' MRS. IRSHAD QAISER, J.---The petitioners filed the present revision petition against the judgment and decree dated 17-9-2007, passed by learned Additional District Judge-II Mansehra whereby the appeal filed by the petitioners against the judgment and decree dated 15-4-2006 of learned Senior Civil Judge, Mansehra was dismissed and the order of the trial Court was maintained.
2. The brief but relevant facts of the case are that petitioners/plaintiffs filed a suit for declaration against the respondents to the effect that they are owners in possession of land bearing Khasra No,179 measuring 26 Kanals situated at Moza Jasgran Bala as Malkan-e-Qabza being Seri Khors since the time of their forefather and the orders dated 22-2-1989 passed by respondent No,2, rejecting Mutation No,205 and order dated 2-1-1990 passed by respondent No,1 Deputy Land Commissioner, Mansehra declaring the suit-land as waqf are illegal, unlawful, without any lawful authority and of no legal effect on the rights of the petitioners. That the entry of mosque in the column of owner ship while the entry of petitioners as non-occupancy tenants in the Revenue Record is wrong and illegal, as they are the owners in possession of land. Thus respondents Nos.1 and 2 be directed to substitute the plaintiffs in place of mosque and show the plaintiffs in possession as owners.
3. In prayer 'B' the petitioners sought mandatory injunction directing respondents Nos.1 and 2 to alter the Revenue Record and the periodic record by accepting the plaintiffs as owners in possession of the suit-land as Malkan-e-Qabza being SeriKhors. They also prayed for issuance of perpetual injunction restraining the defendants from interfering in any manner whatsoever in the right of ownership and possession and peaceful enjoyment of the suit-land by the plaintiffs/petitioners. In the body of the plaint it is contended that suit-land was given to their forefathers by the then Nawab of Amb as seri for performance of religious services as Imam Masjid but the entries in the Revenue Record showing mosque as owner and the plaintiffs as non- occupancy tenants are wrong and illegal. That the Land Commissioner Hazara Division vide his detailed judgment dated 15-9-1988 upheld the right of ownership of the Imams Masjid as Seri- Khors and directed for correction of the Revenue Record through mutations and as a result of which many mutations in favour of Imam Masjid of upper Tanawal area have been attested.
However, when the Mutation No,205 in the name of the plaintiffs was rejected by respondent/defendants Nos.1 and 2 vide order dated 22-2-1989 and 2-1-1990 respectively, they filed the present suit.
4. Respondents/defendants were summoned. Defendants Nos. 3 to 12, 14 to 32 and 35 to 38 attended the Court and contested the suit by submitting their written statement and contended that the disputed property is neither the ownership of Nawab of Amb nor it has been given to the predecessor in interest of the petitioners as Seri. The learned trial Court framed 15 issues from the pleading of the parties. After recording pro and contra evidence and hearing of arguments, the learned trial Court vide judgment and decree dated 15-4-2006 dismissed the suit. Feeling aggrieved petitioners filed Appeal No,100/2013 of 2006 which was also dismissed vide impugned judgment and decree dated 17-9-2007 passed by Additional District Judge-II Mansehra. Hence the present revision petition.
5. I have heard learned counsel for the parties and perused the available record with their assistance.
6. Learned counsel for the petitioners contended that the status of petitioners as seri khore and Malkana Qabza has been established by the superior Courts but both the Courts below failed to correctly interpret the consistent entries in the Revenue Record showing the suit-land as Seri along with entry in the column of Lagan. It is urged by the counsel for the petitioner that Seri is a gift and if so having been made centuries earlier, it could not be revoked subsequently under any circumstances but both the Courts below had failed to decide these propositions. Imam Masjid in upper and lower Tanawal was granted land as 'Seri' for religious service by the proprietary body for more than two hundred years ago. However, the Mutations were wrongly attested in the name of mosque and Imam masjid were shown as ghair Dakhalkaran in the column of cultivation. That when the matter came up before Land Commissioner who vide order dated 15-9-1988 declared 'Seri' as gift and the donees as seri Khor having rights of Malkan-i-Qabza. There upon Mutations Nos.286 and 186 were attested On 21-11-1988 in upper Tanawal in the. Names of Imam Masjid substituting name of mosque. Petitioners also followed the suit and got entered Mutation No,205 for transfer of disputed land in their name instead of Masjid. But this mutation was rejected by respondent No,2 vide order dated 22-2-1989, which was upheld by respondent No,1 vide order dated 2-1-1990 by declaring the land to be waqf property. Thus, the same was challenged in Civil Court and the petitioners having successfully proved their claim through cogent, reliable as well as documentary evidence but the learned Courts below did not consider the material evidence and only relied upon wajubul Arz which has no evidentiary value and it is not a document of title. That Mutation No,216 was made by proprietary body and not by Seri Khor. There is nothing on record that it was attested in the presence of Ghulam Jilani. That both the Courts below had shown complete lack of understanding of the entire case. That termination of imamat had no relation to the seri grant made earlier for the past service, of the then imams. He in order to substantiate his arguments, placed reliance-on Aziz-ur-Rehman and another v. Atai Khan and 6 others (PLD 1976 Peshawar 60), Shad Muhammad v. Khanpur (PLD 1979 Peshawar 93), Haji Naimatullah Khan and another v. Government of Pakistan (PLD 1979 Peshawar 104), Shad Muhammad v. Khan Poor (PLD 1986 SC 91), Makhni Bi v. Muhammad Yasin and others (PLD 1986 SC 94), Azam Khan v. Azad Khan and 6 others (PLD 1986 Lahore 275), Nazeer Ahmed v. Mst. Hussain Bibi and 7 others (PLD 1986 Lahore 279), Muhammad 'Khizdr Hayat Khan v. Chief Land Commissioners and others (PLD 1968 Lahore 1145), Government of West Pakistan v. The Kallar Syedan Ex-servicemen (PLD 1968 Lahore 1151), Muhammad. Yousaf and 3 others v. Khan Bahadur (1992 SCMR 2334), Mian Muhammad Latif v. Province of West Pakistan and others (PLD 1970 SC 180), Abdul Mataleb v. Mst Rezia Begum (PLD 1970 SC 185), Abdul Karim Khan v. Mst. Bibi Fatima and 5 others (1989 CLC 2424), Sheen Gut and 6 others v. Secretary (Revenue, Board of Revenue Baluchistan and 3 others (1989 CLC 2431), Muhammad Atiq and others v. Tayubuddin and others (PLD 1998 Peshawar 47), Mst Khairul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), Muhammad Ishaq and others v. Falak Sher and another (1988 SCMR 853), Sahb Khan v. Muhammad Pannah (PLD 1994 SC 162), Liaqat Ali v. The State (PLD 1994 SC 172).
7. These arguments were rebutted by learned counsel for the respondents and, while defending the impugned judgments and decree as well as the orders dated 22-1-1989 and 2-1-1990, passed by respondents No,1 and 2 contended that suit property is situated in lower Tanawal and was never owned by the Ex-Nawab of Amb as the petitioners themselves also withdrew from their claim to this effect. That the suit property was owned by proprietary body. Of village who transferred the same in favour of Masjid Sharif of the village vide Mutation No,216 dated 31-7-1944 in the presence of Ghulam Jillani predecessor of petitioners who was performing the duties of Imamat. This mutation has not been challenged by the petitioners, therefore, the petitioners cannot disown the same. That in the Revenue Record the suit-land has been entered in the name of mosque in the column of ownership and the petitioners have been shown as Ghair Dakhalkar. That usufruct was permissible to the predecessor of petitioners and later to petitioners for performing the services of imamat. The petitioners are no more performing the job of imamat, therefore, petitioners are left with neither cause of action nor have any lacus standi. That the petitioners claimed ownership on the basis of column of lagan whin can never be preferred over the entries of column of possession and that of ownership. That per established custom of the village enumerated in "wajibul Arz", the office of Imamat being enjoyed by petitioners having been terminated, therefore, they cannot retain possession. It is further contended that the claim of the petitioners is mainly based on the decision of Land Commissioner dated 15-9-1988 wherein the right of Imam Masjid as Seri Khore were recognized but That decision is no more in the field having been set aside by the Board of Revenue which finding was further confirmed by this Court and apex Court. He while referring to judgment of august Supreme Court reported in Mian Tayyib-u-Din and others v. Muhammad Atiq (PLD 2004 SC 321) contended that Imams were held entitled to the usufruct in view of service of Imamat. He also relied on Islamuddin and others v. Ghulam Muhammad and others (PLD 2004 SC 633), Hakim Shah and 16 others v. Sawab Khan and 17 others (PLD 2002 SC 200), Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others (2002 CLC 587), Pervez Alam Khan and 15 others v.
Muhammad Mukhtiar Khan (2001 CLC 1489), Said Amir and others v. Ashraf Khan and others (PLD 1986 SC 113), Mst. Allah Rakhi, v. N/Sub. (Retd.) Muhammad lqbal (2002 MLD 145) and Noor Salam and others v. Gul Badshah and others (PLD 2002 SC 622).
8. Now the main question for determination, after going through the case law cited in pros and cons of the case and weighing the arguments from all angles, is that whether plaintiffs are owner in possession of the suit Khasra number as Seri Khor since the time of their forefather? Whether the order of respondent No,2 dated 22-2-1989 and respondent No,1 dated 2-1-1990 are illegal and unlawful or they were justified in declining to attest the Mutation No,205 and declaring the suit property as waqf created in favour of mosque of the village by the proprietary body? The petitioners to prove their contention produced revenue officers who were examined as P.W.1 to 3.
P.W.2 SOK produced jamabandi for the year 1904-1905, 1947-48 and 1987-88 as Exh.P.W. 2/1 to Exh.P.W.2/3, and jamabandi for the years 1983-84 and 1991-92 as Exh.P.W.2/4 and Exh.P.W.2/5. He also brought Mutation No,216 dated 31-7-1944 as Exh. P.W.2/ D-1, P.W.3 Mushtaq Ahmed Patwari Halqa Palsala produced jamabandi for the years from 1946-47 to 1991-92 Exh.P.W.3/1 to Exh.P.W.3/8 and wajib-ul-Arz for jarsgranbala Exh. P. W.3/9 and khasra girdawari Exh.P.W.3/10 while Abdul Khanan attorney of petitioner, Muhammad Ashraf and Muhammad Irshad were examined as P.W.4.
To P.W.6.
9. Admittedly the office of Imamat of the village remained with the petitioners right from the time of their predecessors namely Abdul Haq, Ghulam Gillani and Abdul Aziz son of Abdul Haq who have also been shown in possession of suit property as Ghair Dakhalkar. At present the office of imamat is not being enjoyed by petitioners which has been terminated. It is also admitted fact that Mutation No,216 dated 31-7-1944 Exh. P. W .2/D-1 was attested in favour of Masjid Sharif and Ghulam Gilani is shown in column of cultivation as tenant.
10. From the perusal of Revenue Record pertaining to the year 1904-1905 Exh.P.W.2/1 it reveals that in the column of number khasralhe word 'Seri' is written with fighere while in the column of cultivation Abdul Haq father of Ghulam Jillani is shown as Ghair Dakhalkar and in the column of lagan 'Mahf Bawajai Imamat' is entered. This first entry of 'Seri' is not corroborated by any evidence. Patwari Halqa stated:- {{URDU TEXT}} ' While in jamabandi for the years 1947-48 Exh.P.W.2/2 and Exh.P.W.3/1 the word 'Seri' is mentioned in column of "previous Khasra No,51 and present Khasra No,179" and in the column of Lagan the word Bilalagan Bawajai Imam Masjid Baadai Malia Sarkari is mentioned". It means that the word "Seri" is not entered in the relevant column as prescribed in Form XXXIV. Register Haqdaran Zamin Rule 72 of W.P Land Revenue Rules 1968. While name of Masjid Sharif has been shown in the column of ownership and Ghulam Jilliani and Abdul Aziz sons of Abdul Haq have been shown in possession as Ghair Dakhalkar. In the Revenue Record this entry continued up to 1963-64. However, in the jamabandi for the years 1967-68, 1983-84, 1987-88 and 1991-92, Exh.P.W.3/5 to Exh.P.W.3/8 and Exh.P.W.2/3 and Exh.P.W.3/4 the word 'Seri' is omitted and the entries in the column of lagan are also missing in the year 1983-84 and 1987-88. While in the relevant columns Masjid Sharif has been shown as owner and Ghulam Jillani etc. Have been shown as "Ghair-Dakhaldaran." However, in the subsequent jamabandi for the year 1991-92 same entry have been repeated.
11. The petitioners have not denied the execution of Mutation No,216 dated 31-7-1944 Exh.P.W.2/D-1 vide which the proprietary body of the village had transferred the suit property in favour of mosque and since 1947-48 to 1991-92 Exh.P.W.3/1 to Exh.P.W.3/8 the entry of Masjid Sharif is available in column of ownership. This mutation has not been challenged by the appellant. From the perusal of the contents of Mutation No,216 Exh.P.W.2/D-1 it reveals that it was executed in the presence of Ghulam Gilani who was then serving as Imam Masjid. He has been shown very much present in the sitting in which the above mutation was attested in favour of the mosque. P.W.3 Patwari Halqa also produced wajib-ul-Arz for Mauza Jabgran_Bala Exh.P.W.3/9. It is settled that presumption of truth is attached to "Wajib-ul-Arz". The rights of parties are always controlled by the entries of Wajb-ulArz prepared at the last settlement. It forms a part of the standing record prepared under section 39 of the Land Revenue Act, 1967, P.W.4 attorney of the petitioner also did not rebut the execution of `wajib-ul-Arz' which was prepared on the basis of consensus of the village owners. In wajibul-Arz Exh.P.W.3/9 the rights of the petitioners being Imam Masjid are confirmed as they would render religious service and will enjoy the usufruct. So they cannot claim the status of Malk-i-Qabza on the basis of being Seri Khor because they are not Seri Khor as defined by the 'riwaj'. In wajibul-Arz, the detail of rights and duties of; {{URDU TEXT}} ' P.W.3 Patwari Halqa admitted "according" to note in wajibul Arz the dismissal and appointment of Imam of Masque and water carrier is dependent on the majority opinion of village owners. It is correct that what are allowed to be retained by the Imam of mosque in lieu of his services was usufruct of property and not the property itself." P.W.5 Muhammad Asif also admitted in his cross examination "that the Imam of mosque whoever he had been was enjoying the usufructs from the property in dispute". It is proved from record that whosoever be imam of mosque shall enjoy the usufruct of the same. Nothing had been brought on record to prove that land in the nature of 'Seri' once granted could not be revoked on the ground that it was a grant and not tenancy.
12. The other basis claim of the appellant/petitioner of their ownership over the suit property is the adjudication of land commissioner which is undoubtedly not in the field and could not be relied upon by the petitioner for their benefit as the afore mentioned decision of land Commissioner was set aside by Board of Revenue and that judgment attained finality. P.W.4 also admitted this fact that the decision of the land commission on the basis of mutation in the names of Imam of the mosque in upper Tanawal was set aside by Board of Revenue.
13. Beside the merit of present case, I also deem it proper to discuss the status of 'Seri-Khor'. No doubt Seri Khor have been recognized as Malkana Qabza in the light of judgments of this Court reported in case PLD 1976 Peshawar 60 and PLD 1979 Peshawar 93 relied upon by petitioners but the same have been declared otherwise by this Court in subsequent judgments and Supreme Court. Reference is made to PLD 1967 Peshawar 304 which was approved later in Tehmas and 16 others v. Dawan Khan and 7 others, PLD 1990 SC 629 wherein it is held that the entries in Bila Lagan Bawaja Seri in the column of Lagan in the record of rights regarding the character of possession of party would not be of help to them if it comes into conflict with an entry of column of cultivation.
Reference is also made to PLD 2002 SC 200 wherein reference is given to Punjab Settlement Manual by Sir Jams M.Douie Fifth Edition Malikan-e-Qabza and held "according to the Manual the MalakanaQabza are those owners of the land who had purchased it without share of shamilat in the village. Such vendees are recorded in column of cultivation as Malikan-e-Qabza and not as tenant." In this case the august Supreme Court had discussed the question that "whether entry "Bila Lagan Bawaja Seri" in the column of rent in the settlement record regarding character of possession of the petitioners is of any help to them if it comes in conflict with an entry in the column of cultivation?." After detailed discussion it was held "that appellants through 'Seri Khor" could not be treated as" Malikane-Qabza". EntHes of "column of Lagan" and column of cultivation" being inter se irreconcilable, appellants could not have repudiated the title of proprietary body recorded in the record of rights implication of such irreconcilable entries was that "Seri Khor" were not entitled to remain in possession of land by virtue of their status as tenants in the column of cultivation and (Bila Lagan') in the column of rent and that proprietary body of village notionally remained owner of land? Guidance may also be sought from the judgment of this Court reported 1996 CLC Peshawar 1984, 2001 CLC Lahore 742. August Supreme Court in case Mian Tayyib-ud-Din and others v. Muhammad Atiq through legal heirs and others (PLD 2004 SC 321) had discussed the rights of seri khor and held "that the gift of usufruct would continue to be operative till Atiq (Imam Masjid) continued to perform function of Masjid, as such even if the respondents (Imam Masjid) remained in possession of land as ghair dakhalkar the same could not be legally claimed to be adverse". Reference is also made to the judgment of this Court in case Muhammad Shafiq v. Taj Muhammad (2012 CLC Peshawar 136) wherein it is held; "The background of the Seri Khor is that village proprietary body used to reserve some part of the common property for Imam of the mosque for the religious services, to be rendered. In those old times, due to scarcity of cash and currency, the people, mainly, used to depend on barter system. It is a matter of common practice and knowledge that persons; who were employed for husbandry work, were paid in kind, specially in grain and not in cash.
' Likewise Imam of Mosque, apart from paym ent of grain and other kind, were given that piece of seri land which was reserved for Mosque to meet their needs of daily life, out of sheer respect, so that he may not feel deprived of the requirement of daily needs. That is why no rent or share of produce was received from him as from the other tenants. This produce of seri land was as remuneration of office of Imam and nothing more than that. This property was never meant to be bestowed upon a specific person but it was for the village Mosque and whosoever the Imam be therein, providing religious services."
14. In the present case the learned appellate Court while concurring with the finding of trial Court has rightly held "In the circumstances appellants can neither claim themselves to be "Seri Khor" owner in possession of the suit property due to the termination of office of Imamat and nonrecognition of the status of "Seri Khors" to be owners in the aforesaid manner, hence the suit property has been rightly declared to be "Waqf' created in favour of the mosque with permissible possession of the predecessor of the appellants and thereafter all the appellants are entitled of usufruct in lieu of Imamat and by now the office of Imamat being not enjoyed by appellants, therefore, learned trial Court has rightly non suited them through the well reasoned judgment and decree in question which is upheld. Consequently the instant appeal being devoid of merits is hereby dismissed. Since the suit property is in the ownership of mosque and whosoever be the Imam of Mosque shall enjoy usufruct in lieu of the service related to Imamat and enumerated in the wajbul Arz."
15. In view of the above, this Court finds that both the Courts below have correctly appreciated the facts and the law applicable thereto. No exception could be taken to the decision of the Court below in circumstances. This Court further holds that the finding so recorded by the Courts below being not arbitrary, capricious or outrightly absurd, does not warrant this Court to disturb the concurrent findings by invoking its revisional jurisdiction under section 115, C.P.C.
16. Accordingly, for the reasons stated hereinabove, the present petition being devoid of merit is dismissed with no order as to cost.