2019 PLP 560 (YLR)

SYED ARSHAD ALI, J.

Through the present revision petition the petitioners have called in question the judgment and decree dated 27.03.2014 passed by learned Additional District Judge-VII, Abbottabad whereby the, learned appellate Court dismissed appeal of petitioners against the judgment and decree of Civil Judge-VII, Abbottabad dated 12.01.2012.

2. The essential but brief facts of the case are that the respondents herein instituted a suit seeking permanent injunction against the petitioners herein by contending that the suit property comprised of Khasra No. 135 measuring 14 Kanals and 17 Marlas situated in Mauza Kamela, Sherwan, District Abbottabad is Shamilat-e-Deh property and has been reserved for the masque situated in the village so that the Imam of the mosque may earn his livelihood from the usufructs of the suit property, however, the Imam of the mosque has no authority to change the nature of the suit property. In Para "Bay" of the plaint, possession has been sought, if during pendency of the suit, the petitioners/ defendants succeeded to raise construction etc. and to change its nature, while in para "Jeem" possession of the suit property has been sought with the contention that since the petitioner/defendant No. 1 has been removed from the mosque and another Imam has been appointed, therefore, he is not entitled to retain the possession of suit property. It is averred in the plaint that the suit property is Shamilat-e-Deh and was reserved to meet the livelihood expenses of Imam of Mosque of the Village. The forefathers of the petitioners/defendants remained Imam of the mosque for last 150 years and were occupying the suit property against their Imamat and after the death of father of defendants, the Imamat of the Mosque was assigned to defendant No.1, however, since he was lacking religious education and trimming his beard, therefore he was removed from the Imamat and a new Imam was appointed; the defendant No. 1 was bent upon to raise construction of house over the suit property for which he is not entitled because the suit property has solely been reserved for the person performing the duties of Imam of the Mosque.

3. The learned trial court issued notice to the petitioners/defendants who appeared and contested the suit by filing written statement wherein they controverted the stance of respondents/plaintiff and contended that the suit has been filed with mala fide and the suit property was in their possession from the time of their forefathers, wherein they are not going to make any new construction but only renovating the already construction house. It was further pleaded that the disputed property is Waqf in their favour and is a "Seri" which cannot be reclaimed by the owners of the village. After framing issues, out of divergent pleadings of the parties and recording pro and contra evidence, the learned trial Court decreed the suit of the plaintiffs/respondents vide judgment and decree dated 12.01.2012. The petitioners/ defendants assailed the said judgment and decree through Civil Appeal No. 12/13 of 2012 which was dismissed by the learned appellate court vide judgment and decree dated 27.03.2014.

4. Arguments heard and record perused.

5. Before rendering any findings on the legal issue it would be advantageous to refer to relevant evidence produced by the parties. Patwari Halqa appeared as PW-1 who has produced the Jamabandi relating to the suit property for the years 2000-01, 2004-05 and Khasra Girdawri. Muhammad Shabir SOK Abbottabad appeared as PW-2 who produced Misl-e-Haqiyat of the year 1948-49 and photocopy of Wajib-ul-Arz as Ex. PW-2/2. Plaintiff Malik Munsif Khan appeared as PW-3 who has stated that the suit property is a Waqf property for the mosque of the village and is in the permissive possession of the Imam of the mosque in lieu of his Imamat as "Seri". The suit property is the ownership of the proprietary body of the village. He has further stated that the forefathers of the present petitioners were performing the noble function of Imamat of the mosque , however, the petitioner was removed from Imamat as he was lacking religious knowledge. The present petitioner appeared as DW-1 and has stated that his family were performing the functions of Imamat since their forefathers and as such he is in posses-sion of the suit property as "Serikhor". However, in his cross-examination, he has admitted that he has been removed from the position of Imam of the mosque.

6. The record further reveals that law and order situation has arisen due to dispute between the parties on the issue of Imamat, hence on the intervention of District Administration different persons were appointed as Imam of the mosque.

7. However, the controversy before this court is whether the suit property has been dedicated to the mosque for the use of Imam of the mosque as long as he is performing his functions as Imam or the petitioner has become Malik-e-Qabaz of the suit property in view of he being "Seri Khor" of the suit property.

8. The word Seri has neither been defined in the Land Revenue Act 1967 nor in any other legal instrument. It is used customary in relation to Land/ Property which has been reserved by the village proprietary body from their common property for Imam of a mosque or any other religious purpose or for any other person or class of persons (blacksmith or carpenter etc) in lieu of his/their service to the village proprietary body. In Azizur Rahman v. Atai Khan PLD 1976 Peshawar page 60 an effort has been made by this court to trace the history of Seri land. In the said judgment reliance has been placed on Hazara dispute by Mr. Wace who translated the expression Seri as a grant of land generally made in ownership to religious character. However, in the said case Atai Khan who was serikhor was in possession of the suit property in lieu of Imamat in the mosque since their forefathers and despite the fact that his father had abandoned the Imamat of the mosque was still in the possession of the suit property for a longer period and in the said period he had mortgaged the suit property and was claiming the ownership of the property being a grant in their favour which was not denied by the village proprietor body. He was also claiming adverse possession over the suit property. It was in this scenario and back ground of the case, this court in Aziz ur Rehman case held that the Seri land given to the forefathers of the defendant was indeed a grant. In Muhammad Aliq and others v. Tayubudddin (PLD 1998 Peshawar 47) the facts of the case were that the plaintiff had given a piece of land to the defendant in lieu of his services as Imam of the mosque and in the revenue record the defendant was recorded as " " When the defendants started further construction on the suit property, the Plaintiff instituted the suit, when the matter came up before this court, it was held that land given to the defendant as Seri to the Imam of the mosque was indeed a Sadqa hence could not be revoked. However in appeal filed by the Plaintiff against the said judgment of this court before the august Supreme Court of Pakistan, the august Supreme Court while reversing the findings of this court has laid that "Apart from the fact that the respondents and their predecessor in interest were in possession of the land as Ghair Dakheelkar, they could not claim that their possession was adverse since, Atiq predecessor in interest of the Respondents was performing the functions of Imam Masjid when the suit was filed in 1982 and before him his father Muhammad Faiq was Imam Masjid, therefore, the gift of usufruct would continue to be operative till Atiq continued to perform functions of Imam Masjid, as such even if the Respondent remained in possession of the land as Ghair Dakheelkar for any length of period the same could not legally be claimed to be adverse."(Reported as Mian Tayyabudin v. Muhammad Atiq PLD 2004 SC 321).

9. The concept of Seri and Serikhor has been elaborately expounded by the august Supreme Court in Hakeem Shah v. Sawah Khan (PLD 2002 SC 200). In para.9 of the said judgment the August court has held that:-- "Keeping in view the 'factual background of the controversy as narrated in the preceding. paragraphs, the question involved was whether the land in dispute was in the nature of grant which once given could not be revoked--it being a grant and not tenancy and that the occupants were treated as (Malikan-e-Qabza) and that in the absence of general or special custom, it could neither be claimed nor was in the case of village Bishkot any general or special custom supporting the claim of the appellants and that accordingly the learned High Court was legally not correct in holding that the appellants though "Seri Khors" whereunder the appellant could not be termed as (Malikan-e-Qabza) and were not liable to be dispossessed on that score. The evidence brought on the record does not bring into force anything which prohibits that the land in the nature of "Seri" which was once granted could not be revoked on the ground that it was a grant and not tenancy. The appellants also failed to convince the learned two Courts below and the learned Judge in Chambers of the High Court as to how the occupants/ appellants were treated as (Malikan-e-Qabza). Again there is not an iota of evidence to prove on the file that there was any general or special custom in village Bishkot to show that the "Seri Khors" who were recorded in the column of cultivation as tenants and in the column of rent as (Bila Lagan Bawaja Seri) could claim the title of land particularly when the entries of column of rent were irreconcilable with those of the columns of cultivation or for that matter those of proprietary column. The term incorporated in the leave granted order carries different connotation in the Punjab Settlement Manual by Sir James M. Douie, Fifth Edition Malekan-e-Qabza according to the Manual are those owners of the land who had purchased it without share of Shamilat in the village. Such vendees are recorded in the column of cultivation as (Malikan-e-Qabza) and not as a tenants. The appellants have been misdescribed to be (Bila Lagan Bawaja Seri) because they stand recorded in the column of rent as (Bila Lagan Bawaja Seri) therefore, the learned Judge of the High Court was legally correct in holding that the appellants though "Seri Khors" could not be termed as (Malikan-e-Qabza). They have repudiated the title of those recorded in the proprietary column and, therefore, they, were rightly adjudged as liable to be dispossessed. " The same view has also been reaffirmed in Muhammad Saleem Shah v. Azizur Rahman Shah (PLD 2002 SC 280).

10. In view of the ratio of the judgments of the august Supreme Court of Pakistan, I hold that the term Seri cannot be given any definite and uniform meaning. The rights and obligations of the person or class of persons in possession of the property as Serikhor over the property (Seri) shall be determined keeping in view the relevant entries in revenue record, wajibularz or any other instrument or other evidence establishing the customs relating to the assignment of the Seri/property. Hence the terms and nature of holding of the said property/Seri in lieu of services or Imamat discerns from the customs which are normally incorporated in the Wajib ul Arz of the village and the Revenue documents or other acceptable treatise or documents from which undisputedly the nature and character of the assignment of Seri to the person or class of persons can be traced. This kind of assignment of property is called Seri and the person who is assigned the property is called Serikhor.

11. Reverting to the facts of the present case, admittedly the suit property is the only Shamilat which is reflected in Wajib-ul-Arz as following:--

12. The corresponding revenue document is Misl-e-haqiyat and Jamabandies of the suit property. According to the Register Haqdaran Zameen, the suit property comprised of Khasra No.135 is Shamilat Deh owned by the proprietary body of the village. In the column of cultivation, Molvi Muhammad Yaqoob, the predecessor of the petitioner is recorded to be in possession of the suit property as Ghair Dakhilkar whereas in the column of Lagan it has been mentioned as "Bila Lagan Bawaja Imam Masjid".

13. In view of the afore said entries in revenue record if read in juxtaposition with the entries in wajib ul Arz it become clear that the suit property is in permissive possession of the Defendant and prior to him, it was as such in possession of his father because of their services as Imamat of the mosque. Indeed the property has been allocated by the village proprietor body for Imam of the masjid in lieu of his services as Imamat. Hence as long as he is rendering his services he can enjoy the suit property in lieu of his services. Since the Respondent No 1 has been removed from the office of Imam Masjid, hence he has no right over the suit property.

14. In view of the above, both the courts below have rightly decreed the suit. Resultantly this petition being devoid of any force is dismissed.

15. Before parting with this judgment, this court hold that suit property has been earmarked for the purpose of the mosque and its usufructs can only be enjoyed by the person who is imam of the mosque. ZC/330/P Revision dismissed.