1991 PLP 661 (SCMR)

SHAFIUR RAHMAN, J.--Leave to appeal was granted in all the three appeals to examine whether the dictum of this Court in Sajawal Shah and another v. Syed Rahim Shah and other (PLD 1975 SC 325) was correctly applied to the cases under examination.

2. The facts leading to these appeals are that two separate suits were instituted. Both the suits were by the plaintiffs in representative capacity. The plaintiffs in one suit happened to be Sohbat Khan and others-- the respondents in Civil Appeal No. 302/1983, while in the other Muhammad Farid Khan and others- the respondents in Civil Appeal No. 303/1983 and appellants in Civil Appeal No.304/1983. The plaintiffs were, previous to the enforcement of section 4 of the N: W.F.P. Tenancy Act (hereinafter referred to as the Tenancy Act), the occupancy tenants of the land held by the original owners of village Jareed in District Hazara. The plaintiffs fell in section 4(1) of the Tenancy Act and on payment of required amount had become full owners of the land. This happened in 1950. Section 3 of the Tenancy Act also provided that `no person whether a tenant or not, shall after the commencement of this Act, acquire, have or continue to have a right of occupancy in any land under any enactment, contract, decree or order of any Court or officer'. Having become owners, such occupancy tenants instituted suits referred to against the original proprietors (also in representative capacity), claiming the entire amount of compensation to the exclusion of the original proprietors of the trees cut and removed by the Forests Department for which compensation was payable according to law. The suits were tried in different Courts and different time frame resulting in the dismissal of one and the decree in the other which was maintained in appeal in the District Court. When the two revisions came up before the High Court, it was confronted with the contradictory decrees, in one suit recognising the right of the occupancy tenants who had become full owners to the entire amount of compensation money for the trees cut or removed while in the other they were denied any share in the compensation on account of having become Malkan-e-Qabza as distinguished from the original proprietors. It was in this background that keeping in view the decision of this Court in the case of Sajawal Khan, the Court ultimately decided to continue the same entitlement of the occupancy tenants, as in view the decision of this Court in the case of Sajawal Khan, the Court ultimately decided to continue the same entitlement of the occupancy tenants, as they had in the capacity of occupancy tenants under the Wajib-ul-Arz notwithstanding their having become Malkan-e-Qabza. This was done on two assumptions or foundational facts, and these are reproduced as hereunder:- "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 `Malkana dues' of `Biar and Diar' kind of trees:' ' (ii) " ....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 cut in our village. The trees may have been cut from `shamilat dch' `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.l. 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."

3. On these foundational facts the Court applied the law as contained in 11azara Forests Act, 1936 (hereinafter referred to as the said Act) and as found in the Wajib-ul-Arz, and interpreted in Sajawal Khan's case. It held as hereunder:-- (i) "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, (ii) "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."

4. In view of these findings the High Court in revision interfered in both the suits and granted only half the compensation payable of the trees felled from the land which was earlier the; occupancy tenancy of the plaintiffs leaving the rest to be shared by the original proprietors of the land. This has aggrieved plaintiffs in one of the suits and the original proprietors in both the suits. Hence, there are three appeals, two by the original proprietors in the two suits and one by the previous occupancy tenants, whose entitlement stands reduced to 1/2 from full under the judgment and decree of the Appellate Court.

5. The learned counsel for the original proprietors has referred time and again to the decision of this Court in Sajawal Khan's case to contend that the occupancy tenants had become, after the acquisition of full ownership Malkan-e -Qabza and had ceased to be occupancy tenants. Therefore, they had no interest or title in the compensation as against the original proprietors and the Court was not justified in not giving effect to that decision of Supreme Court. Independently of it, the learned counsel had contended that as no trace of occupancy tenancy was to continue after the occupancy tenants had become full owners, recognition of any right relatable to their previous tenure as such would be against the express language of the law and in violation of it; as according to him, the Wajib ul-arz recognises no such right of Malkan-e-Qabza and none should have been given to them. The learned counsel for the plaintiffs/original proprietors has also contended that the occupancy tenants having become by operation of statute full owners, cannot claim only to be proprietors and not original proprietors of the village.

6. The learned counsel for the erstwhile occupancy tenants the plaintiffs in these appeals contended that Wajib-ul-Arz contains, at best, customary rights, and as pointed out by the great Jurist Salmond, all customary rights have to be subordinated to statutory rights. As in the case of occupancy tenants, statute intervened to make them full owners, their status as such should be reflected in all dispensations and in no manner they could be subordinated or considered not equal to the original proprietors of the village. They should, according to him, share like the original proprietors the entire amount of compensation for all trees felled from village property with no distinction whatsoever. According to him, in Sajawal Khan's case the Wajibul Arz contained no such right of the occupancy tenants as is prescribed in the Wajib-ul-Arz of village Jareed.

7. The entries of the Wajib-ul-Arz get statutory recognition and force on the strength of the definition of `waste land' contained in clause (o) of section 2 and subsection (2) of section 12 of the said Act. Independently of it, the entries of IH the Wajib-ul-Arz bind the parties and Wajib-ul-Arz has to be treated for the purposes of General Clauses Act (Section 8) as an instrument. Black's Law Dictionary defines `instrument' as "A written document; a formal or legal document in writing, such as a contract, deed, will, bond, or lease". In the Stamp Act `instrument' is defined so as to include "every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded". Section 8 of the General Clauses Act, 1897 and section 7 of the West Pakistan General Clauses Act, 1956 are identical and the two are reproduced hereunder:-- General Clauses Act.1897: "

8. Construction of the references to repealed enactments.--(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the; provision so re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." Note:--"The original section 8 was re-numbered as subsection (1) of that section and subsection (2) inserted by the Repealing and Amending Act, 1919 (18 of 1919)." West Pakistan General Clauses Act. 1956: "

7. Construction of reference to repealed enactments.--(1) Where this Act or any other West Pakistan Act, repeals and re-enacts, with or without modification, and provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. (2) Where any Central Act or an Act of Parliament repeals and re-enacts, with or without modifications, any provision of a former enactment, then references in any West Pakistan enactment or instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so enacted." Note.--"Original S.7 re-numbered as subsection (1) and subsection (2) added by W.P. Act III of 1957."

7. Section 85 of the Tenancy Act deals with repeal and savings and an examination of the long list of tenancy laws repealed, leaves no doubt that the Tenancy Act not only repealed but re-enacted after consolidation, the various tenancy laws under which the occupancy tenancies were recognised. It was clearly a case of repeal, followed by re-enactment. Any reference to the occupancy tenancy in any other earlier law would, therefore, necessarily bring back such occupancy tenants as under the re-enacted law had become owners. The transformation would not on the strength of these provisions of the General Clauses Acts affect their rights as occupancy tenants which were recognised or created by such reference to repealed Act, in the Wajib-ul-Arz and under the said Act. .

8. These provisions of the General Clauses Acts came for consideration in the Indian jurisdiction in Moosa Kazimi v. K.M. Sheriff and another (AIR 1959 Mardas 542) and were elucidated as hereunder:-- "The rule then is that if the provisions of a statute are incorporated by reference to a second statute and the earlier statute is repealed the second statute would continue to be in force with the incorporated provision of the repealed statute being treated in force as a part of it. But if the earlier statute had not been merely repealed but repealed and re enacted, it is the re-enacted provision that would take the place of the corresponding provision in the repealed enactment, in so far as the incorporation in the second statute is concerned. This is subject, of course, to a contrary intention being statutorily expressed."

9. The result of the foregoing discussion is that in matter of distribution of compensation for trees like `diar' and `biar' Wajib-ul-Arz being an instrument and entrenched in sections 27(2) and 12(2) of the said Act, acquires statutory strength and efficacy. Notwithstanding the extinction of the occupancy tenancy, on the strength of section 8 of the General Clauses Act and Section 7 of the West Pakistan General Clauses Act, reference to the owners who were erstwhile occupancy tenants will be construed as reference to the occupancy tenants who had become owners under the re-enacted Tenancy Act and on that score full effect shall be given to the Scheme of distribution recognised in the Wajib-ul -Arz.'

10. In the circumstances, none of the appeals has merit. The judgment of the High Court proceeds on the correct lines except that the correct law applicable to the situation was not specifically referred to therein. Hence, all the three appeals are dismissed. The parties are, however, left to bear their own costs. M.B.A./N-279/S Appeals dismissed