' This is defendant's second appeal arising from a suit filed by the respondents for possession of shamilat land measuring 321 kanals situated in village Doggar Aulakh Tehsil Bhakkar.
2. The respondents filed a suit for possession of shamilat land measuring 321 kanals situated in village Doggar Aulakh Tehsil Bhakkar alleging that they being the Aala Malkans in the village were the owners of the said shamilat land and that the defendants/appellants had taken possession of the land in dispute without any right or title, therefore, the plaintiffs were entitled to its possession in their capacity as Aala Malkans in the village. The suit was contested by the appellants who filed written statement in which they alleged that the plaintiffs were not Aala Malkans of the Mauza and even if they were proved to be so they had no proprietary rights in the land in dispute because they were only entitled to get haq malkana at the rate of Rs, 1/12/-. It was also alleged that the plaintiffs had never been in possession of the suit land and the defendants were co-sharers in the shamilat land in the village and since their possession was very old, therefore, they could not be ejected. The learned trial Court on the pleadings of the parties framed the following issues:--
(1) Whether the plaintiffs are Aala Malkan of the suit land? OPP.
(1-A) On proof of issue No,1, are the plaintiffs co-sharers in the shamilat land and as such are owners of the suit land? OPP.
(2) Are the plaintiffs only entitled to get haq malkana at the rate of Rs, 1/12/- from the defendants in respect of the suit land? OPD
(3) Is the suit land Shamilat deh and not shamilat mauza? OPD
(4) Is there any legal difference between shamilat deh and shamilat mauza? OPD
(5) Were the plaintiffs in possession of the suit land at any time? If not, what is its effect on the suit?
OPD
(6) Are the defendants malkan khewat-guzar and as such they are co-sharers in the Shamilat land? OPD .
(7) If issue No,6 is proved in favour of the defendants, then, are they owners of the suit land? OPD
(8) Whether the possession of the defendants over the suit land is old? If so, what is its effect on the suit? OPD.
(9) Relief.
' The parties led oral as well as documentary evidence. After appraising evidence the learned trial Court under issue No,1 held that the plaintiffs were among the Aala Malkans of the Mauza. This finding was recorded on the basis of the statement of the Patwari who was examined as P.W.1.
Under issue No,l-A it was held that the plaintiffs as among Aala Malkans were owners of the shamilat land but their shares were not determined and at the most they could be regarded as co-sharers. Issue No,1-A was answered accordingly. Regarding issue No,2 it was observed that no evidence was led by the defendants on whom the onus was placed, therefore, the said issue was decided against the defendants. Issues Nos.3 and 4 were decided against the defendants by holding that there was no difference between the two terms i.e, shamilat deh and shamilat mauza.
Under issue No,5 it was observed that as to whether the plaintiffs were or not in possession of land was of no importance as the defendants did not take the plea of adverse possession. This issue according to the learned trial Court had no bearing on the merits of the case, therefore, it was answered against the defendants. Under issue No,6 it was held that in the Revenue papers the defendants were recorded as G hair Dakhilkaran paying rent at basharah bawajah nau toor, therefore, it was held that the defendants were not owners of the land on the ground that they were Khewat Guzar. Issue No,6 was answered against the defendants. Under issue No,7 it was held that the defendants could not specify their rights in shamilat unless shamilat land was partitioned and the respective rights of the superior owners and inferior owners were mutually determined. It was held that the defendants had some rights in the land but they could not assert themselves as exclusive owners thereof. Issue No,7 was decided accordingly. Under issue No,8 it was held that the possession of the defendants over the land was very old, therefore, this issue was decided in favour of the defendants. Under issue No,9 it was held that since the plaintiffs were not yet exclusive owners of the land, therefore, they could not claim decree for possession as a consequence thereof the suit of the plaintiffs was dismissed through judgment, dated 1-5-1958. The learned trial Court also observed that he could not pass decree for ejectment against the defendants who though also were not entitled to retain possession as there was no such prayer made by the plaintiffs.
2. Feeling aggrieved the respondents/plaintiffs filed appeal before the learned lower Appellate Court against the judgment and decree of the learned trial Court whereas Gulsher one of the defendants filed cross objections challenging the findings on some of the issuess recorded against the defendants. The appeal of the plaintiffs and the said cross-objections were taken up together.
The learned lower Appellate Court through judgment, dated 204-1959 dismissed the suit of the plaintiffs for possession but at the same time held that the defendants having no right to retain possession therefore, a decree for ejectment was passed against the defendants with the direction that the defendants be ejected therefrom. The cross-objections filed by Gulsher were dismissed.
The learned lower Appellate Court in its impugned judgment held that the defendants were Adna Maliks in the village but since they did not take possession of the land in dispute with the consent of Aala Malkans, therefore, they could not be regarded as Adna Malkans of the land in dispute on account of which they had acquired some right in the land as Adna Malkan, therefore, the plaintiffs were not entitled to a decree for possession.
3. I have heard learned counsel for the both the parties. Learned counsel for the respondents/plaintiffs did not challenge during the arguments the findings of the two Courts below that the possession of the defendants/appellants over the land in dispute was very old. The learned lower Appellate Court did not recognize the defendants as Adna Malls of the land in dispute merely on the ground that they did not take possession of the land and brought it under cultivation with the consent of Aala Malkan i.e, the plaintiffs though they were held to be Adna Malkan in the village. In my view the learned two Courts below have not determined the question of taking consent for bringing the land under cultivation from correct point of view. A consent can be expressed and it can also be implied which can be gathered from the conduct of the parties. Since the defendants/appellants were admittedly in possession of the land in dispute since long and cultivating it, therefore in the absence of any evidence on the record produced by the respondents/Aala Malkans that they ever objected to the possession of the appellants who were Adna Malkan in the village during all this period is a conduct from which it can safely be presumed that they impliedly gave consent to the defendants to occupy the land and cultivate it. It has been held in Mitha and others v. Ghulam Hussain and others PLD 1949 Lah. 86 that Aala Malkan could not refuse to give consent or refuse to receive haq malkana of Rs, 1/12. The land in dispute admittedly being Shamilat land and there being no discretion vesting in the Aala Malkans to withhold consent to take possession and cultivate the land or to refuse to accept haq malkana therefore, their silence over the right of the defendants to occupy the land and cultivate it is stifficient to hold that their possession was with implied consent of the Aala Malkan, as such, the defendants/appellants were Adna Malkan of the land in dispute. The finding of the two Courts below to the contrary is not sustainable, therefore, is set aside. It is held that the respondents at the most were entitled to haq malkana and could not dispute or deny the status of the appellants as Adna Malkan of the land in dispute having been occupied by them with the implied consent of Aala Malkan who brought it under cultivation without any objection. The appellants could neither be dispossessed nor ejected from the land in dispute.
4. For the foregoing reasons this appeal is accepted. The judgments and decrees of both the Courts below are set aside. The suit filed by the respondents is dismissed with no order as to costs.
5. .