The appellant's suit for permanent injunction restraining the defendant respondents from interfering with his possession over an area of 614 kanals situated in Village Daggar Yar Shah, was dismissed by the learned trial Court on 18th May, 1966 and the decree of dismissal was upheld in appeal by Mr. Muhammad Mian Qureshi, District Judge, Mianwali by his order and decree dated 29--6-1967.
2. Hence this second appeal.
3: In his plaint the plaintiff-appellant admitted that the defendants were ala maliks of this area but he claimed that he had become its adna Malik since he bad broken the waste and had brought it under cultivation. Relying upon the provisions of abolition of ala malikiyat by Land Reforms Regulation (Martial Law Regulation No. 64) he claimed that he had become solely vested with the property after abolition if the right or interest of the defendants. In his amended plaint the plaintiff added another alternative ground that the possession of the appellant over the property in dispute having extended to a period over 12 years, he had become its owner by adverse possession.
4. The suit was contested by the defendant-respondents on the ground that they themselves were not only ala but also adna maliks of the property since the dispuied land was reclaimed by them. It was averred by them that the plaintiff-appellant was only a tenant under them and was subject to an order, of ejectment passed by the Additional Commissioner (Revenue) Sargodha against him on th:. 19th of August 1965, at their instance.
5. The learned trial Court framed the following issues :
(1) Is the plaintiff an adna Malik in the village ?
(2) If so, did he break up the land in suit and became its adna Malik ?
(3) What is the effect of Martial Law Regulation No. 64 on rights in the suit land of the parties ?
(4) Has the plaintiff been in adverse possession of the suit land for more than 12 years and has'become its owner ?
(5) Relief.
6. The learned Civil Judge decided issue No. 1 in the affirmative and issues Nos. 2, 3 and 4 against the plaintiff and dismissed his suit.
7. It is established by the documentary evidence on record that the plaintiff's father was an adna Malik of some area in the village other than the area in dispute (vide Jamabandi Exh. P. 1 pertaining to the year 1943-44). The area in dispute was shamilat deh. From the Khasra Girdawari Exh. P. 2 it appears that out of an area of 614 kanals, 608 kanals was banjar qadim while 6 kanals were in possession of Baham as non-occupancy tenant as banjar jadid. This entry continued in the year 1941-42. In Rabi 1943, 20 kanals more were brought under cultivation and were shown in possession of Allah Bakhsh as non-occupancy tenant. It is for this reason that in the Jamabandi Exh. P. 4 pertaining to the year 1943-44 an area of 588 kanals 2 marlas is shown in possession of ala maliks as banjar qadim while an area of 26 kanals is shown in possession of their non-occupancy tenants, Bahara and Allah Bakhsh sons of Ikhtiara. It is unnecessary to deal with the other entries prior to the year 1957-58 since the appellant is shown to be in possession of any portion of the area in dispute for the first time in Kbarif 1958. Before that time Babara etc. Continued to be in possession. What is important to note is that in the Kbasra Girdawari of Rabi 1958, 400 kanals of land is shown as barani and 64 kanals as banjar qadim. The appellant is shown to be in possession of 400 kanals in Kharif 1958 as a non-occupancy tenant. The barani area did not exceed 400 kanals up to the Rabi crop of 1961. 1n Kbarif 1961 the area of 64 kanals which had so far been banjar qadim was also brought under cultivation. But from 1962 to 1965 the appellant is entered as a non-occupancy tenant of only 400 kanals of the cultivated area.
8. The appellant's case is primarily based upon para. 22 of Martial Law Regulation No. 64 which provides that ala malkiyat and similar other interest subsisting immediately before the commencement of this Regulation shall on such commencement stand abolished and no compensation shall be claimed, or paid to any person affected by the abolition.
9. Obviously this paragraph is not helpful to the appellant since he cannot obtain the proprietary right on its basis. Once it is proved that he did not break up the land or assuming that he reclaimed an area of 64 kanals in Kharif 1961, he could not lay claim to any adna malkiyat right in the land in dispute.
10. Ala malkiyat rights already stood abolished on 7-2-1959 when Martial Law Regulation 64 was enforced. The dual proprietorship was finished. Thereafter the proprietorship vested in the owner in actual possession of the area. Any reclamation subsequent to 7th of February, 1959 could not be governed or regulated by the law or custom or contract as evidenced by the wajib-ul-arz in force before that date. Such reclamation could =not deprive an owner of his right of such ownership conferred by para. 22 of Martial Law Regulation 64. The appellant cannot therefore claim any benefit of adna malkiyat even if he is proved to have reclaimed any area after the enforcement of Martial Law Regulation 64. Nor can he claim any right of occupancy in view of the bar on creation or conferment of such a right by section 114 of the Punjab Tenancy Act added by the Punjab Tenancy (Amendment) Act, 1952, which provides that no person shall after the commencement of the Amendment Act mentioned above shall acquire or have occupancy rights in any land under any contract, enactment or any decree or order of any Court or other authority.
11. Similarly the argument about the appellanfs acquisition of ownership rights by adverse possession is not acceptable. The termirais a quo of possession was Kharif 1958. The terminus ad quem for prescription under Article 144 of the Limitation Act would be the end of Rabi 1970. But the suit was filed on 6th November, 1965 when the possession had lasted for barely seven years. The claim of adverse possession was too audacious and could not be sustained.
12. Moreover such a right cannot be claimed by a person who is in possession with the permission of the owner or as a tenant of the property. He cannot claim to hold adversely to the owner or the landlord unless he first delivers possession of the property in which he has been inducted as a tenant to the landlord and trespasses over the land thereafter.
13. Confronted with this the learned counsel urged two points before me. Firstly he argued that the appellant could not be ejected otherwise in due course of law and secondly he urged that after the enforcement of Regulation 64 and abolition of ale malklyat the land became resumable by the Government and ceased to be the property of the respondents. The appellant could not, therefore, be ejected at the instance of or on a proceeding or suit instituted by the respondents before the Revenue Court or authorities.
14. None of these points was taken either in the plaint or at any stag before the Courts below or even in the memorandum of this appeal. I, however, allowed these points of law to be urged at the time of arguments.
15. The first point is rendered of no effect once it is conceded that the appellant is being ejected through the proper forum of Revenue Authorities. Since he is a tenant, steps have been taken to eject him in due course of law.
16. In support of the other porposition of resume ability of the area in dispute as a consequence of Martial Law Regulation 64 the learned counsel relied on Hussaina and others v. Fazal Rahim Khan etc. (PLD 1975SC574). This was an appeal against the judgment and decree of the Lahore High Court dated 17-2-1949 in Regular First Appeals Nos. 143 and 144 of 1941, reported in PLD 1949 Lah.
352 wherein, it was held in that case that all the ale maliks have the exclusive right to the waste to the exclusion of adna maliks and the right of the latter and tirniguzars is confined to grazing of their cattle only. It was further held that the only right which the adna maliks and tirniguzars could claim at the time of partition was of exemption of only a portion of the area from partition for being used for grazing of cattle.
17. The Supreme Court maintained . The judgment and decree of the High Court and dismissed the appeal of adna matiks etc. It appears that at the time of arguments an argument based on Martial Law Regulation 64 was also addressed. After dismissing the appeal, their Lordships observed in the last sentence of the judgment: "If ale malik's rights have been abolished under Martial Law Regulation 64 all the areas which would have been available for partition would now be resumable by Government. This will not, of course, include any area which has been before 1902 brought under cultivation by any adna malik or in which a well has been sunk by any inferior proprietor. If lands for grazing cattle are still required in these villages the Land Reform Commission will demarcate and maintain the area so required for grazing purposes."
18. The learned counsel also relied upon an unreported judgment in R. S. A. No. 700/1975 Sher Muhammad Khan etc. v. Qadlr Bakhsh etc. In which while dealing with this authority it was observed that:-- "in the circumstances of that case, it was held that if ale malik's rights have been abolished under Martial Law Regulation No. 64, all the area which would have been available for partition would now be resumable by Government."
19. The observations in the Lahore case are not authoritative pronouncement on the question whether on abolition of ale malkiyat the Government has any right to resume areas which are held in actual possession by ale maliks themselves. The observations do not amount to any decision on this point nor that question arose in that case since it was a case where the adna maliks were in possession of the property.
20. The observation by their Lordships of the Supreme Court was a mere obiter dictum. No doubt even the obiter of the Supreme Court is binding upon the High Courts but this particular observation has not that character in view of consideration of relevant law in Haider v. Ghulam Haider (1976 SCMR 329).
21. Haider v. Ghulam Haider was a similar case which arose out of a decision of the Lahore High Court reported as Mal k Ghulam Haider v. Haider (PLD 1951 Lah. 92). Their Lordships of the Supreme Court referred to the decision of the Chief Land Commission in Revision No. 26 of 1968-69 decided on 20-10-1970 that ale malkiyat had been replaced by the ownership given to the adna maliks, but where there are no adna maliks, the land would still go to ale maliks as adna maliks. Their Lordships further noticed that a Writ Petition No. 197/1971 against this judgment of the Board of Revenue was dismissed on 1-11-1971 but that decision was not challenged in the High Court or in the Supreme Court.
22. It is clear from this judgment that the view of the Chief Land Commission has been that in case there are no adna maliks, the ale maliks shall themselves be treated as adna maliks and will become exclusive owner of the property thus excluding the possibility of the emergence of any other proprietary interest in the land.
23. The learned counsel for the respondents has brought to my notice a Notification No. A. S. P. 202- 60/1519-L. C. Issued by the Land Commission as an order in exercise of the powers conferred by sub-paragraph (5) of paragraph 4 of the West Pakistan Land Reforms Regulation. In para. 6 of the order mentioned above which relates to the implementation of the provisions of para. 22 it is provided in clause (a) thereof that adna maliks shall be made full proprietors of land held by them as such. The rights in the land under alu malkiyat in which either the ale malik is shown as adna mallk or there is no entry of adna malkiyat, are dealt with in clause (d) of this para (of the order notified above) which is as follows : "Where a person is entered as ale malik, as well as adna malik or where land is held only by an ale malik and there is no adna malik under him the ale malik shall be considered as full proprietor and the entries in the revenue records shall be corrected accordingly."
24. This quotation has been reproduced from page 308 of "Land Reforms in West Pakistan" Volume I published on the 27th October, 1960 by Malik Khuda Bakhsh Bucba. The writer has in para. 207 (page 157 of the book) reproduced verbatim the above para. He has stated at the end of this para that "the Board of Revenue has been requested to issue necessary instructions for the deletion of the names of the ala maliks from the revenue records and showing the names of adna maliks as full proprietors in the revenue records".
25. Sub-para. (5) of para. 4 of the Regulation under which the above notification had been issued provides "Where any matter is not provided for in this regulation or any difficulty arises in giving effect to the purposes of this Regulation, the Commission may, by order notified in the official Gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Regulation, and have effect accordingly."
26. In view of this provision the notification relied upon by the learned counsel is a part of the Regulation. It was on account of the provisions of para. 4(5) of Regulation 64 that the Supreme Court rested its judgment in Muhammad Ahsan v. Paihana (PLD1975SC369) on clause (c) of para. 6 of the above notification.
27. Clearly, therefore, the effect of the abolition of ala milklat is that the ala maliks become the owner of a property which is not shown in the ownership of any adna malik. In view of this clear provision of law the observations of their Lordships in the authority relied upon by the learned counsel may be cottoned to the facts of that particular case but cannot be treated to have a genel!Al overriding effect over the rights of the ala Maliks as determined by the West Pakistan Land Commission in exercise of power under para. 4(5) of the Regulation. ,
28. Even if this provision had not been there the conclusion would not have been different. The division of the proprietary rights and consequent rights of superior proprietor and inferior proprietors have .Been dealt with in Punjab Settlement Manual by Sir James M. Douie (15th Edn.) in paras. 143, 167, 168, 169 and 171. The origin of the rights may differ from district to district but the rights of both types of proprietors are almost uniform. The rights of both categories of proprietors in Muzaffargarh District particularly with reference to waste as explained by Mr. O'Brien are dealt with in para. 169 of the Settlement Manual. The relevant portion of this quotation is as follows : "The superior proprietors claim to be owners of all unappropriated land. 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 on failure to pay it, and are entitled to introduce tenants without reference to the superior proprietors.
Their rights (rights of superior proprietors) are restricted. to disposing of the unappropriated waste in the village . . . . . . The unappropriated waste belongs to the superior proprietors . . . . . . ."
In para. 171 it is stated that the title of the superior landlord has been most fully preserved in Mianwali-and in the Sanawan Tehsil of Muzaffargarh. Reference is made to Mr. Tucker's Settlement Report of Dera Ismail Khan.
29. A copy of this report has been shown to me by the learned counsel for the respondents. It is not however necessary to reproduce any portion from this unauthenticated copy since the same principles have been evolved by a Division Bench of Lahore High Court in Malik Gulzar Haider v. Haider a case of Tehsil Bhakkar.
The rules laid down by Mr. Tucker have been summed up as follows :- "(1) The ala malklyat is not ordinarily to be partitioned, though such partition may be allowed for sufficient reasons. In case of partition. the rights of the adna maliks in the common lands of the whole village will be continued as before.
For instance, an adna malik will continue to graze his cattle and to beak up waste in all the pattis into which a Mauzah may be divided.
(2) The ala maliks will have the first right to cultivate waste, and after them the adnas. Failing these the ala maliks may give lands to outsiders to cultivate.
(3) Though the ala maliks have paid no jhuri hitherto they will pay it in future for any lands they may clear. There will, however, be this difference between them and the adna maliks that it will be optional with the ala maliks to take jhuri from an adna malik, in which case he will remain an occupancy tenant only. The individual ala malik on the other band, will be entitled, if he chooses, to pay jhuri at a fair rate, and to thus become an adna malik. In such a case the other ala maliks will not be able to refuse to take jhurl.
(4) The question as to the taking of jhuri, or as to its amount, will for the future be determined by the ala maliks as a body, and the decision come to be recorded by the patwari.
(5) The lambardar will be entrusted with the power of allotting common waste for cultivation. Any persons feeling aggrieved at the way in which he exercises such power, must put in a complaint at once, otherwise persons clearing jungle, with the lambardar's permission, will acquire occupancy rights, and pay rent at the customary village rate to the superior prflprietary body.
(6) The right to profits from the produce of common waste lands, other than grazing, has been continued to the superior proprietors subject to the right of the adna maliks and cultivators to take first what they want for their own requirements. The ala maliks have been given the option of taking a third of whatever munj grass there may be, leaving the rest to the cultivating body generally or of leaving the whole to the adna maliks till lst January after which the al.r maliks are at liberty to sell the remainder. In neither case are the adna maliks at liberty to sell any munj grass that they may have out, or dispose of it to outsiders.
(7) All classes of cultivators are entitled to firewood from the common lands. Non-cultivators such as traders and artisans, .Will in future pay 8 annas a year for the privilege of taking grass and wood and munj from the common lands. Payment under this head will go to meet the grazing jama assessed on such lands, and will not be a prerequisite of the a la maliks.
(8) In some cases partial partition of the waste may be effected. In such cases, the existing waste can be divided among the superior proprietary shares without touching the cultivated lands, and it can be provided that the malikana due on the partitioned lands, when these are brought under the cultivation, will be paid into the common fund. In this way the right to the malikana will continue to be held undivided as before, but each ala malik will be able to make his own arrangement for taking jhuri, etc. For the lands that may have fallen to his portion. A portion of this sort, though it effectively protects the interests of the shares claiming partition, is not generally what the ala maliks care for. The great idea of every ala malik is to get patti of his own, with adna maliks over whom be can rule, and a share of the lambardari. "
30. After considering the nature of this tenure in detail it was concluded by the Division Bench (page 102) that : .
(1) Ala malkiat means the right to give waste land for cultivation to others.
(2) Persons among the body of the ala maliks can bring a portion of the waste under cultivation and become the adna malik themselves. This proprietorship is subject to the right of ala malik to the payment of jhuri and malikana.
(3) Where the waste is not common land and the title of the maliks of the village to it and not only to ala malkiat in it is recognised by Government, the waste is the property of the ala mallks, which they may use in any way they like, and
(4) If the unappropriated waste is common land (Shamilat-i-deh) it is not the exclusive property of any body but the nature and extent of such rights will depend upon the terms of the Wajibularz which incorporates the agreement in respect of this land between the Government, the ala maliks, the adna maliks and the other representatives of the village.
31. On the facts of that case it was held that according to the conditions of the Wajibularz the ala maliks have the first right to bring the Shamilat land under cultivation. Though it was held that ala maliks could not be deemed to be the exclusive owner but a decree for ejectment of the defendants, adna malikan, was passed. This case was, as stated above taken to the Supreme Court by the defendant but the appeal was not pressed and was dismissed as such.
32. The other case decided by a Division Bench of Lahore High Court is K. B. Muhammad Abdul Rahim Khan v. Hussaina (PLD 1949 Lah. 352). This case dealt with the land in villages Hetu and Tinda Thal of District Mianwali. On the basis of wajlbu!Arz of the village, the ala maliks were held entitled to partition of the shamilat deh and were held to be sole owners of it, which means that they had full proprietary interest in it to the exclusion of the adna mallks and t1rniguzars. It was observed that the wajibularz determines the rights inter alla of the two types of proprietors.
33. The view that ala maliks have the right to partition of waste land is thus uniform. Similarly position of the wajibularz as a charter of rights of right holders in an estate is undisputed.
34. The Wajibularz in the present case is proved as Exh. P.
3. It is the charter of rights. It appears from para. 2 of this document that the land of the village was governed by Sind Sagar Doab Act, 1902 under which the Government had entered into an agreement with the ala maliks in their capacity as exclusive owners of the shamilat and had agreed to give to them land equivalent to 1/4th of the shamilat taken from them (ala maliks). It was further provided that during the currency of this agreement, no other proprietary interest could intervene in the shamilat. In para. 3 it was stated that the preferential right to sink well in the shamilat would be that of the ala maliks and any right of adna maliks were subject to this preferential right and in case the adna maliks were not in a position to sink the well, the ala maliks had a right to give the land to others on proper conditions.
But in case of reclamation of barani area, no right or interest of ownership or of tenancy on the basis of breaking the waste would accrue to any person.
35. This document is of the same pattern as the wajibularz in the case decided in K. b. Muhammad Ahdul ~Rahim Khan v. Hussaina and supports the principles laid down in Mr. Tucker's report. Another document is Exh. D. 2, a judgment between ala maliks and the adna maliks of village Daggar Yar Shah dated 10-6-1933 delivered by Mr. P. R. B. May, District Judge, Mianwali. The ala maliks were held in that case .Also to have proprietary rights in the shamilat area. As a result of this finding the suit of the adna maliks who had claimed a right in the shamilat of village and a right to claim its partition, was dismissed by the said learned District Judge, This judgment was confirmed by the High Court in Civil Case No. 1863 of 1933 on 26-4-1935 (copy Exh. D. 3). From the facts as stated above as well as law it is clear that:-
(1) Ala maliks bringing any of the area of shamllat under cultivation will also become the adna maliks of that area with the result that their right of proprietorship becomes all exclusive.
(2) In case of reclamation of barani area, no right of adna milkiyat can b claimed by the person breaking the waste, and.
(3) The ala maliks have a right to partition of the waste without any', interference from the adna maliks.
36. The abolition of ala milkiyat'only removes the superior proprietary interest. It does not take away the a,dna milkiyat right or right to exclusive possession of even uncultivated waste which once vested in the owners as ala maliks. The effect of para. 22 of Martial Law Regulation 64 in case of such land is that the danger of the ala maliks ever losing the land to adna maliks evaporates and notwithstanding any right given in the wajibularz to persons reclaiming the waste by breaking the land, the ala maliks will become exclusive owners of that property. The argument of the learned counsel about resumability of the land by the Government is, therefore, without merit.
37. I confirm the judgment of the learned Additional District Judge and dismiss this appeal with costs.