2023 PLP 1204 (MLD)

MUSHTAQ MUHAMMAD, J.

This revision petition under section 115, C.P.C. is directed against the concurrent findings of learned trial court dated 13-7-2022 and lower appellate court dated 17-8-2022, whereby the learned trial court and first appellate court have accepted the injunction application of the plaintiff/respondent No.1 and directed the defendant village, the present petitioners, not to restrain the plaintiff/ respondent No.1 from enjoying his grazing rights etc in the communal pasture of defendant village.

2. Plaintiff Muhammad Hussain son of Nikah Ali or Naik Ali has filed the suit No. 89/2022 before the court of learned Senior Civil Judge Punial/Ishkoman with this contention that, after the exchange transaction dated 12-10-2018 with one Muhammad Sharif and gift of immoveable property in his favour by one Muhammad Hussain son of Mirza, he became resident of defendant village and being resident of defendant village he is entitled for all the benefits like grazing rights in the communal pastures and share in the village common lands. To this extent he has prayed for a declaration that he may be declared a resident of defendant village. Facts constituting cause of action are that inhabitants of defendant village collectively resisted and restrained the plaintiff/ respondent from enjoying the said rights, hence the suit. Defendant village contested the suit and filed their joint written statement. Their main defense is that plaintiff/respondent is not a resident of defendant village rather he is a bona fide resident of village Gulovdas Tehsil Punial. Defendant village is of the opinion that plaintiff/respondent being non- resident of defendant village and being a new settler in the area is not entitled to enjoy the natural resources in the defendant village. Learned trial court after hearing the arguments of both the parties came to a conclusion that there is no provision regarding rights of a new settler and defendant village has authority to pass resolution to manage the affairs of village but they cannot pass such a resolution to challenge the law. Besides these points learned trial court placed reliance on the judgment of this court dated 06-12-2018 passed in the case cited, "Bakhdur v. Ahalian e Immit" and accepted the injunction application. Felt aggrieved with the order dated 13-7 -2022, defendant village challenged the same in appeal. Learned lower appellate court after hearing the parties dismissed Civil appeal No.51/2022 on 17-8-2022. The reasons of dismissal are the resolution of defendant village and judgment of this court dated 06 12-2018, hence this revision.

3. Arguments have been heard on 19-4-2023. Mr. Sher Wali advocate learned counsel for the defendant village submitted that plaintiff being a new settler in the area is not entitled for the benefits and he is only entitled to enjoy his private property. Mr. Manzoor Ahmed advocate appearing on behalf of plaintiff/respondent submitted that plaintiff is resident of village Daeen and he is permanently shifted there, hence he is entitled for the whole benefits as prayed for. He has placed his reliance on the judgment of this court dated 06-12-2018.

4. Record perused and deliberated. It is in the plaint that plaintiff has exchanged his immoveable property at Gulovdas with one namely Muhammad Sharif and obtained property in the defendant village. It is in the plaint that one Muhammad Hussain son of Mirza also gave his property to the plaintiff by way of gift. On the basis of this ownership, now the plaintiff wants that his status may be treated and considered at par with the other permanent residents of defendant village. From the statement mentioned in the plaint it is admitted that plaintiff is a new settler in the defendant village. The question here for judicial consideration is that whether a new settler in a village can be treated at par with the permanent residents of that area? In every village settlement the primary settlers or the founding members of that village are called as "Malekan e Deh". In some parts of the country these are called " Aala Malik". The other important thing in this concern is the "village administration paper" commonly known as "Wajib ul Arz". The significance of Wajib ul Arz with regard to management of "Shamilat Deh" of a village is sufficiently explained by the honorable Supreme Court of Pakistan in "Haji Qudrat Ali v. Government of NWFP" (1993 SCMR 381). Some relevant portions of the cited judgment are reproduced here for ready reference:- "Wajib ul Arz contains a specification of village customs, rules of management and everything affecting the government of the estate, the distribution of profits, irrigation and rights in the waste." "It provides the Code of rules for the future management of the manor and is always considered a most important document." In the case cited, "Safdar Hussain v. Muhammad Azam Khan" (PLD 2009 Lahore 347), the document village administration paper or Wajib ul Arz is described as under:- "Wajib ul Arz prepared at the time of settlement, carries statutory presumption of correctness. Wajib ul Arz describes the right and liabilities among the villagers inter se, such as enjoyment of proceeds of common land and rights of grazing on common land etc." Shamilat Deh is another important term which is commonly mis understood. In the case cited, "Firdous Khan and others v. Zain Muhammad and others" (2011 MLD 521), this term is defined as under:- "Shamilat Deh (village common land) being joint and un partitioned. Persons recorded in proprietary body of village would be entitled to Shamilat Deh to the extent of their respective proprietary holding in village. Any of such persons could claim possession only through partition of entire Shamilat Deh, but not otherwise." In "Haji Qudrat Ali v. Government of NWFP" (1993 SCMR 381) Shamilat land is defined as under:- "The village common land comprises the Shamilat Deh, including the uncultivated and pasture lands, the abadi or inhabited village site or vacant space reserved for extension of the village dwellings and adjoining the village site." Another important term in this regard is Malik Qabza. A person is said to be a Malik Qabza who had been transferred rights only to a piece of land without the right to Shamilat. The result of above said references is that village settlement, rights and liabilities in an estate is a matter related to the people of said area and same is founded on customs, usages and agreements duly reflected in the village administration document, Wajib ul Arz. Shamilat Deh is common ownership and proprietary body of a village is entitled for the share in village common land. In the light of above referred legal comprehension the case in hand is examined. Plaintiff Muhammad Hussain has claimed a right in Shamilat Deh (village common lands) without establishing his status as member of proprietary body of defendant village. It is in the plaint that he has obtained some properties through private transactions and on the strength of those possessions he wants his share in village common lands and grazing rights. It is nowhere in the plaint mentioned regarding the status of said Muhammad Sharif and Muhammad Hussain son of Mirza, as members of the proprietary body of defendant village. Similarly, it is nowhere mentioned in the plaint that when the Shamilat Lands in the defendant village had been partitioned. Document gift deed on record does not show the particulars of any such Shamilat land given to said Muhammad Hussain son of Mirza. Therefore, to this extent plaintiff has failed to present an arguable case. Plaintiff has claimed that in future if the common lands would be divided he may be given his due share. This statement is incorrect. Firstly, that through this statement he wants to enforce an expectant right and it is settled law that expectant rights cannot be enforced. Secondly, that plaintiff is not specific in his claim regarding share in the common lands. This statement of plaintiff cannot be accepted for the reason that if the common land or Shamilat Deh is to be divided then the right goes to the proprietary body of the village and if the property sought to be divided is State land then Provincial government has the authority to allot the same. Therefore, to this extent plaintiff's claim is pre emptive in nature and he wants a decree for an expectant right. Therefore, suit of the plaintiff to this extent is unfounded. 4(sic.) Plaintiff has asked for grazing rights in the communal pasture of defendant village. Since he has failed to bring on record any material evidence regarding his said right and the properties came in his share are private properties hence plaintiff can only be considered as Malik Qabza and in his said capacity he is a limited owner to the extent of his private properties. Plaintiff has not presented any document regarding the status of said Muhammad Sharif and Muhammad Hussain son of Mirza as "Malikan e Deh" of defendant village and that these two persons after the partition of village common properties have sold the same to the plaintiff. In absence of cogent reliable evidence on this point, this court finds that case of plaintiff/respondent is prima facie not convincing. Learned trial court and first appellate court mainly offended with the resolution of defendant village and accepted injunction application. Both the courts below did not give due consideration to the pleadings of the parties, failed to determine the real point of controversy and accepted the application without applying the relevant law. Judgment dated 06-12-2018 of this court in revision petition No. 49/2016 is devoid of reasoning on the points of rights protected under the village administration document (Wajib ul Arz), the status of village proprietary body (Malikan e Deh) and the status of owners of private holdings without share in Shamilat Deh (Malikan e Qabza). No doubt under section 50 of The Land Revenue Act, 1967 a presumption over the ownership of Forests, quarries and wastelands is in favour of the Government but on the other side the rights of people in every village regarding their share in common lands, grazing their cattle's in the communal pastures are also protected. On the basis of overall ownership of Government, if, the people are unleashed to enter in any communal pasture or common lands in any village that would not only be a serious threat to long standing established rights of the people but will definitely open a flood gate of litigation. (Dissented with the judgment dated 06-12 -2018 passed in Civil Revision No. 49/2016).

6. In view of the above, this revision petition is accepted on merits. Impugned judgment/order dated 13-7-2022 passed by learned trial court in civil suit No.89/2022 and impugned judgment/order dated 17-08-2022 passed by learned first appellate court in CFA. No. 51/2022 are hereby set-aside and injunction application dismissed.

7. Order announced today in presence of learned counsel for the petitioners and respondent No.1. Certified copy of this judgment be sent to learned trial court for intimation. File. SA/84/GB Petition accepted.