1. ANWARUL HAQ, J.-This appeal, by leave of the Court, is directed against the judgment dated the 27th of April 1966 of a Division Bench of the former High Court of West Pakistan at Lahore, whereby a Regular Second Appeal filed by the appellant Makhdoom Mohammad Ahsan was summarily dismissed.
2. The said appeal had arisen in the following circumstances. The appellant instituted a suit on the 29th of September 1961, on his own behalf as well as in his capacity as the Mutwalli of the private wakf known as Khanqah Hazrat Shahid Sahib situate in Multan city, praying for a declara--tion to the effect that he was the full proprietor of the agricultural land in dispute, measuring 377 kanals and situate in the area of village Ferozepur in the Multan district. He also prayed for a declaration that the rights of defendants Nos. 1 to 16, whom he described as Aala Maliks, stood abolished under Paragraph 22 of Martial Law Regulation No. 64 of 1959. As a consequential relief, he asked for the possession of the land in suit.
3. The appellant averred that he arid his predecessors-in-interest, jointly with defendants Nos. 17 to 20, were the Adna Maliks of the land, that defendants Nos. 21 and 22 were the Aala Maliks, but in the revenue record he had been incorrectly recorded as Chakdar Kasoor Khar and the said defendants as Maliks Malguzar. He further alleged that defendants Nos. 1 to 16 had been cultivating the land under him for a long time, but they had subsequently purchased the proprietary rights of defendants Nos. 7.1 and 22 by virtue of a registered sale deed dated the 20th of February 1956 and they had thus become the Aala Maliks in place of the other two defendants. He went on to state that on the abolition of the rights of the Aala Maliks he and defendants Nos. 17 to 20 had become full proprietors of the land In dispute, and that by a registered sale deed dated the 10th of June 1961 he had since acquired the rights of defendants Nos. 17 to 20 as well, with the result that he had become the sole proprietor of the entire area.
4. The suit was resisted on the ground that the plaintiff and defendants Nos. 17 to 20, in their capacity as Chakdars Kasoor Khar, did not qualify as Adna Maliks as defined under Martial Law Regulation
64. Certain other technical pleas as to the maintainability of the suit were also raised.
5. By his judgment dated the 17th of April 1964, the learned trial Judge decided the issues of jurisdiction and estoppel in favour of the plaintiff, but he found against him on the merits of the case. He held that from a perusal of the wajibul Arz of the village as well as the remarks made by the Settlement Officers at the time of successive settlements, it was abundantly clear that Chakdars Kasoor Khar of the category of the plaintiff did not fall within the definition of Adna Maliks, as the liability to pay land revenue rested with the Maliks Malguzar and not with these Chakdars Kasoor Kbar. In coming to this conclusion he also took note of the notification issued by the Land Commission on the 3rd of March 1960 in order to give effect to the provisions of Paragraph 22 of the Regulation.
6. These findings were upheld in first appeal by the learned Additional District Judge, Multan, by his judgment dated the 10th of December 1965. The learned Additional District Judge not only examined the several Jamabandies placed on the record by the plaintiff but also analysed the Wajibul Arz of the village, the remarks made by successive Settlement officers, and the comments contained in the relevant paragraphs of Douie's Settlement Manual. He also observed that the conduct of the plaintiff himself was evidence of the fact that, in the past, the plaintiff had not regarded himself as Adna Malik in terms of the Martial Law Regulation concerned.
7. In Second Appeal, the learned Judges of the High Court did not embark upon an examination of the historical connotation of the terms Chakdar Kasoor Khar and Malik Malguzar; but rested their decision on the basis of the payment of land revenue, observing that it was not denied that the same was being paid by the defendants. In the circumstances, they thought no question of law arose for examination in Second Appeal, as the matter was clinched by clause 6(c) of the directions issued by the Land Commission under paragraph 4(5) of the West Pakistan Land Reforms Regulation 64.
8. Leave to appeal was granted to examine the substantial question of law regarding the true capacity of the two categories of proprietors or tenures obtaining in the village where the land in dispute is situate.
9. After hearing the learned counsel for the parties at considerable length, and examining the relevant evidence placed on the record, we are of the view that the Courts below were right is rejecting the claim of the plaintiff to be regarded as Adna Malik in terms of Paragraph 22 of Martial Law Regulation 64, read with the notification issued in this behalf by the Land Commission on the 3rd of March 1960.
10. The first question arising for decision in this case is about the correct description of the contending parties in the revenue records of the village. It appears that copies of Jamabandies from the year 1879-b0 to 1959-60 were brought on the record, and throughout the plaintiff or his predecessors have been described as Chakdars Kasoor Khar, whereas defendants Nos. 21 and 22, or their predecessors-in-interest, were described as Maliks Malguzar. In the earliest Jamabandi (Exh, P. 5), the predecessors of the plaintiff were not shown in the column of Malik, but mentioned in a separate column as Chakdars Kasoor Khar for repairing implements, whereas the predecessors of respondents Nos. 21 and 22 were shown as owners. However, in the succeeding Jamabandies for the years lb89-90 and 1893-94 (6xhs. P. 7 and P. 8 respectively) both the categories were shown in the same column bearing the title "Malik". In the Jamabandi for the year 1897-93 (Exh. P. 10) a change was introduced, and the predecessors of the two defendants were recorded in the column of Aala Malik, whereas the predecessors of the plaintiff were entered as Chakdar Kasoor Khar in the column of Malik. This entry appears to have been repeated in the subsequent Jamabandies up to the year 1955-56, but the position was again corrected in the Jamabandi for the year 1959-60 (Exh.
11. P. 24), in which both the parties were shown in the same column of owners.
12. It was contended by Raja Said Akbar, learned counsel for the appellant, that the entries appearing in the Jamabandies for the years 1897-98 to 1955-56 were clear evidence of the fact that the Maliks Malguzar were Aala Maliks whereas Chakdars Kasoor Khar were the Adna Maliks of the land. This argument, however, overlooks the fact that prior to 1897-98 both the categories were shown in the same column, except for the year 1879-80 where the plaintiff's predecessors-in-interest were not described as Maliks at all, and were mentioned separately by their own category. The argument also does not take into account the entry as appearing in the latest Jamabandi produced by the plaintiff himself at the time of the institution of the suit. Ordinarily, the court would be entitled to presume produced by the plaintiff himself, describes the true state of relationship existing between the parties. It appears to us, therefore, that these Jamabandies are not directly helpful in resolving the controversy between the parties, as there is no evidence to show that the entries appearing in the Jamabandies prior to 1897-98 were altered under the orders of any competent authority. The learned Additional District Judge was, therefore, right in refusing to place any reliance on the Jamabandies of the years 1897-98 to 1955-56 for the purpose of determining the true capacity of the plaintiff vis-a-vis the contesting defendants.
13. There is still another aspect of the matter which has not been specifically noticed by the Courts below. On the 12th of January 1898, a note was recorded by Mr. E. D. Maclagan, Settlement Collector, regarding the tenures obtaining in village Ferozepur, as entered in the Abstract Village Note Book. A copy of this note is on the record as Eah. D.
38. While we shall refer to this note at some length presently for the purpose of ascer--taining the true nature of the plaintiff's tenure, we mention this note at this stage to show that it contains a direct reference to the entries in the Jamabandies sought to be relied upon by the plaintiff. --The opening part of this note contains the following words :- "On appeals having been preferred by Nawab Sarfaraz Khan against the entries of the present Chakdar Kasoor Khars as owners of land in the early Settlement records the Nawab etc. Was ultimately declared by the higher authorities to be the Malik Malguzars and those who got themselves entered as owners of land were ordered to be shown as Chakdar Kasoor Khars.
14. As this note was recorded on 12-1-1898, it is legitimate to infer that it has reference to the entries which had made their appearance in the Jamabandi for the year 1897-98. After the passing of the orders referred to by Mr. Maclagan in this note, there was apparently no authority in any subordinate Revenue Officer to describe Chakdars Kasoor Khar in the column of owners in the subsequent Jamabandies. We have already stated that no order of any competent authority was placed on the record in support of the changed entries appearing in the subsequent Jamabandies. It seems to us, therefore, that no benefit can accrue to the plaintiff on the basis of the entries appearing the Jamabandies for the years 1897-98 to 1955-56.
15. The real question, therefore, is regarding the true import of the terms Chakdar Kasoor Khar and Malik Malguzar as obtaining in the village concerned. Mr. Maclagan's note, Exh. D. 38, is directly helpful in answering this question. As already stated, it is based on the entries appearing in the Abstract Village Note Book. This note states as under :- "There are two kinds of owners viz., (1) the Malik Malguzars Allah Dad Khan etc. Saddozai who are the owners of land and (2) the Chakdar Kasoor Khars who are the owners of Wells, Jhalars, Kassies, Water Channels and Indigo vats constructed at their expense in the lands the property of the former. The Malik Malguzars are mainly absentee Raises of D.I. Khan who are a great deal in debt.
16. Chakdar Kasoor Khars 'are persons crested by personal agreement or Pattas granted by' the Malik Malguzars arranging irrigation facilities by their investment in land of the absentee owners. In return for their outlay the proprietors out of their landlord's share of the produce have assigned a portion to the Chakdar Kasoor Khar according to the kind of crops grown by means of Irrigation supplied by his investment in land. If Chakdar Kasoor Khar fails to perform his services at proper time or the thing made with his capital becomes out of use his rights lapse and his services can be terminated summarily without any payment. According to the definition of Chakdari tenure Chakdar can be bought out by the proprietor at any time if he can arrange to pay for the investment made in his land by the Chakdar Kasoor Khar or Sollandar. But this does not usually take place unless the proprietor is wealthy and pays the costs forthwith. Malik Malguzars being already badly in debt there is remote possibility of their exercising this right at least not in the near future. Hence the Chakdars Khasoor Khar of this village are making good profit at the cost of the non-resident Maliks who recover their share of Batai and Cash (which is a first charge on the total produce of the cultivator) according to the terms of Khewat through their inefficient Mukhtars and Sarbarahs'."
17. Towards the conclusion of this note, the learned Settlement Collector has stated as follows:- "Liability for the payment of revenue to Government rests with the Malik Malguzars and not with the Chakdars Khasoor Khar of this village who have no such obligations towards Government. Their status therefore is inferior to the Chakdars described in general terms in other parts of the district, where the fact of Chakdars paying the revenue to Government themselves alone make them commonly known as sub-proprietors giving them a greater say in the affairs of the estate during the pendency of their Chakdari."
18. Mr. E. D. Maclagan, as Settlement Officer of the Multan District, recorded another note on village Ferozepur on the 23rd of July 1900 (Exh. D. 39) affirming the remarks which he had already made regarding the tenures obtaining in this village. He observed that "the revenue is paid by the Maliks Malguzar. The rents they receive are less than they would receive if there were no intermediaries, the tenants paying cher. But the Chakdars clearing the Kassies." The remarks made by Mr. Maclagan were endorsed by Mr. H. W. Emerson, who conducted the subsequent settlement of the year 1920. In a note recorded on the 24th of January 1920 (Exh. D. 40) Mr. Emerson observed that "Mr. Maclagan's note re: this village still applies. It is first class in every way." He also described the tenures of the village as Maliks Malguzar and Chakdars-and observed that the Maliks were either the family of Saddozai Pathans or rich Hindus, whereas the Chakdars were Arains 1/3 and other owners the rest drawn from a number of miscellaneous tribes. He further stated that the Government was concerned with Malik Malguzars, who were merely collectors of dues and did not bear any expenses in the estate.
19. The remarks made by the successive Settlement Officers are based on the entries appearing in the Wajibul Arz of the village. The earliest document of this kind placed on the record is Exh. D. 16, relating to year 1859, but unfortunately the whole of this Wajibul Arz has not been included in the printed paper book, and only clause (18) has been copied, which shows that there is no Taallukadari in this village. I his remark would appear to negative the existence of Asia Maliks in this village. In the Wajibul Arz of the year 1879 (Exh. D. 27), clause (14) recites, inter alia, that "in appeal the Commissioner and the Finance Commissioner held Nawab Mohammad Sarfaraz Khan to be Malik Malguzar, and those persons who were recorded as Maliks in the Settlement Record were ordered to be described as Chakdar Kasoor Khar by order dated the 13th of August: 1863. The Settlement record was accordingly corrected, and persons described as Chakdars were entered as occupancy tenants, and their tenants were treated as cultivators. In clause (15) of the same Wajibul Arz. (Exh. D. 28) it is stated that "in our village there is no special custom regarding the ejectment of tenants contrary to the provisions of Act 28 of 1868. The tenants are inducted and ejected according to the will of the Nawabs who are Maliks Malguzar. However, if any Chakdar Kasoori Khar does not perform his functions satisfactorily or the means of irrigation provided by him do not work properly, or he gives up residence in the village for a period of six months, then he would be deemed to have been ejected and his rights will revert to the Nawabs."
20. From these documents relating to the years 1859 and 1879, as weld, as the remarks recorded by two successive Settlement Officers, namely. Messrs Maclagan and Emerson, in the years 1889, 1900 and 1920, it becomes' abundantly clear that the Chakdars Kasoor Khar of this village did not enjoy any proprietary rights in the land, nor were they responsible for the payment of land revenue to the Government. Their rights and obligations were specifically defined and limited to providing means of irrigation etc., and keeping them In good repair. They received a specified customary spare of the produce of the land for services rendered by them, but they did; not pay any customary dues to the Maliks Malguzar, nor did they actually occupy the land and cultivate the same themselves or through tenants.
21. The question is whether in these circumstances, these Chakdara could be described as Adna Maliks, in the sense in which this term is used and understood in respect of land tenures obtaining in the Punjab. In this behalf a reference to the relevant paragraphs of the Digest of Customary Law in the Punjab by Rattigan as well as to the Settlement Manual by Sir James Louie will be useful.
22. Paragraph 139 of Rattigan states that "a distinction may be drawn between superior (Malik Aala) and inferior (Malik Adna) proprietors, the former simply levying a sort of customary rent from the latter, who actually occupy the soil, either cultivating themselves or through tenants." Paragraph 142 of the same Digest defines a Chakdar as one who occupies an intermediate position between the proprietor and cultivator, possessing an inheritable and transferable property in wells constructed by him, and cultivating the land attached thereto either himself or by his own cultivators. He is usually responsible for the revenue, and the proprietor is only entitled to a fixed cash allowance, locally called a Lichh or Haq Kasoor. Generally a 16th or 17th, and he alone is entitled to repair the well or to replace it by a new well."
23. It will be seen that the plaintiff does not fall in either of the categories mentioned in these two Paragraphs. We have already observed that the plaintiff or his predecessors have not been paying any customary rent to the Maliks Malguzar, nor have they ever paid land revenue to the Government. It is also in evidence that the Chakdars of this village were not entitled to induct or eject the tenants from the land. On these facts it is clear that the plaintiff does not qualify as an Adna Malik in the sense in which this terns is defined by Rattigan.
24. Turning now to Douie's Settlement Manual, we find that the Adna and Aala Maliks are defied in Paragraph 143 and the underlying concept is stated to be the division of proprietary rights in then land, It is observed that "in cases of divided ownership the proprietary profits are shared between the two classes who have an interest in the soil." An essential condition, therefore, for qualifying as an Adna Malik is the possession of an interest in the soil, and not merely in irrigation facilities provided by the party concerned. Paragraph 144 then lays down that the usual policy of the Government has been to arrive at a settlement with the inferior proprietors, apparently with the intention, of eliminating intermediate interests,. We know, however, that in the present case the Government has at no stage entered into any settlement with the plaintiff' or his predecessors-in- interest for the payment of land revenue.
25. Paragraph 169 of the Manual further elaborates the respective rights of superior owners and of Chakdars by stating that "the superior proprietors claim to be owners of all unappropriated land.
26. The Malikan Adna are full, proprietors of the land in their possession subject to the payment of the share of the old proprietors and not liable to eviction or failure to pay it and are entitled to introduce tenants without reference to the superior proprietors. The superior proprietors, as such, have no right tee interfere in the management of the cultivation of the appropriated land of the village. The settlement in no case had been made with them except where they are also inferior proprietors, Their rights are restricted to receiving their fee in grain or cash and to disposing of their unappropriated waste in they village."
27. Paragraph 170 of the manual deals more specifically with the category we are considering here, by stating that from his fixed allowance or Kasoor, "the Kasoor Khar has to keep in repair the brick work of the well and pay the Haq-i-Zamindari of half a seer in a maund if there is one. Under the system of fixed cash assessm ent, the permission (to the tenant) to engage direct for the Government avenue has grown into a very valuable rights the Chakdar finds that he cannot recover his former position end the only right left to him is the nominal ownership of the well and the right to receive Kasoor. This Chakdar, who has lost his right to engage is now the person generally meant by Kasoor Khar and this position has frequently been conferred as a compromise on a man who has claimed a well of which he or his ancestor wary undoubtedly the original proprietor, but from all possession of which he has long been excluded. The word Kasoor is, however, still used occasionally in its original sense of the profits of the Chakdar who pays the revenue himself, arid such a man is occasionally known as Kasoor Khar."
28. It follows from the definitions and considerations outlined in these paragraphs of the Manual that a Chakdar Kasoor Khar, who has lost the right to engage with Government for the payment of land revenue of the land cannot be regarded as an inferior proprietor of the land, as he has no right whatsoever in the land itself. It seems to us, therefore, that the Courts below were right in concluding that the plaintiff could not be regarded as Adna Malik of the land in. Dispute.
29. Paragraph 22 of Martial Law Regulation 64 of 1959 provided that "Aala Mukiat anal 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." On the 3rd of March 1960, the West Pakistan Land Commission issued a notification, in exercise of the powers conferred by Paragraph 4(5) of the Regulation, laying down that Adna Maliks shall be made full proprietors of the land held by them as such, and that with, effect from Rabi 1959-60 they shall discontinue the payment of rent or other dues in cash or kind to Aala Malika. In clause (c) of rule 6 of this notification it was stated that "a person who engaged with Government to pay land revenue shall be treated as Adna Malik or Aala cum-Adna Malik and considered full proprietor." The effect of this notification, read with the substantive Paragraph 22 of the Regulation appears to be that the payment of land revenue to the Government was a necessary qualification for being regarded as an Adna Malik . This requirement was clearly in keeping with the customary concept of this category of proprietors as mentioned by Rattigan and Sir James Douie. The plaintiff unfortunately does not possess this qualification.
30. Learned counsel for the appellant drew our attention to Thakar Das v. Fateh Mohammad (AIR 1930 Lah. 740) and contended that in a pre-emotion suit relating to land situated in this very village a Chakdar Kasoor Khar was regarded as an inferior proprietor in respect of the land held by him. We find, however that the contest in that case was not between a Chakdar Kasoor Khar and his Malik Maiguzar, and accordingly the determination of their respective rights was not directly in' issue; the main question before the Court being the entitlement of a Chakdar Kasoor Khar to pre-empt the sale. It was for that limited, purpose that the learned Judges considered that a Chakdar Kasoor Khar could be regarded as an inferior proprietary. They observed that such a Chakdar could not be described merely as a cultivator under the Malik Malguzar. The learned Judges referred to an earlier judgment of the Punjab Chief Court reported as Sarfaraz Khan v. Dawa Mulla (34 P R 1868) but the quotation from that judgment does not support the view that a Chakdar Kasoor Kbar is an inferior owner; on the contrary, the operative part in that judgment appears to be "in fact-while the Zamindar is the owner of the soil, the Chakdar is the owner of the well, and in the present case being in possession he also enjoys the right of arranging for the cultivation." We consider, that this particular case cannot be regarded as an authority for the proposition that a Chakdar Kasoor Khar is indeed an inferior proprietor or Adna Malik of the land. The learned Judges did not decide this issue finally, and the controversy was nor, between the two categories of proprietors.
31. For the foregoing reasons, we have no hesitation in upholding the view taken by the Courts below to the effect that the plaintiff, as a Chakdar Kasoor Khar of the land in dispute, cannot be regarded as Adna Malik of the same, nor can the contesting defendants be regarded as Aala Malik for the purpose of paragraph 22 of the Regulation. As a result, the plaintiff's suit was rightly dismissed. The present' appeal, also fails and is hereby dismissed, but we would leave the parties to bear their oven costs throughout.