ABDUL HAKBEM KHAN. J: -Azizur Rahman and Yaqoob Khan sons of Abdul Aziz of Lambi Dhari- cum-Sheikhulbandi brought a suit against Attai Khan and others for a declaration that they are in possession of the land in suit in the area of Sheikhulbandi as owners on account of Seri, and in case they are not found to be owners, they had prescribed title over the land on account of their adverse possession for a period extending over 12 years.
2. The following two issues were settled in the case:
(1) Whether plaintiffs are in possession of the suit land as Seri Khuran and as owners of the suit land and that the entries showing them as tenants-at-will are incorrect and inoperative against their rights?
(2) In case issue No. 1 is not proved whether plaintiffs have become owners of the suit land through their adverse possession for a period of more than 12 years?
3. The learned Civil Judge Ist Class, who decided the case, found both the issues against the plaintiffs and dismissed their suit with costs. The learned trial Judge observed that the entries in the revenue record which showed the plaintiffs to be in possession "belalagan bawaja Seri" were obviously wrong, for it was admitted that neither the plaintiffs nor their grandfather have peen performing the duties of Imamat. The learned Judge further added that the plaintiffs never occupied the property in clear denial of the title of the true owners; rather they held it under a mistake believing that they were entitled to it.
4. The plaintiffs preferred an appeal to the District Judge who discussed both the issues together and came to the conclusion that the possession of the plaintiffs was in denial of the title of the true owners and was adequate in continuity, publicity and extent. It was for a period exceeding 12 years and, therefore, the plaintiffs had acquired indefeasible title to it. On the view of the matter that he took, the learned District Judge accepted the appeal and granted a decree to the plaintiffs with costs throughout as prayed for.
5. Attai Khan and other defendants were not satisfied with the finding of the District Judge and they preferred R. S. A. No. 397 of 1964. This appeal was accepted by a learned Single Judge of the erstwhile High Court of West Pakistan on 8-4-1969. The learned Judge was of the view that the Courts below had not proceeded in determining the question of adverse possession on sound principle. The learned Single Judge referred to the revenue record of the preceding settlement so as to determine the nature of possession and came to the conclusion that the fact that the remarks column in certain cases was blank and the entries had been eaten up by white-ants in the Jamabandi of 1912-13 were in consequential; for the case of both the parties was that the entire land in dispute had originally been given to the ancestors of the plaintiffs for the services rendered as Imam. Furthermore, the parties agreed that at present the plaintiffs were not rendering any services to the mosque. Rather it was admitted by the plaintiffs in their written statement in a previous suit filed in 1949 that their father had given up Imamat during his lifetime. The learned Judge added that it was not clear from the entries in the revenue record as to whether the land had been given to the ancestors of the plaintiffs for services as Imam or for some other similar services as well. On the view of the matter that the learned single judge took he proceeded on to say that the possibility was there that the family of the plaintiffs had been rendering services even though its members ceased to serve as Imam. This possession was, therefore, considered to be permissive to start with and in the circumstances it became the burden of the plaintiffs to discharge as to when and how the possession became adverse.
6. The plaintiffs were not satisfied with the decision of the learned Single Judge and they sought a certificate for the Letters Patent appeal from his Lordship The contention raised on behalf of the petitioners impressed the learned Single Judge and he granted the certificate prayed for observing "an important question with regard to the interpretation of the seri grant is involved in this case and that a more authoritative pronouncement of this Court would be desirable."
7. Before we proceed to discuss the implications of a Seri grant we should like to determine as to whether the plaintiff-appellants claimed the disputed land as Seri grant and that it was in fact a Seri grant. This is necessary because the learned counsel for the defendant-respondents submits that the land was held by the plaintiff appellants on account of Imamat and that they and their predecessors-in-interest have not been paying rent for a part thereof for that reason. A reference to the plaint will show that apart from the recitals in the head note of the plaint, the plaintiffs in para. 1 of their plaint made a categorical assertion that the disputed land was in their continuous possession since the time of their great grandfather on account of Seri and that from time to time they have been mortgaging a part of the land in dispute. Their great grandfather was Imam Masjid of Hundi Guramzai and before that the land was given the status of a Seri, it belonged to the owners of that Hundi. The reply which the defendant Attai Khan, who was defending the suit in a representative capacity gave to this paragraph is that it was correct that the great grandfather of the plaintiffs was Imam Masjid but he died 60 years ago and that his services stand terminated.
The plaintiffs have never been the Imams and they did not possess the right claimed by them. It will be seen that in this para. He did not deny the specific allegation of the plaintiffs that the land was owned by their great grandfather as Seri and that they were in its continuous possession He also did not deny that they have been mortgaging it. The assertion made by the plaintiffs gets further support from the plaint that had been filed by Attai Khan and others defendants in a suit for possession with respect to this very property (we refer to 310/1 of 1949 Civil Judge, Abbottabad); in para. 1 whereof they admitted that Azizur Rahman and Yaqoob were holding the land as Seri without paying rent and that Sheikh Badrul Islam defendant No. 1 was possessing the land on account of a mortgage in his favour by defendants 2 and 3 (present plaintiffs). This admission of the defendants is not casual, for the Misal Haqiat of 1948-49 (copy Exh. P. W. 2/2) and the Jamabandi of 1953-54 (we refer to column of lagan) also show that the land was Seri. It is true that in the extract of jamabandis for 1904-5 to 1942-43 the land in dispute is not mentioned as Seri but the entries are by and large consistent when these show that the rent was not being paid on account of Imamat. The entries in our view will rather explain why in the current settlement of 1948- 49 the land was shown as Seri. For the reason we are clearly of the opinion that there is no merit in the contention raised on behalf of the defendants that the land was not a Seri grant. It indeed does not lie in the mouth of the defendants to say so when they themselves procured the "sehat milqiat" mutation 15240 for the purposes of the current settlement and immediately thereafter in the aforementioned suit for possession asserted that the land was held by the present plaintiffs as serf without paying any rent. A reference to the written statement of the present plaintiffs in that case (copy Exh. P. W. 2/2) would show that even at that time the present plaintiffs asserted that the land belonged to them as Seri and that they were not paying any rent.
8. The learned counsel for the appellants placed on record a photostat copy of the judgment of the Judicial Commissioner's Court in Civil Revision 233 of 1917 decided on 7-1-1918, wherein it was held that the status of serikhors usually carries the rights of malik-e-qabza. This Judgment was given by the Judicial Commissioner when he was moved against the decision of the Divisional Judge dated 17-8- 1917, wherein he had observed that the ancestors of the plaintiffs before him were Serikhors and as such they were Malekan Qabza as it will appear from the Hazara Settlement Report of 1868- 74 (page 122), The learned Divisional Judge observed that Malekan Qabza do not enjoy all the privileges of a member of the regular village proprietary but are full owners of their holdings. He further added that this view had been adopted in previous rulings of his Court and he did not see any reason for holding differently. The photostat copies of the two judgments are being exhibited as Exh. L. P. A. I and Exh. L. P. A. II. We have been able to secure the Report of the Land Revenue Settlement of the Hazara District by Captain E. G. Wace 1868-74 from the Director Archive N.-W. F. P., Peshawar. In Para. 70 on page 155 of the Report Captain Wace gives a list of the principal terms locally applied to rights and occupancies in the soil, not elsewhere noticed. Terms in common use in the rest of the Punjab as well as Hazara were omitted by him. Mr. Wace translated the expression "Seri" as "grant" and said that this expression was 'generally used of lands granted in ownership to religious characters; is also applied to grants to a chief in excess of his 'wirasat' tribal share, or to other service grants'.
9. To clarify the matter further we should like to quote the relevant paragraphs on pages 121 and 122 of the report and they read: "The Malik Kabza is, as the name indicates, the proprietor of his holding only. He is ordinarily hot chargeable with any rent, except the revenue demand and cesses due on his holding; but he is not a member of the coparcenary body of village proprietors, and can claim no interest in the village common, except the user of gracing wood and grass to the extent of his personal wants.
This tenure, which exists not only in Hazara, but also in the adjoining districts of the Rawalpindi Division, is one that has from time to time excited unfavourable comment. The objection urged against it is that it creates a breach in the common responsibility of the village owners for the punctual payment of the States Revenue, that is to say, that it recognizes a class of owners who do not share this responsibility. My own view of the tenure is that it does not in fact have this effect. The objections urged against the tenure seem to me to give it a higher status than it really possesses.
The Malik Kabza is not on the same footing as the members of the village proprietary body. He is in fact an occupant holding subordinately to the proprietors, but whose status and position so nearly approach that of the true proprietors as to enable him to retain all the profits of his holding.
The terms by which we describe the tenure (Malik Kabza) no doubt dates from our own rule. But the tenure itself is not our creation. The stronger the old proprietary bodies are, the more jealous they are of the admission of outsiders to the same privileges as their own. But in examining the tenures of a tract we frequently meet with individuals who, by favour of the proprietary body, or by the help of extraneous influence, have held their land for generations or years free of rent. Such were the 'Teri' (sic) (corrected as Seri) or charitable grants given from time immemorial to Jaqirs and to other individuals following a religious profession. Grants were also made under the same name, to individuals on other grounds than religion. An old Sikh muafidar occupied a like position. And where one of the old waris class recovered his village at annexation after years of dispossession during the Sikh rule, it was only reasonable to allow some privileges of this nature to those who had been prominent in the village management during the dispossession of the waris, . . . . .
And after weighing the arguments on both sides of the question, these facts remain, that the proprietary bodes will allow aliens to be recorded as Malik Kabzas, whom they will not admit as co- parceners to their own body. And that different Settlement Officers, one after another, find themselves all equally constrained to accept the tenure and record it. Instances of the tenure exist in every tract in Hazara."
10. Now when the history of the Seri tenure has been traced, it will be idle to contend that holders thereof were evictible as has been the case with the tenants-at-will. In this view we are reinforced by the continuous possession of the plaintiff-appellants since the time of their great grandfather for over 70 years and their conduct as exhibited by the fact that a part of the disputed land was being mortgaged and redeemed by the Serikhors from time to time.
11. Though we are in no doubt that the plaintiffs have been holding the land under title since the time of their great grandfather, we find force in the conclusions of the learned District Judge that possession of the plaintiffs shall be deemed to be adverse from the date they filed the written statement (Exh. P. W. 3/2) in 1949.
12. On the view of the matter that we take we have no hesitation in holding that the rights in the disputed land were granted to the plaint's in ownership and that they are entitled to the declaration prayed for. We will accept the appeal and setting aside the judgment and decree of the learned Single Judge grant the plaintiffs a decree that they are owners of the disputed land for the reason that the land was Seri of their ancestors. In view of the peculiar circumstances we direct that the parties shall bear their own costs throughout.
S. A. H.