NAWAB QUTABUDDIN KHAN Versus MUHAMMAD SAEED KHAN
1. MUHAMMAD HALEEM, C.J .‑‑Leave inter alia, was granted to consider the affect of the provisions of Martial Law Regulation No.64 on the lease of the land in lieu of maintenance granted to the respondent by the appellant on the basis of the agreement dated 12‑12‑1945.
2. The appellant is the successor of late Ghulam Qasim Khan who was the Chief of Tank, District D.I.Khan. The title of Nawab of Tank and the Jagir attached to it was conferred by the British Government. He held his Jagir land and also his ancestral property which devolved on him under the rule of primogeniture in vogue in his family at that time. He had three sons namely Qutubuddin Khan, Saadullah Khan and Muhammad Saeed Khan. On his demise in 1933, his eldest son Qutubuddin Khan succeeded as Nawab of Tank and so also to the Jagir in addition to his ancestral properties. This ancestral property upon the promulgation of N.‑W.F.P. Shariat (Application) Act, 1935, measuring about 30,000 Kanals was distributed amongst the three brothers. Land equivalent to 10,000 Kanals situate in villages Gomal, Kot Azam and others fell to the share of the respondent. However, the Jagir land was exclusively retained by Nawab Qutubuddin Khan now represented by his legal representatives. Pursuant to the custom prevailing in the family, he was bound to provide subsistence and maintenance allowance from the income of the Jagir land to the other members of his family; and for that purpose he used to lease out his lands from time to time to his brothers in lieu of the maintenance allowance. There was a dispute about the satisfactory working of this arrangement.
3. Thereupon, Nawab Qutubuddin Khan and Nawabzada Muhammad Saeed Khan appointed Sardar Aslam Jan Khan of Kalachi as a sole arbitrator to decide their dispute. He gave his award on 26‑2‑1944. Under the award Nawab Qutubuddin Khan was held liable to give to Nawabzada Muhammad Saeed Khan 500 maunds of wheat annually for a period of 53 years ending Harr 1997 in addition to Rs.100 per annum as the handling charges of wheat. By consent this award was made a rule of the Court and subsequent to it the parties entered into an agreement on 10‑4‑1945, which was duly registered. Under this agreement, in satisfaction of the decree, Nawab Qutubuddin Khan leased out in favour of Nawabzada Muhammad Saeed Khan 1173 Kanals 7 Marlas of agricultural land situate in the estate of Peer Kach, District Tank alongwith an orchard known as Abdus Sattar Wala measuring 66 Kanals 6 Marlas situate in the same district for a period of 53 years from the date of decree, that is, 26‑2‑1944 with the rights to manage and enjoy the produce of the lands so leased.
4. This agreement remained in force between the parties until 1959 when the Martial Law Regulation No.64 was promulgated. Under this Regulation, the land owners were required to surrender the land held by them in excess of a fixed ceiling. Accordingly, Nawab Qutubuddin Khan surrendered his lands held by him in excess of the ceiling. The surrendered land also included the land on lease with Nawabzada Muhammad Saeed Khan equivalent to 906 Kanals 7 Marlas alongwith the orchard measuring 66 Kanals 6 Marlas.
5. The respondent thereupon complained to the Land Commission authorities against the surrender of the land held by him on lease executed by Nawab Qutubuddin Khan, and he was advised to seek his remedy in a Court of law which he did by filing a suit for possession of land measuring 980 Kanals 14 Marlas in lieu of the land included in his lease deed which was surrendered by Nawab Qutubuddin and of whose possession he was deprived. The basis for the suit was the stipulation in the lease agreement (Ex.PW 11/4 dated 12‑12‑1945) to the effect that in case the leased land or any portion thereof became Ghairmumkin (uncultivable) then in lieu thereof Nawab Qutubuddin Khan would be liable to compensate him by giving to him contiguous cultivable land equivalent in area. Nawab Qutubuddin Khan disputed the effectiveness of the stipulation and, inter alia, raised objections as to the form of the suit an‑d its maintainability as also that it was barred by time.
6. The trial Court dismissed the suit on 14‑7‑1969 holding that the stipulation could only take effect if the leased land or a4ny portion thereof became Ghairmumkin which was not the case and as such there was no breach of the terms of the lease deed for which Nawabzada Muhammad Saeed Khan could claim compensation. It was further held that Nawabzada Muhammad Saeed Khan had also failed to prove that the suit land was, in fact, contiguous to the land to which he was entitled under the agreement in case he was entitled to be compensated. The other significant finding was that under paragraph 16(2) of the Martial Law Regulation No.64, the encumbrance of the lease in favour of Nawabzada Muhammad Saeed Khan could not be deemed to have been transferred on to the land retained by Nawab Qutubuddin Khan as Nawabzada Muhammad Saeed Khan had failed to show that the lease of land in his favour constituted the "charge or encumbrance" on the surrendered land.
7. Upon the dismissal of the suit Nawabzada Muhammad Saeed Khan went in appeal to the District Judge who also dismissed the appeal. He next filed a Regular Second Appeal in the High Court which was accepted by a learned Judge of the Peshawar High Court in Chambers by judgments dated 28‑2‑1979 and decreed the suit.
8. In the litigation between the parties, it is the agreement of lease which is the sheet anchor of the claim made by Nawabzada Muhammad Saeed Khan. Upon the promulgation of Martial Law Regulation No.64, a limit was placed on the holding by para. 8, and it was provided that no person shall, at any time, own or in any capacity possess land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds five hundred acres of irrigated land. Therefore, Nawab Qutubuddin Khan was legally obliged under this paragraph to surrender the excess land including the leased land of which he was the owner. Further, upon the operation of para. 3 of the Regulation, the provisions of the Regulation, any rule or order made thereunder, had the overriding affect notwithstanding' anything contained to the contrary in any law, decree, order, rule of custom or usage or contract, instrument, deed or other documents. The effect of this provision was that the agreement of lease dated 12‑12‑1945 became frustrated and void in law and Nawabzada Muhammad Saeed Khan was left without any right thereunder to claim an equivalent contiguous land of Nawab Qutubuddin Khan. All that he was entitled to under para. 21(4) of the Regulation, which related specifically to a Jagir, to an area of land from the Land Commission not exceeding the area of subsistence holding if he did not possess any other land. It is nobody's case that he did not possess land other than the land leased out to him. Under this paragraph he cannot even claim the area of the subsistence holding. None of the Courts below attended to these provisions of law so as to give to them their due effect.
9. The learned counsel for the respondent was unable to controvert this legal position, and he was constrained to concede that the respondent could not lay any claim to the land of the appellant under the agreement dated 12‑12‑1945.
10. Accordingly, we allow the appeal and set aside the order of the High Court with the result that the order of the, trial Court dismissing the suit shall hold the field, but with no order as to costs.
11. M.Y.H./M‑419/S ??????????????????????????????????????????????????????????????????????????????? Appeal allowed.
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