' The dispute between the parties relates to 2602 Kanals and 10 Marlas of land, situated in Kot Mirza, Shahpur, District Jhang. A suit for declaration brought by the respondents against the appellants, claiming this land to be the part of the Shamilat, has been decreed by the learned trial Court on 30-4-1971; the first appeal of the appellants has failed on 9-3-1972.
2. Briefly stated the facts of the case are, that on 8-5-1967, respondents brought a suit for the declaration and permanent injunction, claiming that the land measuring 2602 Kanals and 10 Marlas situated in Kot Mirza Shahpur, District Jhang, is a part of Shamlat Deh and that they are the co-owners thereof. It is further their case that the entries in the Revenue Record, showing this Shamilat land in the exclusive ownership of the appellants, are illegal, unlawful and against their rights. Therefore, such entries be corrected; they also sought the relief in the nature of permanent injunction that the appellants should not alienate the land and interfere in their possession. The suit was contested by the appellants/defendants, in which, they took up the plea that before 1878, their predecessors-in-interest had dug four wells in the land measuring 851 Kanals and 17 Marlas of the land, which admittedly was the part of "Shamilat" and such land was brought under cultivation. On account of some challenge thrown by the predecessors of the respondents' side, the matter was settled and a "Shart Wajab-ul-Arz" was entered in the Revenue Record on 23-11-1878 by virtue thereof, the appellants' predecessors were acknowledged to be the owners of that part- of the land, which was made cultivable in the above manner. This "Shart Wajab-ul-Arz" was given due effect in all the subsequent settlements, which took place in the Punjab in the years, 1886, 1904-5 and 1924-25, thus, they denied the ownership of the plaintiffs and asserted their exclusive title to the land in dispute on account of the said "Shart Wajabul-Arz" asserting that since then the Shamilat stood partitioned and they have become the owners of the land falling to their land. Out of the pleadings of the parties, the learned trial Court, was pleased to frame the following issues.
(1) Is the suit time-barred?
(2) Has the Civil Court jurisdiction to entertain and try this suit?
(3) Are the plaintiffs in possession of the suit-land and is the suit competent in its present form and so is rightly valued for purposes of court-fee and jurisdiction?
(4) Are the plaintiffs estopped to bring this suit for various objections raised by the defendants in their written statements?
(5) Has the suit-land been partitioned by Custodian, Evacuee Property, Auqaf Department and in proceedings under the Land Reform Regulation? If so, its effect?
(6) Is the suit bad for non-joinder of necessary parties?
(7) Was the land attached to the wells mentioned in para. 3 of the plaint a part of the Shamlat land and it continued as such?
(8) Have the defendants become the owners of the land of the wells by adverse possession for more than twelve years?
(9) Is the Shart Wajab-ul-Arz for the year 1880 and the order of the Superintendent dated 23-11- 1878, illegal and void and the said Shart Wajab-ul-Arz is not binding on the parties?
(10) To what relief or reliefs the plaintiffs are entitled?
'Parties were put to trial; the suit of the respondents as mentioned above was allowed and the appeal filed by the petitioners remained unsuccessful. Hence this second appeal.
3. Mr. Tariq Kamal Qazi, the learned counsel for the petitioners has not attacked the findings of the two Courts below on the touchstone of the evidence on the record, imputing any misreading or non-reading thereof by the Court. And at the very outset has submitted that the fate of the case is depended upon the construction of the "Shart Wajab-ulArz" , entered on 23-11-1878. According to Mr. Qazi, there are three possible interpretations of the "Sharat". In his own words, these possibilities, which were noted down, are reproduced below:-- ' Firstly that the land, which had been cultivated by the predecessors of the appellants, had ceased to Shamilat and had become their personal properties and there was no accounting for it; ' Secondly that the land always remained part of the Shamlat land and the interest of the appellants was usufructory or possessory; ' Thirdly that the land has become the property of the appellants, but with the rider that at the time of the partition of the Shamlat, the partition was to be on the basis, that such land shall be considered as the personal property of the appellants and not a part of the Shamilat. But an area equal to 851 Kanals and 10 Marlas, would be deducted from the entitlement of the appellant.
' Mr. Qazi has vehemently emphasized upon the third possibility and has argued that even without there being any formal proceeding or the specific order of the Revenue Authorities, for the partition of the Shamilat, yet by virtue of Shart Wajab-ul-Arz, a valid partition can always take place, as it has happened in the present case, and in such an eventuality, the land, which was made cultivable by the predecessors of the appellants, shall be deemed to be their Personal Property, but subject to the condition that when the formal partition of the Shamilat is made, 851 Kanals and 10 Marlas, shall be deducted from the entitlement. To support his contention, that a Shamilat can be partitioned with their being the formal proceedings or the orders of the competent Revenue Authorities, Mr. Qazi has relied upon the case reported as Hussain and others v. Fazal Rahim Khan and others PLD 1975 SC 574, particularly, the following passage:- (Page 585) The final position, therefore, the emerges from a careful examination of these documents, which constitute the only evidence in this case, is that the rights of the parties are to be controlled by the various Wajib-ul-Arzes prepared at the successive settlements. These do not disclose that the rights of the Aala Maliks in the Shamilat had, at any stage, been altogether abolished. None of the Wajib-ul-Arzes shows that any rights in the Shamilat Deh as such were acquired by the Adna Maliks. They certainly did acquire rights over portions in their possession, if they had brought the same under cultivation or sunk a well therein, whether with the permission of the superior landlords or without such permission but neither the Adna Malika nor the Tiriniguzars acquired any specific share in the Shamilat proper which could entitle them to claim its partition."
' He has also placed reliance on the cases reported as Mitha v. Ghulam Hussain PLD 1949 Lah. 86, which the relevant portion reading as under:-- "Those who constructed wells with the permission of Sullah's descendants (i,e, the Aala Maliks) assumed the status of Adna Maliks, and became responsible for payment of Malikana. This then was the method employed for the development of proprietary rights. Sullah was first granted permission to dig a well and he became owner of the land cultivated therefrom; he was empowered to allow outsiders to develop similar rights for themselves on land lying in the vicinity of his well, by the labour of their hands i,e, by digging wells and cultivating land therefrom and such person had to make submission in the form of gifts and dues known as Tappa Legwai, as a condition precedent to the grant of permission and were also required to any Malikana to the Aala Maliks in perpetuity and in consideration of these facts of submission, they became proprietors of the lands which they had reclaimed from the desert."
' Sunder, and others v. Inder Singh (Lal) and others AIR 1935 Lah. 446:-- "The words Hasab Rasad Khewat' when used in Revenue Records in reference to a partition of the Shamilat area always meant according to the revenue assessed on the holding and not according to their areas, except in very extraordinary circumstances."
' Support is also drawn from the case reported as Karim Bakhsh and others v. The State and others PLD 1980 Reve. 55, the operative part of which is reproduced as under:-- "Thus, the revised entry in Misl Haqiyat of 1921-22 namely, Shamlat Deh Malikan Adna Hasab Rasad Khewat Jama Bandobast Qanuni would simply mean that the village Shamilat was to be shared by Adna Malikan according to the measure of assessment fixed on cultivated holdings on each well at the Settlement of 1878-80."
' Lastly reliance has been put on the case reported as Maskin and others v. Mst. Bhag Sultan and others PLD 2001 Lah. 481, the relevant extract, reads as follows:-- "S.52 Custom (Punjab).---Shart Wajibul Arz reflected an agreement based on custom pertaining to land classified as Banjar area giving right to the residents of village of grazing their cattle, collecting fuel wood and using natural ponds for their cattle."
4. Heard. Before proceeding with the matter, I feel expedient to restate the settled principle of law that the interpretation of a document is a question of law, which obviously, can be construed in the light of the evidence led by the parties, and available in the record. Mr. Qazi, however, had not discussed any evidence, which could be helpful in this behalf and has simply relied upon the wording of the "Sharat", which reads as under:- {{URDU TEXT}} ' From the perusal of the above "Shart" and in the backdrop, in which it was entered upon, and explained by the counsel for the parties, that when the predecessors-in-interest of the appellants had dug four wells in the Shamilat land and had made it cultivable, the respondents' predecessors objected to it, therefore, in order to resolve the dispute that the "Shart Wajab-ul-Arz" reproduced above, was effected in which it is clearly mentioned that the persons, who have cultivated the land, shall be entered in the Revenue Record, as the owners of the land. But this does not mean that the land was either expressly or impliedly partitioned, and that the appellants' side has become the exclusive owners, on account of the above. Rather to the contrary, the assertion of the partition is refuted and negated by the very wording of the "ShartWajib-ul-Arz", itself, when it is expressed therein "{{URDU TEXT}}." . This means that according to the intention of the parties to the "Shart' the Shamilat was yet to be divided. And till then, the only rights available to the appellants were to enjoy the possession and the usufruct of the said land, E and by describing them as the owners, only meant for the purpose of the responsibility and the implication of the land revenue, which they were supposed to bear. But their entitlement to have the exclusive ownership of the aforesaid land, was obviously dependent upon the partition in accordance with law. From the above, my answer to the first part of the third possibility is very clear.
5. Now examining the "Shart" from the other angle, as has been argued by Mr. Qazi, that the word "Mahsub", used in the "Shart" according to the Urdu, Classical Hindi and English Dictionary by Joint T.
Platts, M.A. Means: {{URDU TEXT}} " (Pass, Part of " {{URDU TEXT}}" to number, reckon and (c) Part, Number, reckoned, computed, calculated; carried to account."
' Therefore, the disputed land has been excluded from the Shamilat and the appellants were only liable to account for the same at the time of the partition. Suffice it to say that according to the true interpretation of the above word in the context of the "Shart" and also the aforesaid meaning, the said land remained the part of the Shamilat and never stood excluded. However, it was agreed and stated, that at the time of the partition, such land shall be reckoned, computed and carried to the account within the meaning of the word" reproduced above. Obviously when ever the partition, shall take place, the "Shart Wajab-ul-Arz" shall be given due effect.
'In the light of above, I do not find any error either in reading the evidence on the record; the interpretation of the "Shart Wajabul Arz" or any other legal or factually infirmity in the judgments of the two Courts below, rendering these to be contrary to law, calling for interference in the second appeal. This appeal thus, has no merit and the same is hereby dismissed.
Second .