SHAFIUR RAHMAN, J.---In all these four appeals filed by the plaintiffs leave to appeal was granted to examine whether the appellants by purchasing specific plots out of the Shamlat property could not be deemed to have become the members of the village proprietary body and as such were entitled like the original proprietors to a share out of the Malikana of the trees cut by the Forest Department from the Shamlat land classified as waste land. The plaintiffs have been denied by the High Court and the first appellate Court the right to have a share in the Malikana of the trees so cut.
Reliance was placed for their claim by the appellants on the decision in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 in order to establish their co-sharer ship in the entire Shamlat land on the strength of such a purchase.
2. The plaintiffs/appellants had the three alternative grounds on which they had based their claim to a share in the Malikana of the trees cut from the Shamlat and Their first claim was that they were successors-in-interest of Ahmad Eli Larki, one of the original proprietors, so recorded in the Wajibul Arz and the pedigree-table of 1872. He being the founder and the original proprietor of the Shamlat land and of the village was recorded to be entitled to the Malikana of the trees cut alongwith others. As successors-in-interest, the plaintiffs claimed to have inherited from him the character of the original proprietor of the village and as such entitled to share alongwith others, the original proprietors, Malikana. The second ground was that they were recorded as occupancy tenants of the specific Khasra numbers of which they had become complete owners under the N.-W.F.P.
Tenancy Act, 1950 and having become the complete owners, they were entitled to have the full value of the trees cut and removed from their proprietary land of which they were erstwhile occupancy tenants. The third ground which finds mention in the leave granting order was that they having purchased specific Kliasra numbers out of the Shamlat land had become thereby co- sharers in the Shamlat and as co-sharers of the Sliamlat land they were entitled to all the benefits to which the original proprietors and other co-sharers of the Shamlat were entitled. These grounds find expression in Civil Appeal No.41 of 1987 in the following words:-- "The suit land is comprised in Khasra Nos. 2674, 2675, 2767, 2769, 1782, 1792, ?_5.54, 2555 and 2573.
The claim of the plaintiff/appellant is three-fold. The first pillar of his claim is that Khasra Nos. 2674, 2675, 2767 and 2769 are Shamilat and by purchasing the same in the cultivation column he and the pro forma defendants have become members of village proprietary body and as such entitled to get a share out of the Malikana of the trees. The second facet of the plaintiffs claim is that after having become full owner of the remaining suit Khasra numbers with the passage of N.-W.F.P.
Tenancy Act, 1950 he has become a co-sharer in Shamilat property and tile third aspect of his claim is that he is entitled to get a share out of the Malikana of the trees as a right-holder because his ancestors were amongst the first settlers."
3. In all the four suits, the main contest entered round the issue on merits that is `whether the plaintiffs were entitled to the declaration called for'. Except for the Civil Suit No.334/1 of 1969 leading to Civil Appeal No.42 of 1987, their claim was dismissed, notwithstanding the grounds taken up by them having been partly found established because going back to the history of the tenure, the custom and the law applicable to the parties in the village. It was held that except for the original proprietors, which the plaintiffs were, none else was entitled to share the Malikana of the trees. In one civil suit alone (Suit No.334/1 of 1909) the trial Court decreed their claim and this was done on the strength of their being occupancy tenants and the occupancy tenancy having been converted in the full ownership by the N.-W.F.P. Tenancy (Amendment) Act. This finding in Civil Appeal No.42, in the order of Senior Civil Judge finds mention in the following words:-- "Hence, the net result of the above discussion is that after the extinction of occupancy tenancy and becoming full owners the names of the plaintiff and pro forma defendants should have been entered in the ownership column without any reservation or restrictions. The addition of the words 'Malik Qabza' was unwanted and unwarranted. The Revenue Record entries to this effect arc wrong and void."
The appellate Court, however, took a uniform view in all these appeals holding that the plaintiffs had not been successful in establishing their claim. Reliance was placed on the decision of this Court in Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325 as reflected in Civil Review Petitions Nos. 17-R and 18-R of 1975. The appellate Court recorded the history of the land, tenures and the entitlement of the parties which is substantially correct and is based on an accurate reading of the record and it is as hereunder:-- "The estate of village Bhoonja, which contains considerable Shamilat land some being under forest has got an interesting history reflected in the pedigree-table prepared at the time of Settlement of 1872. According to the chapter pertaining to the acquisition of proprietary rights and partition of land, the estate of village Bltoonja consequent upon a partition effected between the members of the Swati Tribe fell to the lot of a branch of that Tribe called Sirkhaily which got its possession through tenants belonging to Larki Tribe and used to receive `Kalang' from them during the regime of Sikhs. Two Khans named Shamsi Khan and Inayat Khan who were Dadwal by caste used to live in a village called Inayat Abad. That village they gave in exchange to Sirkhaily Tribe for village; Bhoonja and became owners of village Bhoonja but did not eject the tenants in possession of the estate of village Bhoonja under Sirkhaily Tribe and also did not deprive Ahmad Ali Larki, the then Chief of Larki Tribe of the concessions extended to him by the Sirkhaily Tribe and for that reason he continued to enjoy the status of a Muaqaddam. During those days Jori (plough) was the unit of measurement of land. The elders of Dadwal Tribe who had become the owners of village Bhoonja in exchange and Ahmad Ali Larki effected a private arrangement as a result of which Shamsi Khan Dadwal got 8 Joris, Inayat Khan Dadwal and Ahmad Ali Larki got 4 Joris each and the respective area in their possession came to be known as three Tarafs. In sambat 1910 year 1844 Dadwal Tribe sued Ahmad Ali Larki as a result of which he was ejected from 3 joris and became Malik Qabza of one Jori. The Taraf known as Taraf Ahmad Ali Larki was sub-divided into three Tarafs called Taraf Qamar Ali Khan, Taraf Najaf Ali Khan and Taraf Rehm Khan each consisting of 5 Joris while Ahmad Ali Larki was allowed to retain one Jori as Malik Qabza. It was also agreed upon between the parties that the Shamilat land shall remain the ownership of the original owners namely members of Dadwal Tribe. At the time of Settlement of 1904-05 a Wajibul Arz was prepared which contained it clause (Dafa Soam) regarding the apportionment of the Malkana of the trees according to which the Malkana is to be distributed between the owners of the three Tarafs namely Taraf Qamar Ali Khan, Taraf Najaf Khan and Taraf Rehm Khan in equal shares through their Lamberdars and for that purpose the area was divided into three sets each consisting of six Joris."
The District Judge, as the first appellate Court in all the appeals negatived the claim of the plaintiffs on all the three grounds that were advanced in support of it.
4. The High Court by the impugned judgment dismissed the revision petitions following in substance the decision of the Court given in the case of Sajawal Shah and another PLD 1975 SC 325.
5. Maulvi Sirajul Haq, Senior Advocate, the learned counsel for the appellants has contended that being co-sharers in the Shamilat on the strength of the decision in the case of Muhammad Muzaffar Khan PLD 1959 SC 9, the appellants were entitled to all the benefits to which other co- sharers of the Shamilat were entitled. Besides, it is contended that tile entries of the Wajibul Arz could have sanctity, finality and effectiveness only if all the co-sharers concerned had consented to it. In the present case, according to the learned counsel, it was established that the predecessor-in-interest of the appellants had not consented to such entries. Besides, these entries under challenge in the Shariat Court on the ground of being un-Islamic, that a proprietor of land should be deprived the benefit of the sale of the trees standing on his proprietary land Finally, the learned counsel has heavily relied oil the N.-W.F.P. Tenancy (Amendment) Act of 1950 which made the tenants the full owners and as an incidence of full ownership notwithstanding the entries of the Wajibul-Arz the learned counsel claims for the plaintiffs, the right to share and benefits from the Malikana of the trees sold by the Forest Department and the amount which is awaiting distribution.
6. There are three copies of Wajibul Arz on record. The first is of 1872, the second is of 1904 and the third is of 1946. The case as presented before the trial Court was that the predecessor-in-interest of the appellants/Ahmad Ali Larki, was one of the founders of the village the original proprietor and entitled to share Malikana in that capacity and the appellants had succeeded to it. This was negatived not by reference to Wajibul Arz of 1872 but by reference to the subsequent two Wajibul Arzs, which superseded. It appears that by 1904, this Ahmad Ali Larki had lost his position as an original proprietor and founder of the village and had instead come to be recorded as a mere Malik Qabza with none of the rights of 1872 Wajibul Arz attaching to his ownership in the village. The three Courts have concurrently rejected this aspect of the case of the appellants and the learned counsel for the appellants has not seriously contested it. In any case, such a ground taken up after about half a century of the entry would not be of avail.
7. The second ground very forcefully urged is that the occupancy tenants who had become full owners under the law could not be deprived of the rights under the statute by denying them the share of the Malikana of the trees cut from their lands, be it Shamilat or proprietary. This aspect of the case was considered in the review applications (Civil Review Petitions No.17-R and 18-R of 1975) filed by Sajawal Shah and another and Syed Rahim Shah and others against each other in the following words:-- "There is no question here of paragraph 3 of the Wajibul Arz having been allowed to override the statutory provisions as contained in section 4 of the Tenancy Act, 1950, read with Rule 6 framed there under. The effect of both these provisions obviously was to make the defendants the full owners of the land comprised in their occupancy holding, but their entitlement to the sale proceeds of the trees in question was obviously to be determined with reference to the provisions contained in section 27(2) of the Ha7.Ara Forest Act read with the relevant custom as contained in paragraph 3 of the Wajibul Arz of the village . ... In this capacity, therefore, even though they were full owners of the Khasra number on which the trees stood, they were not entitled to any share in the sale proceeds in view of the provisions embodied in paragraph 3 of the Wajibul Arz . ... It seems to us, therefore, that there is no merit in the submission that the Court has not given full effect to the operation of section 4 of the Tenancy Act, 1950, and Rule 6 framed there under in regard to the ownership rights acquired by the defendants on the extinction of their occupancy rights. The term `full owner' as used in this provision of law does not give them any status superior to the one described by the term `Malikan-e-Qabza', who do not share in the Shamilat of the village, but otherwise have full ownership rights in the land possessed by them. The question of the sharing of the sale proceeds of the trees is, however, governed by other laws and customs and not by the provisions contained in the Tenancy Act:'
8. We may point out here that in three connected appeals (Civil Appeals No. 302 and 304 of 1983) filed by Noor Ahmad deceased through his legal representatives, etc. Etc. Where occupancy tenants enjoyed a right to Malikana in respect of trees on their tenancy, we have allowed them the same rights even after their becoming full owners under the Tenancy Act, vide our judgment dated 6-12-1990. No such right was enjoyed by the appellants in the capacity of occupancy tenants which could have been preserved or continued even after their becoming full owner.
9. We find that though a number of other rights like grazing of cattle etc., from the Shamilat land were also claimed in the suit, these were only incidental and what was directly and consistently challenged and controverted in all the Courts was not these rights but the sharing of the Malikana rights in the trees cut. In the circumstances, this judgment should not be treated as conclusive with regard to those incidental rights because the entries with regard to them in the Wajibul Arz are different and these rights were not much in contest.
10. The third ground taken up for the first time in the Supreme Court is on the basis of a pre- emption case decision whereby on purchasing a specific portion of the joint property, the purchaser becomes a joint owner alongnvith others previously owning it. From this it is sought to be concluded that they come to possess the same rights and not any degree less than those other joint owners. How a person even after full ownership or joint ownership may not get a share in the Malikana, has been demonstrated in the case of Sajawal Shah, where the occupancy tenants made owners in spite of becoming full owners were not treated as founders of the village. As the entitlement in respect of Malikana of trees follows the entries in the Wajibul Arz and there is nothing in the Wajibul Arz to help the appellants, they cannot rest their claim on other events not affecting the entries of the Wajibul Arz,
11. The learned counsel for the appellants finally contended that the custom incorporated in the Wajibul Arz as interpreted in Sajawal Shah's case and advanced in these appeals is repugnant to injunctions of Islam being derogatory of the owners' title and interest in the property and a matter in Shariat jurisdiction is already pending on this subject. This may be so, but as long as the law does not case to be law after having been finally declared to be repugnant to injunctions of Islam, it cannot be ignored or avoided.
12. We find no merit in the appeals and the same are dismissed with costs.