' The appellants filed a suit for the possession of land measuring 2626 kanals, 1 marla situate in village Gilkala, Tehsil Bhakkar, District Mianwali. The case of the plaintiffs (hereinafter for the purpose of brevity the appellants who had filed the suit shall be called the plaintiff's and the persons against whom the suit had been filed shall be called the defendants). In nutshell the case of the plaintiffs was that their predecessor-in-interest had not sold the shamilat land attached to the Adna Malikiyat land and that the defendants as such were not entitled to have the same mutated in their favour at the time of the partition of the shamilat land in the village. On the other hand the case of the defendants was that the sale to the predecessor-in-interest of the defendants was a share to the extent of 1/3rd in the chah and which by itself entitled them to the share in the shamilat and as such the Revenue Authorities in consolidation proceedings had rightly given them the share in the shamilat. The defendants claimed that their predecessorin-interest got the land on the same terms and conditions of digging the well in the suit land and planting the trees and as such were entitled to all the benefits on account of the fulfilment of the terms and conditions and as such they had become the absolute owners of Adna Malikiyat land as well as the corresponding share in the shamilat. The precise question that would arise for determination in the appeal would be whether a sale made to the extent of 1/3rd to the predecessor-in-interest of the defendants would entitle the defendanst the share in the shamilat. The circumstances under which the above question has arisen may be examined in more detail.
2. One Azmat was the ancestor of the plaintiffs. Azmat had two sons namely, Muhammad Yar and Muhammad (plaintiff No, 1). Muhammad Yar had two sons by the name of Fateh Muhammad and Dost Muhammad (plaintiffs Nos, 2 and 3 respectively) Nama was the predecessor-in-interest of the defendants. Nama had two sons, namely Budha and Fazla. Budha had three sons namely, Maula Dad, Hassan and Massan being defendants Nos, 1, 2 and 3. Fazla had a son by the name of Satara and defendants Nos, 5, 6, 7 and 8 namely Karim Bakhsh, Muhammad Bakhsh, Fazal Hussain and Hussain Bakhsh are his sons. The plaintiffs claimed that Azmat sold 48 kanals 4 marlas of land covering Khata No, 14 to Nama the predecessor-in-interest of the defendants under a sale deed dated 20-1-1882. This land bearing Khasra Nos, 1, 2, 4, 5, 6, 7, 8 and 9 comprised the 1/3rd share.
Admittedly this sale did not include the rights in the shamilat. In 1959 the consolidation proceedings started and the corresponding share of the shamilat was allocated to the defendants by virtue of the ownership of the aforesaid land sold by Azmat in favour of Nama. The plaintiffs in paragraph 2 of the plaint specified that the subject-matter of the sale was 1/3rd of the entire area of Khata No, 14 which had an area of 140 kanals consisting of the above numbers and that these numbers were duly mentioned in jamabandi for the year 1882. The corresponding numbers in jamabandi for the year 1886-87 and that of the year 1890-91 were also specified. The khasra numbers subsequently changed in the second settlement as well as the third settlement had also been specified in this paragraph. It was further mentioned that on 18th April 1959 by virtue of mutation No, 354 the defendants Nos, 1 to 3 were erroneously given 1313 kanals and defendants Nos, 4 to 7 an equal area on account of the share in the Shamilat Deh. The possession of the defendants on these khasra numbers so given to them in the consolidation proceedings and had also been shown in the jamabandi for the year 1958-59. The defendants version as contained in paragraph 2 of the written statement, was that Azmat the ancestor of the plaintiffs had obtained from Government the entire area of land on the condition for installing a well and planting the trees on the road sides. Azmat being owner to the extent of 2/3rd had sold 1/3rd to the ancestor of the defendants on the same terms and conditions of which he held the land under the Government and that on account of the fulfilment of the conditions the predecessor-in-interest of the defendants was also declared to be the owner in the estate to the extent as Azmat. This is the basis on which the share in the shamilat was claimed. A plea of estoppel had also been raised against the plaintiffs that they had themselves participated in the proceedings for the partition of the shamilat and had not raised any objection to the mode of partition. It was also specifically stated that they had signed the register of scheme of the partition. It was further pointed out that the predecessor-in-interest of the plaintiffs had not objected to the preparation of the jamabandi in the Settlement No, 2 and Settlement No,
3. Another preliminary objection taken was that the suit was barred by time and that the present suit was also not maintainable in view of the plaintiffs' earlier filing a suit and withdrawing the same. On account of the pleadings of the parties the learned trial Court framed the following issues :- ' Substituted by Issues Nos, 1, 1-A and 1-B, given below:
(1) Whether the plaintiffs' predecessor-in-interest had not sold the land in suit to the defendant's predecessor-in-interest?
(2) Whether the suit is within time?
(3) Whether the plaintiffs have been in possession of the land in dispute within 12 years of the institution of the suit?
(4) What is the effect of the circumstance of Amir Hussain Shah's not joining as plaintiff upon the present suits ?
(5) Is the suit not maintainable in the present form?
(6) Whether the plaintiffs are estopped from bringing the suit by their word or deed?
(7) Relief.
3. A revision having been preferred with regard to the framing of Issue No, I, it was struck down and the following issues were framed by this Court in lieu thereof :-
(1) Did the predecessor-in-interest of the defendants (Nama) purchase the rights in the village Shamilat from the predecessor-in-interest of the plaintiffs (Azmat) along with the area in proprietary area by means of the unregistered sale-deed dated 22nd January 1882?
(1-A) Had the land transferred by the said Azmat to the predecessorin-interest of the defendants been acquired by him from the Government, on certain conditions, did the predecessor-in-interest of the defendants hold that land after the sale on the same conditions and did he or his successors-in-interest fulfil the conditions on which the land was so granted?
(1-B) Have the defendants become owners of one-third of the land sold by the said Azmat as well as of the proportionate share in the village shamilat and were they entitled to have their share separated at the time of the partition?
' The learned Civil Judge, Bhakkar vide his judgment dated 14-7-1964 decreed the suit.
4. Under Issue No, 1 the learned trial Court held that it could not be said that the predecessor-in- interest of the defendants had purchased the rights along with the proprietary land transferred to him by the plaintiff's ancestor and reliance was placed on section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959. Issues Nos, 1-A and 1-B were taken together and the learned trial Court held that the defendant's predecessor-in-interest did not become the owner of the Shamilat land in suit along with. Adna Malkiyat land. Both these issues as such were decided against the defendants. Issues Nos, 2 and 3 were also decided together. The suit was held to be within time and not barred. Under Issue No, 4 it was held that the plaintiffs had sufficiently complied with the terms of the earlier withdrawal order and as such the present suit was legally competent.
The form of the suit as covered under Issue No, 5 was also held to be maintainable. The issue relating to estoppel was also decided against the defendants.
5. The defendants filed an appeal which was accepted by the learned District Judge, Mianwali vide his judgment dated 22-2-1965. The learned District Judge accepted in principle the proposition of the plaintiffs that the original sale of 1/3rd share of Khasra Nos, 1, 2, 4, 5, 6, 7, 8 and 9 was made without any Shamilat rights but immediately he came to the conclusion that it was not proved that the land in dispute detailed in the heading of the plaint was allotted to the defendants in lieu of that land sold by Azmat in favour of Nama. On the basis of the documents on. Record the learned District Judge came to the canclusion that the sale was of 1/3rd share in Chah Bamma Wala and not any other land; although the predecessor-in-interest of the defendants had cultivated a portion of land of that well. The conclusion arrived at by the learned District Judge as regards the basis of right may be quoted below:- "It is, therefore, not a case where a person was originally possessed of Shamilat rights in the land and sold his land without Shamilat, but it is a case where a person had installed a well and on that ground wanted to become an owner on the generosity of the Government. It is again a case (P. 12) where he had included another person with him and had received the price of the well from the predecessorin-interest of the defendants to the extent of 1/3rd share. It looks that both then succeeded in getting some land by bringing it under cultivation and by planting some trees."
' The learned District Judge also came to the conclusion that it was not proved that Azmat the ancestor of the plaintiffs had sold that land to Nama in lieu of which the land in dispute was allotted to the defendants.
6. I have already quoted the precise contention involved in the present appeal. But it would be appropriate to mention various contentions raised by the appellant :
(1) That according to the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959, no Shamilat could be impliedly sold. It was further contended that the provisions of the Punjab Land Dispositions (Saving of Shamilat) Act IV of 1954 was retrospective. Reliance in this behalf has been placed on Hakaman etc. v. Gulsher etc. (Law Notes 1966 Lah. 49) and Allah Bakhsh etc. v. Ghulam Hussain etc. (PLD 1975 Lah. 1349).
(ii) That the basic documents of title i,e,, Exhs. P. 12, P. 15 and P. 13 did not mention the sale of Shamilat. The precise contention is that even if the above law had not been communicated, nothing could be added to the documents to include the share in the Shamilat.
(iii) That the learned District Judge has failed to appreciate that there was no objection in the written statement regarding the identity of the land and in any case if there was a dispute regarding the identity of the land the best course for the lower Appellate Court would have been to remand the case.
(iv) That the learned District Judge has misread the documents on record. As a matter of fact the land given to the defendants stood connected with the land originally allocated to the ancestor of the defendants.
(v) That the learned District Judge has misread the consent of Muafi and the original terms of which the land had been given to Azmat the ancestor of the plaintiffs.
(vi) That the onus of 3 material issues was on the defendants and they have failed to discharge the same. It was further contended in this behalf that there was no evidence that Azmat failed to fulfil the conditions.
(vii) That if the Shamilat was not originally attached the purchaser would get only what had been possessed by the seller.
7. As already stated above the simple point involved in the case is whether on the basis of the sale made the defendants' predecessor-in-interest could be said to have acquired right in the Shamilat. If the things are examined in its true perspective the question of tracing of the number with the original ownership would not be relevant. To my mind it was a futile exercise by the learned District Judge which the learned counsel for the appellants wants me to do. According to the defendants, in village Gilkala Shamilat vested in Malguzars of the village and they had acquired rights in the ratio in which they were liable to pay the land revenue. According to the defendants they were the malguzars and as such had become the owners. It was further contended by the respondents/defendants that Shamilat in the said village was not appurtenant to the land and therefore the sale of actual land even if proved did not entitle the plaintiffs to the share in the Shamilat particular when the Consolidation Authorities have not partitioned the Shamilat on the basis of ownership. According to the defendants what was sold to the defendants' predecessor-in- interest was not any land or specific area. What had been sold was 1/3rd share of the well which ipso facto made the defendants' predecessar-in-interest an owner of the Shamilat in the same manner as the plaintiffs' ancestor Azmat had become the owner. It was next contended that the defendants had themselves accepted the mode of partition and had also allowed the same to be acted upon with the result that the partition had become final and the plaintiffs were estopped from challenging the same.
8. The determination of the crucial issue in this case depends upon the examination of the important documents relating to the sale, terms of Wajibul-Arz and the documents relating to the consolidation. Exh. P. 30 is the sale deed dated 22-1-1882 and is an important document to be considered. It shows that Azmat had sold his 1/3rd share out of the 2/3rd share in the well. Exh. P. 29 is a Naqsha-Yadasht and the column of Kaifiyat re-asserts that 1/3rd share had been sold by Azmat. This fact is also supported by Exh. P. 28 dated 4-10-1882 which is a copy of the file relating to the proceedings for effecting the mutation entry. By virtue of Exh. P. 15 dated 10-11-1883, dakhil-kharij to the extent of 1/3rd share had been effected. Exh. P. 36 is the Nagai Kaifiyat-e-Am Nisbat Halaat Dehi Hasbe Malikan Saal 1878 about the ownership right prepared at the time of the first regular settlement 1887. This laid down the procedure that whenever any person wanted to instal a well he would get land in Shamilat in consultation with the Lambardar and as such he became the owner of the area cultivated around the well. Exh. D. 5 and also Exh. P. 26 are the Wajibul-arz. Paragraph 11 has the following caption :- ' Under this head it is provided that when any person acquired some ownership rights by installing a well he became entitled to all the rights which were possessed by Khewatdar. Another method adopted was the obtaining of Muafi from the Government and this is evident from the documents Exhs. D. 19 to D. 23, D. 4 and D.
24. Exh. D. 24 is an application dated 23-1-1879 and was made by Azmat and Nama saying that they were entitled to some 50 acres of land on account of installing a well and planting of some trees on the road about which there was a reference in paragraphs 11 and 12 of the Wajibul-arz.
Paragraph 12 provided that the persons living there could reclaim land and would become entitled to the rights given in paragraph 11. Exh. D. 4 is a copy of the statement dated 8-7-1902 by Muhammada plaintiff No, 1 that his father had died some 10 months ago and muafi should be continued. Exh. D. 23 is the joint statement of Azmat and Nama made in 1900 to the effect that the came to the conclusion well was functioning in accordance with the, conditions of Muafi, some more trees will be planted and muafi should be renewed. Exh. D. 22 is a report which also confirms the sale of 1/3rd share. From other documents like Exhs. D. 21, D. 20, D. 19 it is quite evident that the muafi was extended from time to time. All these documents had been examined by the learned District Judge and thereafter he came to the conclusion that it was not a case where a person was originally possessed of a right in shamilat and sold his land without shamilat. But it is a case where both Azmat and Nama had installed respective wells and on that account had become owners.
The conclusion arrived at by the learned District Judge had already been quoted above.
9. As already indicated above in case it is established that it was 1/3rd share in the well that had been sold and not the specific land and that both Azmat and Nama to be the continued Muafidars and acquired rights subsequent thereof, no exception can be made to the conclusion arrived at on the basis of the documents which have been relied upon by the learned District Judge and re- examined by me. The question of tracing of the land to the numbers which were cultivated by the predecessorin-interest of the defendants was wholly irrelevant. It was only a share in the well which was sold by Azmat to Nama and not the specified land. Azmat was not in possession of any shamilat right at the time in land bearing khasra Nos, 1 to 9. Both Nama and Azmat had become owners of that land by fulfilling the conditions by virtue of that they became sharer in the shamilat under the terms of wajibul-arz and Muafi conditions already referred to above. The findings of the learned District Judge on issues Nos, 1, 1-A and 1-B are hereby affirmed. I also agree with the learned District Judge that as it was only the share in the land that had been sold therefore the learned District Judge had rightly declined to remand the case. At this stage the basis on which the shamilat had been partitioned may be examined.
10. The learned trial Court as already stated above relied on section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 and for the sake of the convenience may be reproduced below :- ' Section 3.--Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights or interests, incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof has been specifically mentioned as the subject-matter of the disposition.
' The provisions of this section would only be attracted in case there was a sale of land and the land of Shamilat or any portion thereof was appurtenant to such land had been sold and the general words used in the transfer deed would not be construed to mean the transfer of Shamilat unless it has been specifically mentioned as the subject-matter of the disposition. The said section was not applicable to the facts of the present case. In view of the above finding that at the time of the sale it was not a specific land that had been sold but 1/3rd share and neither Azmat nor Nama had become owners in the Shamilat at the time of sale. It was subsequently when according to the terms of the Wajibul-arz and the conditions of Muafi that both had become owners. The case of Nama was not in any way different from Azmat in view of the above discussion. The facts of the case of Allah Bakhsh etc. v. Ghulam Hussain etc. (1), were absolutely different. There the question involved was whether the sale evidenced .By Exhs. P. 5, P. 39 and P. 40 and in that case the intention was shown that the portion of shamilat was included in the sale of the land and on the examination of those mutations it was found by the Court that the proportionate share in the Shamilat remained vested with the vendor. Since section 3 of the said Ordinance of 1959 lays down a principle of construction it was held in the aforesaid judgment that the Ordinance had a retrospective effect and that it could be applied to the past transactions for their construction. For the same reason the case of Hakaman and others v. Gulsher and others (2), is not applicable to the facts of the present case. On the other hand the learned counsel for the defendants has relied on an unreported judgment in R. S. A. No, 1406 of 1943, decided on 21-3-1946. In this case the dispute was between the rights of Ala Malik and Adna Malik on the distribution of the shares in the Shamilat. In this case also the rights had been acquired on account of by digging well and Rawaji- e-Aam of village Daggar Awan also was situate in Bhakkar, District Mianwali. Even in this case the Shamilat was not appurtenant to the land and the right in the share was on the basis of the land revenue assessed and in this case also Shamilat Deh has been described as Shamilat Hassib Hissa Malguzar i. e. In the ratio in which the land revenue was paid and the land revenue was payable according to the possession of each proprietor. After analysing the basic document like Wajibul- arz, history of the foundation of the village the learned District Judge came to the conclusion that both Adna and Ala Maliks were entitled to the share in the Shamilat and the Ala Malik could not deprive the Adna Malik of the shares in the Shamilat. The contention of the defendants in this behalf was supported from the copy of the Shart Wajibul-arz Exh. P. 26 (also D. 25), P. 27 (also D.
26), Nagai Kaifiyat Aam Bandobast Awal Exh. P. 36, copy of Itlah-nama (P. 25), Haquq-e-chahat Bandobast-dom (Exh. P. 37), Haquq-e-chahat Bandobast-dom (Exh. P. 38). According to the condition No, 6 of Shart Wajibul-arz of 1878, the partition of Shamilat was to take palce. Similarly in Exh. P. 36 which is Kaifiyat-e-nisbat Aam Delti of the village in question Shamilat was to be distributed according to this Malguzari.
11. The documents Exhs. D. 3, D. 15, D. 16 and D. 17 pertain to consolidation. Exh. D. 3 is the copy of the statement of the owners recorded in the consolidation proceedings on 4-2-1956. Paragraph 10 is to the following effect :- {{URDU TEXT}} ' Exh. D. 15 is the copy of the change in the mode of partition. In D. 16 the owners have been given a right to raise objections and D. 17 is the approved mode of partition. In this, the mode of partition of the Shamilat was admittedly according to Shart Wajibul-arz which as already stated above gave the basis of payment of land revenue. The plaintiffs did not raise any objection to this mode and also did not file any appeal or revision before the Revenue Authorities. The conclusion is that they had accepted this mode during the consolidation proceedings.
12. In the light of the above discussion it therefore becomes abundantly clear that the very basis on which the suit had been filed did not exist and
(1) PLD 1975 Lah. 1349 (2) Law Notes 1966 Lah. 49 there was no justification for the plaintiffs to claim the land acquired by the defendants on account of their share in the land in three Chah Bamma Wala to deprive them of their corresponding share in the Shamilat and that both Azmat and Nama had acquired equal rights in the land.
13. In view of the above discussion this appeal has no force and is hereby dismissed with costs.
(1) PLD 1975 Lah. 1349 (2) Law Notes 1966 Lab. 49