ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances: Azmat predecessor-in-interest of the appellants sold 1/3rd of his 2/3rd share in the well situated in village Gulkala, Tehsil and District Bhakkar in favour of Nama predecessor-in-interest of the respondents on 22-1-1882. Azmat owned, alongwith the share in the well, land measuring 145 kanals in the aforesaid village. In proceedings of partition for the Shamilat, the respondents were given 2626 kanals 1 marla vide Mutation No.354 dated 18-4-1959. Appellants filed a suit for possession of the Shamilat land on 27-7-1960 on the ground that in the sale aforementioned Shamilat was not sold. On 7-2-1961, the respondents filed a written statement claiming that Shamilat to the extent of 1/3rd was also included in the sale deed. The learned trial Court framed the following issues: "(1) Whether the plaintiffs' predecessor-in-interest had not sold the land in suit to the defendants' predecessor-in-interest? OPP.
(2) Whether the plaintiffs have been in possession of the land in dispute within 12 years of the institution of the suit? O.P.
(3) What is the effect of the circumstance of Amir Hussain Shah's not joining as plaintiff upon the present suit?
(4) Is the suit not maintainable in the present form? O.D.
(5) Whether the plaintiffs are estopped from bringing the suit by their word or deed?
(6) Relief."
Thereafter the respondents filed an application on 29-6-1961 for amendment of the written statement to say that after the aforesaid sale their predecessor-in-interest at their own expense had broken the land and cultivated it. This was forgotten to be mentioned in the written statement.
They also sought framing of additional issues. The application was dismissed by the learned trial Court on 26-7-1961. On their revision-petition, a learned Judge of the Lahore High Court dismissed the application as regards permission to amend the written statement but as regards the prayer for additional issues, he directed the striking off Issue No.1 and substituting it by: "(1) Did the predecessor-in-interest of the defendants (Nama) purchase the rights in the village shamilat from the predecessor-in-interest of the plaintiffs (Azmat) alongwith the share in proprietary area by means of the unregistered sale-deed, dated 22nd January, 1882?
(1-A) Had the land transferred by the said Azmat to the predecessor-in---interest of the defendants been acquired by him from the Government on certain conditions? Did the predecessor-in-interest of the defendants hold that land after the sale on the same conditions and did he or his successors-in-interest fulfil the conditions on which the land was so granted?
(1-B) Have the defendants become owners of the one-third of the land sold by the said Azmat as well as of the proportionate share in the village shamilat and were they entitled to have their share separated at the time of the partition?"
The learned trial Judge held under Issue No.1 that the Shamilat was not sold alongwith the proprietary land. Issues Nos. 1-A and 1-B were taken up together and it was held that the defendant's predecessor-in-interest did not become the owner of the Shandlat land in suit alongwith Adna Malikiat. The findings under Issues Nos. 2 and 3 were that the suit was not barred by time as it was governed by Article 144 of the Limitation Act. Other issues were also found in favour of the plaintiffs-appellants. The suit was accordingly decreed vide judgment and decree dated 14-7-1964. On defendant's appeal, the learned District Judge held that "the appeal must succeed as it is not proved that the land in dispute detailed in the heading of the plaint was allotted to these defendants in lieu of that land sold by Azmat in favour of Nama:" The learned Judge held under issues Nos.1, 1-A and 1-B that "it was not proved that Azmat ancestor of the plaintiffs had sold that land to Nama in lieu of which the land in dispute was allotted to the defendants. I also hold that it was only a share in the well which was sold by Azmat to Nama and not the land. Azmat was not possessed of any shamilat rights at that time in land bearing Khasra Nos. 1, 2, 4 to 9, that he alongwith Nama were owners in the well on the basis of which some land was acquired by the predecessor-in-interest of these defendants and Azmat, and they became the owners of the land by fulfilling the conditions by virtue of which they became also sharers in the Shamilat under the terms of the wajib-ul-Arz and Muafi conditions. My further conclusion is that the land in suit was not allotted to these defendants on account of any purchase of land from Azmat ancestor of the plaintiffs and in this way issues Nos. 1, 1-A and 1-B, would be taken as misconceived."
On issues Nos. 2 and 3 it was held that suit could not be taken as time-barred. He also upheld the findings under Issues Nos.4, 5 and 6. In view of his findings in respondent of Issues Nos. 1, 1-A and 1-B above-quoted, he allowed the appeal, and dismissed the plaintiffs suit vide judgment and decree dated 22-3-1965. The plaintiffs filed RSA No.529 of 1965. Learned Judge of the Lahore High Court observed that "the simple point involved in the case is whether on the basis of the sale made the defendants' predecessor-in-interest could be said to have acquired right in the Shamilat." As regards the finding of the learned District Judge that the land given in partition to the respondents was not with reference to the land purchased by them, the learned Judge observed that that "was wholly irrelevant." He held, "It was only a share in the well which was sold by Azmat to Narna and not the specified land. Azmat was not in possession of any shamilat right at the time in land bearing Khasra Nos.1 to 5. Both Nama and Azmat had become owners of that land by fulfilling the conditions by virtue of that they became sharer in the shamilat under the terms of Wajib-ul-Arz and Muafi conditions already referred to above." He affirmed the findings on the aforesaid issues.
Section 3 of the West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 (Ordinance I of 1959), was found to be not applicable. The learned Judge concluded that "the very basis on which the suit proceeded there is no justification for the plaintiffs to claim the land acquired by the defendants on account to their share in the land in the Chah Bammawala to deprive them of their corresponding share in the shamilat and that both Azmat and Nama had acquired equal rights in the land." Thus, he dismissed the appeal vide judgment and decree dated 14-5-1980.
2. Learned counsel for the appellants has submitted that a simple case has been made complicated unnecessarily. Appellants' predecessor-in-interest Azmat had sold 1/3rd of his 2/3rd share in the well. Alongwith it went the land to the same extent out of the holding of Azmat, which was 145 kanals. The suit was that since in the sale Shamilat was not included, the vendee Nama predecessor-in-interest of the respondents had no right to claim proportionate share of 1/3rd of land purchased by him in the Shamilat. In the written statement, in the first instance, the respondents based their claim that their predecessor-in-interest had purchased alongwith the land the proportionate share in the Shamilat. Realising that that was not so factually and could not be deemed as corrollary of the sale in view of the provisions of section 3 of Ordinance I of 1959, they applied to amend their written statement. The application was dismissed by the learned trial Court and so also on revision by the learned High Court. In this view of the matter, the case should have been decided accordingly that the Shamilat was not sold with the share in the well and the land attached with it, and, therefore, the appellants were entitled to proportionate share in the Shamilat when it was partitioned in 1958. It was next contended that it has wrongly been assumed by the lower Appellate Court that "Azmat was not in possession of any Shamilat right at the time in land bearing Khasras Nos.1 to 5". Shamilat was Shamilat, common village property. Every holder of land in village obviously has a share in the Shamilat. The fact that after fulfilling terms and conditions of Wajib-ul-Arz and Muafi, the land-holding matured into Malkiat did not mean that the landholders had not earlier share in the Shamilat. Learned counsel concluded that the case was totally misconceived.
3. Learned counsel appearing for the respondents submitted that the Shamilat was under the Punjab Consolidation of holdings Act partitioned vide the order of the Consolidation Officer dated 30-3-1957 in pursuance of which mutation was sanctioned in favour of the respondents. Therefore, the suit challenging the mutation did not lie and any challenge to the order of the Consolidation Officer was barred under section 26 of the aforesaid statute. He secondly, contended that West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 is in conflict with the Punjab Consolidation of Holdings Act, and, therefore, the latter statute will prevail over the former to the extent of inconsistency. It was thirdly contended that Muafi was forfeited in 1901 and both Azmat and Nama had applied for restoration which was allowed. Therefore, there was no question of sale in 1882 of the share in Shamilat. He fourthly contended that the Ordinance of 1959 passed under the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, cannot have retrospective effect prior to 1947, so as to adversely affect the sale of Shamilat under custom recognized by the Punjab Laws Act, 1872. Vested rights cannot be affected retrospectively under Sharia in view of the Constitutional mandate. He relied on Aziz A. Sheikh v. Commissioner of Income-Tax Investigation PLD 1989 SC 613 and Qazalbash Waqf v. Chief Land Commissioner, PLD 1990 SC 99.
4. In reply the learned counsel for the appellants submitted that no new case can be set up which was not pleaded by the parties, in the first instance. He relied on Choudhary Brothers Ltd. v.
Jaranwala Central Co-operative Bank Ltd. (1968 SCMR 804).
5. The contention of the learned counsel for the respondents that the mutation impugned was sanctioned in pursuance of the order of the Consolidation Officer dated 30-3-1957 passed under the Punjab Consolidation of Holdings Act, 1936 and could not therefore be challenged in the Civil Courts is not quite correct because the suit did not seek to challenge the order of partition or allocation of the land but it was for possession of land on the basis of title. The question of West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 being inconsistent with the Punjab Consolidation of Holdings Act does not arise. Both operate in their separate fields. As regards the forfeiture of Muafi in 1901 it was on the application of both vendor and vendee, i.e., Azmat and Nama for restoration which was allowed, thus it had no effect on their rights previously held. As regards the contention that Ordinance I of 1959 cannot have retrospective effect prior to 1947, or that vested rights cannot be affected retrospectively under the Sharia, it need only be said that the argument is based on the premise that rights in the Shamilat passed under custom with the sale in 1882 and these vested rights cannot be affected retrospectively. Not only no such custom was pleaded or proved nor there is any such custom recognized in any law. The Ordinance only clarified that alongwith the sale Shamilat will not be taken to have been conveyed unless so specifically stated. Therefore there being no vested right accruing under the sale question of its being affected retrospectively did not arise.
6. After hearing the learned counsel for the parties at length and perusing the relevant record with their assistance, the decisive facts are that alongwith the sale of a share in the well proportionate land also went to the vendee. It is on this basis that successors-in-interest of the vendor and vendee have been given proportionate share in the Shamilat. Therefore, to say that land was not sold, or that by cultivating it the respondents acquired rights of ownership in the land is out of mark as regards disposal of Shamilat land. The fact of the matter is that Azmat sold 1/3rd,of his share in the well alongwith proportionate land of his holding which was 145 kanals. Now the question is whether the vendee, predecessor-in-inte.Rest of the respondents, in view of the sale of the land in his favour is entitled to a share in the Shamilat. Not only it was not sold vide the written sale-deed dated 22-1-1983 but section 3 of Ordinance I of 1959 clarifies the position that alongwith sale of land, share in the Shamilat shall not be taken to have been conveyed unless it was so specifically stated. It was nobody's case that it was so specifically stated.
7. In view of the above, we find that in the circumstances of the case as appear from the evidence on record, the plaintiffs-appellants' predecessor-in-interest Azmat having not sold, in fact, share in the Shamilat, nor can it be taken to have been conveyed in terms of the provisions of West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959, they were entitled to a decree. In this view of the matter, the judgments and decrees of the Courts below are set aside and the suit of the appellants decreed. However, in the circumstances of the case, the parties are left to bear their own costs.