SAJAWAL SHAH Versus RAHIM SHAH

1. SALAHUDDIN AHMED, J.‑ This appeal, by special leave of this Court, is from a decision of the Peshawar High Court reversing a decision of the Senior Subordinate Judge, Hazara, and passing a decree for the recovery of Rs. 45,900.82 in favour of the plaintiffs with costs.

2. Leave was granted to consider the interpretation of sections 3 and 8 of the Wajibul arz, certain provisions of the North‑West Frontier Province Hazara Forest Act, 1936, hereinafter called the Act, and the legal effect of the transformation brought about by section 4 of the North‑West Fronier Province Tenancy Act, 1950. The wajibul arz and the provisions of the said two Acts called for consideration the questions whether only those owners, who had a share in the Shamilat Deh, were entitled to share the Malikana dues in respect of the trees felled by the Forest Department, or all owners, whether they had ownership rights in the Shamilat Deh or not. The trial Court and the High Court have come to different conclusions on their respective interpretations.

3. The dispute between the parties is about the entitlement of the sale proceeds amounting to Rs. 45,900.82 of four kinds of trees, namely, Diar, Biar, Paludar and Sum felled from Khasra No. 2388 of village Jabbar, Tehsil Mansehra, District Hazara. It is not disputed that the khasra was once an occupancy holding and it was purchased by appellants Sajawal Shah and Qaim Shah (defendants Nos. 1 and 2 in the suit), and that subse quently by operation of section 4 of the North‑West Frontier Province Tenancy Act, 1950, they acquired full rights of ownership in the khasra, Exh. P. W. 5/A, jamabandi for the year 1954‑55 of village Jabbar (vide page 50 of the paper‑book), shows that one Ahmad, 'Malik‑e‑Qabza' sold 5/6th of the khasra to Said Shah, and the latter in turn sold the same to defendants Sajawal Shah and Qaim Shah, sons of Qasim Shah. Said Shah also gifted the remaining 1/6th share of the khasra to the said defendants.

4. The plaintiff's‑respondents instituted a representative suit on behalf of the proprietors of village Dewali‑cum‑Jabbar against the defendants‑appellants for a declaration that all the owners of the said village were entitled to receive the Malikana dues in respect of the price of the aforesaid four species of trees felled from Khasra No. 2388. The trees had been auctioned, and the sale proceeds had been deposited in the treasury. The plaintiffs asserted that the defendants alone were not entitled to receive the sale proceeds of the said trees. Furthermore, that the fard bach prepared by the Patwari for the entire price of the trees in favour of the said two defendants only was not operative. A permanent injunction restraining the defendants from realising the said amount from the treasury was also prayed for.

5. Defendants Nos. 1 and 2 contested the claim of the plaintiff's. They claimed that they were Malikan‑e‑Qabza having been transferred the full rights of ownership in the land by operation of law. It was asserted that they alone were entitled to the entire price of the aforesaid trees felled from the land and that the proprietors of the Deh had no right whatsoever to receive any part of the said price.

6. The trial Court accepted the defendants' case and held that the defen dants were the malikan‑e‑Qabza and they alone were entitled to receive the Malikana dues. The suit was, accordingly, dismissed as against the said two defendants with costs.

7. On appeal by the plaintiffs‑respondents, the High Court reversed the decision of the trial Court, and held that the plaintiffs, as owners of the Shamilat of village Dewali‑cum‑Jabbar were alone entitled to the entire sale proceeds of the aforesaid four species of trees felled from Khasra No. 2388, and that the said defendants, not being co‑sharers in the Shamilat, were not entitled to any part of the sale proceeds. The appeal was, accordingly, alloyed, and a decree for Rs. 45,900.82 with costs was passed in favour of the plaintiffs‑owners of the village (Malikkan‑e‑Deh) against the said two defendants only.

8. It appears from the pleadings of the parties as well as from the judgments of the two Courts below that the parties accepted the position that the wajibul arz applied to the land in dispute. The only difference between them was whether section 3 or section 8 of the wajibul arz applied to the land. The appellants, therefore, cannot be allowed at this stage to contend, as they have sought to do, that the wajibul arz is not binding on them as they were not parties to it.

9. The wajib‑ul‑arz is a part of the revenue record drawn up with special reference to each village, and contains a record of admitted village usages. There is a presumption of correctness attached to wajibul arz, and the onus lies upon the person who challenges the usages to prove the contrary. Yidel 87 P R 1868, A I R 1939 Lah. 53 and P L D 1954 Pesh.

69. In the case of Mst. Bhag Bhari and another v. Mst. Bhagan and another (P L D 1954 Lah. 356) it has been observed as follows:‑

10. "Entries in a wajib‑ul‑arz may be of two kinds. They may be state ments of local custom or usage or they may be recitals of agreements,

11. As statements of custom or usage they are strong evidence of the existence of such custom or usage but they have only an evidentiary value. Agreements incorporated in the wajibul arz are however binding but only on the parties to the agreements, and even in such cases it is open to a party to prove that in fact no such agreement was entered into though the task would be difficult.'

12. I now proceed to consider the wajibul arz itself. Wajibul arz along with its translation appears at page 62 of the paper‑book (judgment of the High Court) and need not be reproduced here in extenso. Section 3 of the wujibul arz provides that Diar, Biar, Paludar and Sum trees, whether in the holding of some one or in the Shamilat, if sold, Mahkana shall be given in respect of the said trees to all the owners of the village, i.e., such lands shall be treated as owned by Shamilat. In case of sale of other kinds of trees, it provides that Malikana shall be given only to that very proprietor on whose holding the trees stood. It will be seen presently that this is consistent with the provisions of sections 12 and 27 of the Act. The wajibul arz should be read with section 27 of the Act.

13. Section 8 of the wajibul arz deals with the rights of tenants, and it provides that in the matter of planting and felling of trees which have been planted in the fields of the occupancy tenants presently or in future they shall have the option to sell, mortgage and use. Obviously the trees mentioned in section 8 are trees other than Diar, Biar, Paludar and Sum for under the Act these four species of trees could not be cut and sold without the permission of the requisite authorities.

14. The appellants having ceased to be occupancy tenants, and having become owners of the land in dispute, could not be governed by section 8 of the wajibul arz and their rights to share in the Malikana must be regulated by section 3 of the wajibul arz. It was conceded before us by the learned counsel for the appellants that on the extinction of their occupancy rights the appellants became Mal1kan‑e‑Qabza in so far as the disputed khasra number was concerned. According to Douie's Settlement Manuali Malika.n‑e‑Qabza are those owners who own the land actually in their possession, but have no share in the common property of the village community, nor in the joint rights, profits and responsibilities of the proprietary body of the village. As under section 3 of the wajibul arz the trees in dispute are to be treated as owned by the Shamilat, the appellants, in their capacity as Malikan‑e‑Qabza of the land in dispute would not be entitled to share in the Mahkana.

15. The wajibul arz in the present case is evidently a statement of local customs or usage. Nothing having been shown to the contrary the usage as contained in the wajibul arz applied to the land in question.

16. However, the matter does not rest here. Even though the appellants are only Malikan‑e‑Qabza in respect of the khasra numbers from which the trees have been felled, yet it 'was made clear by Patwari Abdul Qayyum Khan, appearing as P. W. 5, that defendants Nos. 1 and 2, namely, the present appellants, were otherwise members of the proprietary body. It seems to me that this aspect has been overlooked by the learned Judges in the High Court. On the evidence of the Patwari, the appellants would be clearly entitled to their proportionate share under section 3 of the wajibul arz as co‑sharers in the Shamilat.

17. It has been legitimately urged en behalf of the respondents that the appellants bad purchased the said land from Said Shah, who was himself subject to the wajibul arz, and, therefore, the appellants could not avoid the application of the wajibul arz. The appellants having stepped into the shoes of their vendor could only participate in the rateable distribution of the Malikana, and to no more.

18. On the basis of section 47 of the Act it has been next contended on behalf of the appellants that the civil Court had no jurisdiction over the subject‑matter of the suit.

19. The question of jurisdiction was never raised by the defendants‑appellants in any one of the Courts below and, therefore, this Court has not had the benefit of the opinion of the Courts below on this point. Nevertheless, I do not think that section 47 of the Act applies to the present case. Section 47 of the Act is as follows:--

20. "(I) No civil Court shall exercise jurisdiction over any of the following matters, namely‑

(a) any matter provided for in sections 3 to 25 both inclusive;

(b) any matter provided for in sections 35, 36 and 38.

(2) In the matters referred to in subsection (1) jurisdiction shall rest with the Revenue Officer only and all proceedings shall be governed by the procedure prescribed by law for the time being in force for the regulation of such proceedings.

(3) Every order passed by a Revenue Officer in exercise of the above jurisdiction shall be subject to such rights of appeal and powers of review and revision as are provided in sections 80 to 84 of the Punjab Tenancy Act, 1887."

21. The present case is governed by section 27 of the Act, relevant provisions of which are as follows:‑

22. "27.‑(1) In the case of ‑‑

(a) trees felled in reserved forests,

(b) firewood supplied from the same, and

(c) Deodar trees felled in the waste‑lands of villages in the Kaghan Ilaqa, the Forest Officer shall credit to the Government as forest revenue the price realized by the sale of such trees or firewood and on the other hand debit to the Government and pay to the right holders entitled thereto in such manner as the Deputy Commissioner may direct the seigniorage‑fees due according to the Act of such fees that is in force for the time being.

(2) Similarly, in the case of trees which are sold from waste‑lands, the Deputy Commissioner shall credit to the Government as forest‑revenue the seigniorage‑fees, and the balance of the price realised shall be paid to the right‑holders entitled thereto; provided that the trees referred to in this subsection are of one or other of the kinds entered in the seigniorage‑list which is in force for the time being."

23. Subsection (2) applies to the facts of the case inasmuch as it is not disputed that the trees felled and sold had stood on waste land. In this subsection "tree", inter alia, means tree of a kind specified in Schedule I to the Act. Schedule I mentions a large number of trees including Biar, Diar, Paludar and Sum. In accordance with the provisions of the said sub section (2), after the seigniorage‑fees have been credited to the Government as forest‑revenue, the balance of the price of trees sold from waste lands be paid to the "right‑holders". The term right‑holders,, bas not been defined in the Act, but with reference to section 12 of the Act, and this is only incidental, it evidently includes the land‑owners of the village. Section 27 o the Act does not come within the mischief of section 47 of the Act and, therefore, any matter covered by the former falls within the jurisdiction of the civil Court. And this is obviously so because section 27 deals with the rights and entitlements of the parties mentioned therein.

24. Section 12 deals with rights in waste lands and it is as follows:‑

25. "(1) Subject to the rights and powers of the Government in respect of seigniorage and forest conservancy as defined in this Act or in rules made thereunder and subject also to the claims of right‑holders not being owners of the soil, all waste lands are the property, held jointly or severally, as the case may be, of the land‑owners of the village in whose boundaries they are included and such land‑owners are entitled to use free of charge for their own domestic and agricul tural requirements any trees and forest produce found in those waste lands. But they shall have no right or power to sell any trees of brushwood growing in such lands except with the permission of the Deputy Commissioner or other officer authorised by the Government and under such conditions as the Deputy Commissioner may impose; and all such sales shall be subject to payment to the Government of seigniorage‑fees as provided by section 27.

(2) The claims of right‑holders other than land‑owners of the village shall be recognised to the extent defined and recorded at settlement or in case of doubt or dispute, to the extent which may hereafter be defin ed by the Deputy Commissioner with the sanction of the Local Govern ment, and the exercise of such rights shall be subject to the provisions of this Act and the rules made thereunder."

26. The land in dispute being 'waste land' it is the property, held jointly and severally, as the case may be, of the land‑owners of the village in whose boundaries it is included for certain purposes subject to certain conditions and subject also to certain rights and powers of the Government and to the claims of right‑holders, not being owners of the soil. It may be noticed here that even in the case of trees other than those mentioned in Schedule I of the Act, they could not be sold except with the permission of the requisite officer. Subsection (2) of section 12 of the Act deals with the claims of right holders other than land‑owners of the village.

27. From the foregoing it appears clear that the appellants fall within the category of land‑owners of the village and, therefore, they are entitled to share in the distribution of the balance of the price of the trees under section 27 (2) of the Act. The entitlement and its extent, as I have noticed already, is determined by the wajibul arz of the village.

28. I would, accordingly, allow the appeal and set aside the impugned order of the High Court, and instead pass a decree for Malikana in favour of all the owners of village Jabbar, including the appellants. All these owners after the payment of seigniorage‑ fees as provided under section 27 (2) of the Act shall share rateably in the payment of the balance of the price of the trees in accordance with section 3 of the wajibul arz. There shall be no order as to costs.

29. ANWARUL HAQ, J.‑ -I agree.

30. MUHAMMAD AFZAL CHEEMA, J. ‑ -I agree.

31. K. B. A. Appeal accepted.