1. MUHAMMAD AFZAL ZULLAH, J.-This is an appeal through special leave filed by the defendants in a declaratory suit which was dismissed by the trial Court on 19-2-1962. The first appeal filed by the respondents-plaintiffs was allowed on 28-9-1963 and the second appeal filed by the appellants-- defendants was dismissed by the Sind & Baluchistan High Court on 16-8-1971.
2. The respondents claim in the plaint was that agricultural land in two villages Deh Lakhisar and Deh Barer! in~ Tapo Chitshah, District Hyderabad, which were originally included in Deb Khobrani Jagir, comprising of Survey Nos. 400 and 445 to 465 (part of Original Unsurveyed No. 400) in Deb Lakhisar and Surveys Nos. 144, 296 and 297 (part of original unsurveyed No. 144) in Deh Bareri.Was "owned and possessed" by them, on the basis of inheritance of what they called "mukhadim! rights all 16 annas", in the land, from their father Mir Samano Khan who inherited it from his cousin Abdullah Khan the latter "owned and possessed this land as Mukhadimi owner of the land till his death". This claim was prefaced, as disclosed in para. 4 of the plaint, with an important assertion that "long before 1892, before the survey settlement was introduced, his (Abdullah Khan's) mukhadimi rights were recognised and claim of Mir Allahdad (predecesor-in-interest of defendants-appellants), then Jagirdar who contested the mukhadimi rights of Abdullah Khan, was rejected finally by the then Commissioner in Sind" ; and that "defendants falsely denied the right of plaintiffs and challenged the right of ownership in this land on the basis of inheritance from this Mir Allahadad Khan's heirs falsely claiming that Mir Allahadad Khan had been Mukhadimi owner of this land". In the alternative the plea of adverse possession was also taken with the assertion that "the plaintiffs and their predecessor as above-mentioned, from the time of Abdullah Khan son of Ghulam A.I Khan had been in adverse possession for more than 12 years ; the possession of plaintiffs and their ancestors had been open, continuous and hostile to the rights of defendants and their predcessor in their own rights as owner ; as such rights of defendants if any have been extinguished due to adverse possession . . . . : ' Giving it as a part of cause of action the plaintiffs- further asserted that the defendants had fraudulently with the help of Revenue Authorities got the record-of-rights changed in February 1960 from the name of plaintiff's father namely Samano Khan in their own names on the strength of a decree which was based on collusive compromise dated 4th December 1945 in Suit No. 70 of 1945. The plaintiffs' formal claim in the suit was that they "are the owners of land and the defendants have got no right, title or interest in the land to any extent." mukhadimi rights in the land also belonged to the defendants. Regarding adverse possession, in reply, it was averred that plaintiff No. 2 (Mir Muhammad Khan) was lessee of the suit land and that after the expiry of the lease the possession was retrieved from him therefore, no question of adverse possession arose. Another significant assertion was made in the written statement namely that "record-of-rights was all along in favour of defendants. At one time without notice to defendant Mr. U,jjan mutated record-of--rights in favour of plaintiffs. Defendants appealed to Collector who upheld appeal and mutated record-of-rights back in the names of defendants". It was denied that the decree in favour of the defendants which was given effect in the revenue record was collusive. A counter assertion was made that the plaintiffs knew about the said suit from the time it was filed.
3. The following issues were framed by the learned trial Court :- "(1) Is the suit undervalued and understamped ?
(2) 1s the suit barred under section 42 of the Specific Relief Act ?
(3) Is the suit bad for non-joinder of necessary parties ?
(4) Whether properties belong to plaintiffs ?.
(5) Has the suit property been acquired by plaintiffs by adverse possession ?
(6) Is decree in Suit No. 70/73 not binding on plaintiffs ?
(7) Is defendant No. 2 insane ? If yes, is the suit bad for not appointing his guardian ad item ?
(8) What should the decree be ?"
4. On a remand by the High Court at an earlier stage, the following additional issue was framed :-- "What was the nature of the grant by the Government to Mir Allahdad Khan ? Whether the grant in this case conferred upon the Jagirdar merely the right to collect land revenue or it also included the right in the land, such as the Mukhadimi rights ?
5. Voluminous, documentary and oral material was produced from both sides. The suit was dismissed by the learned trial Judge after taking into consideration the evidence as also the conduct of the plaintiffs and their predecessor-in-interest. Reliance by them on certain reports and orders of the Revenue Settlement Survey Authorities in 1x92/93 was not considered as of binding effect so as to render a decision in their favour, because they contained varied opinions.
6. The respondents appeal was accepted by the learned District Judge mainly on the consideration that a consent decree passed in 1945 in favour of the defendants was not binding on the plaintiffs because they were not parties to it and that the aforementioned decisions of the Revenue Authorities were based on evidence, therefore, they could not be ignored. It was also held that the defendants had not proved, in a positive manner, that they and their ancestors had enjoyed the Mukhadimi rights in the land.
7. At the stage of the second appeal in the High Court it was realised that the questions relating to the Jagir granted to the predecessors-in-interest of the defendants as also whether it included all the rights in lands such as Mukhadimi rights, were not properly dealt with. Accordingly, the case was remanded to the District Judge after framing the necessary issue, for recording additional evidence and returning the record with his findings to the High Court. The learned District Judge after due proceedings, again expressed his opinion in favour of the plaintiffs and remitted the record to the High Court.
8. The second appeal was dismissed by the High Court in Single Bench by the impugned judgment.
9. Considerable stress was laid on the fact that the question relating to the Jagir (and the Sanad through which it was granted) as such was not raised in the trial Court. The earlier remand order passed by another learned Judge of the same High Court was subjected to lengthy adverse comments. It was held that the defendants had not succeeded in establishing their Mukhadimi rights in the land in dispute. It was also observed that the Courts below had failed to give full effect to the defendants' so-called admission on issue No. 2. The precise reasoning was that the defendants not having pressed the objection regarding the form of the suit vis-a-vis section 42 of the Specific Relief Act, would be deemed to have accepted that the plaintiffs were in possession of the land in dispute; and further, that this would lead to another presumption that the defendants had given up the contest on the question of adverse possession as well. On other question of merits it was found that the possession of the plaintiffs %was in the capacity of Mukhadimi who were also called as Zamindars with heritable and transferable rights in the soil of land; notwithstanding the creation of the Jagirdari rights in favour of the defendants-appellant's zincestors. The two important considerations which heavily weighed with the learned Single Judge against the appellants were (i) that in 1892 a Committee ,of Messrs Seymour and Kadirdad Khan conducted an enquiry and survey with regard to the nature of the rights of the Jagirdars as also the persons in possession of the Jagir Lands, claiming to be Zamindars thereof, gave finding that the Jagirdars had no rights in the soil such as Zamindari rights and further that the persons in possession in fact held the same; (ii) that Mir Allahadad Khan Jagirdar, a predecessor-in-interest of the appellants had, in an earlier, suit, admitted that the persons in possession of the Jagir Lands held Zamindari rights. The decision of the first appellate Court decreeing the suit of the plaintiffs was accordingly upheld. It needs to be mentioned that the Division Bench ruling of the same Court inI Mir Abdul Hassain Khan v. Province of West Pakistan (PLD 1958 Kar,175dealing with the similar Jagirs and the sanads granting them as are involved in this case, wherein a contrary view qua the rights in soil, was taken in favour of the Jagirdars, was not followed in the judgment impugned in this appeal on an assumption that it could be distinguished.
10. The plaintiffs' case about the origin of their rights to the ownership of the land in dispute in addition to what is stated in the plaint, as elaborated by their learned counsel, is that it existed in the form of Mukhadimi rights through possession of the land in that capacity. The right 'in land thus owned was heritable. He contended that the plaintiffs' ancestors held those rights even before the grant of Jagir to the forefathers of the defendants by the British rulers. One Mir Abdullah Khan. And on the death of Mir Samano Khan in 1957, it is further claimed, they inherited those rights.
11. The case of the defendants regarding Jagir as visualised by the High Court in para. 7 of the impugned judgment is that the first Jagirdar before the British regime was Mir Budho Khan but the first Jagirdar during the British Sovereignty was Mir Ahmad Khan Talpur Khanani and the Jagir which was granted to him by the British Government in 1861. In supersession of the previous grants, made by the previous rulers covered 70,000 bigahs." Earlier it was observed that "Mir Sher Muhammad Khan (son of Mir Allahdad Khan) who was the last Jagirdar, had no male issue; therefore, on his death in 1942 the rule of succession which was admittedly male primogenature, could not work. The property, therefore, devolved on his heirs according to Shariat. The heirs made gifts inter se with the result that his cousin Mir Khan Muhammad Khan received eight annas from the property which was formerly a Jagir. Mir Khan Muhammad Khan had four sons to whom he gifted in equal shares of that property. Defendants I and 2 are his sons and the other defendants are the heirs of his deceased sons".
12. The Jagir in question granted by the British rulers to the ancestors of the appellants was through a Sanad, which except for minor variation, is similar to that considered in the case of Mir Abdul Hussain Khan. It reads as follows .:- "Whereas it is the object of the British Government to respect both private rights and public usages in the disposal of such lands as have fallen to them by virtue of conquest, to give honour to those who are worthy of honour, and to keep respectable persons from want and difficulty, it has been thought fit to institute inquiry into the land tenures and general circumstances of the Jagirdars of Sind, so that provision may be made, not only to meet the present necessities, but also for the future support of the sons and lineal male descendants of a certain number."
13. Now your father (Mir Jan Muhammad Talpur, Khanani), killed at the battle of Meani, having been found on inquiry to have been possessed at the conquest of Jagir land in this province, continued to you by His Excellency the Governor, Sir Charles Napier, under the terms of one-fourth resumption, the British Government have determined that position shall not be interfered with for the term of your natural life so long as you remain true and loyal; and this Sanad is now granted to you in supereses--sion of all prior documents confirming you in the grant aforesaid.
14. And further, in consideration of your rank and the social position of your family, and of the late Governor's proclamation in respect of the four Talpur divisions of Shahdadani, Shawani, Khanani and Manikani, it is ordered that from the whole amount of bigahs in your possession (deducting one-fourth in lieu of one-fourth produce now exacted) the amount of 70,000 bigahs be accorded to your lineal heirs males, failing whom to the lineal male descendant of the Jagirdar (Jan Muhammad having been killed at Meani this provision is inapplicable) recognised at the conquest free of all assessm ent except 5 per cent. For roads and schools. In this amount no more than one- third of your present possession will have been resumed on account of waste land, agreeably to custom under the late Governor, His Excellency Sir Charles Napier. This allotment may be now chosen by yourself, and marked off in communication with the Settlement Officer of Government, or reserved for after consideration by your heir. Should you have, as is most probable, sufficient waste land to cover the Govern--ment demand on that account, you will not necessarily give up one inch of productive soil, the only provision being that the permanent Jagir consists of one consolidated and well-defined land alienation where the possessions are contiguous, and as far as practicable, complete makans.
15. With respect to the. Payment of water rates, you will be subject to the local rules in force to meet the Government expenditure on canals, due regard being had to the particular circumstances of your Jagir. this sanad will be revoked, and the grant resumed.
16. Hyderabad,(Sd.) J. D. INVERARITY, 28th March 1861. Commissioner in Sind.
17. The above reproduction (same as in Exh. 132-B) is from History of Alienation in the Province of Sind .
18. (Volume I) (1886) mentioned hereinafter as the History) a-publication under the authority of the then Government.
19. Before cling with the other questions raised during the arguments it needs to be observed in the very outset, with respect to the learned Single Judge in the High Court, that some assumptions made in the impugned judgment already referred to, are not correct:
(1) The present appellants had not given up the contest of the question of adverse possession. 1t formed the subject-matter of a separate and independent issue namely Issue No. 5 which was never given up. Moreover, giving up of the contest on Issue No. 2 relating to the bar under section 42 of the Specific Relief Act could not be given more meaning in the contest of the question involved in other issues than that a technical objection which could have held up the trial was given up, as it did not affect the merits of the controversy relating to posses--sion which was included in Issues Nos.4 and 5 on ownership and adverse possession.
(2) It was on the same appeal that at an earlier stage thereof a learned Judge of the High Court had, coming to a final conclusion regarding the trial of the additional issue, remanded the case for further proceedings and resubmission to the High Court. On the contrary the impugned judgment gives an impression that the order of remand in the appeal was also the subject of the same appeal. It was not permissible for the learned Judge who finally decided it, to have criticised the order B of remand and the lengthy discussion in this behalf could have been avoided. We may also remark that it was on account of this criticism that vital question which formed subject-matter of remand proceedings did not receive proper attention in the impugned judgment;
(3) The ruling of the same Court in Mir Abdul Hussain Khan's casewas not given due importance and it was not followed on the assumption that the same could be distinguished. The so-called two distinguishing features mentioned in the impugned judgment are (i) that the point of view canvassed in the said case of Mr. Ab4u: Hussar Khan was different from the aspects involved in the ascertainment of mutual rights of Jagirdar and the occupants as involved in this case and (ii) that the Division Bench had given an alternative supporting reason for final decision. Which showed as if it did not depend upon the findings based on the grant of Jagir and the Sanad creating the same. With respect, it needs to be remarked that the decision given in the said case, notwithstanding the fast that there was no contest therein between a Jagirdar and occupant and that a supporting reason was mentioned by the learned Judges, as an alternative, would not make the said ruling less binding on the learned Single Judge who decided the present case. In this behalf it may also be mentioned that it (the Karachi case of Mir Abdul Hussain khan) was cited with approval by this Court in Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236 1).
(4) And lastly, it was not correct to assume that the burden of proof o1 Issue No. 4 ("whether properties belong to the plaintiffs"?) indirectly fell on the defendants to show affirmatively that they.
20. Were the owners.
21. The arguments on main Issues (Nos.4 and 5) regarding ownership and possession addressed at the Bar can be classified into three controversies:-
(i) Whether the plaintiffs and their ancestors were in possession of the land in dispute as Zamindars/Mukhadimis, with rights of ownership in the soil?
(ii) Whether the Jagir/Sanad in question conferred any rights in the soil on the Jagirdars--the predecessors-in-interest of the defendants?
(iii) Whether the plaintiffs have become owners of the land in dispute through adverse possession?
22. The text of the Sanad in this case itself shows that the Jagir was in the fulfilment of the promise regarding the existing grants under the Muslim rulers of Sind, made by the British ruler immediately on the assumption of the power. After the so-called conquest of Sind. As is obvious from the Sanad the land in the Jagir was found in "possession" of the original Jagirdar (ancestor) of appellants holding the Jagir from the Muslim rulers). He was (it has been acknowledge by Sir Charles Napier in his book "Conquest of Sind" referred in the History (Volume II) at page 111 in the form of a note) "one of the greatest and most warlike chiefs" of his people, who made supreme sacrifice of his life in the battle of Meani. It was in recognition of his qualities that his people raised a tomb over his grave, which Sir Charles Napier, described as a "great one". Both of the volumes of the History are full of reference to correspondence between the then British functionaries. It shows that on account of the political and social situation then prevailing in Sind and for political and administrative reasons, those who commanded respect and reverence from their people (even if they were otherwise found hostile to the British ingress) were given due importance in the new dispensation, and restoration of the Jagirs in the form of regrants to many of them was a manifestation thereof. It was with this background that despite the general resistance to the regrant of Jagirs to those whose "fathers" had "died fighting" at Meani (and at Dabba) the regrant in this case was made to Mir Ahmad Khan, Talpur the son of aforementioned Mir Jan Muhammad Talpur in recognition of their status.
23. It is stated in para. 45 (page 35 of the History, Volume I) that although lineal heirs of those who had fallen at Meani were not "necessarily" to be continued in Jagirs yet, it depended upon "the will of Sir Charles Napier to make the grant or not". The Sanad itself speaks of the reasons as to why, despite the aforementioned .Bar, re-grant was made in this case. Again as a general rule, the re-grant was made "conditional on payment of quarter - produce" to the Government from what the Jagirdar realised as produce from the land. This . Condition became a subject of prolonged controversy; which was ultimately in some Jagirdars paying what was called chowth i.e. one-fourth from the produce, others paying two annas per bigah and yet the third category in which. The present case falls, where the Jagirdar was to surrender 1/4th of land itself in lieu of the quarter produce: This last mentioned condition would be unrealistic unless it is assumed that the Jagirdar was given the necessary rights in the soil as well: In this context it is interesting to note that in order to encourage the heirs of the original Jagirdars to whom the Jagirs were restored, "to cultivate the waste land", it was proposed at the initial stage that "a promise might be given that the amount of rent levied should not be increased during his life time. Few, if any, of the Jagirdars reside upon their Jagirs, and it would, I think, be a great advantage not only to the country generally but to the Jagirdars themselves, if when a Jagir is restored, a clause were inserted binding the Jagirdars. Either personally to reside upon and superintend the estate, or to appoint one of his brothers or sons to take charge of it- (see page 26 of the History, Volume I). .
24. It is not correct that the use of word `Jagir' would signify only a revenue receiving grant. A detailed analysis in this behalf has been done in the Lahore case of Nawabzada Malik Habib Ullah Khan Tiwana v. The Province of West Pakistan and another (PLD 1967 Lah 533). As held therein we are also of the view that some Jagirs were of composite character and involved rights in soil as also the Muafi qua revenue. The Jagir in the present case is of that type.This view also finds support from the ruling of this Court in the case of Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner (PLD 1973 SC 236) wherein somewhat similar questions were involved. Except for in.
25. Consequential slight difference between the language of the Sanad involved in this case and the language used in the sanads granted to some other Jagirdars amongst, the four Talpur . Families mentioned in this sanad, it is the same it is also agreed that the sanad which was the subject- matter of consideration and interpretation in the Karachi case of Mir- Abdul Hussain Khan is one of these Sanads and the decision in that case is not only highly relevant but is of considerable importance in the resolution of the major controversy nosed earlier. The learned Judges of the Division f Bench in the said case gave convincing reasons for reaching the following conclusions :- '
26. '(i) It would be most unfair to import thti view of the Officers of the bombay Government in respect of Jagirs in Deccan and 'Southern Marahatta Country relied upon in the Bombay decision for the interpretation of the term of grant of Jagirs in Sind, and we are not inclined to adopt this method for construing the terms of the grant in dispute.
(ii) It cannot be denied that. With the introduction of modern system of irrigation through well-laid canals the waste lands- were bound to come under cultivation and under the terms of the sanad the ... Jagirdars were entitled to cultivate them, and .Acquire the status of Zamindars. White worth, J. In II Sind Decisions (Sind Sadar Court) 41 recognised this right of the Jagirdar and we see no reason to differ from the view expressed in that decision.
(if) The best criterion to determine the nature of the grant is to ascertain from the terms of the grant the rights of the grantee in the land. If under the terms of the grant he is found to possess substantial interest in the land, besides collecting the land revenue, there is no doubt in our mind that such grant should be treated as also the grant of the soil.
(iv) Judging the Sanad under consideration from this angle, it seems to us that the grantee under its terms is not only entitled to enter into agreements with the Zamindar to vary the terms on which the Jagir dues were recovered, but were also entitled to bring waste land under cultivation and, to -put them to more beneficial uses and to enjoy their enhanced value and profits. The only legitimate inference in these circumstances ought to be that the grant in question was also the grant of the soil.
(v) On a careful consideration of all the authorities and other material placed on the record, it appears to us that the corpus of the grant having been expressed in clear terms cannot and should not be abridged or curtailed by raising unwarranted inferences when no reservations in that behalf have been - made .In the Sanad. The terms under consideration clearly stipulate that land was subject-matter of the rant. And that these lands were granted free from assessment.
27. (vi The operative part of the grant makes it perfectly clear that the right of the Jagirdar in respect of land found in his possession at the time of conquest was recognised and. That he was allowed to hold them free from land .;revenue subject to other terms. In our opinion there is a clear distinction. Between the assignment of land revenue and grant of Jagir land free. From. Land revenue.
(vii) It is admitted by Mr. Bulchand Rijhumal Kirpalani, Secretary of the Board of Revenue in' the annexure along with his affidavit that "the grant of Jagirs means the transfer by Government to soma individual person of its right to collect Government revenue in respect of particular area of land and also to cultivate and enjoy the produce of any Government waste land included in the limits of the Jagir. In some cases the transfer of the right was also accompanied by grant of the land," We consider the Sanadin dispute as that of the Second Category arid hold that subject to the terms of the Sanad in dispute the grantee has also been conferred [roprietary interest in the land."
28. Learned .Counsel for the respondents tried to show that the Division Bench fell into error in.
29. Reaching the above conclusions. According to him, as he put it, the learned Judges "went beyond, the premise" and that all ,attending aspects of the Jagir were not considered. .Thus it was further submitted that the Privy Council ruling in. Secretary of -State for India v. Laxmi bai (25 B L R 527was not correctly followed. Learned counsel in particular pointed out that some correspondence between the then Local Government in Sind and the Indian Government was ignored. In this behalf particular reference was made to .The expressions "alienated revenue", as also "revenue and benefits used in the sanad in question. The learned counsel also argued that there was .Not enough justification for the Division Bench- to have ignored 'consistent earlier view held by the Courts. In Sind in some suits; namely that grants through sanads granted to the four families of Mirs were only of the `alienated revenue' and not of any rights in the soil. Learned counsel also pointed out what he called 'specific errors' in the case of Mir Abdul Hussain Khan in so far as the reference therein to an earlier ruling in ~Makhdum and-others v. Malik Boots Klan (1921 Sind 109is concerned.
30. We do not agree with the proposition' that the Division Bench did not pay attention to the law laid down in the Privy Council case of Laxmibai. It was the influence of the Privy Council ruling which led the learned Judges to examine the background, attending circumstances of the Jagrr in question and the contents of the Sanad, in considerable detail. The case-law by then available was also fully taken into consideration. The correspondence proceeding the grant of the Sanads, no doubt, has to be kept in view for interpreting the Sanads ` but to say that each hit of correspondence should be treated as law to determine the conclusion, would not be correct. As would, be presently shown from the resume of discus--sion between the various functionaries at different levels, in so far as the "four Talpur families". Were concerned, there was general consensus that their Jagirs would not 'only be revenue receiving ones but also of right in soil I.e. the land. The following facts, circumstances and views foun expressed in 'the history' (pages 63, 31, 26, 53, 55, 185, 192. 177, 74, 82, 80, 81 220, 229, Volume I, and pages 103,, 209, 111, Volume 11) lead to safe conclusio that the sanad granted to Mir Ahmad Khan included the rights in the so' and not only in the revenue collection. . . (1) It has already been mentioned that the Jagirdar was not only considered and treated in "possession" of the land but was also expected to physically cultivations the same particularly the waste part of it. It has already been noted that the Jagirdar was also expected for this purpose to reside upon and superintend the "estate." Sir Charles Napier, after considering all the proposals in this behalf, decided that "the great advantages of this proposition overbalance the objections made to it. The advantages are :- "(2) by paying a rent for uncultivated land, the Jagirdar will bring the . Whole into cultivation." (Page 63, Vol., 1).
(2) On the 1 st of April, 1845, while on board the Steamer Napier, a circular letter was issued to all the . Collectors that "it is the wish of his Excellency that the lands of Jagirdars on their decease shall not be granted to their heirs until the sanction of Government be first obtained. As a rule His Excellency has determined that no lands of deceased Jagirdars be in future .Ranted to their heirs until the said heirs shall be called upon to pay as the Government share 1/4th of the produce of their Jagirs. "This share came to be called chowth. , It cannot be ignored that the word "lands" and. Expression "lands being in future granted" could not be used for a right to collect revenue only. (Pages 31, Vol. i).
(3) Before fixing the chowth it was discussed amongst the Collectors and opined by Sir Charles Napier that "where the Jagirdars' - heirs would not prefer, in lieu-of paying rent, to ~ transfer to Government such propor--tions of their Jagirs ,as would- supply an equivalent, say 1/5th of such portion of the produce as may be decided .Upon as a fair rent, the remainder of the Jagir would.
31. Then be enjoyed by them or by their beirs, free of rent,: for life , or , for a tenure, of, say, 60 years".
32. This loud thinking initially did 'not mature into a decision because as is apparent from the subsequent correspondence, it was decided as a general rule that 1/4th of the produce of the Jagir would be recovered as rent chowth. There was some controversy as to whether it should be 1/4th of Jagir's share as iandlord or 1/4th of the gross produce but that controversy is not relevant in the present context. However, it was ultimately decided that instead of recovery of rent in kind in,the form of the chowth, annas 2 per bigah be fixed ae substitute assessm ent. This assessment later on came to be known as Duanagi. All this shows that the Jagirdar was treated as having rights in the soil and the possession thereof. (Pages 26, 53, 55, Vol. 1).
4. The aforenoted controversy regarding Government share of rent, Chowth or Duanagi was resolved in so far as the sanad in the preseLt case as also similar other Sanads of four Talpur families are concerned by accepting the original view held by Sir Charles Napier that instead of recovery of Chowth or Duanagi from this category of Jagirdars, 1114th land in the Jagir should be resumed in lieu thereof. The only condition placed was that "where land may be wholly dependent for agricultural purposes upon rain one-fourth the actual extent of land to be resumed in lieu of one--fourth assessm ent." Later on this arrangement was given a more formal sanction on 14th of May, 1858 when in Circular No. 1037 it was laid down as a rule "where there is no . Special order to the contrary and the grantee applies for such an arrangement, 1/4th of the land of the Jagir may be deducted in lieu of assessing the 1/4th produce and this rules may have retrospective effect". It is obvious that the resumption of the 1/4th of the "land" could not be visualised without the obvious assumption that the Jagir land was in the ownership and possession of the Jagirdar. (Page 185, Vol. 1).
33. 5; Mir Ahmad Khan, to whom the lagir was regranted in this case, was included amongst eight Jagirdars from the "four great Talpur families" who were treated as Sirdars in a Letter No. 202 dated 9th of May, 1856, of Colqnel Jacob, the Acting Commissioner of Sind, for the purpose of granting the the privileges promised by Sir Charles Napier. It is obvious from the sanad in this case that those promises were ultimately fulfilled. It is clarified in this letter that "the first course was to leave the original holders under the proclamations of the late Governor of Sind in undisturbed possession o the lands occupied by them for life, and on their death to resume all lands no then found to be cultivated, and to regrant the rest to the legitimate heir male of the grantee in perpetuity." This position, it would be found, was accepted and adopted by the Government of India and ultimately resulted in. Its inclusion in the Sanad. (Page 192, Vol. 1).
34. 6.. During the enquiry conducted at the spot with regard to the Jagirdars and their possessions, the factors which weighed with the Authorities, where "(a) actual possession, (b) title, (c) antiquity- minor breaks in the chain of possession being ignored; and (d) rent." (Page 225, Vol. 1).
7. The underlying philosophy governing, the enquiry and scheme of regrant of Jagirs to the Talpur Mirs can be deduced from the views expressed in Lieutenant Pelly's Note dated 8th of October, 1855. On the question of hereditary Jagirs it was observed that "those Chiefs and Sirdars who commanded' respect and enjoyed influence under the earlier Talpur Mirs should be selected as permanent Jagirdars now; in other words, the selection should be so made as to become in itself a practical proof to the community that it is the wish of Government to preserve and cherish, in so far as the altered character of the times may admit, rather than to innovate upon or destroy the old aristocracy". It was also observed that "whatever extent be regranted in perpetuity, it be regranted, so far as possible, unconditionally, and in a manner to impress upon the public that the measure is of the nature characterised under the preceding head, the manner of giving being almost of as much importance as the intrinsic value of the gift." (Page 177, Vol. I):1
8. A more vivid picture develops from the consideration of a controversy between Captain Rathborne and Sir Charles Napier with regard to the right of the Jagirdars to alienate the land in the Jagir. The former commented on a circular which Sir Charles Napier wanted to enforce. It contained rules regarding these Jagirs. Rule 1 related to conversion of the cultivated land "into a perpetuity" or the condition of the Jagirdar's surrendering uncultivated land to the Government, and rule 4 provided that the regnant of Jagir, would include the regrant of cultivated land only. The Jagirdar was given option regarding (conversion into p,-rpetuation "if he pleases to accept the terms, he may, if he prefers continuing to bold the whole of hi' lands on the .Present tenure, he may be so too." Sir Charles Napier wanted to add, amongst others, a rule (No. 7) to effect that all grants in perpetuiry failing of direct heirs to revert to Government. Captain Rathborne, in his above referred 'note of 20th of April, 1848, expressed doubts about this newly proposed rule and thought, "regarding the 7th proposed rule, I would submit that, the effect of this would be to establish the system of entails, a system which has not been found to answer in Europe, and which would, I think, be destructive of improvement in a country where every thing has to be done as in Sind. To have a landed proprietary body is, I think, most advantageous, but having once established that, I am of opinion that the rest should be left to the natural course of events. No one will sell probably as long as he is able and fit to perform :he duties of a landlord, and no one will buy land except those who intend to make the most of it. It appears therefore advisable to leave an opening to enable the spendthrift who merely encumbers the land, to his estate, and replace himself by one whose industry and talent may have-already placed him in a fit position to perform the duties of a landlord with effect; while the power to sell will still put off the evil day with landed proprietors to the latest moment, and give them always the greatest possible chance of retrieving their affairs, because it gives them the power of mortgage, and so enables them on one part of their estates to raise money to cultivate the other . . . . . Therefore, establish landed property on a sound basis, but having established it, take such measures as shall leave . The possession in uture open to all instead of letting it stagent in the hands of families, long after those families have fallen to decay . "
35. Sir Charlas Napier in his comment on the above note of Captain Rathborne doubted the interpretation put on his newly proposed rule 7 and observed that "I entirely concur in all Captain Rathborne says about entails and their results, but I do not see why the 7fh rule should establish a system of entails, nor do 1 see why it .Should prevent the sale of property. It merely gives the Government the right which all other Governments possess of being heir to that which has no legal claimant. I:3owever, it has no very immediate bearing - because Government will inevitably take such land as has no heirs". 'It is interesting. To note that Captain Goldney and Captain Preedy from the other two Collectorates had supported rule 7 without any doubts as expressed by Captain Rathborne. Ultimately, these rules (with the above clarifications anti background) were adopted in the form of well-known proclamation of-7a6-1847 of Sir Charles Napier. On a subsequent clarification, only. Five days later, the Collectors were asked to express opinions "relative to female heirs succeeding- to Jagirs of deceased Jagirdars in Sind in like manner as -heirs male direct are now permitted to do". They were informed of his own opinion that no difference should exist on this, point between the rights of heirs, male and female. However, this question was not definitely settled by Sir Charles Napier as he retired from Government in the end of September, 1847. (Pages 74, 83 etc. Vol. I).
9. The aforenoted basic policy regarding the Jagirs resulted in two classes of lands which had origin in the Jagir lands ; "(1) Waste land which was ultimately resumed on uniform basis by the Government but the actual 'parcels of land' to be surrendered was left to the discretion of the Jagirdar.
(2) The land in proprietary ownership of the Jagirdar as its landlord."
36. Some Jagirdars tried to re-include the surrendered land subsequent to its resumption Captain Rathborne sought clarification on 3rd of August IF48 whether any and if so what punishment should be awarded to Jagirdars, "who having a Sanad for a certain area of ground which has been measured out to them or a certain town land unmeasured, afterwards falsify the boundaries and include large portions of Government Ryoti land within them." The clear division between the resumed so-called waste land and the land left with the Jagirdar further shows the nature of proprietary rights conferred on the Jagirdars. (Page 80, Vol. 1).
10. It is no doubt true that in some references the proposal of 'revenue grants' only was made by some quarters but the provincial Government opposed the idea. In their No. 3002 of llth September 1852 to the Govern--ment of India it was observed that "with reference to the third point. I am desired to observe, that his Lordship-in-Council concurs in the opinion that, no- attempt should be made to force on the Jagirdar's pensions in lieu of lands. He approves of the proposed settlement which is to the effect that ex--clusive of grants for pay and specific services no longer required, the Jagirs of the Talpurs mentioned in the list E should, on the death of the present incum--bents, be continued to legitimate lineal male descendants, free of all Govern--ment taxation, one-third of the land being, however, resumed as uncultivated.") (Page 220, Vol. I).
11. The Government of India in their No. .1635, dated 27th of October, 1858 ultimately "decided the claims of the four families." Para, 2 thereof clearly shows that the Government fully acknowledged the claims of these families to liberal treatment, and agrees in opinion with the right Honourable the Governor-in-Council, that no attempt should be made to force on the Jagirdars, pension in lieu of lands". After some further formalities, ultimately, all the promises made by Sir Charles Napier were fulfilled and the text of the Sanad the positive proof of the fact that nothing was detracted from what was intended to be given. To the Jagirs belonging to the four families. The particular reference to land measured in bigahs in possession of the Jagirdar and the same being treated as a benefit conferred on him subject, of course, to various resumptions noted and discussed above.
37. (Page 229, Vol. 1).
12. These suppositions found further support from the discussion of this very case in "the history"
38. Volume 11. Mir Budho had three sons Wali Muhammad Jan Muhammad and Sher Muhammad,. Jan Muhammad, as earlier noted was killed in the battle of Meani. Mir Ahmad Khan his son and Sher Muhammad his brother were found in possession of the Jagir lands which once comprised the Jagir of Mir Budho. Deh Khebrani with 59231 bigahs of land was included in Mir Budho's original Jagir, and it is important to note that a letter written by Captain E. J. Brown to Captair Preedy, (No. 475 dated 27th July, 1843) acknowledged that Sir Charles Napiei confirmed the two Mirs "in their possessions. It is important further to note that while giving the background of this Jagir, it is mentioned at pages 110 and 111 of the 'History' (Volume 11) that at one stage Mian Noor Muhammad Kalhora bad given the area in Deh Shal to Malik Pabar Khan (in 1738) who in order to conciliate the ruling family gave it to -Min Budho's sister Mai Khairi. The lady made it over to her brother (Min Budho) to cultivate on the same terms as those accepted by her, namely the giving of an eleventh share of produce to the legitimate owners." The use of the word owners by the compilers of 'the history'. Shows that the nature of the rights enjoyed by the Jagir even under the Muslim rulers were not materially different from those of owners. (Pages 108, 109 and 11, Vol. II).
39. When interpretted in the light of the foregoing material. The Sanad itself, determines the character of the Jagir. Undoubtedly the proprietary rights in the land specified therein, subject, of course, to the other conditions qua resumptions etc. Were included in it. Its preamble indicated that 'private rights' were being respected when "disposing of such land. It was so" to give honour to those worthy of honour", as also for the "future support of their sons and lineal male descendants". It stated that Mir Jan Muhammad Talpur was "possessed .... Of Jagir land", which was "continued by Sir Charles Napier (the then Governor) under the terms of one-fourth resumption to Mir Ahmad Khan Talpur and that the British Government had, "determined" not to disturb the latter's position in this behalf. It was on account of all this his family's "social position" and "Governor's proclam--ation in respect of four Talpur" families that it was "ordered" that the "whole bigahs", meaning (whole land), in "possession" of Mir Ahmad Khan would, on his demise "be accorded" (granted) to his male lineal heirs, "free of all assessm ent" except water charges and 5 % roads and schools course after the necessary deductions one relating to waste land, which, when being surrendered, it was directed, should not include one inch of productive soil". Meanings are obvious. No more discussion is necessary in this behalf. ejusdeme generis to the word 'revenues'. The benefits in this case included amongst others, those relatable to rights in soil. The so-celled other errors pointed out by the learned counsel in the Karachi judgment of the Division Bench cannot be considered as of any real importance so as to overrule the decision. After careful consideration we approve of the conclusion reached in the Karachj case of Mir Abdul Hussain Khan and hold that the grant Jagir in this dace included the Permanent heritable rights in the land as well.
40. One of the major considerations which weighed with the learned District Judge as also the learned Single Bench in the High Court in reaching a different conclusion was the result of the ihfluence of Seymour and Kadirdad Khan survey enquiry report in which it was held- that the occupant of the land comprised to the Jagir in this case heldukhadimi/Zamindari rights in land. Indeed the influence of the report was so much that the learned appel aTte Courts blow appeared to have fallen into an error; of law in accepting the same as of binding effect. It cannot be ignored that in, that case which was between the predecessors-in-interest of the present parties but about different piece of land, Mr. H. E. M. James, the Commissioner (Survey) had in his final order dated 7-2=1893 Exh. 43) held that the views expressed by those authorities were subject to final determination by the Civil Court, No such determination has been relied upon from either side as having been made till the institution of the suit in the present case. We. Have, however, been able to discover two Sind rulings which although were not inter partes, but they related to this very Jagir. The Sanad in question was thoroughly discussed as also the background in which the grant was made. It washeld therein that the intention underlying the grant was to confer hereditary estate in perpetuity. With an conditional right of alienation and that a person holding a rent free plot in the Jagir before the conquest, could hold it rent free against the original Jagirdar, but could not hold against his successor, especially if the plot was within "the 7,0000 bigahs". The rulings are Sher Mohammad and others v. Jethemal Vishnomal and others (air 1920 sind 44) and Mir Allah Dad Khan Talpur v. Hiradas and others ((1892) 1 SD) decided in 1892, by the Sadar Court on civil side, contemporaneously when the Commissioner survey gave his decision on the nature of the right in the Jagir. Thus the enquiry report and for that matter the decision rendered by the highest forms in the said heirarchy would remain only opinions to be confirmed or rejected by the Civil Courts and in fact they had been rejected. We find that the approach of the learned trial Judge in this behalf was unexceptionable. We have also carefully compared the depth of the factual enquiry made by Seymour and Kadirdad Khan Committee. Their reasoning and conclusions (Exb. 41 of 19- 10-1892) with similar but more elaborate enquiry by the appellate Authority namely Mr. G. E. Metheson (Exh. 42 of 31-12-92). In the latter, not only additional documentary evidence was noted but also` the witnesses examined by the Committees were re- examined in detail. The Commissioner Mr. James (in the revision) it appears did not pay any heed to the very sound reasoning contained in the order passed in appeal. He, instead wrote a short order which in all probability was influenced by the commends of Mr. Seymour himself, which were invited by the Commissioner before deciding the matter. Obviously Mr. Seymour would have supported his own report. This. Appears to be the main reason why the final order does not show the appication of independent mind, neither to facts nor to the legal questions, and it is more surprising that no importance was given at all to the contents of the Sanad granting the Jagir, which it cannot be denied was the most important element in case. After careful consideration we are of the view that the decision taken by Mr. Methieson that the Mukhadim/ Zamindar occupants of the Jagir land did not hold the so-called ownership heritable rights therein, was based on sound reasons and had factual support. We are conscious that the conclusions reached by Mr. Methieson are also to be treated as an opinion of the revenue Authority not binding as such' on the civil Court. However, if the learned lower .Appellate Courts wanted to rely on the opinions of the authorities who dealt with the matter at such early stages in 1891/93. They should have preferred the views expressed in the appellate, decision on account of the importance of two circumstances ; (i) that Mr.: Methieson examined the original records which were available then to him;--and are not now available (some of them) are "village registers"
41. (1877). a document signed by COI. B. Trevor, the then Manager Encumbered Estates on 6-8=1886. ; and a lease deed dated 25-9-1890. The civil Court could make use ; of this appellate order to the extent that it mentioned the records and depositions Which are not now available: The learned District Judges was not justified .In. Relying on Seymoure Kadirdad report even as a supportihg material. It did not contain anything extraordinary to commend itself: On the contrary the appellate .Order contained the specific reference to relevant. Miterial and (ii) Mr: Mechiesoh - re-examined the witnesses who had earlier been examined by the Committee on important issues and also on those questions. Which were earlier omitted. In the light of the forgoing discussion, 'in this behalf,- we are unable to, agree with the two learned Appellate Courts Wow or with, the learned counsel for the respondents, that the conclusions reached in Seymonr-Kadirdad report should be considered be either of bringing effect or having such .An effect as to-render a decision 'in the plaintiffs' favours.
42. The ancllary argument of respondent's - learned counsel to the effect that the Sind "Government accepted the said report as of legal effect, therefore, the civil Court should not disturb the same; has not impressed-us. Firstly the final. Decision of Mr. James itself had made it subject to decision of Civil. Court ; secondly the Civil Courts never decided in favour .Of the plaintiffs ; thirdly, the High Court gave a considered judgment in the case of Mr. Abdul, Huqsain Khan irk 1958 after hearing the Government view and noted the affidavit ; filed from the sideof the Board of Revenue and lastly Government never challenged the said ruling.
43. Before passing on to the next point it needs to be mentioned that the learned counsel for the appellants in, a4 attempt to-,counteract the effect of Seymour-Kadirdad report, relied - upon the .Document ' (Ex+k. 132-E of 1892) which according to him was:the decision by the Settlement Athorities, as dis--tinguished from Survey Authorities wherein the Appellants claimed rights in the land. We agree with the--- learned counsel for the respondents that there is not enough evidence on the record to show that Exh: 132-E was in fact a decision. The document produced :on record is in Sindhi and does not bear the signatures of the Englishman- (Officer) who it is claimed gave it as a decision. From the translation in English it-appears as if it eras signed by the Settlement Commissioner. This endorsement regarding signatures on the copy/translation does not` appear to ore incorrect, otherwise the same should have been on the document to Sindhi also. -The -assumption made by the learned counsel for the respondents that it was only a report- submitted on the case by the office for acceptance or rejection -by the Commissioner Settlement cannot be far wrong ; his farther assumption that it was rejected `because the same was, submitted to the Commissioner Mr. James, before his final decision already referred-, to above which goes against the appellants; is without any factual ' basis. There is no link between the two lines of proceedings. We have no alternative in this behalf but, to leave this small controversy at that. It does not however, effect - the decision -.On the main question regarding what the Revenue (Survey and the Settlement Authorities thought about the relevant rights of the' then parties before them, namely that the same was only an opinion subject to the decision by the - civil Court and further. That. .The opinion expressed by Mr. Methison in his order Exh. 42 is more acceptable to reason and also accords with the facts and. Record, then available. .
44. If the facts of -the suit depended' upon the original grant, as- interpreted above, or for that matter the interpretation of the Sanad only,, the respondents, suit should have been dismissed on, the above-finding ; because their case ha been that they 'were owners --(on account of Mukhadmi rights) through inheritance from their predecessors-in-interest, who held such rights at the time and before grant of the Jagir to the appellants ancestors. But the matte does not end- here. It cannot be denied by the appellants that ownership rights, even of the type. Claimed by the plaintiffs,- could have been conceded. Created/ acquired even after the rent of the Jagir, either by lawful act of the parties or by operation of a- subsequent valid law. Therefore, it is essential that the respondents claim be examined in. That light also. Before 'doing so it needs to be mentioned that the two Appellate Courts below fell into error and did not apply their independent mind to this aspect because of the acceptance of unjustified influence from Seymour-Kadirdad Report. .
45. The above-referred issue has two parts; one-what is the nature of the Mukhadimi/Zamindari rights in this Jagir as distinguished from what. The plaintiffs/respondents have claimed. According to them a Mukhadim/Zamindar occupying a Jagir; - land is not less than the owner of the said land.
46. He cannot be ejected by the Jagirdar. The Jagirdar cannot sell the land nor can he' pass it on to his heirs. On the other hand a Mukhadim can sell the same and also can pass it to his heirs. And, two-- whether independent of all other considerations the plaintiffs have established it-as 'a fact that they are Mukhadim and also that on that -account they are owners. The question of rights of the Zamindars (it is, admitted from both sides'that `Zamindar in the present context would --include `Mukhadim) 'was; examined by'Sir Charles ,Napier himself. There were conflicting reports submitted .Before him by the High Revenue Officers led' on the one side by Mr. Rathborne and the other by Mr. Preddy. Although.'bath !Of them acknowledged that during the Muslim rule the Zamindars-' exercised more rights (as if .Comparable to proprietary rights) on the -land than these exercise,,, by the Jagirdars, but Sir Charles Napier. As is -apparent from a circular issued by him, accepted the final npinion of Mr. Rathborne and 'ruled that Zamindar. Would not be given a more important position,'. Viz-a-viz the Jagirdar, then: that of a tenant: This is clear .From the right- conferred on the Jagirdar, to seek, Zamindar ejectment on various grounds. The circular in question contained th following important rules in this behalf :- "1st,in cases where the Zamindar lies laid out Capital on the Jagirdar not to land. In agricultural eject Zamindar improvements; or indeed in anyway, without giving, he must be remunerated To that compensation for amount by the.Jagirdar before the improvements Latter can eject him.
47. 2nd, : .The Jagirdar must (before ejection)
48. Nor. Without adduct proof that the Zamindar has adducing proof not properly cultivated his land of failure to for, two, previous years cultivate for the two previous years.
49. 3rd, The Jagirdar must give the Zamindar, three warnings consecutively Nor without with an intervening period of 3 warnings six months between each, that , each after 6 months If he does not cultivate the land better, he (the Jagirdar) will make application to Government to have the neglectful Zamindar ejected.
50. 4th, When the Jagirdar applies to the Nor without Collector for the ejectment of a intervention Zamindar, the Collector is to of a Court of order a Panchait consisting of Arbitrator stwelve Zamindars, four of which chosen by there to be chosen by the Jagirdar, Jagirdar, the four by the Zamindar, and four Zamindar, and by the Collector. the Collector.
51. This Panchait is to decide all questions which may arise as to the justice of ejecting the Zamiddar, including the value of the outlay he has made, and which the Jagirdar is to repay.
52. The proceedings of the Panchait must, Nor without be confirmed by the Collector, the confir-either party having a right mation of the to appeal to the head of the proceedings of Government with this understanding, the Court by the that if the final decision of the Collector Panchait be confirmed, the defeated party shall be mutated to the, amount claimed from the Zamindar as compensation from the Jagirdar, and should no claim have been made of the Jagirdar for outlay, the fine to be levied, is to be decided by the Governor according-to the conduct of the parties."
53. The only burden on the Jagirdar on ejectment of the Zamindar was to pay compensation for capital investment and improvements, agricultural or otherwise. A person who had ownership rights in land which were transfer--able and heritable as claimed by respondents, could not be made subject to the liability of ejectment on above-quoted terms. There is no record, except for Seymour Kadirdad report and some other opinions. Derived therefrom, 1 to show, that the circular issued by Sir Charles Napier was modified, substi--tuted or, repealed prior to the Seymour Kadirdad enquiry or even prior to the Commissioner's decision in 1893, How and why was it ignored, in these proceedings is not clear.,, Thus if the general law, governing the right of Zamindar Mukhadim .In this Jagir land at the time of its grant, is kept in view the respondents' predecessors- in-interest could not 'have the right and status better than that of tenants, liable to ejectment on various stated grounds ; provided that they/their ancestors were in possession of the land in dispute at the relevant time. Therefore, no question of their ownership arises on the basis of their so-called `inherited rights'.
54. The above conclusion, regarding the nature of the Zamindari Mukhadim rights at the relevant time again would not conclude all the controversies it the present case because the right, of ownership claimed by the respondent; can be established by then independently, of what was the original position al the time of (or soon thereafter) the grant of the Jagir. They have, however, failed to do so. Their case throughout was and, as propounded by their learned counsel during the arguments before us, is that they inherited the Mukhadimi (so-called ownership rights) from their ancestors. We called. Upon him to show us- '
(i) any one mutation of inheritance for the last about a century in which the respondents-plaintiffs and/or any of them ancestors might have been shown as inheriters of so-called rights in the land in dispute ; (f!) any revenue record containing the names of the plaintiffs and/or their ancestors occupying the land in dispute as owners or in any capacity showing permanent rights ;
(iii) names of the respondents in any revenue record establishing any nexus between the respondents' `(or their ancestors') claim and the land in dispute.
55. The learned counsel admitted that there is no such document as could relied upon in answer to (i) and (ii) question noted above. Respondent's claim could be rejected on this ground as well; because the standard of proof expected from the claimants in this behalf as laid down in the ruling of this Court in Mst. Nawab Bib! v. Bashir and others (PLD1967SC55and the Privy Council ruling in the case of Imam Din v. Mst. Said Bibi (PLD1949PC290 has not been satisfied. The plaintiffs have failed to establish that they inherited the rights in question from their ancestors and/or that the latter had ever held. The same. Regarding query (iii) above, however; learned counsel for the respondents thus relied on; the assertions made in the plaint not having been specifically denied in the written statement: the question of Sanad not having been raised in the trial Court by the appellants: the circumstance that the appellants gave up the objection qua form of the suit (section 42 of the Specific Relief Act) showing as if they had admitted the possession of the respondents; Mir Allah Dad Talpur. Predecessor-in-interest of the appellants having one made an admission with regard to the Mukhadimi rights of the occupants of his land : revenue receipts Exh.
56. 45/3 47/1 and 47/2-5 (indicating that the respondents and their ancestors paid only the land revenue) showing that they had themselves the proprietary rights in the land; water share list foit the year 1965 Exh. 65 : remissions for kharaba in 1964 Euh. 180/: list (EKh. 132/G) of Mukhadimis prepared in the year 1892: the names of the appellants are not mentioned in the revenue record as being in possession of the land in dispute of the entries in some record being otherwise according to the learned counsel, were forgeries and lastly the deposition of witnesses examined, from the respondent's side including Mir Ejaz A.I respondent.
57. Despite meticulous analysis made by the learned counsel, he could not ',satisfy us on the point that the appellants bad made any admission on any fact of the claim of the respondents. Even with regard to possession (simpliciter) they had in para. 7 of the written statement pleaded and brought up the question of possession as lessees and in no other capacity. It is true that none of the parties in their initial pleadings specifically referred to the Sanad granting Jagir to the ancestors of the appellants. But it cannot be denied that the suit was contested by the parties during the trial on the basis that the appellants founded their rights on the grant/Jagir. For this very reason the High Court remanded the case to the lower appellate Court for further proceedings. The said remand order was passed with the consent of both the parties; and as already observed in the earlier pa of this judgment, it was not open either to the parties or to the High Court (when finally deciding the appeal to question the remand order. The argument of the learned .Counsel in this behalf therefore; has no force. We have already made enough comment one the question as to whether any adverse inference regarding issue; ,of possession or for that matter adverse possession, could be drawn against the appellants and in favour of the reopondents simply because the former gave up the, contest against objection re?Sting to the form of the suit. It needs to be added that although the: learned trial Judge noticed the giving up of the contest on Issue No. 2 (the suit being barred under section 42 of tree Specific Relief Act as "not pressed" yet under Issue No. 1, which related to the valuation and court-fee, it was observed in the trial Court judgment that the learned counsel for .The defendants had "raised this issue on the point of vivant of possession of this land by the plaintiffs but' having conceded the position of a lessee and thereafter a trespasser of the land to plaintiff Mir Muhammad Khan, .He could not develop this point to satisfy the Court that the suit is under--valued and 'understamped. I, therefore; agree with the view of Mr. Mulraj, Advocate for the plaintiffs that the slit is 'properly valued and sufficiently stamped when _ the plaintiffs have - sought the relief of declaration and perpetual, injunction with possesdon of,the -land with them." Both the learned lower appellate Courts ignored the underlined' portion of . The observation of the learned trial Court. The present appellants had never conceded ,the possession of the respondents either in their oven -right or at any time being more than that of a lessee. The; contention of the learned counsel in this behalf also has no, substance. The learned High Court did not. Notice that; the so-called admission of Mir Allah Dad Talpur 'had been, misread by the first appellate Court. We after having perused the same are of the view that a part of his statement; was read out; of Vontext. When considered as a whole, the statement in question went against the claim of the respondents with regard- to the .Character, of Mukhadimi' rights. While concluding the statement in this behalf, he stated that he treated the Zamindar/Mukhadim as an occupant of the land ii! The position (not better than that) of a Bart. This latter part of his assertion unfortunately was not only misread by one Court lout also ignored by the other. The contents of the: receipts relied upon by the learned counsel have also ' been misread by" the learned appellate Courts.
58. Learned counsel himself admitted that they did not relate to the Original Survey Nos. 400 and 144 and this was unable to connect them with the land in dispute. The" "tea of the land has not 'been..
59. Mentioned therein nor do they create any estoppel. Against the appellants. They were rightly ignored by the learned p.I Court: The water 'share list and the remission on account of Kharaba are of no assistance to the respondents. They- related to the period when the disputed land had arisen and are not in any case, .Binding on the appellants. "The .List of the Mukhadims relied from-- the respondents side, .No .Doubt, at Serial -No. 45 contains the name of Abdullah, a predecessor-in- interest of the. Respondents; but it -does not show, either ; that it related to the land -in dispute in this case or that he was adjudged as a Mukhadim qua the said land. The same therefore, "is of no use. To the respondents. With regard to the entries, in the relevant column of. The revenue record, .Produced and relied report from both the sides, suffice it to .Observe that the picture which develops therefrom goes deadly against the respondents. Nowhere they or their predecessors-in-- interest have been entered as in possession of the specific land in dispute.
60. The relevant column in this behalf does not contain their names. This is enough, to exclude the respondents from being considered as in possession of the land in dispute, in any capacity. But .Strangely enough, the reliance of the learned counsel is on another circumstance; namely, that the appellant and their predecessors-in-interest names' are not mentioned in the relevant column of possession cultivation.. Firstly, this is not correct. The names of predecessors-in-interest of the appellants are mentioned at various places in old record as being in possession. It would be difficult to give a finding that all the entries going in , favour .Of. The appellants are forgeries--when looked at in the context of an important. Circumstance; that Mir Ejaz A.I, a Government functionary, remained concerned. With the Revenue Department at almost all the relevant time. Even if . They are excluded (assuming without conceding) as forgeries, the relevant column concerning. The cultivation, when read as blank, would not in any case benefit the plaintiffs/ respondents. This would show firstly the! The respondents were not in possession, and, secondly, that the persons mentioned in the column relating to the owners, would in that case be' presumed in possession either directly or through migratory labour. Thus the conclusion of the learned trial Court that there was no basis for the claim of the plaintiffs in so far as the revenue record is concerned was wholly justified. The depositions of the respondents witnesses read by the learned counsel do not advance their case either. Records as discussed above contradict them. The explanation offered by some witnesses with regard to the entries in the receipts, earlier noticed, could not be accepted in the .Face of the contrary legitimate inferences deducible from the writings themselves. Before closing the discussion on this aspect of the matter, it needs to be observed that the learned trial Judge gave substantial reasons, for rejecting the respondents' claim in so far as the factual aspects are concerned.
61. Learned counsel for the appellants had drawn our attention to innumerable facts and- circumstances which as submitted by him go. In favour of the appellants and furnish support for the view taken by the learned trial Judge. Some of them--,were noted 4y Mr. Methieson in his order dated 31-12-1892 (Exh. 42). We feel, in so far as it goes, the appellants' case, undoubtedly, gets support from them. The comparatively more significant items in this behalf ace in 1892, the Government bad resumed 1/4th of the area, as representing the Chowth from' the lagirdar himself the Jagirdar was mentioned as Khatedar in the survey register prepared in and before 1893, notwithstanding, the Seymour-Kadirdad report; same was the position . Regarding village Form VI and village Form I, the Jagirdar used to exercise the rights as if be was himself the Khatedar--Used to file complaints against the Haries, the Jagirdar used to collect Batal, . Kan-Jan Zamiqdari Lapo and other dues showing as if he himself was the Jagirdar-cum-Zamindar; the cultivators used to be changed and some of -them -were punished for cutting trees ; the three documents, as already noted, which were mentioned in the order of Methieson ; the conduct of the Manager of Encumbered Estates as also that of the Court of Wards treating -the Jagirdar himself as the owner Khatedar, the Government Departments including the Martial Law Authorities treating the Jagirdar.
62. As having the Zamindari rights in matters of acquisition and treatment .Under the land reforms, respectively: the conduct of the plaintiff's in their not objecting to the entries which favoured the defendants; apart from this negative conduct, the positive affirmation of the defendants rights one of them namely, Muhammad Khan respondent admitting in his statement before the Manager, Court of Wards that he was a lessee on the land in dispute and the same person attesting as a witness another lease deed executed by Mir Khan Muhammad in favour of two outsiders; reliance was also placed on an agreement of lease. From We side of the appellants in favour of respondent No. 2 the Jagidars dealt with the land in dispute as if they were the owners a sale deed in favour of a non-Muslim was relied upon in this behalf and that there was litigation between the appellants predecessers-in-interest and other parties of which the respondents and their predecessors-in- interest remained always aware, showing that ownership of the property vested in the appellants.
63. The. Appreciation of evidence at trial stage was neither based on misreading nor any important material was ignored. The first appellate judgment on the contrary proceeded on wide assumptions like the one relating to the effect of Seymour-Kadirdad survey/enquiry report. We have noticed that the trial Court judgment was in accord with the established admitted facts and was based on sound reasons. The first appellate judgment was of variance. The learned High Court, with respect, it is further observed did not follow the principle laid down by this Court in Madan Gopal and 4 others v. Maran Bepari and 9 others (PLD 1969 S. C 617.In confirming the first appellant judgment, the two were not compared for their : comparative merits in the light of the facts of the case and the reasons on which they were based. We accordingly, hold that the decisions on the afore discussed questions including that of possession by the learned trial Court are unexceptionable.
64. The issue relating to adverse possession, primarily depended upon the question of the respondents being in possession of the land in dispute in any capacity other than that of lessees. What was admitted by the appellants, namely, that it was a case of lease, which on the expiry thereof became a case of trespass. It is not necessary to discuss this subject over again with reference to same evidence which" has been earlier noted and relied upon by the learned counsel in this behalf there was no justification for setting aside the judgment of the learned trial Judge on the issue of adverse possession either. As a last step learned counsel for the respondents contended that the failure of the respondents to establish the case on the vital issues; namely, that the owners of the land in dispute through inheritance of Mukhadimi rights; that they were in possession of the land as-owners; and that in any case they were in adverse possession thereof, would not entitle the appellants to retrieve the possession of the land even from trespassers, without filing a fresh suit for that purpose. The land in dispute is with the receiver, appointed during the Court proceedings. The plaintiffs having failed to establish their case on .Merits, and -having raised pleas which have been found untrue the equities are against them and they are not entitled to any concession or exercise of discretion in their favour. The approach of the learned trial Judge in this- behalf was unexceptionable.