Abdul Ghafoor (late) filed Suit No.54/1 on 19-5-1986 for declaration to the effect that land measuring 5 Kanals, 4 Marlas comprising of Khasra No.388 situated in Mauza Ghambeer, Tehsil and District Abbottabad is owned and possessed by him and the entries in Revenue Record showing him as tenant-at-will are wrong. He also sought permanent injunction. Initially the suit was filed against the Collector and Revenue Officer, Circle Lora. The plaintiff on 8-11-1987 filed two applications one under Order 1, Rule 8, C.P.C. And another for the amendment of the plaint.
Amended plaint was also filed without waiting for the orders of the Court. Having come to know about the pendency of the suit, Haji Bashir etc. (8 persons) filed an application for implement as party. In para.3 of the said application it was stated that the property in dispute was "Waqf". Later on another application was filed for impleadment. That application was supported by affidavit of Qazi Muhammad Riaz stating therein that he was (Imam Masjid of village Ghambeer). The learned trial Court by order, dated 14-7-1987 allowed the applications and the applicants were impleaded as party. Instead of only bringing the names of stew impleaded persons, the entire suit was amended by the plaintiff. The relief prayed for was altogether changed though no permission for amendment was allowed. The plaintiff filed another amended plaint on 17-3-1988. The said suit was resisted by the defendants.. The defendants Nos. 12 to. 17 filed separate written statement whereas defendants 3 to 10 filed another written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit of plaintiff in his favour vide judgment, dated 29-11-1989. The defendants feeling aggrieved by the judgment/decree passed by learned Civil Judge, Abbottabad filed Appeal No.158/13 of 1990 in the Court of learned District Judge, Abbottabad. The said appeal was accepted vide judgment, dated 26-6-1991 and the case was remanded to the trial Court. The plaintiff being not satisfied with the remand order filed Civil Revision No.117 of 1991 in this Court which was accepted vide judgment, dated 20-7-1993 and the case was remanded back to the learned District Judge, Abbottabad to decide the case afresh on merits. The petitioners after the case was remanded to the learned District Judge, filed an application on 11-1-1994 under Order 41, Rule 27, C. P. C. For additional evidence. By then Abdul Ghafoor had expired and his L.Rs. Were brought on record who submitted reply to the said application. The said application- was accepted by order, dated 3-4-1994. The petitioners placed on record attested copy of Civil Revision No.36 of 1980, decided on 8-6-1985. The learned District Judge after hearing the learned counsel for the parties dismissed the appeal vide judgment/decree, dated 24-5-1994. The petitioners have now impugned the judgment/decree, dated 24-5-1994 passed by the learned District Judge through revision petition in hand.
2. Alhaj Sardar Bahadur Khan, Advocate learned counsel representing the petitioners argued that the complainant had failed to establish his case through reliable and convincing evidence. Fard Jamabandi for the year 1872 (Exh.P.W.1/1) shows that land measuring 6 Kanals, 5 Marlas comprising in Khasra No.953 was Shamilat-e-Deh and one Muhabat A.I son of Mureed A.I case "Faqeer" was tenant-at-will. These entries continued without any change till 1899-1900. Mutation No. 1109 attested on 2-9-1905 shows that land measuring 22 Kanals, 6 Marlas including the suit Khasra number was transferred in the name of Baithak Sakhi Habib. Khasra No. 169 measuring 4 Kanals, 17 Marlas has been shown incorporated in the next Jamabandi prepared during the settlement for the year 1905-06 and Mst. Fateh Jan has been shown in possession. These entries continued till 1938-39, there is only change in the cultivation column where Talib Din son of Muhammad A.I Qureshi has been shown as tenant-at-will in the column of Lagan. He has been shown as Bila Lagan Bawajah-i-Khidmat-e-Masjid. Third settlement was carried out in the year 1942-43 and Talib Din, who is father of plaintiff Abdul Ghafoor was shown tenant under Mst. Fateh Jan but in the Jamabandi for the year 1948-49 he was shown as tenant. In the Jamabandi for the year 1951-52 (Exh.P.W.2/2) Abdul Ghafoor son of Talib Din has been shown. In possession of the property in dispute but strangely enough in the Jamabandi for the year 1955-56 Talib Din again has been shown in possession. Likewise in the Jamabandi for the year 1960-61 (Exh.P.W.2/4) Talib Din has been shown in, possession through Abdul Ghafoor, but in the Jamabandi for the year 1967-68 (Exh.P.W.2/5) Abdul Ghafoor has been shown in possession.
3. It was further argued that Wajib-ul-Arz (Exh.P.W.I/D-1) shows that how the Masjid and Waqf properties were used in the village. Ishaq P.W.2 in his statement recorded in Court deposed that the property in dispute was Waqf.
4. It was further argued that the learned lower Appellate Court did not decide the appeal issue wise and the provisions of Order 41, Rule 37, C.P.C. Were violated. Reliance was placed on Nadar A.I v: Mst.
Hussain Bibi 1997 CLC 1549 and Shaukat A.I v. Mst. Rasia Bibi 1999 CLC 62.
5. On the other hand S. Abdus Salam Sarwar, Advocate learned counsel representing the L.Rs. Of Abdul Ghafoor, respondents 1 to 7, argued that the Revenue Record produced by the plaintiff (Exh.P.W.I/1 to Exh.P.W.2/8) shows that in the Lagan column, it was mentioned Bila Lagan Bawaja-e- Imam Masjid and the person who is in possession due to Bila Lagan Bawaja-e-Imam Masjid, his possession would be that of Seri and he would be treated as the owner of the property. Reliance was placed on Abdul Jabbar and others v. Azizul Haq and another AIR 1942 Pesh. 35, Muhammad Atiq and others v. Tayabuddin and others PLD 1998 Pesh. 47 and Azizur Rehman and another v. Atai Khan and others PLD 1976 Pesh. 60.
6. I have heard the learned counsel for the parties and perused the record.
7. The plaintiff, predecessor of respondent No.1 in order to prove his case examined Mr. Rustam Khan SOK as P. W:1 who. Placed on record Fard Jamabandi for the years 1.872 to 1948-49, Misl-i- Haqiat for the year 1905-06 in which Mutation No. 1109 was mentioned. He produced copy of Mutation No.1109 (Exh.P.W.I/2), Mutation No.1053 (Exh.P.W.l/3), Wajibul Arz for the year 1905-06 (Exh.P.W:l/4), Wajibul Arz for the year 1948-49 (Exh.P.W.1/5). He stated that first settlement of the area took place in 1872. He produced the list of Waqf properties which were 20 in number and placed on record as Exh.P.W.I/D-1: He also produced Exh.P.W.I/D-2 and stated that whatever entries were contained in Wajibul Arz for the year 1905-06 those still continued.
8. Muhammad Irshad, Patwari Halqa (P.W.2) produced Fard Jamabandi for the year 1983-84 (Exh.P.W.2/1) Muhammad Farooq, Patwari Halqa was also examined as P.W.2 who produced Fard Jamabandi for the year 1948-49 (Exh.P.W.2/1 to Exh.P.W.2/8) and Naqsha Mauqa (P.W.2/9). He also produced Fard Jamabandi for the year 1947-48 (Exh.P.W.2/10). He stated that. Exh.P.W.2/9 pertains to site plan of houses constructed in the suit property which is . In possession of the plaintiff. The details of number of trees in Khasra No.388 was placed on record as Exh.P.W.2/9. He also placed on record "Fard" of property owned by plaintiff as Exh.P.W.2/12.
9. Abdul Ghafoor plaintiff was examined as P.W.3. He placed on record copies of the written statement and judgment of the High Court. The said documents were exhibited as P.W.1/3 to Exh.P.W.1/4.
10. Muhammad Ishaq was examined as P. W.4 who stated that the plaintiff was in possession of the property in his memory. The plaintiff was "Imam Masjid", he has constructed 2 Kacha houses and 4.
Paka houses. Previously the houses were Kacha but about 10/15 years before the Paka houses were constructed by the plaintiff.
11. In rebuttal Nazeer son of Nadar was examined as D.W.1 who stated that he was Matwali from his forefathers over the property which was in the name of Baithak Sakhi Habib. Mosque is also situated in the property and the plaintiff has got nothing to do with the same. He used to enjoy the usufruct of the property being Imam Masjid and since he has left the Imamat for the last 4/5 years, therefore, he has nothing to do with the same property.
12. Haji Muhammad Ishaq was examined as D W.2 who stated that the property in dispute was owned by him and was given for Baithak Sakhi Habib by his elders. The father of the plaintiff was brought from Murree and deputed as Imam Masjid in the village and a house was also constructed for him so that he may reside in the same. The property in dispute has been assigned for Imam Masjid and the plaintiff has nothing to day with the same.
13. The perusal of Fard Jamabandi for the year 1872 (Exh. P. W .1 / 1) shows that the suit property is Shamilat-e-Deh. One Muhabat A.I has been recorded in the column of cultivation as tenant-at-will and paying no rent to the landlord. These entries continued without any change till 1900. Mutation No. 1109 (Exh.P.W.I/3) attested on 2-9-1905 through which land measuring 22 Kanals, 6 Marlas including the suit Khasra number was transferred in the name of Baithak Sakhi Habib. Next settlement in the area took place in the year 1905-06 and Mst. Fateh Jan has been shown in possession of Khasra No.169. These entries also continued till 1938-39. In the Jamabandi (EJCh.P.W.I/1) only change was brought in the column of cultivation in the year 1948-49 and Talib Din son of Muhammad A.I Qureshi has been shown as tenant-at-will Bila Lagan Bawaja-e- Khidmat-e-Masjid. In the settlement which took place in the year 1948-49, Khasra No. 169 .Was given new number i.e. 388. Talib Din was previously shown in possession through Mst. Fateh Jan but in the year 1948-49 he was shown as Bila Lagan Bawaja-e-Imam Masjid Ghair Dakheelkar. Fard Jamabandis for the years 1975-76 to 1983-84 Exh.P.W.2/6 to Exh.P.W.2/8 and Jamabandi for the year 1987-88 (Ehx.P.W.2/10) show that Abdul Ghafoor was in possession of the property in dispute.
In Waji-bul-Arz for the year 1905-06 (Exh.P.W.I/4) the suit property has not been entered as Waqf.
Likewise in Wajib-ul-Arz for the year 1948-49 (Exh.P.W.l/5) the suit property has not been shown as Waqf. The arguments of the learned counsel for the petitioners that in the entire Revenue Record, the word 'Seri' has not been used at all and the plaintiff or his predecessor was not Serikhor and the property in dispute was Waqf property, as is clear from the statement of Muhammad Ishaq P.W.2.
This argument of the learned counsel for the petitioner has no force at all. The father of the petitioner namely Talib Din has been shown in possession of the property in dispute Bila Lagan Bawaja-e-Khidmat-e-Masjid under Mst. Fateh Jan in the Jamabandi for the year 1942-43. Mst.
Fateh Jan was shown in column of Lagan as Bila Lagan Bawaja-e-Khidmat-i-Takia. In the Jamabandi for the year 1948-49 no change was brought in the entries of column of ownership while in the column of cultivation Talib Din was recorded as Bila Lagan Bawaja-e-Imam Masjid Ghair Dakheelkar. These entries in favour of Talib Din continued till 1949-50. In the Jamabandi for the year 1951-52 (Exh.P.W.2/2) Abdul Ghafoor son of Talib Din was shown in possession but in Jamabandi for the year 1955-56 Taiib Din was again shown in possession who, continued through Abdul Ghafoor till 1960-61 as is clear from Exh.P.W.2/4. Abdul Ghafoor was shown and recorded as Bila Lagan Bawaja-e-Imam Masjid in the Jamabandi for the years 1967-68 to 1983-84 Exhs.P.W.2/5 to Exh.P.W.2/8 and 1987-88 Exh.P.W.2/10. Not only the plaintiff in his statement deposed that he has constructed houses over the property in dispute but the respondents-defendants also admitted the said position.
Khalil son of Nadar (D.W.2) in cross-examination admitted that for 40 years Talib Din, father of the plaintiff was Imam Masjid and after him the plaintiff became Imam Masjid and continued as such for 20 years. The plaintiff constructed 5 houses out of which 3 were Paka and 2 Kacha. The said houses were constructed by the father of the plaintiff. Previously these houses were Kacha but later on renovated. It was admitted by Muhammad Ishaq (D.W.2) that the plaintiff was in possession for the last more than 10o years of the property in dispute. Muhammad Irshad, Patwari Halqa (P.W.2) also placed Naqsha Mauqa (Exh.P.W.2/9) showing houses constructed in the suit property which are in possession of the plaintiff. He also placed on record the details of number of trees in Khasra Number 388. The documents produced by the Patwari Halqa were not rebutted by the petitioners/ defendants.
15. The question which needs determination in this case is as to whether the predecessor of respondents 1 to 7/pliantiff has become the owner of the property in dispute being Serikhour or not.
16. According to the Hazara Settlement Report of E.G. Wace 1868-74 (page 122) Serikhor was a Malik-e-Qabza (owner of land in village who does not enjoy the other rights of proprietary). Basing on the said report it was held in Abdul Jabbar v. Azizul Haq AIR (29) 1942 Pesh. 35 that the Serikhor was owner of the land in dispute and not tenant-at-will. Similarly in a recent judgment Muhammad Atiq and others v. Tayubuddin PLD 1998 Pesh. 47, it was held that the suit land was admittedly given to predecessors of defendants by the predecessor of plaintiff more than 100 years ago in lieu of their service for the mosque. Such land comes within the definition of Sadaqa and Seri the plaintiffs have lost their rights of revocation of the same... ".
17. The expression "Seri", is generally used for the land granted in ownership to religious characters.
In Azizur Rehnian v. Attai Khan PLD 1976 Pesh. 60 in paragraph 8 it was held:-------- "The learned counsel for the appellants placed on record a Photostat copy of the judgment of the Judicial Commissioner's Court in Civil Revision No.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 1968---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 his Director Archive N.-W.F.P., Peshawar. In para. 70 on page 155 of the. Report Captain Vace 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 emitted 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."
18. In the case in hand the predecessors of respondents 1 to 7 have been shown in possession of the property in dispute for more than 100 years. They have constructed Pacca houses therein, grown tress and even made a graveyard therein. The petitioners/defendants did not raise any objection when the respondents were making improvements in the property in dispute. The possession of the predecessors of respondents 1 to 7 as :Imam Masjid has been admitted by Haji Muhammad Ishaq who was examined as D.W.2 who stated that the father of the plaintiff was brought from Murree and deputed as Imam Masjid in the village and a house was also constructed for him so that he may reside in the same. The property in dispute has been assigned for Imam Masjid. The predecessors of respondents 1 to 7 have never paid rent to any one. They were in possession due to Khidmat-e-Masjid. Their status was therefore, that of "Serikhor" and entries in the revenue record showing them tenant-at-will are ineffective upon the rights of respondents 1 to 7.
19. The not result of the above discussion is that I find no merits in the revision petition in hand and the same is dismissed with no order as to costs.