1991 PLP 1386 (SCMR)

3. Mr. Zakiuddin Pal in support of the appeal, submitted that abandonment was complete in all respects by sale of land, going away from the village and non participation in revenue proceedings etc. He relied on Mr. Nihal Kour v. Chanda Singh 118 P.R.1893. In this case it was observed that "now, it is evident that for more than a whole generation, viz. since 1852; the plaintiffs and his father have taken no concern whatever with the land until now. The intention to hold for oneself is a necessary element of the fact of possession. How can any one be supposed to hold possession of property when there is nothing to show that for over a whole generation he has once given a thought to it? It is also evident that a whole settlement, that of 1865, has passed by without, as far as we know, the plaintiff making any inquiry regarding the land which should have come to him. This conduct may be due to the plaintiff's having enough ancestral land in the neighbourhood to live on, or it may be due to other causes. If it was due to the supposed cause, it would not indicate any intention to hold on to the land, but rather one to relinquish. We think these facts are sufficient to justify us in presuming abandonment." He then referred to Shahzada Suryajah v. Azim and others 29 P:R.1910, wherein it was laid down; "long silence and inaction of defendants and their ancestors, are evidence of abandonment s, and therefore, the possession of defendants and their ancestors ceased when they left the village and ceased to take a share of the profits and so forth. Hence, inasmuch as limitation began to run against defendants more than 12 years before suit, their rights are under Article 142 aforesaid extinct. Had they sued within 12 years of the "abandonment" they would have recovered Sain Ditta v. Ghulaman 85 P.R. 1892, F.B. notwithstanding the "abandonment", but at the end of 12 years all their rights were lost." (Section 28, Limitation Act, 1877). It may be noted that in all these cases the `abandonment' was of proprietary land. ' He then referred to a decision of the Privy Council reported as Bagga and others v. Saleh and others (No.61916 PC) and read out paragraph 3 which is to the following effect: It is to be observed that in their plaint the plaintiffs did not base their claim to share on the partition of the common lands of patti Lak upon any right as proprietors of any lands assessed to the revenue in Patti Lak. The plaintiffs were not recorded in the Khewat as persons paying land revenue in respect of land held by them in Patti Lak. They did not, in fact, hold any lands in Patti Lak which were assessed to land revenue. What they claimed was that as they had paid grazing dues they should be treated in the partition of the common land of the village and if they were proprictos of the village, holding lands which had been assessed to the revenue. The trial Judge rightly held that the plaintiffs had not proved any right to participant in the partition of the common lands and dismissed their claim. On appeal the Chief Court held that the payment of tiring by a person who was not a proprictor paying land revenue did not confer upon him any right to share in the Shamilar of Patt Lak. The plaintiffs have failed to prove that they have any right to participate in the partition of the Sahmilar of Patti Lak. He then referred to Karam Dad and others v. Rehmat and others AIR 1931 Lahore 648 and stated that it has been held therein that "where a holder of khewat land in a village loses by adverse possession the proprietary holding not only the proprietary holding but also the Shamilat land appurtenant thereto to lost. "He then referred to Shahabud Din v. Noor Ahmad PLD 1955 Lahore 234 wherein the facts were that the plaintiffs sued as co‑sharers for their share of produce of a parcel of Shamilat land cultivated by other co‑sharers and were met with the plea that the Shamilat had been declared as the Shamilat of four pattis and that the plaintiffs did not belong to any of the four pattis. The Revenue Assistant who tried the suit, found conflicting entries in the Revenue Records and held that the matter was for adjudication by a Civil Court and dismissed the suit for rent. No suit, however, was instituted. Later on a question of title arose and they were referred to Civil Court. On 14th of August, 1921 they Filed a civil suit which was dismissed by the first two Courts on two grounds: one that the plaintiffs had no right to the land in suit, and two, that their suit was time‑barred. In second appeal, learned single Judge held that both the plaintiffs were co -owners with the defendants, their suit was time‑barred. On their Letters Patent Appeal, it was contended that the possession of the defendants was openly adverse only in respect of land which formed a subject‑matter of previous suit and could not affect the remaining land. However, it was held that the result of the suit of 1890 affected the entire Shamilat and the cause of action for the whole case, therefore, accrued in 1890. The plaintiffs could have been regarded as co -sharers only if their rights had not been extinguished; but if the cause of action has already arisen to them and they have not instituted a suit within the six years allowed by Article 120 then under section 28 of the Limitation Act, their right has become extinguished." The appeal was, accordingly, dismissed. As regards the three last cases, it may be noted that these related to share in the Shamilat. In the first one it was held that since plaintiffs did not base their claim upon any right as proprietors of any land assessed to land revenue, they were not entitled to a share in the Shamilat. This was in view of the fact that only land‑holders had/have any right in Shamilat. The Ordinance I of 1959, however, envisaged that even if land‑holding is sold it will not be taken that Shamilat rights have also been sold unless specifically so stated: The right in Shamilat was no more contingent on land holding. The reason may be that the (Legislature took into account the fact that because of drought or famine, a landholder may sell his land, go away to any other place or in the neighbourhood for livelihood and still retain his cattle and graze them in the old pasture of Shamilat, or, that he was not to be ousted from the community by depriving him of his share in the Shamilat. Reasons may be diverse but it is clear that the Ordinance recognised two rights independently of each other and not contingent, i.e. right in the land proprietor ally held and right in the Shamilat land. The second case too, is based on contingency of land‑holding for share in Shamilat and if the former is lost by adverse possession the latter is also lost. But this too is prior to the Ordinance. In the third case, the right was lost because from cause of action suit was not filed within limitation. So, the aforesaid three cases are, not helpful to the appellants being based on law prior to the Ordinance when rights were collateral or contingent. If holding was lost the share in Shamialat went with it. Under the Ordinance the two rights are recognized independently and disposal of the holding will not carry like with it the disposal of share in the Shamilat unless specifically so stated.

4. Mr. S.M. Zafar, learned Advocate for the respondents submitted that although in the sale‑deeds there is no mention of sale of the Snamilat yet for making it plain that Shamilat was not included, he would refer to Saleh v. Mst. Bakhtawar and others (3 P.R. 1917) that "the Shamilat was not a mere accessory to the land held by any proprietor and that the sale of the latter does not ipso facto convey any rights in the former. "He then referred to Mahomed Azim v. Sultan Ahmad (AIR 1921 Lahore 264) and read the observation that "Mr. Nanak Chand made an attempt to argue that the right to the Shamilat land must be treated as an accessory to the Malki land, but this argument is opposed to the rulings of this Court on this point. In Ahmad v. Ahmad (1910) 75 P.W.R 1910, the learned Judges who decided the case made the following observation: "The rule of law applicable to cases like the present is that laid down to s Ram Das v. Amir Shah (1901) 113 P.R. 1901, namely, that the rights of a proprietoY; in the Shamilat of a village are not a mere accessory to the land separately held by him and a sale of the latter does not convey Shamilat rights to the purchaser, unless the contrary intention is clearly and unequivocallly established." To the same effect is Gobind Ram v. Ali Muhammad (AIR 1925 Lahore 99) wherein it was laid down that "sale of proprietary land does not necessarily include a share in Shamilat land". He further referred to Rehman v. Sal (AIR 1925 Lahore 922) wherein it was held that "as the rights of a proprietor in the Shami!at are not a mere accessory to the land held by him an alienation of the latter does not ipso facto convey any rights in the former to the alienee." He then referred to Land Records Manual by Syed Ejaz Hussain, page 242 and read out para. 7.19:. "Cases in which mutation order must show whether the transfer includes a share in the Shaniilat: As regards transfers by sale, gift, mortgage or exchange, it is necessary to show whether a share of the Shamilat is transferred with the land and the following instructions should, therefore, be observed on this subject: (i) In cases of sale, gift or mortgage, the mutation order should always state whether a share of the Shamilat is included in the transfer. In cases of exchange the Shamilat is seldom excluded from the transfer and nothing should, therefore, be said about it except where it is excluded when the fact that it is exclude should be mentioned in the mutation order (ii) If a deed of transfer by sale, gift, mortgage, exchange does not specifically mention that a share of Shamilat is transferred with the land it should be presumed that the Shamilat is not transferred." He then referred to Black's Law Dictionary, Fifth Ed, p. 2, and read out the meaning of the word "abandon" which is to desert, surrender, forsake, or cede. To relinquish or give up with intent of never again resuming one's right or interest. To give up or to cease to use. To give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert. It includes the intention, and also the external act by which it is carried into effect." The word "abandonment" is explained as follows: "The surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it .... The giving up of a thing absolutely; without reference to any particular person or purpose, as vacating property with the intention of not returning, so that it may be appropriated by the next comer or finder. Intention to forsake or relinquish the thing is an essential element, to be proved by visible acts. The voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other person....The relinquishing of all title, possession, or claim or a virtual intentional throwing away of property." "Abandonment" includes both the intention to abandon and the external act by which the intention is carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Time is not an essential element of `abandonment', although the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been an abandonment." He then referred to "A Treatise on Customary Law in the Punjab" by Kaikhosru, J. Rustomji and read from page 216 which is to the following effect: "The ancient custom of the country permits an absentee co‑sharer in a village community to recover possession of his original holding upon his return to the village and the payment of losses irrespective of the length of his dispossession. So long as limitation, arising from adverse possession on the part of those in actual occupation of the land may not have extinguished the pre‑existing rights of an absentee, he may still recover irrespective of the period of his absence. Where by some overt act the proprietor m possession sets up an adverse title of his own, the absentee must sue to recover his rights within 12 years from date of such assertion. Where there has been an abandonment, that is, in cases where the absentee left with no intention of returning, then he cannot recover after 12 years' absence; Ellis on Custom. "By abandonment is meant the case of a person quitting possession without any specific intention of putting another person in his place" (Pollock; on Possession). A person who has abandoned his land has 12 years within which to change his mind (85 P.R. 1892 F.B.). He also referred to Punjab Settlement Manual by Sir James M. Douie, 5th Ed, page 146, para. 280 and read out: "Thus, no lapse of time, however long, will of itself justify the removal of the name of an absentee from the record." And also to the opinion of the Government Advocate to the effect that "As regards the intentional abandonment the proof of this would scarcely ever be direct proof of a specific declaration to this effect. It would almost invariably be a fact to be gathered, inferred from conduct; and I have no hesitation in thinking that actual abandonment, if sufficiently prolonged and continuous, does, under the general power given by section 114, justify the Court in presuming, i.e. regarding as `proved' the element of intention, in the absence of explanation warranting a contrary inference. He then referred to Baz Khan v. Sultan Malik (43 P.R. 1901 p. 135) to contend that unless adverse possession bars the suit a person having or acquiring title can sue at any time when he has a cause of action to do so. Then he read out Shahabal Shah v. Ganesh Das (53 P.R. 1907, p. 227) to submit that "mere non- occupation and non‑cultivation of unculturable land for a long period does not, in the absence of a motive or evidence of intention to abandon or of adverse possession for the statutory period, constitute abandonment. He then referred to Arshad v. Mt. Asharti Devi (AIR 1956 Pat. 143), wherein it was held: "As far as I know the inactivity or the passive attitude of a person has never in law been interpreted as an act abandonment. Abandonment is a positive act. A man must expressly say that he gives up his right. If he remains quiet, it cannot be said that he is forsaking his title to property or his interest in any other matter. To the same effect is Shri Ram v. Nand Kishore (AIR 1958 Allahabad 107), wherein it is laid down that "Abandonment when used with reference to a person having a derivative interest, e.g., a tenant or not essentially means the giving up of his right in the property by the person with the intention that he will no longer have any concern with it and that it is to revert to the person to whom it is ultimately to belong. The necessary intention to abandon must therefore be there. This intention has a positive as well as a negative aspect. The negative aspect implies that the person who abandons will cease to have all connections with the property. The positive aspect of the intention must be that the property is to go back to the person who could be entitled to it in the absence of the person who abandons." He then referred to Full Bench decision Sain Ditta v. Ghulaman (85 P.R. 293) wherein it is held, "that an owner of land who had abandoned it within twelve years previously to the institution by him of a suit for possession thereof, does not by such mere act of abandonment lose his proprietary rights. His title will prevail, provided that it has not been extinguished by the operation of the law of limitation." He then referred to Official Assignee v. Muhammad Hussain (PLD 1978 Karachi 27) and Norrali Pir Muhammad v. Patricia Dinshaw (PLD 1974 Karachi 235); to show that the suit of the respondent was within limitation. He also referred to Chiragh Shah v. Akhtar Munir (PLD 1983 Peshawar 223) that no limitation would start in respect of Shamilat land unless the possession were adverse after partition. He also referred to Fazal Rahim v. Faqir Muhammad (1987 SCMR 1067) and Aftaba v. Raza Khan (1984 SCMR 906).

5. We have heard the learned counsel for the parties at length and also perused the record with their assistance. The first contention of the learned counsel for the appellants Mr. Zainul Abidin that it was not stated in the plaint that Bakhsh or Ahmad were owners of Shamilat land at the time of sales and it has wrongly been assumed without evidence that they were owners of Shamilat at the time of sales, is not quite accurate. A perusal of the plaint will show that the suit was based on the assertion that Shamilat was not sold. An issue was framed in that behalf and the parties produced evidence to prove their respective contentions. His second contention that the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 had no application is not quite correct as it provides that Shamilat shall not be taken to have been conveyed until it were so specifically stated. The dispute between the parties was whether the Shamilat went with the sales. Other contentions will be dealt with in due course. For the decision of this appeal, the following points emerge: (a) Sale‑deeds did not contain conveyance of the Shamilat land. It was so agreed to before the learned District Judge. It is a finding by all the three Courts below. (b) Section 3 of Ordinance I of 1959 made it quite clear that "Notwithstanding any law, usage or custom to the contrary, in any disposition of land whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of the Ordinance, words or phrases of a general nature purporting to convey rights or interest incidental, contigent, or collateral to that land shall not be so construed as to include therein Shamilat or any portion thereof appurtenant to such land unless such Shamilat or a portion thereof has been specifically mentioned as the subject‑matter of the disposition." (Underlying is ours for emphasis). Thus, it is quite clear that not only as a fact but the operation of the Ordinance with retrospective effect made it quite plain that there was no or not to be any conveyance of the Shamilat. This will make the precedent cases which hold that rights in Shamilat as incidental, contingent or collateral, to the land or land holding of no avail any more. Hence, the case has to proceed do the basis that rights in the Shamilat were not sold‑ through the sale‑deeds by the predecessor‑in‑interest of the respondents.

6. The second point which requires attention and is important and urged by the appellants is that after the two sales by Bakhsh in 1883 and 1887 and his son in 1901, their leaving the village, .never attending to revenue matters etc. amounted to `abandonment' of their rights in the Shamilat. In this context the following may be taken note of. Firstly, Shamilat is common property. Possession of one is on behalf of all. The case of the appellants is that after selling the interests in the well and land, going away from the village and never participating in revenue matters etc. the respondent's predecessor‑in‑interest abandoned their rights in Shamilat and they themselves occupied it. Taking the last bit of the argument the possession by the appellants of the Shamilat is, by law, on behalf of all the shareholders in the Shamilat, therefore on behalf of the respondents. Hence this fact of possession of Shamilat is of no avail to them. As regards the contention about abandonment of the Shamilat, question would not arise until partition of the Shamilat and specification of the share of the owner who abandons it. While the land is held, so to say, in common, Shamilat, the entire body of the land‑holders, would be deemed to be in possession for one another. It would still be so even if any land holder has sold his land without specifically selling the share in the Shamilat, as per section 3 of the Ordinance I of 1959. His selling the land, going away from village and non‑participation in revenue proceedings would not amount to abandoning the share in Shamilat, especially so if he were not in possession of a specific share which is nobody's case. As regards intention of abandonment a word may be said at this stage. Firstly is the finding of fact by the learned trial Court and upheld by the second Appellate Court, the learned Judge of the High Court who had after examining the reasoning of the finding by the first Appellate Court has reversed it and found that there was no evidence of intention of abandonment at the time of sale of land. As regards inference from the conduct of leaving the village for 60 years, non‑payment of revenue dues etc. The learned Judge held that the evidence on record did not prove the intention of abandonment. There is one piece of evidence more which is striking and that is that Bakhsh, the original owner in spite of selling the land, going away to another village, come back to the village in question for dying. The testimony of the witness P.W. 4 was not questioned in cross‑examination., This clearly proved animus revertendi, negating the intention of abandonment. After going through the evidence on record, I am of the view that the reasons given by the learned Judge of the High Court in the second appeal for restoring the finding of fact by the learned trial Court that there was no abandonment are weighty. I find no good ground to reverse the final finding of fact by the apex Court of the Province on the question of abandonment.

7. Lastly, abandonment having not been proved the suit based on title was clearly within limitation as prescribed by Article 144 of the Limitation Act. The appellants neither pleaded adverse possession nor the respondent's predecessor -in‑interest was earlier in possession of specific portion of Shamilat land over which the appellants asserted hostile, open and adverse possession to the knowledge of the real owner. The appellants came in possession of specific piece of land on partition of the Shamilat in 1957. The suit filed in 1960 was clearly within limitation.

8. Finally, a word may be said about the purpose and effect of section 3 of the Ordinance I of 1959. The purpose was to avoid conveyance of Shamilat land, unless specifically provided for in the sale‑deed. This was not the case here as seen above. The Legislature was well aware of the nature of Shamilat land. It was held in common for the benefit of all shareholders and possession of one was on behalf of all others. Therefore, when the Legislature provided that with the sale of land holding share in Shamilat is not to be deemed to be conveyed, it was taken that the erstwhile landlord would still be a sharer in the Shamilat and he can sue for his share in the Shamilat. The purpose and effect of the Ordinance would be frustrated if a landlord who sells his land is deprived of his share in the Shamilat as well.

9. In view of the above and the reasons given in the judgment of the learned Judge of the High Court, with which I agree, I dismiss the appeal but because of complexity of the controversy leave the parties to bear their own costs. AA./G‑328/S Appeal dismissed.