' WAQAR AHMAD SETH, J.---Brief and relevant facts leading to Civil Revisions Nos.3 and 4 of 2004 are that the suit land was given to the forefathers of petitioners as "Seri" and now the respondents are claiming it to be their ownership and changing the nature of the suit property which compelled the petitioners to institute Suit No,615/1 for declaration and perpetual injunction against the respondents (in Civil Revision No,3 of 2003) whereas respondents instituted Suit No,380/1 for perpetual injunction and mandatory injunction against the petitioners (in Civil Revision No,04 of 2003). Both the suits were contested by each and the learned trial Court after recording pro and contra evidence and hearing the parties dismissed the suit of petitioners bearing No,615/1 on 14-12- 1998 and respondents' suit bearing No,380/1 was also dismissed by the trial court on 27-5-1998.
Feeling aggrieved, both the parties preferred appeals and learned appellate court after hearing both the parties vide impugned judgments and decrees dated '6-10-2003 dismissed Appeal No,14/13 filed by the petitioners whereas the judgment and decree impugned through Appeal No,6/13 was upheld on all issues except findings on issue No,8. Still feeling dissatisfied, the petitioners have filed Civil Revisions Nos.3 and 4 of 2003 against the impugned judgments and decrees. As common questions of law and facts are involved therein, therefore, these are proposed to be disposed of by this single judgment.
2. Arguments' have been heard at great length and the relevant record gone through with the valuable assistance of learned counsel for the parties.
3. According to petitioners/plaintiffs' claim the suit land comprises khasra No,186 measuring 7 kanals 11 marlas, khasra No,457 measuring 16 marlas and khasra No,368 measuring 5 kanals 7 marlas in Mauza Jasgran Bala, Tehsil and District Mansehra was Shamilat Deh. It was given to the forefather of the petitioners as 'seri' by the then village propriety body. In support thereof jamabandes from the year 1947-48 to 1987-88 are exhibited as Ex.PW1/1 to Ex.1/11 and khasra Nos.186 and 457 are mentioned as 'seri'. The record further suggests that forefathers of petitioners were blacksmiths and in lieu of their services rendered this portion of land was given to them, thus, since generation the petitioners are enjoying the suit land as malkan-e-qabza, uninterrupted, besides paying the land revenue. In the year. 1989 i,e, on 6-8-1989 some of the villagers attempted to forcibly eject.And dispossess the petitioners from the suit land whereupon a case under sections 447/147, P.P.C. Was got registered against them besides the instant suit which was dismissed and the appeal, hence, this revision petition.
4. The plea of respondents/defendants who contested the suit is that the suit property is not 'seri' and petitioners are 'ghair dakhilkaran', thus, they have the every right to eject and dispossess the petitions.
5. PW-1 is the Patwari Halqa, who produced jamabandis for the year 1947-48 to 1987-88 along with khasra girdawari, according to which; the suit land is 'shamilat-e-deh' possessed by Ghair Dakhilkaran. PW-2 is one of the petitioners / plaintiffs and attorney for others and according to him the suit land was given to their forefathers by owners of 'cleh' since more than two hundred years in lieu of services rendered by them as blacksmiths and since then till today they are paying the land revenue of the land and exercising all ownership rights including construction of houses. According to PW they own a blacksmith shop, still and when they installed a wheat grinding machine and respondents pressed to be partners and upon refusal they started claiming the ownership. The suit land is our ownership as 'seri' and the malikan-edeh had nothing to do with it. P.Ws. 3,4, 5 and 6 are co-villagers and are consistent on the point that the suit land is a shamilat deh, which was given time immemorial to the forefathers of petitioners in lieu of services as blacksmiths and are still doing the same services.
6. As against this the respondents produced only DW-1, who stated that the suit land is owned by the villagers. The occupation of the petitioners as blacksmiths and they used to render services as such to the villagers. For the last seven years they have left their duties as blacksmiths of the villagers, thus, the villagers have the authority to take possession of the suit land by eviction of petitioners. In cross-examination DW-1 has admitted correct that their grandfather had given the suit land to the grandfather of the blacksmiths / petitioners for cultivation etc in lieu of their services. Again said "it is correct that land revenue of the suit land ever since it was given to the grandfathers of the blacksmiths has been paid until today by them. It is also admitted that the petitioners had their blacksmith shop in the suit land along with residential houses.
7. Learned counsel for the parties placed reliance on a number of rulings on the subject along with case-law on the points; what is the column of cultivation and what is the column of lagan?, entries record of rights and advance possession.
8. In view of the admitted facts on record and DW-1 there is no need of entering into the controversy of revenue record and I am of the firm view that the suit land was given to the grandfather of the present petitioners by the forefathers of the respondents more than a century ago in lieu of their services rendered by them, they are paying the land revenue and having made constructions with a shop of blacksmith but jealousy started when the offspring's recently started over the construction of flour machine (C.R. No,4/04).
9. The word 'seri' is alien to Islamic Law on the subject. In our part of the country word 'seri' has been defined as `sadqa' as well but it is established fact that the same is 'giving of land to some one who has rendered valuable service', thus, on the same analogy the word 'gift' has been explained in section 138 of the Mahomedan Law which reads "A hiba or gift is a transfer of property, made immediately, and without any exchange by one person to another and accepted by or on behalf of the other". In the instant case the property in dispute was given by the forefathers of the respondents / owners upon the services rendered by the forefathers of petitioners / blacksmiths accepted the same as reward for the services done. According to section 139 of Mahomedan Law, the Mahomedan was of sound mind, hence, capale to dispose of his property by way of gift.
10. The Mahomedan, who gifted the property to the person who served him, both are dead. The question is that whether a gift can be revoked and by whom. Section 167 of the said ibid reads:-- "167. Revocation of gifts.---(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no complete gift at all.
(2) Subject to the provisions of subsection (4), a gift may be revoked even after delivery of possession except in the following cases --
(a) when the gift is made by a husbnd to his wife or by wife to her husband;
(b) when the donee is related to the donor within the prohibited degrees,
(c) when the donee is dead,
(d) when the thing given has passed out of the donee's possession by sale, gift or. Otherwise,
(e) when the thing given is lost or destroyed,
(f) when the thing given has increased in value, whatever be the cause of the increase,
(g) when the thing given is so changed that it cannot be identified, as when wheat is convered into flour by grind,
(h) when the donor has received something in exchange or the gift,
(3) A gift may be revoked by the donor but not by his heirs after his death.
(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the suit".
11. A bare reading of this do not do not section makes it clear that gift cannot be revoked and that too by the legal heirs after the death of donor nor there is any other legal reason for the same. The land given as per customs of the area as 'seri' has the same value like gift.
12. If for a moment it is presumed that 'seri' land could be revoked/ recalled for the purpose for which it was given is changed, the same would be senseless reason because 'seri admittedly is given for the services rendered and not the future acts/actions and the chapter stand closed with the expiry of forefathers life, in favour of the donee. In the christian society even the slaves got freedom in lieu of services rendered but unfortunately the land donors 4/5 generations takes the plea of having every right to eject the 'tenants'. The services rendered by the forefathers of the petitioners to the forefathers of the respondents would come to bounded labour, if revoked. In this respect in the case of Rehman and others v. Atai Khan and 6 others, reported as PLD 1976 Peshawar 60, their Lordships have held:-- "Seri tenure - Defendants not denying plaintiff's specific allegation of land In dispute being owned by plaintiff's grandfather as 'seri' and their continuous possession or 70 years- Revenue record also showing land as 'seri' - History of `seri' tenure and old judgment of Judicial Commissioner holding 'seri khors' to be usually carrying rights of Malik-e-Qabza Ancient archieve record translating 'seri' as grant of land in ownership to religious character - plaintiffs, held, seri khors and not liable to be evicted as tenants-at-will".
13. In the case of Mst. Bibi Zohra and 24 others v. Abdur Rehman reported as 2003 MLD 918 it was held as under:-- "Trial Court as well as Appellate Court after taking into consideration revenue record comprising 'Goshwara' and Jamabandi and settlement record had concurrently concluded that plaintiffs had been enjoying suit land as 'seri' since their forefathers without paying any rent, produce and chakota etc. To defendants or to their forefathers - And that the rights of ownership were transferred to the plaintiffs' and their forefathers in recognition of their holding suit land as 'seri' ".
14. Denying the ownership rights of the petitioners would amount to bringing back the slaves, the offspring whom forefathers served for life in lieu of small piece of land, thus, according to the Hazara Settlement Report of E.G. Wace 1868-74 'serikhor was a Malik-e-Qabza (owner of land in village who does not enjoy the other rights of proprietary). Basing on the said report it was held in Abdul Jabbar v. Aziz ul Haq AIR (29) 1942 Peshawar 35 that the Serikhor was owner of the land in dispute and not tenant-at-will. Similarly, in a recent judgment Muhammad Atiq and others v.
Tayubuddin PLD 1998 Pesh: 47, it was held that the suit land was admittedly given to predecessors of petitioners by the predecessors of respondents more than 100 years ago in lieu of their service as blacksmiths. Such land comes within the definition of Sadaqa and seri the respondents have lost their rights of revocation of the same and it is held that both the courts below failed to appreciate the facts and evidence on record, hence, resulted in misreading and non-reading of the same.
15. Consequently, both the revision petitions are allowed, impugned judgments and decrees of the courts below are set aside and suit of Safdar Ali etc. (in C.R.No,3/2004) stands decreed as prayed for while suit of respondents Mir Muhammad etc. (impugned in C.R.No,4/04) dismissed. No order as to costs.