This revision petition is against a judgment in appeal handed dowr by Hafiz Khalil Ahmad, the learned District Judge, Bhakkar in Civil Appea No. 123 of 1992, dated 24.4.1993.
2. The relevant portion of the judgment which calls for reproductio: are paragraphs 9, 10 and 14 and these are reproduced below in extenso:-- "9. After the enforcement of MLR No. 64 the Land Reform Commission had issued the instructions, whereby Adna Maliks were made the full proprietors of the land held by them, while the name of Aala Maliks were to be deleted from the revenue record. Martial Law Regulation No. 64 has been enforced in the year 1959. It was in the year 1962 that the two Mutations Nos. .48 and 49 were sanctioned in favour of the respondents. Mutation No. 48 was of Qaimi Malkiyat while Mutation No. 49 was of Tark-e-Malkiyat. The copies of those mutations have been produced as Exh. P.9 and Exh.
P.10. Ex. P.9 shows that the names of Aala Malikans were changed into the full proprietors. The entries of Exh. P. 9 show that the property was Shamilat Deh and in possession of Adna Malikan. So, distinction was very much there in between Aala Malikan and Shamilat Deh, that was the ownership of the Adna Malikan as observed earlier. After the enforcement of MLR No. 64 Para No. 22 in the year 1959 there was no question of declaring Aala Malikan to be the owners that was in violation of MLR No. 64. When the entries of Aala Malikan has been abolished, how they could be made the full proprietors of the same property. Exh. P. 10 is very interesting. It was entered on the same day and sanctioned on the same time when Mutation No. 48 was sanctioned. According to them the Aala Malikans were changed to Adna Malikans and in the column of Shamilat Deh the names of these persons were recorded and it was given the name of Tark-e-Malkiyat Aala. There was no question of Tark-e-Malkiyat Aala, as their Aala Malkiyat had been abolished by virtue of MLR No. 64 Para No. 22. It appears that these mutations were entered in connivance with Aala Malikans with the revenue authorities. The persons who were tillers of the land were not even intimated nor they were heard. These mutations were sanctioned at a place far away where the land is situated in violation of the Land Revenue Act."
"10It is admitted fact the civil litigation and different suits between Aala Malikan and Adna Malikan were instituted, whereby Mutations Nos. 48 and 49, the subject-matter of the present suit were challenged. The suits were dismissed by the Civil Judge Bhakkar. The appeal was filed and the learned District Judge accepted the appeals and held that the Mutations Nos. 48 Wand 49 were illegal. The appeals were filed and the Honourable High Court concluded that the findings of the District Judge Mianwali were correct, meaning thereby that Mutation Nos. 48 and 49 were kept illegal and void. The Civil Appeals Nos. 432, 433 and 434 were filed before the Supreme Court of Pakistan and they were dismissed as is evident by Exh. P.11. So, Mutations Nos. 48 and 49 have been held to be illegal up to the level of the Supreme Court of Pakistan as they were in violation of Para No. 22 of the Martial Law Regulation No. 64. The prayer of the appellants in the instant suit was that Mutations Nos. 48 and 49 were illegal and void. In view of the judgment Exh. P. 11 the learned trial Court could not give any further finding except that Mutations Nos. 48 and 49 were illegal and void being in violation of MLR No. 64 para No. 22, the respondents have acquired the right in Shamilat Deh on the basis of Mutations Nos. 48 and 49."
"14. For what has been discussed above I have come to the conclusion that the appellants have been in possession of this property which was Shamilat Deh since the time of immemorial. They had not shared the produce with the respondents, who were Aala Malikan. The rights of Aala Malikan stood abolished by virtue of Para No. 22 of MLR No. 64. The respondents could not claim that they were Aala Khud adna as Mutations Nos. 48 and 49 were the result of connivance in between the revenue Authorities and the Aala Malikan and they could not defeat the right of the appellant in the suit property. So, the findings of the learned trial Court on Issue Nos. 1, 2 and 3 were set aside. These issues are decided in favour of the appellants. The remaining issues had also been decided in their favour."
3. The petitioners in this case claim themselves to be Malik-a-Aala of the land which is Shamilat land and was covered by Mutations Nos. 48 and 49. Incidentally, it may be mentioned that both the Mutations had transferred the entire village Shamilat land and, therefore, these were not persons specific.
4. Learned counsel for the petitioners stated that the observation given by the learned District Judge that Mutations Nos. 48 and 49 had been declared void by the Hon'ble Supreme Court was based on misreading and non-reading of record showing the factual position prevailing before him and without first finding out whether Mutations Nos. 48 and 49 were void, he should not have upset the decision given by the learned trial Court.
5. The question then arises what is the status of Mutations Nos. 48 and 49 On one hand, we have the judgment of the apex Court in Civil Appeal No. 432 of 1990 etc., dated the 5th of March 1991.
Going through this judgment, we find that these were specific to the parties and there is no declaration to the effect that Mutations Nos. 48 and 49 have been declared void in entirety.
6. Learned counsel for the petitioner for finding an answer to this question finds support from an observation made in the judgment of Mr. Justice Munir A. Sheikh, passed in Writ.Petition No. 11126 of 1994, dated 11.2.1995, where the following observation has been made:-- "After hearing learned counsel for the petitioner and Syed Jamshed Ali Shah, Advocate learned counsel for Respondent No. 2 at limine stage, I do not find myself in agreement with the learned counsel for the petitioner that in the said suit Mutations Nos. 48 and 49 as a whole in general were declared to be inoperative and void. The petitioner was declared to be the owner of land measuring 200 Kanals 15 Marlas and qua this land and the petitioners rights of ownership on it that Mutations Nos. 48 and 49 were declared to be ineffective and nothing more. He could not claim that the consolidation in the village qua the other land as a whole should be stayed treating the said mutation as a whole inoperative. The petitioner has been granted ownership rights in the land measuring 206 Kanals 15 Marlas through Mutation No. 84 sanctioned on 10.2.1976 therefore he cannot claim any land in excess thereof."
7. So, the matter is clinched here and the judgment aforementioned and the observation as given support his theory that Mutations Nos. 48 and 49 were not held to be illegal in entirety and a sifting had been made as to who were the persons who were to take benefit in view of Martial Law Regulation No. 64 and on the basis of the touchstone as given in the case of Ghulam Haider v.
Ghulam Raza Shah (PLD 1979 Lah. 481) and the touchstone as given in the judgment reads as follows:-- 27.Clearly, therefore, the effect of the abolition of ala milkiat is that the ala maliks become the owner of a property which is not shown in the ownership of any adna malik. In view of this clear provision of law the observations of their Lordships in the authority relied upon by the learned counsel may be confined to the facts of that particular case but cannot be treated to have a general overriding effect over the rights of the ala Maliks as determined by the West Pakistan Land Commission in exercise of power under para. 4(5) of the Regulation.
28.Even if this provision had not been there the conclusion would not have been different. The division of the proprietary rights and consequent rights of superior proprietor and inferior proprietors have been dealt with in Punjab Settlement Manual by Sir James M. Douie (15th Edn.) in paras. 143, 167, 168,.169 and 171. The origin of the rights may differ from district to district but the rights of both types of proprietors are almost uniform. The rights of both categories of proprietors in Muzaffargarh District particularly with reference to waste as explained by Mr. 0' Brien are dealt with in Para. 169 of the Settlement Manual. The relevant portion of this quotation is as follows:-- "The superior proprietors claim to be owners of all unappropriated land. The malikan adna are full proprietors of the land in their possession subject to the payment of the share of the old proprietors, and not liable to eviction on failure to pay it, and are entitled to introduce tenants without reference to the superior proprietors. Their rights (rights of superior proprietors) are restricted...to disposing of the unappropriated waste in the village..The unappropriated waste belongs to the superior proprietors In para. 171 it is stated that the title of the superior landlord has been most fully preserved in Mianwali and in the Sanawan Tehsil of Muzaffargrah. Reference is made to Mr. Tucker's Settlement Report of Dera Ismail Khan.
29. A copy of this report has been shown to me by the learned counsel for the respondents. It is not however necessary to reproduce any portion from this unauthenticated copy since the same principles have been evolved by a Division Bench of Lahore High Court in Malik Gulzar Haider v.
Haider a case of Tehsil Bhakkar. The rules laid down by Mr. Tucker have been summed up as follows:-- "(1) The ala malkiyat is not ordinarily to be partitioned, though such partition may be allowed for sufficient reasons. In case of partition the rights of the adna maliks in the common land of the whole village will be continued as before. For instance, an adna malik will continue to graze his cattle and to beak up waste in all the patties into which a Mauzah may be dividend.
(2) The ala maliks will have the first right to cultivate waste, and after them the adnas. Failing these the ala maliks may give lands to outsiders to cultivate.
(3) Though the ala maliks have paid no jhuri hitherto, they will pay it in future for any lands they may clear. There will, however, be this different between them and the adna maliks that it will be optional with the ala maliks to take jhuri from an adna malik, in which case he will remain an occupancy tenant only. The individual ala malik on the other hand, will be entitled, if he chooses, to pay jhuri at a fair rate, and to thus become an adna malik. In such a case the other ala maliks will not be able to refuse to take jhuri.
(4) The question as to the taking of jhuri, or as to its amount, will for the future be determined by the ala maliks as a body, and the decision come to be recorded, by the partwari.
(5) The lambardar will be entrusted with the power of allotting common waste for cultivation. Any persons feeling aggrieved at the way in which he exercises such power, must put in a complaint at once, otherwise person clearing jungle, with the lambardar's permission, will acquire occupancy rights, and pay rent at the customary village rate to the superior proprietary body.
(6) The right to profits from the produce of common waste land, other than grazing, has been continued to the superior proprietors subject to the right of the adna maliks and cultivators to take first what they want for their own requirements. The ala maliks have been given the option of taking a third of whatever munj grass there may be, leaving the rest to the cultivating body generally or of leaving the whole to the adna maliks till Ist January after which the via maliks are at liberty to sell the remainder. In neither case are the adna maliks at liberty to sell any munj gross that they may have out, for dispose to it to outsiders.
(7) All classes of cultivators are entitled to firewood from the common lands. Non-cultivators such as traders and artisans, will in future pay 8 annas a year for the privilege of taking gross and wood and munj from the common lands. Payment under this head will go to meet the grazing jama assessed on such lands, and will not be a pre-requisite of the ala maliks.
(8) In some cases partial partition of the waste may be effected. In such cases, the existing, waste can be divided among the superior proprietary share without touching the cultivated lands, and it can be provided that the malikana due on the partitioned lands, when these are brought under the cultivation, will be paid into the common fund. In this way the right to the malikana will continue to be held undivided as before, but each ala malik will be able to make his own arrangement for taking jhuri, etc. for the lands that may have fallen to his portion. A portion of this sort, though it effectively protects the interests of the shares claiming partition, is not generally what the ala maliks care for. The great idea of every ala malik is to get patti of his own, with adna maliks over whom he can rule, and a share of the lambardari."
30. After considering the nature of this tenure in detail it was concluded by the Division Bench (page 102) that:--
(1) Ala malkiat means the right to give waste land for cultivation to others.
(2) Persons among the body of the ala maliks can bring a portion of the waste under cultivation and become the adna malik themselves. This proprietorship is subject to the right of ala malik to the payment of jhuri and malikana.
(3) Where the waste is not common land and the title of the maliks of the village to it and not only to all malkiat in it is recognized by Government, the waste is the property of the ala maliks, which they may use in any way they like, and
(4) If the unappropriated waste is common land (Shamilat-ideh) it is not exclusive property of any body but the nature and extent of such rights will depend upon the terms of the Wajibularz which incorporates the agreement in respect of this land between the Government, the ala maliks, the adna maliks and the other representatives of the village.
31.On the facts of that case it was held that according to the conditions of the Wajibularz the ala maliks have the first right to bring the Shamilat land under cultivation. Though it was held that ala maliks could not be deemed to be the exclusive owner but a decree for ejectment of the defendants, adna malikan, was passed. This case was, as stated above taken to the Supreme Court by the defendant but the appeal was not pressed and was dismissed as such.
32.The other case decided by a Division Bench of Lahore High Court is K.B. Muhammad Abdul Rahim Khan v. Hussaina (1). This case dealt with the land in villages Hetu and Tinda Thal of District Mianwali. On the basis of wajibularz of the village, the ala maliks were held entitled to partition of the shamilat deh and were held to be sole owners of it, which means that they had full proprietary interest in it to the exclusion of the adna maliks and tirniguzars. It was observed that the wajibularz determines the rights inter alia of the two types of proprietors.
33.The view that ala maliks have the right to partition of waste land is thus uniform. Similarly position of the wajib-ularz as a charter of rights of right holders in an estate is undisputed."
"35. This document is of the same pattern as the wajibularz in the case decided in K.B. Muhammad Abdul Rahim Khan v. Hussaina and supports the principles laid down in Mr. Tucker's report. Another document is Exh. D.2, a judgment between ala maliks and the adna maliks of village Daggar Yar Shah dated 10.6.1933 delivered by Mr. P.R.B. May, District Judge, Mianwali. The ala maliks were held in that case also to have proprietary rights in the shamilat area. As a result of this finding the suit of the dana maliks who had claimed a right in the shamilat of village and a right to claim its partition, was dismissed by the said learned District Judge. This judgment was confirmed by the High Court in Civil Case No. 1863 of 1933 on 26.4.1935 (copy Exh. D.3). From the facts as stated above as well as law it is clear that:
(1) Ala maliks bringing any of the area of shamilat under cultivation will also become the adna maliks of that area with the result that their right of proprietorship becomes all exclusive.
(2) In case of reclamation of barani area, no right of adna milkiyat can be claimed by the person breaking the waste, and
(3) The ala maliks have a right to partition of the waste without any interference from the adna maliks."
8. The question next is whether the petitioners being Ala Malik had any Adna Malik working under them in the land under Reference.
9. The suit was filed by the, ten persons seeking a declaration in respect of the land the description of which is given in the plaint which reads as follows:-- "120 Kanals situated in Khata No. Nil, Khasra No. 324/4, 325/2 to 5, 328/3 to 8, 9/1, 111/9-10, 109/4 of Muaza Daggar Yar Shah Sharqi Tehsil and District Bhakkar, praying that Mutations Nos. 48 and 49 dated 30.6.1962 of creation of Adna Malkiat and abolition of Ala Malkiat are against law and facts and ineffective upon the rights of plaintiffs. They are Adna Maliks of the suit land and their possession over it is Basharah."
10.Learned trial Court had framed several issues. Issue No. 1 is to the following effect:-- reclaimed the suit land and they have become owner of it due to operation of M.L.R No. 64, Para No. 22, Mutations Nos. 48 and 49 sanctioned on 30.6.1962 and 7.6.1962 in favour of defendants are illegal, void, against law and ineffective upon the rights of plaintiffs? OPP and the finding on this issue as given in paragraph 18 reads as follows:-- "Plaintiffs by their evidence have failed to prove themselves Adna Maliks over the suit land as defined in Land Reforms and reproduced above. Their version that suit land was reclaimed by them is also not proved from their documentary evidence EXP-5 and EXP-6. If in any way it is deemed that suit land was reclaimed by them even then Para No. 22 does not grant any proprietorship to them. Plaintiffs were recorded as Ghair Dakhilkaran in revenue record above discussed, therefore, at the time of sanctioning of Mutations Nos. 48 and 49 they were not required to be given any intimation, as they have added that these mutations were without notice to them.
AC-II during consolidation, while founding the plaintiffs as non occupancy tenant in previous revenue record rightly sanctioned Mutations Nos. 48 and 49 of creation of Adna Malkiat and abolition of Aala Malkiat in favour of defendants. Had plaintiffs been recorded Adna Maliks of the Shamilat land, then he has considered their rights under Para No. 22 of M.L.R. No. 64. Plaintiffs by their evidence failed to prove this issue, therefore, it is answered against them."
11. According to this issue, the plaintiffs have failed to establish themselves as Adna Maliks under the law.
12. However, when the matter went in appeal before the learned District Judge, he did not dilate on Issue No. 1 as he should have done. The learned District Judge was merely impressed by the fact that as Mutations Nos. 48 and 49 had been declared to be illegal, therefore, even if the petitioners claim themselves to be Aala Malik, had no right left, which is an erroneous conclusion as we have seen because Mutations Nos. 48 and 49 were not declared illegal as such as was observed by the learned District Judge. The learned District Judge ought to have decided the status of the plaintiffs and the defendants while giving his views whether it was upholding the findings of the learned trial Court or not and in case, he was differing with the views of the learned trial Court what were basis in reference to the facts on the record for disagreeing with the trial Court.
13. This is a peculiar case pertaining to the rights bestowed by law and the learned District Judge ought to have given reasons for differing with the trial Court instead of merely stating that he was upsetting the finding on Issue No. 1. Under the circumstances and as some factual position has to be determined on the basis of Issue No. 1 at the District Judge level, the case is being remanded to the learned District Judge, who has to follow the principle as laid down in the case of Ghulam Haider v. Ghulam Raza Shah and 12 others (PLD 1979 Lahore 481) while giving a decision on Issue No. 1. The judgment and decree, therefore, of the learned District Judge being faulty, is set aside.
The parties are directed to appear before the learned District Judge, Bhakkar on the 1st of March 2006. Since the entire finding in this case has been recorded and a question of fact is only to be determined with the help of the counsel or at the most the learned District Judge may require summoning of the record from the local revenue authority, the matter need not take very long which is already pending before this Court since 1994. Therefore, the learned District Judge is directed to decide the case himself within a period of two months from the receipt of the order without fail. A copy of his judgment will be transmitted to this Court by the learned District Judge on expiry of two months. The Deputy Registrar (Judicial) is directed to transmit a copy of this judgment to the learned District Judge, Bhakkar over the fax.