who gave them other land in exchange of this. Later the defendants seized the later land also and now the plaintiffs are just landless wanderers. The plaintiffs have never rendered any service or paid any Qalang to the Defdts. XX: NIL". The original Sanad relied upon from appellant side which is about 100 years old when translated into Urdu from Persian reads as follows:‑‑ There are other documents related to the years 1926 (or near about) at Pages 22 to 24 of paper book they do prima facie show that the appellant side was in possession of suit land, Learned counsel for the appellants rightly complained that if these documents would have been noticed and acted upon the decision of High Court might have been different. Learned counsel for the respondents frankly stated that as his clients did not make any statement regarding the documents of 1310 Hijri reproduced above, he will not make any statement either about its authenticity or its effect. We have reproduced verbatum the case of either side with regard to the documents including the original Sanad relied upon by the appellants. Firstly the respondents side did not refute the appellants' assertion in their deposition about the Sanad; Actually their case starts from 1927 when Mehtar Shujual Mulk gave this property to the father of respondents. Then upto 1944 it remained with their father and the appellants were as alleged, rendering "Khidmat" as tenants. After his death in 1944 they allegedly continued to serve as tenants till 1952 when the dispute arose and the appellants, as stated by respondents seized "their land". In the subsequent proceedings they were ordered to be ejected but the Federal Land 'Commission restored their possession. It is clear that the respondents were unable to dispute the appellants position till 1927. Indeed it did not concern them. The transfer to their father of proprietary rights by Shujaul Mulk a descendent of Nizamul Mulk is the basis of respondents' claim. The questions thus arise: One: what was the nature of rights as tenants or otherwise of the appellants under the Sanad of the previous century which undoubtedly remained operative for a long time‑‑more than a quarter century. Two: Whether Shujual Mulk could as successor to Nizamul Mulk defy the latter's command about the rights of the appellants in the land in dispute? . Three: if the act of Shujual Mulk is rendered as without lawful authority on account of the Sanad ' in question granted by his predecessor, whether the appellants have any right in the land in dispute on account of their possession without the obligation of rendering Khidmat, Jabri Bharti or payment of Qalang? There is no difficulty in resolving the first two questions in favour of the appellants. The act of Shujaul Mulk contrary to the command of his ancestor in appellants favour was undoubtedly against the common law of Islam. This has not been disputed that it was operative under Islamic dispensation. No other statutory law could displace this mode of decision. We have otherwise also noticed that since a century ago land disputes were decided mostly in accordance with Sharia in these Princely States. Be that as it may none of the parties has adopted a revolting attitude in so far as the application of the general Islamic Law is concerned 'in a controversy like the present one. Otherwise too this Court in case of Muhammad Bashir (PLD 1982 SC 439) and many other subsequent cases upheld the rule enunciated in the case of Haji Nizam Khan (PLD 1976 Lah. 930). It is to the effect that if there is a vacuum in statutory dispensation, it is impossible for our Courts to fill this unoccupied field by any legal norm other than the Islamic common law. We therefore hold that the position prevailing immediately before 1927 shall continue in operation, and thereafter as well, notwithstanding the Extra Constitutional and illegal intervention made by Shujual Mulk, the father of the respondents. The question of the appellants having passively suffered the high‑handedness and we may also describe it as the Zulm/tyranny in an autocratic rule; will not make any difference. Appellants were the subjects of the Ruler and their submission to his unconstitutional and illegal acts will neither operate as estoppel against them on the principles of Islamic Common Law nor will it clothe the respondents as having acquired any right on account thereof. The next and last question is as to what is the nature of the right of the appellants by virtue of their possession for nearly a century, the illegal intervention notwithstanding. Undoubtedly it was without the payment of Qalang or exaction of Khidmat Begar. The reintroduction of Khidmat as deposed to by the respondents, it has been already held, was under the unconstitutional and illegal intervention. No rights were created in their favour by the action of their father in exacting Khidmat, Qalang or Begar. It was all without lawful authority, therefore, the land will be deemed to be with the appellants as a proprietary grant for more than a century, the illegal oppressive intervention and instrument notwithstanding. Before closing it might be noticed that according to the learned counsel for the respondents, as it appears from his concise‑statement, the Sanad in question should be read with the translation given by him. The examination of the two translations and their comparison with the original provisions shows that the appellants ancestors were undoubtedly exempted from Khidmat, Qalang Begar or Jabri Bharti. That being so, this exemption once granted the said exaction could not again be attached or assumed to be conditions applicable to the holding of any property by them. They could not in any form be imported in structure of their proprietary possession of any property the one in dispute or any other of any type. In the light of the forgoing discussion this appeal is allowed impugned judgment and Order are set aside with the direction that the possession as proprietors of the land in dispute shall be restored to the appellants forthwith. There shall be no order as to costs. M.BA./B‑212/S. Order accordingly.