SYED ARSHAD ALI, J. Through the instant revision petition, the petitioners have called into question the judgment and decree of the learned Additional District Judge/Izafi Zilla Qazi at Kabal Swat dated 07.05.2013, whereby appeal filed by the present petitioners against the judgment and decree of the learned Trial Court dated 27.05.201 1 decreeing the suit of the Respondents/Plaintif fs was dismissed.
2. Brief but essential facts leading to institution of the present case are that the plaintiffs/respondents Nos. 1 to 24 had filed a suit for declaration and perm anent injunction against the defendants/petitioners and the respondents Nos. 25 to 34 to the effect that the disput ed property commonly known as Sholgara measuring 10 Kanal 7 Marlas comprised of Khasra bearing No. 3415, Khata No. 1038 and Khatoni No. 1320 which is situated in village Bara Bandai Tehsil Kabal, District Swat along with one room was reserved as Waqf for the Masjid of village Delay and have also challenged the order of the Settlement Officer whereby it was directed that the disputed property be entered in the name of the defendants/petitioners in column of ownership of the Misl-e-Haqiyat as illegal.
3. On being summoned, the defendant No. 3 Muhammad Ali appeared before the Court as attorney of the other defendants and had patched up the matter with the plaintif fs and in terms of compromise the suit was decreed in favour of the plaintif fs on 11.12.1999. The said consent decree was challenged by some of the defendants through their separate applications under section 12(2), C.P.C. which were dismissed by the learned Trial Court vide order dated 19.09.2005. The said order was challenged before the learned revisonal Court through a revision petition which was also dismissed vide order dated 22.05.2006. Hence, the order of the revisional Court was assailed by the Petitioners before this Court through Writ Petition bearing No. 1031-P of 2006 which was accepted by this Court vide order dated 15.03.2007. Accordingly the impugned orders dated 19.09.2005 and 22.05.2006 as well as the consent decree of the learned Trial Court was set aside and it was ordered that the suit be restored and be disposed of on merit.
4. After remand of the case, evidence of the parties was recorded and suit of the plaintif fs was decreed vide judgment and decree dated 27.05.201 1. The present petitioners feeling aggrieved of the said judgment and decree of the learned Trial Court, had challenged it before the learned appellate Court through Civil Appeal bearing No. 45/13. The learned appellate Court vide impugned judgment and decree dated 07.05.2013 had dismissed the said appeal. Hence, the present revision petition.
5. Arguments of learned counsel for the parties were heard and record of the case was perused with their able assistance.
6. It is the claim of the plaintif fs/respond ents that they belong to the proprietary body of the village Delay Tehsil Kabal, District Swat and the disputed property is indeed a Serai land which was dedicated/reserved) by the proprietary body for the Masjid of the village Delay . Since, the defendants and their forefathers were performing the functions of Imam Masjid , therefore its possession was handed over to them for earning their livelihood and to meet the expenses of the Masjid . As such during the first settlement, in the revenue record the suit property was entered in the name of Masjid as Serai and the respondents were shown in possession of the same as Paish-e- Imam Masjid of village Delay , the adjacent village where the disputed property is situated. However , during the settlement, the said entry was challenged by the defendants before the Settlement Officer who vide order dated 12.12.1986 accepted the application of the defendants and had passed an order whereby it was directed that the suit property be entered in the name of the defendants as owners in the revenue record. The said order of the Settlement Of ficer dated 12.12.1986 was challenged in the suit.
7. Against that the claim of the defendants is that the suit property is their ancest ral property which was privately partitioned by them and it does not belon g to Masjid . Regarding the Serai land, it is their claim that the Masjid of Delay had two properties as Serai , one was in possession of Muhammad (the Imam of the Masjid ) and another Serai was sold.
8. In support of their claims, both the parties had produced oral as well as documentary evidence. The oral witnesses of the plaintif fs had supported the claim of the plaintif fs, whereas the oral witnesses produced by the defendants have stated that the suit property is the ancestral property of the defendants. However , the close perusal of their statements and the order of the Settlement Officer dated 12.12.1986 clearly suggest that the nature and character of the property is Serai land and it is also evident from their evidence that the defendants belonged to a religious family who at the relevant time were performing the duty of Imam of Masjid . The last Imam of the Masjid was Sahib Junaid who remained Imam of Masjid for 50/51 years. The said Sahib Junai d was also in possession of the suit property .
9. Thus the core issue for adjudication before this court is, "whether the suit property , which is undoubtedly a Serai, was granted to the Petitioners/Defendants with the title of the property or the suit property was given in their possession being Imam of the masjid of Delay for a limited rupose i.e. in lieu of their service to the Masjid?" '
10. To effectively answer this question, I have to trace the meaning and import of the assignment of land as Serai .
The word Serai has neither been defined in the Land Revenue Act, 1967 nor in any other legal instrument. It is used customary in relation to land/property which has been reserved by the village proprietary body from their common property for Imam of a mosque or any other religious purpose or for any other person or class of persons (blacksmith or carpenter etc) in lieu of his/their services to the village proprietary body . In the case of Aziz-ur- Rahman v. Atai Khan reported as (PLD 1976 Peshawar page 60), an effort was made by this Court to trace the history of Serai land. In the said judgment, reliance has been placed on a book titled 'Hazara dispute' by Mr. Wace who translated the expression Serai as a grant of land generally made in ownership to religious character .
11. In Muhammad Atiq and others v. Tayabuddin (PLD 1998 Peshawar 47), this court was confronted with somewhat similar legal proposition. The facts of the case were that the plaintif f had given a piece of land to the defendant in lieu of his services as Imam of the mosque and in the revenue record, the defendant was recorded as {{URDU TEXT}}. When the defendant started further construction on the suit property , the plaintif f instituted the suit, when the matter came up before this Court, it was held that the land given to the defendant as Serai to the Imam of the mosque was indeed a Sadqa , hence could not be revoked. However , in appeal filed by the plaintif f against the said judgment of this Court before the august Supreme Court of Pakistan, the august Supreme Court of Pakistan while reversing the findings of this Court has laid that "Apart from the fact that the respondents and their predecessor-in-interest were in possession of the land as Ghair Dakheelkar , they could not claim that their possession was adverse since, Atiq predecessor-in-interest of the respondents was performing the functions of Imam Masjid when the suit was filed in 1982 and before him his father Muhammad Faiq was Imam Masjid, therefore the gift of usufruct would continue to be operative till Atiq continued to perform functions of Imam Masjid, as such even if the respondent remained in possession of the land as Ghair Dakheelkar for any length of period, the same could not legally be claimed to be adverse." (Reported as Mian T ayyabuddin v . Muhammad Atiq (PLD 2004 SC 321 ).
12. The concept of Serai and Seraikhor has been further elaborately expounded by the august Supreme Court of Pakistan in Hakeem Shah v. Sawab Khan (PLD 2002 SC 200). In Para-9 of the judgment, the august Supreme Court of Pakistan has held that:- "9. Keeping in view the 'factual background of the controversy as narrated in the preceding paragraphs, the question involved was whether the land in dispute was in the nature of grant which once given could not be revoked--it being a grant and not tenancy and that the occupants were treated as (Malikan-e-Qabza) and that in the absence of general or special custom, it could neither be claimed nor was in the case of village Bishkot any general or special custom supporting the claim of the appellants and that accordingly the learned High Court was legally not correct in holding that the appellants though "Serai Khors" whereunder the appellant could not be termed as (Malikan-e-Qabza) and were not liable to be dispossessed on that score. The evidence brought on the record does not bring into force anything which prohibits that the land in the nature of "Serai" which was once granted could not be revoked on the ground that it was a grant and not tenancy . The appellants also failed to convince the learned two Courts below and the learned Judge in Chambers of the High Court as to how the occupants/ appellants were treated as (Malikan-e-Qabza). Again there is not an iota of evidence to prove on the file that there was any general or special custom in village Bishkot to show that the "Serai Khors" who were recorded in the column of cultivation as tenants and in the column of rent as (Bila Lagan Bawaja Serai) could claim the title of land particularly when the entries of column of rent were irreconcilable with those of the columns of cultiva tion or for that matter those of proprietary column. The term incorporated in the leave granting order carries different connotation in the Punjab Settlement Manual by Sir James M. Douie, Fifth Edition Makkan-e-Qabza according to the Manual are those owners of the land who had purchased it without share of Shamilat in the village. Such vendees are recorded in the column of cultivation as (Malikan-e-Qabza) and not as a tenants. The appellants have been misdescribed to be (Bila Logan Bawaja Serai) because they stand recorded in the column of rent as (Bila Logan Bawaja Serai) therefore, the learned Judge of the High Court was legally correct in holding that the appellants though "Semi Khors" could not be termed as (Malikan-e-Qabza). They have repudiated the title of those recorded in the proprietary column and, therefore, they , were rightly adjudged as liable to be dispossessed."
The said view has also been re-af firmed in Muhammad Saleem Shah's case reported as PLD 2002 SC 280 .
13. In view of the ratio of the judgments of the august Supreme Court of Pakistan, I have reached at a conclusion that the term Serai cannot be given any definite and uniform meaning. The rights and obligations of the person or class of persons in possession of the property as Seraikhor over the property (Serai ) shall be determined keeping in view the relevant entries in the revenue record, Wajib-ul-Arz or any other instrument or other evidence establishing the custom relating to the assignment of the Serai /property . Hence, the terms and nature of holding of the said property/Serai in lieu of services or Imamat discerns from the customs which are normally incorporated in Wajib-ul-Arz of the village and the revenue documents or other acceptable treatise or documents from which undisputedly the nature and character of the assignment of Serai to the person or class of persons can be traced.
The kind of assignment of property is called Serai and the person who is assigned the property is called Seraikhor .
14. In the context of the present case, none of the parties has produced any document or any other evidence in respect of the customs and usages prevailing in valley of Swat regarding the nature, character , possession and ownership of the Serai land. In this view of the matter , I had to trace the customs regarding the Serai land from certain accepted treatises/books which are as under:-- i. In book titled "Land Ownership in Swat " (page 126) authored by Sultan-i-Rome, Serai land has been described as following:- "That lands which were under permanent ownership and were not liable to re-allotment in the traditional west system. The Serai lands had no proportionate share in other categories of land and shamilat of the village or locality".
Similarly , in the said book, it has been further stated that Serai lands were allotted to the holy families and people i.e. Sayyads, Mians, Mullas and Sahibzadas, in the allotment of Shaikh Mani. The tribes frequently allotted such lands at the time of new wesh. The owners of Serai lands were generally called Stanadard Serai were also allocated to mosques and in some cases to the Imam (prayer leader in the mosque) of the mosque as well, which remained in his possession till he remained the Imam.
Similar view also reflects in treatise/book titled "Ownership and Use Pattern Trends in the Communal Lands of Swat V alley " (page 76) authored by Inam-ur-Rahim, wherein it has, been stated that:- "To compensate those, whose services to the Khels o; village were of value, some portions of the land were excluded from the Wesh and called Serai. These were sometimes (given to a Khan with outstanding leadership qualities, but more frequently to the Istanatlar class including Sayyeds, Akhunzadgan, Sahibzadgan and Miangan.
The Serai lands were either situated on the boundaries of two Khels (in many situa tions acted as a buffer zone) or the less fertile far away land." iii. Similarly in a book titled "Swat State (1915-1969)" page 237, authored by Sultan Rome, it has been mentioned about the Serai land that:- "There were lands owned by the Kohistanis themselves, as dawtar , and the lands allotted to the holy families, as Serai lands. In Swat Kohistan the same two categories existed, i.e. dawtar and Serai. Both the dawtar and the Serai lands held the same status as in the Yusufzai held area and Indus Kohistan. "
15. In view of the above one can say that it was a custom in the Valley of Swat even before its merger to Islamic Republic of Pakistan that the Proprietary body/a clan/tribe would give certain land to the religious family with full title and ownership which was then called Serai of that religious or other families who had either rendered some services to the proprietary body of clan or because of respect which they were enjoying at the relevant time.
Similarly the proprietary body or a clan would reserve a particular land as wakf for a Masjid and the Imam of the Masjid would enjoy the possession or usufruct of the said land in lieu of his services.
16. Reverting back to the merit of the case. The Patwari Halqa has produced the extracts from Misl-i-Haqiyat of 1985/86 exhibited as Ex DW 7/6A and Jamabandi for the year 2001-2002. According to the extracts from Misl-i- Haqiyat , the suit property comprised of Khasra bearing No. 3415 is recorded as Waqf Masjid Sharif Moza Delay and the defendants have been shown as Ghair Dakhilkaran (tenants-at-will) not liable to pay any rent being performing the duties of Imam of Masjid . The Wajib-ul-Arz of village Delay was produced as Ex DW 7/4. In para 12(2) of the said Wajib-ul-Arz , it has been stated that:- The Wajib-ul-Arz of village Bara Bandai where the dispute d property is situated was also exhibited as Ex DW 7/12, in para.10(2) of the said Wajib-ul-Arz it has been stated that:- {{URDU TEXT}}
17. It is .further evident from record that at the initial stage of settlement when kacha khatoney was prepared wherein the said property has been shown to be waqf and in possession of the Imam of Masjid , the aforesaid referred Wajib-ul-Arz was also signed by Sahib Junaid who belonged to the religious family of the defendants and was performing the functions of Imam Masjid. This initial entry was challenged by the defendants Salahuddin and Muhammad Hanifa before the Assistant Collector Settlement on 30.11.1986. The Assistant Collector conducted a preliminary inquiry into the matter and has passed an order on 12.12.1986, wherein he has held that the disputed property is the ancestral Serai land of the defendants. He has based his findings on the judgment of the erstwhile PATA Court dated 01.11.1982 and a lease agreement dated 11.10.1982. The said judgment of the erstwhile PATA Court was produced in evidence, according to which Salahuddin (defendant No. 5) had filed a suit against Muhammad Hanifa (defendant No. 1) and Sahib Junaid (father of the defendants Nos. 7 to 17), wherein he had claimed his share in the suit property which was ultimately decided on 01.1 1.1982 in the following terms:- {{URDU TEXT}}
18. Thus, perusal of the aforesaid judgment clearly shows that neither the plaintif fs who is the proprietary body of the village were party to the said proceedings nor their rights were determined in the said suit, therefore this order whereby the case was consigned to the record room has never determined the rights of the defendants over the suit property .
19. Similarly , the lease agreement dated 14.03.1.981 is between the defendants themselves and an arrangement among the defendants which too do not confer on them any title over the suit property . However , it is evident from the said document that the defendants are in possession of the suit property . This fact is neither disputed by the plaintif fs nor do they deny the same wher e they assert that they are in permissive possession of the suit property in lieu of rendering service i.e. Imamat of the Masjid , therefore the defendants could not establish that the disputed property is their ancestral Serai . Whereas, against that the claim of the plaintif fs is duly supported by documentary evidence, more particularly the unanimously agreed Wajib-ul-Arz of the two villages to which strong presumption of correctness is attached and the onus of proof heavily lies on the person who denies the entries of the said Wajib-ul- Arz. Reliance is placed on PLD 1995 Supreme Court 325 titled "Sajawal Shah and another v. Syed Rahim Shah and others" , wherein it has been held by the august Supreme Court of Pakistan that:- "The Wajibul Arz is a part of the revenue record drawn up with special reference to each village, and contains a record of admitted village usages. There is a presumption of correctness attached to Wajibul-Arz, and the onus lies upon the person who challenges the usages to prove the contrary ."
20. The main stress of learned counsel for the petitioner was that the plaintif fs in their evidence had admitted that another Serai land which was adjacent to the Masjid was purchased by the proprietary body of the village from the defendants for extension of the Masjid and thus the fact that the said Serai is their ancestral property has been established. However , I do not agree to the said assertion because the said Serai land which was adjacent to the Masjid was not an issue in these proceedings and even the detailed circumstances are not before the Court as under what circumstances, the said land was purchased by the proprietary body for extension of the Masjid . The said admission of the plaintif fs is not sufficient to establish the title of the defen dants over the suit property in presence of the dominant documentary evidence produced by the plaintif fs on record. Hence, the concurrent findings of both the learned Courts below are based on correct appreciation of evidence which do not call for interference.
21. In this view of the matter , the instant revision petition has no merit which is accordingly dismissed.