MAHMOOD REPRESENTED BY L.RS. Versus MUHAMMAD SHARIF
Civil Revisions bearing No.660‑D of 1991 (Muhammad Rafique and 3 others v. Muhammad Sharif and another), 661‑D of 1991 (Sikandar, and another v. Muhammad Sharif and another), 662‑D of 1991 (Noor Muhammad v. Muhammad Sharif and another), 663‑D of 1991 (Abdul Rahim and another v. Muhammad Sharif and another), 664‑D of 1991 (Wahid Bakhsh v. Muhammad Sharif and another) 665‑D of 1991 (Allah Yar v. Muhammad Sharif and another), 666‑D of 1991 (Mst Bakhan Mai and 6 others v. Muhammad Sharif and another), 667‑D of 1991 (Karim Bakhsh v. Muhammad Sharif and another), 668‑D of 1991 (Rahim Bakhsh v. Muhammad Sharif and another), 669‑D of 1991 (Ali Muhammad v. Muhammad Sharif and another), 670‑D of 1991(Muhammad Shari v. Muhammad Sharif and another), 671‑D of 1991 (Bashir Ahmad and 2 others v. Muhammad Sharif,and another), 672‑D of 1991 (Mehmud v. Muhammad Sharif and another), 673‑D of 1991 (Muhammad Shafi v. Muhammad Sharif and another). C.R. 674‑D of 1991 and (Allah Ditta v. Muhammad Sharif and another) call in question the consolidated judgment passed by Ch. Ata Muhammad Naz, learned Addl. District Judge, Multan dated 3‑11‑1991 dismissing the appeals filed by the petitioners and affirming the judgments and decrees passed by the learned Civil Judge, Multan dated 1‑10‑1987. The petitioners are defendants while respondents Nos.1 and 2 are plaintiffs. All these civil revisions involve the examination of common questions of law and facts, hence are being disposed of by a common judgment.
2. The property in dispute forms the part of Khasra Nos.2885, 2888, 2895, 2894 and 2897 situated in Chah Bishan Das Wala, revenue estate Taraf Mubarak, Doim, Tehsil & District Multan. This property is evacuee land. In special Jamabandi relating to year 1946‑47 it bore Khasra No.7146 which comprised of 9 Kanals 11 Marlas. In special Jamabandi 9 Kanals was described as "Ghair Mumkin Abadi" while 11 Marlas was "Chahi Nehri". Out of this land an area measuring 3 Kanals 7 Marlas was allotted to one Din Muhammad s/o Karim Bakhsh and Muhammad Sharif on 6‑9‑1952. This happened vide a RL II No.404. Muhammad Sharif made the sale of land allotted to him in favour of plaintiffs. Since this land was in occupation of the petitioners who had constructed their dwelling houses on small parcels of land (under their occupation), the respondents/plaintiffs made a futile endeavour to obtain the possession of the land in dispute by different methods but in vain. Ultimately it was on 10‑4‑1979 when the respondents brought suits for possession of the various parcels of the property in possession of the petitioners. Each plaint carries comprehensive description of parcel of land in possession of each defendant. These shall hereinafter be described as (properties in dispute).
3. The case of the respondents as set out in the plaint was that the properties underneath the house of the petitioners were situated at Chah Bishan Das Wala and formed the part of Abadi Chah that the land was allotted to one Din Muhammad son of Karim Bakhsh and Muhammad Sharif son of Ibrahim. The land in Khasra No.2885 was allotted to one Sharifuddin who made the sale of the same to the plaintiff by means of oral transaction incorporated in mutation bearing No.43 which was attested on 7‑2‑1966. The land in Khasra No.2888 was allotted to one Muhammad Zaman who alienated the same by means of registered sale‑deed. The mutation bearing No.733 to this effect was attested on 13‑5‑1976 in favour of respondents/plaintiffs; that the petitioner had raised the construction over these properties in the year 1969; that the respondents applied to the Revenue authorities for the demarcation of the land but were directed by them to seek the redress from the Civil Court.
4. The suits were resisted by the petitioners. It was pleaded in the written statements that each of the petitioners had been in possession of land in their own right for more than 12 years in exercise of their right of adverse possession and had become full owner of it after the expiry of 12 years. The questions of estoppel and locus standi were also raised. On facts it was replied that the property was neither evacuee agricultural land nor it was allotted to respondents. It was further asserted that the property was not situated in Khasra Nos.2885 and 2888.
5.. Upon the divergent pleadings of the parties, the learned trial Court framed as many as 10 issues which are as follows:‑
(1) Whether the plaintiffs are in possession of the disputed property, if not, whether the suit is competent in its present form? OPP.
(2) Whether the property in dispute has not been described correctly, if so what is its effect? OPD.
(3) Whether the suit suffers from misjoinder of necessary parties? OPD.
(4) Whether the defendant has described his title to the land, in suit through adverse possession for more than 12 years? OPD.1
(5) Whether the plaintiffs lack locus standi to bring this action? OPD.
(6) Whether the plaintiffs are estopped by their words and conduct from bringing this action? OPD.
(7) Whether the suit has been undervalued for the purposes of court‑fee and jurisdiction, if so, what is its effect? OPD.
(8) Whether the plaintiffs are owners of the disputed property? OPP.
(9) Whether the defendants . are in unauthorised possession of the disputed property? OPP.
(10) Relief.
6. The parties led evidence in respect of their respective pleas. The learned first Court, upon the consideration of evidence so adduced by the parties, came to the conclusion that the plaintiffs have established their title in disputed land; that the property in dispute was evacuee agricultural land which was correctly allotted to the plaintiffs. On these conclusions ,the learned trial Court decreed the suits.
7. Feeling dissatisfied, the petitioners preferred 15 appeals which were accepted by the learned Addl. District Judge who came to the conclusion that crucial question calling for determination was "as to whether the property was part of Abadi .Deh or Abadi Dorah Chah". The suits were remanded back to the first Court for decision afresh. The trial Court was directed to appoint Local Commissioner for the purpose of recording evidence on the aforenoted questions. Thereafter, the learned Civil Judge appointed Tehsildar as Local Commissioner in order to make report with respect to the issues mentioned above.
8. Pursuant to this, the Local Commissioner submitted his report on 29‑3‑1983 holding that property in dispute was the part of Dorah Chah. The petitioners filed their objections. Upon the consideration of these objections following issues were framed:‑
9. Upon the consideration of the evidence of the parties, the learned trial Court by judgments and decrees dated 1‑10‑1987 decreed all the suits. Feeling aggrieved the petitioners preferred fifteen appeals which were disposed of by the learned Addl. District Judge by impugned consolidated judgment of affirmance.
10. In disputing the correctness/legality/propriety of the decisions of the two Courts below, the learned counsel for the petitioners raised following points:‑
(i) That the both Courts below have fallen into error of law by treating the properties in dispute as evacuee agricultural land forming the part of Dorah Chah. According to the learned counsel, it was clear from special Jamabandi relating to year 1946‑47 that Khasra No.7146 comprised of 9 Kanals out of which 11 Marlas was Chahi Nehri while 8 Kanals 9 Marlas was Ghair Mumkin Abadi. The properties in dispute were admittedly Ghair Mumkin Abadi, were never used for any purpose subservient to agriculture and so were .no land within the meaning of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act (XLVII of 1958). According to the learned counsel these properties were being used by the petitioners for residential purposes, as such it could not be allotted to the petitioners. Reliance was placed on Nafeesa Bano v. Chief Settlement Commissioner PLD 1969 Lah. 480; Shaukat Hussain v. Yar Muhammad PLD 1974 SC 276; Malik Ahmad Din and another v. Khawaja Mahmud Sadiq and another PLD 1976 Lah. 475 and Khalil Ahmad v. Deputy Settlement Commissioner and others 1990 CLC 388;
(ii) It was next contended that report of the Local Commissioner dated 13‑5‑1987 was a mere waste paper. It was manifestly violative of High Court Rules and Orders relating to demarcation proceedings contained in Vol. I Chapter 1. Neither the evidence of the parties was recorded nor detailed finding was rendered by the learned Local Commissioner. Strength was sought from Sheikh Allah Ditta v. A.F. Ahmad & Co. and others PLD 1954 Lah. 608 and Malik Imtiaz Ahmad and 2 others v. Deputy Commissioner and 4 others 1990 CLC 915.
(ii). On the contrary, learned counsel for the respondents supported the impugned decision. At the outset he raised preliminary objections relating to maintainability of these revisions. It was suggested that the two Courts below have come to the concurrent conclusion of fact that the properties in dispute were situated at Dorah Chah; that respondents were allotted land in this revenue estate and were proportionately entitled to this land in Dorah Chah on account of the allotment of land in this revenue estate. On the strength of these facts it was canvassed that this concurrent conclusion of fact was not susceptible of interference in revisional jurisdiction of this Court.
12. It was next represented that the description of land as Ghair Mumkin Abadi was not helpful to the case of the petitioners. According to him the description Ghair Mumkin Abadi did not change the nature of the land from agriculture to any other class of land. Help was sought from the definition of land given in para. No.267 of the Punjab Settlement Manual by Sir. James M. Douie, K.C.S.I., I.C.S. Fifth Edition.
13. It was lastly submitted that the properties were the part of Dorah Chah; that the respondents were allottees of other agricultural land in this revenue estate and were so entitled to proportionate allotment in Dorah Chah.
14. From the aforenoted resume of the case law and the arguments advanced by the parties the following questions emerge for consideration:‑
(i) Whether the properties in dispute were the part of Dorah Chah and were validly allotted to the respondents/plaintiffs.
(ii) Whether the revisions were liable to be dismissed on the basis of preliminary objection of the respondents.
15. Having set down the facts of the case, the submissions made by the parties and the points calling for determination, I herein proceed to determine the first question. The answer to this question turns upon the interpretation of definition of "Land" contained in section 2(3) of the Displaced Persons (Land Settlement) Act (XLVII of 1958) (shortly stated as the Act) and the definition of land given in Chapter 1 of the West Pakistan Rehabilitation Settlement Scheme, 1956 (hereinafter described as the Scheme) They read as follows:‑
Section 2(3) of the Act.
"`Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee in such land, but does not include:‑‑‑
(a) property as defined in sub‑clause (b) of clause (2) of section 2 of the Registration of claims (Displaced Persons) Act (III of 1956), or in sub‑clause (d) thereof; or
(b) such evacuee land as may be declared by the Chief Settlement Commissioner as a building site."
Chapter I of the Scheme.
"(i) `Land' means all evacuee land held for agricultural purposes or for purposes subservient to agriculture or for pasture, including unsurveyed land, trees or buildings and other structures standing on it and which the Rehabilitation Commissioner, West Pakistan, has been authorised to pool and allot finder section 6(1) of the Pakistan Rehabilitation Act, 1956 and section 7(1) of the Balochistan Rehabilitation Regulation."
15. From the ‑examination of aforesaid provisions it seems clear that the question of determination of nature of land can be resolved by ascertaining the A, purpose for which the land was used by owner at the time of partition. This question came up for consideration in Nafeesa Bano v. Chief Settlement Commissioner PLD 1969 Lah. 480. In this case, after the survey of Settlement Laws, it was held:‑
"The purpose postulated within the definition of the term `Land' in these provisions is the direct purpose for which the property was occupied by the owner at the relevant time. The land does not cease to be agricultural merely because at the relevant time it was not bearing any crop, agricultural lands are often allowed to remain fallow in the ordinary course of agriculture. On the other hand the mere fact that a plot of land is assessed to land revenue would not make it `land' within its definition, unless it is proved that it was occupied or let for agricultural purposes or for purposes subservient to agriculture. Likewise the circumstance that a plot is included in a revenue estate for which the revenue records are being compiled under the Land Revenue Act, is by no means conclusive."
16. This question cropped up in Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356. In this case Hamid Hussain was provisionally allotted certain areas of land in Deh. Buzdar Kalan, Taluka Mirawah, District Khairpur including Survey No. 8 measuring 1.3 acres and Survey No.9 measuring 1 acre as interim relief under Form No.IV. Subsequently this land was confirmed to him. It was found that this area was underneath school building and was being used as school premises since Partition. Consequently he gave a notice to the Education Department for paying him rent or delivering vacant possession of the area to him. Having failed in this effort, he instituted a suit for possession against the Education Department. The suit was contested and Education Department took up the plea that area underneath the school building was in fact residential in nature at the time of Partition and was not land within the meaning of section 2(3) of the Act. It was maintained that allotment of this area in favour of Hamid Hussain was illegal. The learned trial Court on the basis of material on record agreed with the contention of the Education Department and held that the land was Sakni in nature and could not be allotted to any refugee. On the basis of this conclusion the suit was dismissed. The first appeal as well as the second appeal by Hamid Hussain failed before the first Court as well as second appellant Court. Feeling dissatisfied, Hamid Hussain filed civil appeal before the Supreme Court which was also dismissed. The Supreme Court also came to the conclusion that since the area allotted to Hamid Hussain was underneath the school, it was not a land within the meaning of Section 2(3) of the Act.
17. This view was again reiterated in Shaukat Hussain v. Yar Muhammad PLD 1974 SC 276 and Malik Ahmad Din and another v. Khawaja Mahmud Sadiq and another PLD 1976 Lah. 475. It will be worth to quote a passage from Malik Ahmad Din's case PLD 1976 Lah. 475, which is as follows:‑‑‑
"As regards the nature of the land, it is to be noted that the property is situate within the Municipal limits, Jhelum and lies between the Old G.T. Road and the Islamia School Road and was used for stacking timber. The entire area around it is a built up area and the property was never used as agricultural land. It may also be mentioned that the relevant special Jamabandi (copy attached as Annexure R‑II with the written statement) describes the nature of the land as Banjar Qadeem. It is now established law that the nature of the land property as to whether it is land or not, depends upon the direct, purpose for which the property was occupied by the owner at the time of Independence, i.e. before 15‑8‑1947. See Nafeesa Bano and others v. Chief Settlement Commissioner PLD 1969 Lah. 480. In the relevant special Jamabandi it is mentioned that the property was Banjar Qadeem. It is quite clear that before the partition the Khasra number in question was not land within the meaning of section 2(3) of the Displaced Persons (Land Settlement) Act, 1958 and hence it could not be allotted to Muhammad Zaheer Siddiqui, petitioner No.2."
18. The ratio deducible from the examination of aforenoted law and the authorities is that the test for determining the nature of the land under the Act is the use for which the property was put at the time of Partition. Undisputedly the land does not cease to be agricultural merely because at the relevant time it was not bearing crops or was being kept fallow. It was to be ascertained "whether it was being cultivated or whether it was being used for any purpose subservient to agriculture. Applying this principle to the facts and circumstances of the case, it is clear that these properties were the part of Basti Bishan Das Wala and were being used for residential purposes. This conclusion is borne out from the perusal of statement of Muhammad Sharif plaintiff who stated in his examination that the properties in dispute were allotted to him in lieu of land abandoned by him in India; that the defendants had built their huts over the property in their respective possession and were living in them. He admitted in cross‑examination that land was the part of Basti Bishan Das Wala and was being used for residential purposes. He never claimed that the occupants were ever tenants of non‑Mulsim owners or were ever inducted into the land as tenants by plaintiffs. From the examination o this conclusive admission it is thus clear and without any contradiction that these properties were being used for residential purposes at the time o partition; were not the land within the meaning of section 2(3) of the Act and could not be allotted to the respondents. I have, therefore, no hesitation to hold that the initial order of allotment dated 6‑9‑1952 vide RL.II No.404 was totally illegal, without jurisdiction and devoid of any legal authority. It did not create any right in favour of the respondents. The concurrent conclusions of fact on this question rendered by the two Courts below are visibly in flagrant C violation of section 2(3) of the Act, hence cannot be sustained.
19. Coming to the next question, I find it has two parts. Firstly the case of the respondents is that the properties in dispute were the part of Dorah Chah; that the respondents were allotted another piece of land in this revenue estate and as such they were entitled to allotment in proportion to other land held by them in the same revenue estate. According to the learned counsel the allotment in their favour is thus protected under para. No.25 of the Scheme. The second part is that these inferences are of fact and cannot be set aside in revisional jurisdiction of this Court. Taking up the first question, it is interesting to note that the plaint does not describe any other allotment of agricultural land in that revenue estate in favour of the respondents. No other RL‑11 relating to allotment of such land has been brought on record. RL‑II No.404 is the anchor sheet of the case of the respondents. It shows that the land measuring 3 Kanals 7 Marlas (Ghair Mumkin Abadi) was first proposed to the plaintiffs and thereafter it was confirmed vide an order, dated 6‑9‑1952. The contents of this order completely demolish and negate the version of factual assertion of the plaintiffs that the properties were the part of Dorah Chah and were validly allotted to them in proportion to their entitlement. Furthermore Muhammad Sharif in his examination‑in‑chief did not lay this claim. In the foregoing context of critical analysis I do not find any substance in the first part of this contention. Accordingly the submission of the learned counsel for the respondents in this regard is found to be totally untenable and is repelled.
20. Last but least I come to the second part of the question. It is a settled principle of law that this Court had wide powers under section 115 of the Code of Civil Procedure to set aside the concurrent conclusions of the two Courts below on facts, if they are found to be in contravention of express provisions o law or the result of misreading or non‑reading of evidence. I have already held that the conclusion of facts regarding the nature of land are in breach o section 2(3) of the Act and the enunciation of law made by the Superior Judiciary in cases noted above.
21. In the light of foregoing analysis I accept these revision petitions, set aside the judgments and decrees passed by the two Courts below and dismiss the suits filed by the respondents. There shall be no order as to costs as the decision has been rendered on pure question of interpretation of law.
A.A./M‑437/L Revision accepted: