' This regular second appeal under section 100 of the Civil Procedure Code is directed against the judgment and decree, dated 1-7-1964 of the learned Distict Judge, Sargodha with the prayer that the decree of the trial Court, dated 5-10-1962 be restored.
2. The facts giving rise to this second appeal briefly stated are that the appellant-plaintiff filed a suit for permanent injunction to restrain the defendants-respondents from interfering with his possession of about 99 Kanals of land included in Khasra No, 7200/5811 located in Village Naushera in the area of Dhaka and Bhiki of Tehsil Kushab. There were five defendants to the suit who were sued in their personal capacity as well as representatives of the proprietors of the village.
3. The case set up by the plaintiff in his plaint is that the afore- mentioned Khasra number was originally a part of the Shamlat of Villages Bhikhi, Dhaka, Sabhral and Nowshera and after Independence it fell to the share of Villages Dhaka and Bhikhi as Shamlat. The plaintiff claimed to be, a proprietor in these two villages and thus a sharer in the Shamlat. It was further claimed that the father of the plaintiff-appellant made culturable certain plots in Khasra No, 7200/5811 which came to be described in revenue record as Khasra Nos. 7197/5811, 7198/5811 and 7199/5811. That the entire field number 7200/5811 was partly in possession of the plaintiff and was partly the _Mahaz of his other areas and according to the conditions in Wajib-ul-Arz he was entitled to remain in possession of whole of this land because it formed Mahaz of his land. The plaintiff claimed that he could use area for growing grass and as a grazing ground to the exclusion of the rest of the proprietary body in the Village. It was also claimed that the plaintiff constructed a Bhora in the suit land and he wanted to construct a Kotha near the Bhora when the defendants threatened to interfere and hence the suit.
4. The defendants in their written statement took certain preliminary objections and contended inter alia that the plaintiff-appellant was not in possession of 881 Kanals out of Khasra No, 7200/5811 and this area was mutated in the name of Muslim residents of the Village for graveyard by mutation No, 11863 sanctioned on 8-6-1960 which carried consensus of all the co-sharers of the Villages Bhikhi and Dhaka with the exception of the plaintiff. The suit was not maintainable in its present form. It was denied that the land in dispute was Mahaz of the plaintiff's land or the plaintiff had .Any such right over Ghair Mumkin Pahar as claimed by him.
5. The trial Court on the pleadings of the parties framed five issues:-
(1) Whether the lists A and B regarding application under Order I, rule 8, C.P.C. Are defective and incomplete?
(2) Whether all the Muslim residents of Village Dhaka are necessary party to the suit?
(3) Whether the plaintiff is in possession of the suit land and the suit is maintainable in the present form?
(4) Whether the suit land is Mahaz of plaintiff's lands and with what effect?
(5) To what relief the plaintiff is entitled?
' The parties led their oral as well as documentary evidence in support of their respective contentions.
6. The trial Court treated issues 1 and 2 as preliminary issues and decided them in favour of the plaintiff by order, dated 19-2-1962. As regards issues 3 and 4, the trial Court observed that if the suit land is Mahaz of the appellant's other lands then the plaintiff-appellant will be deemed to be in possession if he has a right to exclusive use of the suit land. It was also observed that the major part of the suit land being a hillock was not cultivated. The entries in Khasra Girdawari may not have been made in the name of the plaintiff even if he used the suit land as a rakh. The trial Court felt that the primary question to be decided was whether the suit land was the Mahaz of the plaintiff's lands. After taking into consideration a judgment of a Sub-Judge, Shahpur, dated 2-6- 1928 as well as evidence on the record, the trial Court recorded the finding that the land in dispute was Mahaz of the plaintiff's lands. As regards the second question whether the plaintiff had a right to the exclusive possession of his Mahaz area and could enjoy the benefit from it, it was held that the Shart Wajib-ul-Arz (Exh. D/6) was irrelevant for the decision of this question. However, it was found that the suit land being Mahaz of the plaintiff's lands, he had the right to its exclusive use. On issue No, 5, it was held that mutation No, 11863 sanctioned on 8-6-1960 was not binding on the plaintiff as it was sanctioned without his consent. The trial Court thus, granted the decree to the plaintiff-appellant for permanent injunction against the defendants as prayed for, leaving the parties to bear their own costs.
6-A. The learned District Judge on appeal agreed with the learned trial Court that the entire Muslim population of the village was not necessary party to the suit as the dispute was between co- sharers of the Shamlat and their rights inter se. He further agreed with the trial Court that the suit was maintainable in the form it had been brought. It was found that though a dedication had been made in favour of the Muslim population, the land in dispute was not in actual physical possession of the Muslim population of the village as a graveyard. After taking into consideration Exh. P.1 and Exh. D6 which was the Shart Wajib-ui-Arz and in particular clause 2 of this agreement, it was held that there was no doubt about the fact that the land in dispute was the Mahaz of other area of the plaintiff, therefore, in the light of the agreement contained in the Walib-ul-Ar7 the plaintiff has a right to graze his cattle in this Mahaz area and reserve this area as Rakh Ghas from the month of Har till the month of Katak. However, after the month of Katak till the end of the month of Jeth, the plaintiff, has no such right and the residents of the village can bring grass and wood from there.
The learned District Judge also took note of the judgment rendered in 1928 by a civil Court on a suit filed by Resaldar Noor Khan father of the plaintiff against eight proprietors of the village for perpetual injunction restraining them from preventing the plaintiff from grazing his bullocks in this land and further preventing them from grazing their own cattle in this area. In this judgment, it had been held that the plaintiff owned some cultivable area in the Mahaz of the land now in dispute and was consequently entitled by virtue of the Shart Wajib-ul-Arz to use the Area in dispute as a Rakh Ghass. The learned District Judge in appeal, therefore, felt no doubt about the fact that the area in dispute being Mahaz of the plaintiff's land can be used by him as Rakh Chess from the month of Har to the month of Katak.
7. The finding of the trial Court that the plaintiff is in exclusive possession of the land in dispute was found to be contrary to the evidence on the record. The Khasra Girdawari (Exh. P.10) produced by the plaintiff himself was relied upon by the appellate Court which showed that about 80 Kanals of the land out of his field number is lying as Ghair Mumkin Pahar and is not in the exclusive possession of any share-holder. Furthermore, this area is shown as Maqbooza Maliken. The finding of the trial Court to the effect that the plaintiff is in exclusive possession of this land was thus reversed. The learned appellate Court also did not subscribe to the further view of the trial Court that if the suit land is the Mahaz of the plaintiff's other land then the plaintiff will be deemed to be in possession if he has a right to the exclusive use of the suit land. This conclusion of the trial Court was found to be contrary to the contents of the Shart Wajib-ul-Arz which provided that the Mahaz owner can use the Shamlat land lying waste as a grazing ground for his cattle from the month of Har till month of the Katak and no more. The plaintiff cannot, therefore, be held entitled to the exclusive use of the land in dispute. The appellate Court then examined Shart Wajib-ul-Arz (Exh.
P.3) which had been relied upon by the trial Court. It reads as follows:- "A co-sharer in the Shamlat who has brought a specific area of Shamlat under cultivation has a right to plant and cut trees from that area and to construct Dhoks and Kholas for the protection of crops etc. He cannot, however, sink a well in this area, The land which is in the joint possession of the shareholders cannot be used for this purpose without the consent of all the co-sharers,"
'After construing this, the appellate Court .Held that the Shart Wajib-ul-Arz gives the plaintiff a right to construct a Dhok or Kotha over 91 Kanals of land which is being actually cultivated by him out of Field No, 7200/5811. The plaintiff cannot construct any Khotha or Dhok in the remaining area which in the revenue record is shown in joint possession of the all co-sharers. The plaintiff had claimed the following relief in his suit:- "A decree for perpetual injunction be passed against the defendants restraining them from interfering with the possession of the plaintiff over the entire area of 99 Kanals comprised in Field No, 7200/5811 and further restraining them from preventing the plaintiff from constructing Dhoks and Khothas for the protection of crops, etc. The defendants be also restrained from using this area for any of their own purposes."
' The appellate Court, thereafter, came to the conclusion that the reliefs prayed for could not be granted to the plaintiff because he certainly is not in exclusive possession of the entire area of this field and no perpetual injunction can be issued against the defendants restraining them from interfering with the possession of the palintiff over the whole of this field number. It was, however, observed that the plaintiff has no doubt a right to construct Dhoks and Khothas over that part of this field number which is under his cultivation but he cannot construct Dhoks and Kothas over the other area without the consent of the other co-sharers. The defendants have a right to use this area from the month of Maghar to the month of Jeth. For seven months in the year they can graze their cattle over this area and can cut grass and wood from this land in view of the Shart Wajib-ul- Arz. They cannot, therefore, be restrained permanently from using this area. In the light of the above discussion and finding, the appeal was accepted and the judgment and decree of the trial Court were varied and the appellate Court passed a decree in the following terms:- "The plaintiff has a right to use the area in dispute as Rakh Ghass for his bullocks from the month of Har till the month of Katak and the defendants are permanently restrained from interfering with this right of the plaintiff till the partition of the Shamlat. The plaintiff has e right to construct Khotha and Dhoks for the purposes of protection of crops over that part of the field in dispute which is under his cultivation. The defendants are restrained permanently from preventing the plaintiff from constructing Khothas and Dhoks for the said purposes over the said area. The plaintiff has, however, no righ to construct Kothas or Dhoks over the other area in field without the consent of all the co-sharers. The defendants have a right to graze their cattle and bring grass and wood from that part of this field which is lying uncultivated from the month of Maghar to the month of Jeth every year. In the circumstances, the parties are left to bear their own costs throughout."
8. The learned counsel appearing in support of this appeal at the hearing sought to principally argue that the learned first appellate Court has misread the record in not properly constructing the Wajib-ulArz as well as the other evidence on the record. I had dismissed the appeal by my short order, dated 10-10-1983. The detailed reasons are being provided through this judgment.
9. The point urged by the learned counsel for the appellant that the lower appellate Court had misinterpreted the contents of the Wajibul-Arz and thus wrongly held that the entire body of the village ha got joint possession over the property in dispute has been found by me to be factually incorrect. A reference may now be made to the copies of the relevant Shart Wajib-ul-Arz (Exh. P.1 and Exh. D.6) on the file of the lower Court which have also been taken note of by the learned lower appellate Court. Clause 2 of this agreement reads as follows: - "In the Shamlat area all the residents of the village whether they are proprietors or non-proprietors graze their cattle and no one prevents another from so doing. No grazing fees are charged. Every resident of the village brings wood and grass from this area for his own purposes. Every proprietor has a right to reserve 100 Karams of land in length in the Mahaz of his cultivable area close to the hill as Rakh Ghass for grazing his bullocks. He can, however, reserve such area as grazing ground from the month of Har upto the 'end of month of Katak and no more. The land which is being cultivated in the hill cannot have any Mahaz around it as a grazing ground."
After taking into consideration the statement of the Patwari as well as the inspection note of the learned trial Court, the first appellat Court appears to be right in holding that there was no doubt about the fact that the land in dispute is the Mahaz of the other area of th plaintiff. On a reading of the agreement contained in the Wajib-ul-Arz, it is clear that the plaintiff has a right to graze his cattle in the Mahaz area and reserve this area as Rakh Ghass from the month of Har till the month of Katak and that thereafter till the end of the month of Jeth the plaintiff does not enjoy any such right and the residents of the village can bring grass and wood from there. There is thus no misreading on the part of the first appellate Court in arriving at the conclusion which it reached in the impugned judgment. The learned counsel for the appellant was unable to practically demonstrate before me any material misreading on the part of the learned District Judge. The result is that the objection has little merits and is hereby repelled.
10. The next ground urged by the learned counsel for the appellant was directed to assault, the finding of the learned District Judge reversing that of the trial Court regarding exclusive possession of the plaintiff-appellant over the land in dispute. In order to arrive at this finding, the first appellate Court has relied on Khasra Girdawari (Exh. P.10) produced by the plaintiff himself showing that about 80 Kanals of land out of this field number is lying as Ghair Mumkin Pahar and was not in exclusive possession of any share-holder but was instead recorded as Maqbooza Malikan. By relying on this piece of evidence, the first appellate Court has done no misreading. This finding of fact has been recorded on proper appreciation of the evidence on record and does not suffer from any infirmity. The mode and method adopted by the trial Court on the contrary was presumptuous and hypothetical. No valid exception, therefore, can be taken by the learned counsel for the appellant to the finding recorded by the first appellate Court. Moreover, the trial Court's finding to the contrary had been rightly reversed by the first appellate Court while relying on the Shart Wajib- ul-Arz. I have gone through this document with the able assistance of the counsel for the parties.
On a bare reading of this document, it is crystal clear that Mahaz owner can use the Shamlat land lying waste as a grazing ground for his cattle from the month of Har till the month of Katak.
Therefore, on no conceivable ground, the plaintiff could in such a state lay claim to be entitled to the exclusive use of the land in dispute.
11. The relief granted to the appellant by the first appellate Court after varying the decree of the trial Court is in conformity with the facts found and rights vesting in the plaintiff-appellant. The further plea of the appellant that the first appellate Court has disturbed the findings of fact arrived at by the trial Court without cogent reasons I also factually incorrect. The first appellate Court has given good and cogent reasons for reversing the findings of fact recorded by the trial Court. The ground seems to have been raised just for the sake of it and lacks factual basis.
12. In view of what has been stated above, the learned counsel for the appellant has failed to bring the case within clauses (a), (b) or (c) of section 100, C.P.C. So as to warrant interference in exercise of my jurisdiction in second appeal. The appeal is, therefore, dismissed with no order as to costs.