' SALEEM AKHTAR,J---This direct appeal arises from the judgment passed by a learned Judge of the High Court in RSA No. 157 of 1959 whereby the suit filed by the appellants praying for possession of the Shamlat land was dismissed.
2 . The appellants filed a suit for possession of Shamlat land measuring 321 Kanals situated in village Dogar Aulakh, Tehsil Bhakkar, pleading that they being the Aala Malkans in the Village were the owners of the said Shamlat land and the respondents/defendants had taken possession of the land in dispute forcibly without any right or title. They claimed possession as Aala Malkan in the village. The respondents denied their claim and contested the suit. They denied that the appellants were Aala Malkan of the Mauza and alternatively if they were so, then they had no proprietary tights in the land in dispute as they only could claim Haq Malkana. The possession of, the appellants was denied and it was claimed that the respondents were co-sharers in the Shamlat land and since their possession is very old, they could not be ejected. The learned trial Court held that the appellants were Aala Malkan but were not the exclusive owners. The respondents' possession was very old. The claim for possession was dismissed as the appellants not being in exclusive possession without partition of land such relief could not be granted. In the first appeal filed by the appellants the judgment and decree passed by the learned trial Court was set aside and relief of ejectment was granted. It was observed as follows:-- ' sharers in the Shamlat Dch. Similarly, I find that the defendants were Adna-malkan in the village, but there was no evidence that they had brought the land in dispute under cultivation with the consent of the Aala-malkan and therefore according to the Shart Wajib-ul-arz, pertaining to this village, the defendants, were not the Adna-malkan of the land in dispute. Had the defendants taken the possession of the land in dispute and had they brought it under cultivation with the consent of Aala-malkan, they would have acquired the rights of Adnamalkan in the land in dispute as well, but though they are Adnamalkan in the village, there is no evidence that they entered this land which is now in dispute and brought it under cultivation with the consent of the Aala-makan and as such their position so far this land is concerned is nothing better than an occupancy tenant.
Anyhow, since the defendants are also Adna-malkan in the village they might have some rights over the Shamlat land, such as the rights of grazing their cattle etc. Under these circumstances, the plaintiffs who are Alamalkan were certainly not entitled to take the possession of the land in dispute from the defendants without claiming the partition of the land in which the rights of Adna- malkan over the Shamlat land could he ascertained, but it does not mean that the defendants, who were only Adna-malkan in the village, had a right to bring Shamlat land under cultivation without the consent of the Aala-malkan and could retain its possession. The defendants cannot even retain the possession of the land in dispute as they have brought it under cultivation Without the consent of the Aala-malkan of the land in dispute. It is thus clear that the findings of the lower Court that neither the plaintiffs who were Aala-malkan could be delivered the possession of the land in dispute nor the defendants Could retain its possession was perfectly justified, but the finding of the lower Court that the defendant could not even be ejected from the Shamlat land as the plaintiffs had not claimed ejectment of the defendants In the suit could not be justified because the claim for possession is a wider claim and. If the plaintiffs are entitled to a lesser claim, then that claim can be decreed when the plaintiffs are found entitled to it. Certainly, the defendants are pot entitled to retain the possession of the land in dispute and they are liable to ejectment and the plaintiffs could be awarded a decree for the ejectment of the defendants, though they could not be awarded a decree for possession. In this connection PLD 1951 Lahore 92 may be seen wherein it was held that though the plaintiffs were not entitled to a decree for possession in their capacity as Ala-maliks still a decree for ejectment could be granted against the defendants who were entitled to retain the possession of the Shamlat land to Shart Wajib-ularz.
' In second appeal by the impugned judgment the learned Single Judge held that the respondents were in possession of the land in dispute since long and from the fact that being Adna Malkan in the village they are cultivating the land, implied consent of the appellants can be inferred and therefore the respondents could neither be ejected nor dispossessed. The appeal was allowed and appellants' suit was dismissed.
3. The findings of the trial and first appellate Courts are that the appellants/plaintiffs are the Aala Malkan and co-sharers in the Shamlat land and have never been in actual possession of the disputed land; the possession of the respondents/defendants, who are Adna Malkan, on the disputed land was very old. The respondents' possession on the disputed land was not with the consent of the appellants. The learned Judge of the High Court observed that the possession of the respondents was with the implied consent of the appellants. None of the Courts have given a clear finding that on what terms and in what manner the respondents occupied and started breaking the land.
4. The learned counsel for the appellants contended that the respondents being in occupation of the Shamlat land without the permission of the appellants cannot claim any right in the Shamlat land. Reliance was placed on Kauro v Mitha represented by Sulla and others (RSA No.1369 of 1943) pronounced by Mr. Justice Mehr Chand Mahajan of Lahore High Court on 20-4-1945. In this case the appellants were Adna Malkan who had "dug wells in the Shamlat land without the permission from the Aala Maliks and appropriated portions of Shamlat waste for their exclusive use." The respondents being the Aala Malkan filed suit for possession. The appellants had taken possession during the years 1902 and 1929 when Sindh Sagar Doab Act, 1903 was in force. It was observed as follows:-- "The defendants reclaimed the Shamilat waste during the period 1902-1929, that is the period of the currency of the Act and during which no rights could be acquired by an act of reclamation. That being so, they only became tenants-at-will under the proprietors of this land and they have been paying the proprietary dues. By mere possession, they cannot acquire any rights under the Wajib- ul-ari or otherwsie, Even after the repeal of the Act, they have not obtained the permission of the descendants of Sulla, nor did they pay any Nazrana. Therefore, they have not acquired any Adna Malkiyat in these lands under the terms of the Wajib-ul-arz. They are, therefore, neither Adna Maliks nor have they any other right in which they can remain in possession of these lands, their procedure was to approach the Aala Maliks, offer them Nazrana and take their permission after the repeal of the Act and if the Aala Maliks agreed to this course they could be allowed to remain in possession. But they have not chosen that course and did not even take up that position in their pleadings in these cases. The result therefore, is that the plaintiffs, whether they are exclusive owners of the Shamlat or not, are certainly entitled qua these persons,who could only appropriate the Shamlat waste with their permission, to turn them out of the lands that they have without any right occupied."
5. The Adna Malkan were ejected mainly on the ground that they had not obtained the permission of Aala Malkan. Reference has been made to another judgment by the same learned Judge of the Lahore High Court dated 20-4-1946 passed in RSA No. 1321/1943, Ghulam Hussain v Mitha deceased represented by his sons Sulla and others, copy of which has been included in Part II of the paper book. It relates to the Shamlat land of the same area as in the present appeal. It was observed that in Shamlat land the Adna Malik has a permissive right. The judgment has traced the history from the year 1860 but the dispute related to rights of Aala Malkan and Aala Khud Adna Malkan. It was observed that the determination of rights depended on the determination of the effect of proved documents and it was held:-- "It is sufficient to hold that the plaintiffs are not the exclusive owners of the Shamilat and that the defendants are not tenants-at-will under them and that the plaintiffs cannot exercise rights of absolute owners in the matter of dispossessing the defendants from these lands. It may be that the plaintiffs as well as the defendants have limited rights of ownership in the Shamilat Deh and that neither of them has a right to have it partitioned, or it may be that both these sets can join in partitioning the Shamilat waste in respective shares, those shares varying with the number of wells in the possession of each set. When the question of partition arises, the matter will have to be determined as to how the rights of other Adna Maliks in this area have to be safeguarded as the rights of non-proprietors which they obviously enjoy in the matter of grazing."
' This judgment was upheld in appeal which is reported as Mitha v. Ghulam Hussain (PLD 1949 Lah.
86). This judgment is of no relevance except that it gives the history of the land settlement from the year 1860. Reference has been made to Ghulam Haider v. Haider (PLD 1951 Lah. 92) in which Monir., C.J. (as he then was) has traced the entire history of Shamlat land and tenure in village Duggar Awan in Bhakkar Tehsil, District Mianwali with reference to Aala Maliks and Adna Maliks. It was held that Shamlat land in this village did not belong to the Ala Maliks and therefore their claim for exclusive ownership was not accepted. However, a decree for ejectment instead of possession was granted.
6. We have noted a judgment of this Court in CPLA Nos. 823-L and 824L of 1990 (Haji Ladhoo and others v. Member, Board of Revenue, Punjab, Lahore). The question for consideration was whether Sullah and other petitioners in pursuance of para. 6 (d) of the notification issued under subpara. 5 of para. 4 of the West Pakistan Land Reforms Regulation were entitled to be considered as full proprietors of the entire Shamlat land. The entire hierarchy of Revenue Authorities maintained that as in column 5 of Jamabandi the words "Shamlat Deh" figured, such property belonged to the entire proprietary body of the village and therefore full proprietary rights cannot be conferred on the Aala Malkan to the exclusion of Adna Malkan. The petitioners challenged the order of the Member, Board of Revenue in a Constitution petition which was dismissed by the High Court. The petition for leave to appeal filed by the petitioners was dismissed with the following observations:-- "The proprietary body in the village consists of three categories, namely, Aala Maliks, Aala Khud Adna Maliks and Adna Maliks. As Shamlat belonged to the whole village and would be vesting in the entire proprietary body comprising the aforesaid three categories, we agree with the High Court that mention of "Shamlat Deh" in column No.5 of the Jamabandi is synonymous with the entire proprietary body of the village which alongwith Aala Maliks also includes Aala Khud Adna Maliks and Adna Maliks."
7. In view of the finding of the Courts that the appellants are Aala Malkan without being exclusive owners, the land is Shamlat Deh and there being no finding of evidence that the respondents had broken the land with the permission of the Aala Malkan, the appellants would not be entitled to a decree for possession. They are however entitled to a decree for ejectment in the facts and circumstances of the case and as the respondents themselves had not pleaded that the appellants had accorded implied permission, no relief can be granted on that basis.
8. The learned counsel for the respondents contended that even if a decree for ejectment is passed in view of West Pakistan Land Reforms Regulation, 1959 (M.L.R. No. 64) the Aala Milkiyat right of the appellants has been abolished under paragraph 22 thereof, and therefore the decree has become inexecutable. Paragraph 22 Oreads as follows:-- "Para.
22. Intermediary interests. ---Ala-Milkiat, and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person affected by the abolition."
9. The appellants have based their claim on their "Aala Milkiyat" right and as it has been abolished, their claim for possession cannot sustain. Para. 3 of the Regulation makes the provisions of the Regulation and any Rule or order made under it effective notwithstanding anything contrary to any law or any order or decree of the Court. The Regulation overrides all orders or decrees of the Court or rules of custom or usage which are contrary to its provisions. The learned counsel has referred to an unreported judgment in Execution Second Appeal No.712/1967 (Sullah and others v. Ghulam Husain) in which similar question arose and Muhammad Gul, J (as he then was) referring to paragraphs 3 and 22 of the Regulation observed as follows:- "The provisions of this paragraph are peremptory and all embracing. On its plain reading it is equally applicable to decrees of Court notwithstanding the fact that such decrees have attained finality. It was common ground between the parties in the lower Courts that the decrees were put into execution after coming into force of the Martial Law Regulation, and having regard to the nature of the right on the basis of which the decrees were passed in favour of the appellants, I have no doubt in my mind that these decrees were rendered absolutely ineffective under paragraph 22 read with paragraph 3 of the Regulation. Indeed, the two paragraphs are unqualified in their application and it is difficult to imagine how the appellants' case can be excepted from the combined operation of the two paragraphs."
10. With the coming into force of Martial Law Regulation No.64 any decree passed in favour of the appellants on the basis of their Aala Milkiyat cannot be executed and will be rendered absolutely ineffective. In these circumstances, no decree either for possession or ejectment of the respondents can be passed in favour of the appellants.
' The appeal is dismissed.