P L D 1975 Lahore 1349 (PLP)

(5) Whether plaintiffs 5 and 6 have locus standi. If not, what is the effect of their being impleaded as plaintiffs? (6) Relief. The suit was decreed by the learned trial Court arid the respondents fled an appeal to the High Court, but due to the changed law the appeal was entrusted to the District Judge, Mianwali who framed the following two more issues and remitted the case for findings thereon after due trial:‑ (1) Whether Bakhsh ancestor of plaintiffs 1 to 4 had abandoned the village after the sale of his land and when? (2) If so, did Bakhsh and his heirs lose their rights in the shamilat land of the village on account of such abandonment? (3) The two issues were also answered in favour of the appellants plaintiffs. The learned District Judge accepted the appeal and dismiss ed the suit of the appellants. It was held by the learned District Judge that Bakhsh and his son Ahmad did not sell the share of shamilat. Section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 (1 of 1959) was referred to but the proviso contained in subsection (2) was pressed in service by the defendants before him alleging that in the year 1924 a dispute arose between Kala Ram and the ancestors of the defendants in connection with the share of shamilat and the Revenue Officer decided that Kala Ram had nothing to do with the shamilat. The dispute was resolved by a competent authority and the provisions of section 3 of the Ordinance, it was argued, did not apply. The learned District Judge did not agree with this and held that the exception contained in section 3(2) did not apply to the appellants as they were not parties to the dispute. However, on the point' of abandonment, the, learned District Judge, taking in view the oral evidence and some old decisions of the Court, held that the ancestors of the appellants had wilfully abandoned the place and lost their right in the shamilat and the suit was considered barred by time.

5. The parties did not press Issues Nos. 1, 2 and 5 and the same have not been contested before me. The main stake of the learned counsel of both sides rested on the questions whether the appellants or their predecessors‑in -interest had abandoned their rights in the shamilat or not and in this connec tion whether or not the suit of the appellants was rightly considered filed out of time.

6. The learned counsel for the appellants contended that the land measuring 400 kanals 1 marls along with a share of shamilat was owned by Bakhsh and this has not been disputed by the respondents. This land was awarded to him in lieu of his sinking a well and the land is still known with the name of well as Chah Bakhshwala. 1/3rd of it was sold by him to Sarang in 1883 and the same was .further sold by Sarang to one Kamal in 1885. Bakhsh again sold another 1/3rd to Kala Ram in 1887 and Ahmad disposed of the remaining 1/3rd to Kala Ram in 1896. All the three sales were in respect of the proprietary land relating to Chah Bakhshwala and there was no indication that the respective share of the shamilat was also included in it. According to him a property which did not pass to the vendees, could not be passed on by them to someone else and in this way when Kala Ram and Kamal Khan had sold the land obtained from Bakhsh and his son to the respondents it was without a share of shamilat. He referred to section 3 of Punjab Land Dispositions (Saving of Shamilat) Act, 1951 (Act IV of 1951) and stated that shamilat was not conveyed along with the land. Section 3 of the Act lays down:‑

3. Construction of transactions.‑(1) 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 this Act, words or phrases of a general nature, purporting to convey rights of interests, incidental, contingent or collateral, to that land shall not be so construed as to include such shamilat or a portion thereof only if it 'has been specifically mentioned as the subject‑matter of the disposition. (2) This section shall not affect any decision of a competent Court or authority given before the commencement of this Act‑ (u) if it is not open to Review, Appeal or Revision; or (b) if it is so open, but no such proceedings are taken and the decision consequently becomes conclusive between the parties. This act was replaced by the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 (Ordinance I of 1959) and by its section 4 the Punjab, Act IV of 1951 was replealed. In section 3 of the Ordinance a wider provision was made as follows:‑

3. Shamilat not included in disposition of land unless specifically mentioned as subject‑matter of the disposition.‑(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land whether testa mentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words phrases of a general nature, purporting to convey rights or interests, incidental, contingent or collateral to that land, shall not lie so construed as to include therein the 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. (i) This section shall not affect any decision of a competent Court or authority given before the commencement of this Ordinance‑ .. (ii) if it is not open to review, appeal or revision; or if it is so open, no such proceedings have been taken and the decision has consequently become conclusive between the parties. thereof appurtenant to such land unless such shamilat or a portion thereof has been specifically mentioned as the subject‑matter of the disposition. (2) This section shall not affect any decision of a competent Court or authority given before the commencement of this Ordinance‑‑‑ (a) if it is not open to review, appeal or revision; or (b) if it is so open, no such proceedings have been taken and the decision has consequently become conclusive between the parties.

7. The Ordinance has a retrospective effect and in view of the express words used in section 3 above, the law is made applicable to the dispositions of land made even before the commencement of this Ordnance. It is, therefore, clear that while deciding the question whether the vendors, Bakhsh and his son Ahmad, who had sold the proprietary land to the vendees, intended to part with the proportionate share of shamilat, it has to be seen if that inten tion was manifest and expressed in clear terms. It is decided as a question of fact and is otherwise evident from the relevant mutations of sales Exh. P. 5, P. 39 and P. 40 that no such intention was shown that a portion of shamilat was included in the sales of the land and it has rightly been found by both the learned Courts below that the proportionate share in the shamilat remained vested in the predecessors of the appellants. It has, however, been argued by the learned counsel for the respon dents that in the consecutive records of rights produced by the appellants there are entries in favour of the respondents in ownership column that they are owners with a suffix that their possession is that of owners. It, therefore, implies that they were the owners of shamilat also. This presumption cannot be taken in favour of the respondents unless there are circumstances of such a nature as would conclude that they were the owners, but there is no evidence on record to show that they, by virtue of a sale in their favour, have become owners in the shamilat. No presumption can be raised against the express provisions of law. Section 3(l) of the Ordinance IV of 1959 forbids creating even an inference of any such kind. It was further contended that the provisions of section 3(1) of the Ordinance could not apply to the present case, for the reason that in 1924 Kala Ram had raised a controversy, as con tained in the mutations Exh. D. 2 to D.4 that while he had purchased the land from Bakhsh and his son the proportionate share of shamilat was also the part of the bargain and he was the owner of shamilat which he did not pass on to the respondents. That controversy was dropped by Kala Ram sub sequently and the respondents were held owners of the shamilat. It was argued that according to the proviso as contained in subsection (2) of section 3 of the Ordinance the advantage of section 3(l) of the Ordinance could not be obtained by the appellants. This argument also has no force for the following reasons:‑ (i) the dispute related to a matter to which the appellants or their pre. decessors were not the parties ; (ii) the dispute was raised by Kala Ram in his own capacity and not on behalf of Bakhsh or his son and did not bind them ; (iii) it was raised before an authority which was not competent to decide rights inter se ; (iv) the decision of authority was not final. It may be pointed out that while Kala Ram had raised the dispute he did it, taking in view his own rights as against the rights of his vendees. Any posi tion taken by him independently would not, in any way, bind the appellants and their interests could not be decided without their presence. A revenue officer is not an authority invested with powers to decide the civil rights of persons finally even in connection with the mutation proceedings or while keeping the record of rights corrected. A mutation is not a document of title nor does it create or extinguish title. In the same way the record of rights is not conclusive evidence of title except that a presumption of a strong nature is created thereby which is but rebuttable. Therefore, there is no finality attached to any order of the Revenue Officer. The learned District Judge was, therefore, justified in holding that the dispute which Kala Ram had raised did not affect the rights of the appellants and there was, in the eye of law, no decision against them. It may be added here that when the question of ownership in the shamilat was agitated by Kala Ram, he was, in other words, denying the title of the appellants and no decision could be made in the absence of the appellants unless. they were heard. Any such decision at their back is not binding on them.

9. The main case of the respondents rests on the question of abandon ment. It is argued by the learned counsel for the respondents that the last sale by the predecessors of the appellants was made in 1896 and the vendor Ahmad had, by then, left the ‑village Gulkala for good and taken abode in Bet Bogha, and did not return to Gulkala, never cultivated land there nor did he ever pay land revenue afterwards, so much so, that he did not participate in the two Settlements, had no house in the village nor even used the shamilat as a grazing ground for his cattle. Instead he stayed at a village which was about ten miles away from Gulkala. It was further stressed that he did not sign the agreement with the Government under the Sind Sagar Doab Act, 1901. All these factors show that he had abandoned the shamilat and was left with no interest in it. These are all the reasons which the learned District Judge has employed in coming to his present findings. In support of these grounds the decision taken in Saran Ditta v. Ghulaman (85 P R 1892) is referred to in which it is held that an owner of land who has 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 law of limitation. The term `abandonment' is defined with reference to Pollock and Wright's Essay on Possession as the case of a person quitting possession without any specific intention of putting another person in his place. The meaning of the word as applied in this Province to absentee cases is an intentional quitting of possession by the proprietor coupled with an intention not to resume it. In the opinion of Stagdon, J., there was no practical difference between the two definitions. According to him a quitting of possession was not possible unless there was an intention on the part of the proprietor in relation to the thing possessed. If a divestitive intention did not exist there was no absolute quitting or relinquishment of possession. In the end it is held that the title prevails provided it is not extinguished by operation of the law of limitation. In other words, the abandonment itself is not so material as is the law of limitation, for, if the remedy to recover sub sists. the ownership continues. ‑ This authority does not advance the case of the respondents, inasmuch as, in the present case before me, the appellants never claimed in their suit for possession that they ever quitted possession and it was not the case of the respondents either that the owners were ever dis possessed by them. So much so that a claim of adverse possession was not clearly set up in the written statement. Another case referred to is Shahzeda Suraya Jah v. Azim and others (29 P R 1910) in which it is laid down that in such a case the circumstances and especially the long silence and inaction of defendants and their ancestors, are evidence of abandonment 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 the suit, their rights are under Article 142 of Limitation Act extinct, and the plaintiff's claim must be decreed. The facts of the case were that the defendants, who had been absent and whose ancestors had been absent from the village for a very long period, had returned lately and taken possession of certain shares of the village lands, the right to which had lapsed through long discontinuance of possession. It was a case where the abandoning party discontinued his possession and became absent for a very long time and claimed the property after more than 12 years when their own right to sue had become barred by time, they were held to have abandoned their title. In Mirza and another v. Kahan Singh (A I R.1919 Lah. 4) it was held that the fact of a person giving up the whole of his holding and quitting the village for good shows that he had abandoned all his rights he had in the village, including ,rights in the shamilat and on such abandonment his share in the shamilat passes into possession of the co sharers, and he and his descendants lose their right to it. In that ease the land‑owner, once being in possession, discontinued his holding and left the village and the suit was filed more than 12 years after. Another authority cited was Karam Dad and others v. Rehmat and others (A I R 1931 Lah. 648) in which it is held that where a holder of khewat land in the village loses by adverse possession his proprietary holding not only the proprietary holding but also the shamilat land appurtenant thereto is lost. In that case Sher Muhammad's descen dants became absentees in pre‑British time and it was a common ground that at the time of the Settlement of 1857 the plaintiff's father Maula was recorded in the revenue papers as an absentee and that his land was in possession of the ancestor of the defendants. On an action brought by Maula, it was held that the right was lost by adverse possession. 1n Rup Chand v. Sardar Khan and others (A I R 1933 Lah. 428) it was laid down that shamilat rights are Trot a mere accessory to the land separately held and the onus lies on a purchaser of proprietary land to show that a sale to him included a share in the shamilat. But the mere fact that the sale‑deed does not expressly mention the transfer of shamilat rights will not be conclusive against the vendee. The Court has to look to the surrounding circumstances including the subsequent conduct of the parties. In that case the deed did not refer to any rights in the shamilat, but the vendor had severed all connexion with the village and took no further interest in the shamilat, it was held that it was clearly established in evidence that at the time of the sale the parties intended that all the rights of the vendor, whether in the shamilat or in the proprietary holding should pass to the vendees. Again reverting to the point of abandonment the learned counsel also cited Mst. Nihal Kaur v. Chanda Singh and others (118 P R 1893) wherein on account of absence from the village for more than a whole generation and at two settlements and residing in a village nearby taking no concern with the land in suit of which they had been recorded as owners, the plaintiff and his father were held to be presumed to have abandoned the land.

10. As against this the appellants have contended that merely leaving the village with no intention to quit for ever does not amount to an abandon ment of title. This question has been discussed in Sajiuddin Kazi v. Moslem Ali Howaldar (P L D 1960 Dacca 674) holding that the word "abandonment" connotes the idea of a tenant vacating the‑land with the intention of never returning to it. Mere temporary absence or absence in circumstances which cannot lead to the inference that the tenant had departed from the land without caring as to what happens thereto thereafter is not sufficient to warrant the inference of abandonment. Thus, if a tenant leaves the land for a ‑pilgrimage with the intention to return thereto but his intention remains unfulfilled due to some accident for a large number of years, it will not be sufficient to hold that the land has been abandoned by the tenant. To establish abandonment some more positive act than mere non‑residence should be proved. In Sri Raj Yarlagadda Siva Rama Prashad Bahadur v. Majeti Potharaju and others (P L D 1949 P C 65) it is laid down that "abandonment" implies an intention to abandon. The plaintiffs allowed the land to remain uncultivated because the defendant who was under a legal duty to repair the tank failed to keep it in good repair and for no other reason. It was further laid down that the situation in which the land was allowed to lay fallow was brought about by landlord's neglect in discharging his legal obligation and by no act on the part of the plaintiffs. Wheel the land became fit for cultivation, they intended to cultivate it and applied for patta. In the circumstances their Lordships were unable to draw an inference from the facts that the plaintiffs had abandoned their rights to the suit land. The plea for abandonment therefore failed. In an earlier decision Haji Ahmad and others v. Sheikh Ahmad (3) the question of absence and abandonment has been discussed. In that case the plaintiff sued to recover his father's share in a village. At the time of settlement about 1860, plaintiff's father was absent (having left his village through poverty and taken up his residence in another village about two Kos distance) and had then been absent some ten years. The defendants were present at the settlement when it was recorded that they would restore Murad Bakhsh (plaintiff's father) his share on his return. Murad Bakhsh died four years before suit and the fact of the entry in the settlement record was brought to plaintiff's notice two years later. It was held that the defendants held in trust for Murad Bakhsh and the plaintiff having sued within 12 years of his father's death was entitled to possession. In that case the judgment of Lindsay, J. in Khazan Singh and others v. Dhian Singh and another (84 P R 1874) has been approved, wherein it is laid down that the inference to be drawn from such entries at settlement is that the land is held in trust for the absentee, but that the party in possession may convert his possession from permissive to adverse by taking sufficient steps to signify that he holds for his own benefit alone, and the absentee may by his conduct show abandonment of his rights. As per Boulnois, J., the lapse of a very long period is some evidence of an intention on the part of the absentee of actual abandonment. In a recent case Whadera Allah Diways Khan v. The Custodian, Evacuee Property, West Pakistan, Lahore and others (P L D 1965 Lah. 535) the definition of the word "abandon" is laid down to mean to give up absolutely, to surrender to, relinquish all claim to property, to renounce, to leave off, to fore-sake, to desert. It has the connotation of leaving with an intention not to return to it. It was a case of evacuees who had built houses on the land owned by Muslim landlords subject to conditions mentioned in Wajib ul‑Arz that superstructures on land would revert to the landlord on abandon ment. It was held that in most cases the evacuees, on leaving, did not intend title as co‑sharers in the shamilat in which Hukumat Khan and his brothers were also co‑sharers. Therefore, the possession of the defendants including the appellants could not be regarded as adverse merely because they failed to pay rent to Hukumat Khan and his brothers after partition of shamilat until they had expressly repudiated Hukumat Khan's title which they did in the Revenue Court by asserting a hostile title in themselves. Similarly in Muhammad Hakim v. Sher Alam (1973 S C M R 284) it is held that adverse possession must be open, overt and hostile to the knowledge of the true owners and that mere entry in revenue records would not support the plea of adverse possession. On the question of adverse possession over the shamilat land a decision in Malik Ghulam Haider and others v. Haider and others (P L D 1951 Lah. 92) can be quoted with great advantage. In that case it is held that according to the conditions of Wajib‑ur‑Arz mere breaking up of the land for purposes of barani cultivation apart from the restrictions imposed by the Sind Sagar Doab Colonization Act conferred no right on the cultivator to acquire adna malkiyat. The position, therefore, is that no matter what they did to the land in question, the adna maliks could neither acquire adna malikiyat nor any occupancy tenancy in the portions broken up by them. They did not even become tenants‑at‑will. This class of cultivators was in possession without any right and was thus liable to ejectment from shamilat land. It may be pointed out that on the question of adverse possession the various Courts are unanimous that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. As stated above, adverse possession must be continuous, actual and visible. It is held in Khan Mohammad v. Risaldar Ata Mohammad Khan (P L D 1955 Lah. 436) that if the land adversely possessed was submerged in water, the period of submersion breaks the continuity of possession. In such a case constructive possession could not be attributed to the trespasser; such possession in fact reverted to the title holder. It is further laid down that no presumption regarding possession. can be made in favour of a squatter and therefore, constructive possession which is concomitant of the fundamental right alone, cannot be imputed to him. His possession in order to be adverse must, inter alia be actual and visible. If there is any visible break in his possession either by an act of the owner or from independent trespasser, or by Pis major, his previous possession if it falls short of the statutory period becomes nullified. A land becomes "derelict" (forsaken or abandoned) the moment it becomes submerged and not when it has remained in that state for a long time.

14. It was not the case of the respondents as set out in the written statement that the appellants or their ancestors were once in possession and they had been dispossessed. It was, on the contrary, admitted by the respon dents in the end of para. No. 5 of the written statement that the plaintiffs and their ancestors never remained in possession of shamilat. Although they have contended in para. No. 4 of their written statement that the respondents and their ancestors were in possession of the shamilat from the very beginning and they made it culturable and were paying revenue to the Government, they did not specifically allege adverse possession, but they‑`said that they would be deemed to be owners under Martial Law Regulation No.

64. That being the position, the question of adverse possession would not arise.

15. It was further rightly contended that by the enforcement of Sind Sagar Doab Act of 1902 which remained in force up to 1929, the agreements were executed by the proprietors of the village land not to acquire or be con sidered entitled to their proprietary or occupancy tenancy rights in the waste land, and in case any development in the land was made or the respondents grazed their cattle therein no right was created in them. In Malik Mohammad Ikhtiar and others v. Hamtu Ram and others (193 1 C 684 (PC)) it is laid down that the plaintiffs were some of the proprietors in various villages. According to the respective village Wajib‑ul‑Arz prepared at the time of the first settlement in 1878 a proprietor had the right under certain conditions to reclaim the shamilat (waste‑land) of the village and become Adna Maliks of the land. But this position was altered in consequence of a scheme of the Government of the Punjab to make a canal in the Sind Sagar Doab for the purposes of irrigating tracts in that district. In furtherance of the scheme the Sind Sagar Doab Colonization Act was passed in 1902. Amongst other provisions it empowered the Government to make agreement between the proprietors in the district for the surrender of their lands to Government on conditions that they would receive back an area equal to 1/4th in the improved land. Such surrenders, however, were only to take effect on and from the date on which the excavation of the proposed canal should be begun. Agreements were entered into by the proprietors of all the lands in the villages in question for the surrender of the lands on the statutory terms. The agreements contained the term that from the date of the agreement up to the date of the surrender no one should notwithstanding any law or custom to the contrary acquire or be considered entitled to either proprietary or occupancy tenancy rights in the said lands, At the second regular settlement in 1902 the Wajib‑ul‑Arz in each case recorded the agreement under the Sind Sagar Doab Act of 1902 . . . . "No one can acquire proprietary rights in the village Shamilat till then". The same agreement was recorded in the Wajib‑ul‑Arz prepared at the third regular settlement in 1926. The. project of the canal, however, was never carried into effect. The excavation was ,never begun; and in 1929 when the scheme had been finally abandoned the Sind Sagar Act of 1902 was repealed (Act VI of 1929). The plaintiffs claimed that by reason of the repeal the rights as in 1878 revived and must be taken never to have been affected. They had during the interim period been engaged in reclaiming waste lands, and sought to enjoy the rights to become proprietors of the lands so reclaimed as though the various agreements had not been made. Held, that the effect of the repeal of the Act was determined by the Punjab General Clauses Act, 1898, section 4, and it could not be said that the Act once repealed was to be taken never to have been passed. But apart altogether from the effect of repeal the agreements recorded in the second and third Wajib‑ul‑Arz operated independently of the parties during a known period of transition. The plaintiffs must be held to their agreements: a result which was the more clearly just because the other proprietors acting on their agreement had lost rights of preventing the plaintiffs from acquiring the rights over the land they claimed. In Fateh Sher and others v. Bihari Ram and others (A I R 1936 Lah. 958) and Chandar Bhan and another v. Mohammad and others (A I R 1936 Lah. 962) it has also been held that reclamation of land during the continuance of the Sind Sagar Doab Colonization Act could not result in the acquisition of any Adna Malkiyat rights at any time. In the circumstances the respondents could not say that they reclaimed the shamilat land, cultivated it, paid revenue and became owners.

16. A detailed discussion has already been made both on the subject of abandonment and adverse possession and following the above authorities it can be safely said that neither the abandonment of a nature to deprive the appellants of their title nor adverse possession is made out in the present case, and the learned District Judge was not justified in holding that the appellants and their ancestors had abandoned their rights in the shamilat so as to confer that right on the respondents.

17. For the reasons aforementioned, the appeal is allowed and the judgment and decree of the learned District Judge appealed against is set aside and the suit of the appellants is decreed with costs. K. B. A. Appeal accepted.