Government through Secretary Interior and others Vs Iqbal Yousaf and others.

(JUDICIAL DEPARTMENT)

Government through Secretary Interior and others .Petitioner.

Versus

Iqbal Yousaf and others.

...Respondents.

For the Petitioners: IVIr. Aamir Javed Advocate General, Ms. Shakeela Begum AAG & Mr. Farmanullah Khattak, Advocate along with Javed Section Officer Sarhad Tourism Corporation &.

Mehmood Shah Patwari.

For the Respondents: IWs Syed Hamid Ali Shah, Ahmad Ali, Abdul Basit Gillani, Aurangzeb Khan & Syed Saud Shah, Advocates.

Date of Hearing: 23.01.2024

JUDGMENT

SYED ARSHAD ALI. J.- This consolidated judgment is aimed at deciding the instant Civil Revision as well as connected Civil Revision bearing No. 278-Pl20LB as essentially adjudication of common questions of law and facts are involved in all the petitions.

Plaint No.l

2.The basic outline of the dispute as related in the plaint in suit No. 84/1 filed on 23.1I.1991 reads as follows. Mr.

4.Iqbal Yousaf and 08 others filed a suit against the petitioners before the learned Civil Court Swabi for a decree for declaration of their title as owners in possession of suit land measuring 366 kanal 07 marla or whatever area might be proved, and of the trees and crops on it, bearing khasra number 1,2,8,9,47,68,69,70 khata No. 1/1 situated at Mouza

Chak Kund Tehsil Lahor District Swabi. They asserted that v petitioners-defendants, by cutting and transporting trees from the suit land, were in violation of law, and that they required to be permanently restrained from such illegal interference with suit property. In the alternative, they prayed for recovery of possession in case it was lost pending suit, and for recovery of compensation/market value of the suit property through rendition of account, if the court deemed the primary prayers not called for.

Plaint No.2

3.Similarly, the outline of facts of the dispute as related in plaint of suit No. 190/1 filed on24.11.1991 goes as follows. Mr. Iqbal Yousaf and 08 others filed the suit against the present petitioners before the learned Civil Court, Swabi for declaration of their title as owners in possession of suit property measuring 402 kanals 08 marla or whatever area might be proved bearing khasra number 3, 4, 5, 6,7, 10, 13, 63,64,65,66 & 67 khata No. 1/3 situated at Mouza Chak Kund, Tehsit Lahor District Swabi, which is free from all kind of encumbrances. They challenged the entries regarding acquisition in column No. 7 of record-of-rights in favour of petitioners/defendants as wrong, illegal and ineffective upon their rights; and therefore liable to be corrected. They asked for necessary injunctions to secure their title, and prevent interference. In the alternative, they prayed for recovery of possession of the suit property if it was lost pending suit.

4.The aforesaid two suits, after contest by the petitioners, were decreed by the learned trial Court vide judgment/decree dated 25.06.2008. The said judgment/decree of the learned 4 trial Court was upheld upto this Court, however, on filing Civil Appeats bearing No. 482 to 484 of 2Ol1 by the petitioners/defendants before the Apex Court, the same were allowed and judgments/decree of the courts below were set aside vide order dated 11.06.2015. Against that, the

respondents-plaintiffs filed review petitions bearing C.R.Ps.

.V No. 501 & 502/2015 before the Apex Court, which were allowed with consent of both the parties vide order dated 17.08.2016 in the following manner:- "With the consent of the learned counsel for the parties, these review petitions are allowed and the judgment under review dated i,1.6.2015 passed by this Court is set aside. Furthermore, with consent, we also set aside the judgments and detees of all the courts below and remand the matter to the learned Trial Court and in the post remand proceedings the respondent/Government of Khyber Pakhtunkhwa shall submit an amended written statement in line with the request for omending the same already made before this Court vide CMA No. 1475/2011. The learned Trial Court shall frame issues afresh in the light of the amended written statement and give a chance to both the parties either to rely upon the evtdence already brought on the record by them or any further evidence which the parties in the light of the fresh issues framed would like to adduce. This right shall be available to both the parties to the suit. As the matter is lingering on since long, the amended written statement shall be /iled by the Government of Khyber Pakhtunkhwa within a period of one month from today. The issues shall be framed within a period of fifieen days thereafier and the trial of the case shall be concluded within a period of six months thereafter".

Amended written statement

5.After remand, the petitioners/defendants submitted their amended written statement wherein it is alleged that the land measuring 1400 kanals situated at Mouza Chak Kund was the State property, out of which, land measuring gt7 .03 kanals in khata No. 1 & 2 comprising of 11 khasra numbers was given by the Govemment of Punjab to Aseer Singh for the upkeep of Guardwara/Dharamsala vide letter No. l7g4 dated tgth r October, 1874. On his death, the said land was mutated to his son, namely, Proman Singh vide letter No. 445 dated 19th January, 1880 by the order of the then Commissioner. After the death of Proman Singh, land measuring 560.11 kanals comprising of 28 khasra in khata No. 1 was mutated in the name of Bhagat Singh and land measuring 342.03 kanals comprising of 41 khasras in khata No. 2 was transferred in the

name of Ram Singh, who were the grandsons of Aseer Singh.

$/ Later, Bhagat Singh and Ram Singh sold their lands to Khan Bahadar Mohammad Ali Khan, Numberdar of the area/predecessor of the plaintiffs against sale consideration of Rs. 1000/- and Rs. 7001- respectively and mutation No. 10 dated 30.11 .1932 and mutation No. 11 dated 27.05.1933 were attested in his name. Thus, Khan Bahadar Mohammad Ali Khan become owner of total land measuring ll23.l8 kanals including his personal land measurin g 22L04 kanals in khata No. 3 comprising of 15 khasra numbers. It is pertinent to note that Khan Bahadar Mohammad Ali Khan, during his life time, had sold his personal land measuring 221.04 kanals in khata No. 3 and after his death, his L.Rs remained owner of the land being purchased in khata No.l & 2 in the revenue record. The petitioners further alleged that after promulgation of NWFP Abolition of Jagirs Act, 1952 ("Act"), the land purchased by Khan Bahadar Mohammad Ali Khan from Bhagat Singh and Ram Singh in khata No. I & 2, being part of Jagir, was reverted back to the State, however, no changes in the column relating to ownership were made by the revenue staff in the revenue record rather in the column of cultivation the name of Government was entered as 'bila lagan badawa hasool-e- arazi'. The petitioners also alleged that the Government (Sarkar Daulatmadar) remained in exclusive and unintemrpted possession of the suit property and still continues the same;

therefore, the heirs of the original Jagir holder, who was given land before partition, cannot have any right of ownership in the property after promulgation of the Act. The petitioners also alleged that case No. 1211 between the District Council €4' Swabi and District Council Peshawar regarding the suit property was already decided on 25.1t.1990 and the present suits of the plaintiffs were hit by the principle of Res -Judtcata;

therefbre, the same might be dismissed.

Issues

,y 6. From divergent pleadings of the parties, the learned trial Court framed the following issues:-

1.Whether plaintiffs have got q cause of action?

2.Whether suit is incompetent in its presentform?

3.Whether the suit is within time?

4.Whether plaintffi are estopped to sue by their own conduct?

5.Whether the suit is liable to be dismissed from non- joinder and mis-joinder of necessory and unnecessary parties?

6.Whether defendants have made improvements in the suit land, if so, how much and its effect?

7.Whether the suit property was reverted back to the State after promulgation of NWFP Abolition of Jagir Act, 1952?

& Whether the suit is hit by principle of res-judicata and case No. l21I between District Council Swabi and Peshawar has already been decided on

9.Whether defendants have matured title in the suit land by way of adverse possession?

10.Whether suit is correctly valued for the purpose of c our t fe e and j uri s dicti on?

I l. Whether this Court has got jurisdiction?

12.Whether the suit land is ownership in possession of the plaintffi and the defendants have no right whatsoever therein?

13, Whether plaintffi are entitled to the deuee for declaration, permanent injunction and possession as prayedfor?

14.Whether plaintffi are entitled to the decree for if recovery of price of the suit land in the alternative, so, how much?

15.Relief,

After framing of aforesaid issues, the respondents- plaintiffs filed an application for issuing direction to the petitioners to first lead their evidence particularly on issue No.7. The said application was allowed vide order dated 18.01 .2017 and the petitioners adduced the following evidence.

Petitioner's evidence 4 7. Wati Muhammad Khan ADK Swabi appeared before the Court as RDW-01 and produced the revenue record in the form of Misl-e-Haqiyat for the year, 1870 (Ex.RDW.lll), Jamabandi for the year, 1886-87 (Ex.RDW.ltz), Jamabandi for the year, 1890-91 (Ex.RDW.ll3), Jamabandi for the year, l89I-92 (Ex.RDW .ll4), Misl-e-Haqiyat for the year, 1895-96

(Ex.RDW .ll5), Jamabandi for the year, 1899-1900 v (Ex.RDW.116), Jamabandi for the year, 1903-04 (Ex.RDW .l/7), Jamabandi for the year, 1907-08 (Ex.RDW.1/8), Jamabandi for the year, 1915-16 (Ex.RDW.ll9), Jamabandi for the year, l9l9-20 (Ex.RDW. 1/10), JamabandiAvlisl-e-Haqiyat for the year, 1927-28 (Ex.RDW.Llll), Jamabandi for the year, 1930-31 (Ex.RDW.lll2), Jamabandi for the year, 1934-35 (Ex.RDW.lll3), Jamabandi for the year, 1938-39 (Ex.RDW.lll4), Ishtimali Jamabandi for the year, 1953-54 (Ex.RDW.1/15), Jamabandi for the year, 1957-58 (Ex.RDW.11L6), Misl-e-HaqiyatlJamabandi for the year, L96l-62 (Ex.RDW.Ill7), Jamabandi for the year, 1965-66 (Ex.RDW.1/18), Jamabandi for the year, 1969-70 (Ex.RDW.1lI9), Jamabandi for the year, 1982-83 (Ex.RDW.ll20), Misl-e-Haqiyat for the year, l99l-92 (Ex.RDW.ll2l), Jamabandi for the year, 2001-2002 (Ex.RDW.Il22), Jamabandi for the yatr, 2009-2010 (Ex.RDW .L123) and Jamab andi zer-e-kar for the year, 2Ol3- 2014 (Ex.RDW.ll24). This witness in his cross-examination has stated that in light of katoni ishtimal for the yaffi,1962-63, 912 kanal of land was allotted to Khan Bahadar Muhammad Ali Khan. He also admitted that as per Misl-e-Haqiyat for the year, Lggl-gz and jamabandi for the year, 2013-2014, Iqbal Yousaf etc are still owner in the column of ownership. He also produced Wajibul Arz Ishtimali (Ex.RDW.llP-20), Shajara Nasab (Ex.RDW.I1P-}L) and inheritance mutation attested on Il.02.!966, according to which, land measuring 917 kanal 1'z was recorded in the name of legal heirs of Khan Bahadar Muhammad Ali. He also produced jamabandi for the year, t927-28 (Ex.RDW.llP-23), according to which, Muhammad Ali Khan was recorded owner in the column of ownership and in the column of cultivation.

Essa Khan Tourism Officer (E&P) appeared before the Court as RDW-02 and produced authority letter

(Ex.RDW.2/t). He stated that the kund park was transferred to .v Tourism Corporation Khyber Pakhtunkhwa in the year, L995 by the Provincial Government to promote tourism in the Province. The park was operationalized by the Tourism Corporation Khyber Pakhtunkhwa and he was deputed as Supervisor/Incharge of Kund Park to manage its affairs. He stated that the plaintiffs approached the Corporation with a request for compensation which, the then Secretary Law Mr. Saleem Khan, tumed down by observing that per revenue records it was state property. That Provincial Government under the supervision of SMBR constituted committee vide notification No. SO-1(2) 5-5212001/vo1-iii dated 27.09.2003 with the terms of reference to check out old record of the land of Kund Park with a view to determine the ownership of the Government. The committee submitted its report dated 21,.02.2005 (Ex.RDW.2l4), which clearly reflects that from first settlement Mauza Chakee Kund was state land given to one Aseer Singh for the upkeep of Daram-Sala, Gurdwara in Attock. After the death of Aseer Singh, his legacy had devolved upon his descendents and thereafter they illegally sold out some portion of landed property to different persons without consent of the Government in violation of the express stipulation that the holding was JS* ev ti to be transferred with consent of Government. After the independence of Pakistan, the Government of NWFP passed Abolition of Jagir Act, 1952 which reverted all jagirs, including the one under consideration, back to the Government. However, for reasons unknown, the land continued to be recorded as entitlement of the predecessor of 4 plaintiffs, namely, Khan Bahadar Muhammad Ali Khan, who was Numberdar of the area. Nonetheless in the column of cultivation, the occupant was Sarkar Daulat Madar. After establishment of Tourism Corporation, the Government of NWFP handed over the possession of park to the Corporation. This witness in his cross-examination has stated that it is

correct that as per revenue record government has also v purchased some property from the descendent of Aseer Singh, however, the said properly was also lying with Iqbal Yousaf etc. He further admits that it is correct that till today, they have not challenged the sale in favour of the predecessor of plaintiffs, namely, Khan Bahadar Muhammad Ali Khan. He also stated that besides Khan Bahadar Muhammad Ali Khan other persons have purchased property from the descendents of Aseer Singh and they are owners in possession of that property. It is correct that they/petitioners have not interfered with possession of other people beside Iqbal Yousaf etclthe plamfltts.

Husan Wahab Naib Tehsildar Lahor appeared before the Court as RDW-03 and stated that as per Misl-e-Haqiyat for the year, 1870, the suit property was allotted to one Aseer Singh for the look after of Gurdwara/Darmsala and after that in the year, 1932-33 his heirs sold out/transferred the suit property in favour of predecessor of the ptaintiffs, namely, Khan Bahadur Muhammad Ali Khan through mutation No. 10 and 11, however, in the year, L952, the Jageer Abolition Act was passed whereby all Jagir properties, including the suit property, were reverted back to Provincial Government. He further stated that afterwards, the Provincial Government, through Sarhad Tourism Corporation, constructed Park on the suit land and expended millions of rupees. The said park still exists and is fully functional. This wibress in his cross- examination has stated that though the suit land was allotted to predecessor of the plaintiffs in consolidation proceedings in the year, 1952-53 and in the year, 1962-63, however, the very 4 mutations No. 10 and 11 were illegal as the suit land was Jageer. He admitted that till today they have not challenged the registered deed as well as mutations in the name of Khan Bahadur Muhammad Ali Khan. He funher admits that it is correct that in consolidation proceedings, the properties are always allotted to the owners.

JavedlqbalPatwariHalqaMouzaJehangiraappeared kfiasra girdawari before the court as RDw-04 and produced

.V

Nos. |,2, 8,9, for the year, 2oo2 to 2016 in respect of khasra 47, 68, 67 and 70 (Ex.RDw.4/1). This witness in his cross- is recorded as examination has admitted that the suit property etc and the ownership of Iqbal Yousaf in pertinent column they are occupied owners of partial atea' Plaintiffs' evidence 8.Zl|fiqarAli,RegistrationMoharrirSub-Registrar office,swabiappearedbeforetheCourtasRPW-01and producedRegisterNo.46BahiNo.lVol.46wherein was registered deed No. 163 dated 10.10.1932 (Ex.RPW'1/1) mentioned. This witness in his cross-examination has stated that it is incorrect to suggest that the vendor namely, Ram Singh was not owner to alienate the property in favour of

vendee, namely, Khan Bahadur Muhammad Ali Ktran. Thereafter, the plaintiffs submitted an application that the they do not want to produce further evidence and rely upon evidence alreadY recorded' Findines of trial Court dated 23'09'2017 g. In the present case, the main issues are issues No' 7 & 12, which the learned trial court has decided as foll0ws:- "Admittedly, the property given by the then Gou-t' of Puniab to-Aseei Siigh vide letter No' 1794 dated 1g.10.1874 is Jagir itth th' condition to upkeep the Daramsala/Gord*oro, revocable at the Emperor's pleasure ' 1 tS v tt'l li' Then the suit property 'was sold by the legal heris of the said Aseer Singh to predecissor of the plaintiffs' was against the terms and condition of iltt gramt and they were not entitled to do so' Even otherwise' afier the promulgation of NWFP Abolition of Jagir Ac-t' 1952, abolishei att the Jagirs teated prior to the

4fr' ':;#:,#:,':;;':{"1: l;;:y!::;':,iitr:!t:; to*er of Jagir sha, foithwith terminate and such Jagir hid rel'erted bick to the governtnent -without said o,riy ,,n u*brance or charge' The Act further paid to any person that no compensation was to be who was affected by its provisions' In the light of-my detailed discussion and observations thiugh ihe predecessor of the plaintffi ti pinrt^ed tie suit property from RTam Singh etc ind they are recorded owners in the revenue

record but from whom they had purchased the property were not entitled to alienate the same as it v ioi ligi, land. After the promulqatign of NWFP Abolitiin of Jagir Act, 1952, alt the Jagirs created- prior to iht io**encement of this Act stand 'terminated and the property reverted back to the State. So the suit property was Jagir land and the same has been revertid b,ack to the State in light of ibid Act. Hence issue No. 7 is decided in positive while issue No. 12 is decided in negative"' ins of Aooeal Cou dated 22.11.2 ot7

10.The Appeal Court held as follows:- "27. In view of factual-n'legal position hinted to inParas23to26ante,itwouldfollowthatitwas no longer a Jagir afier l9j3'

28.For the facts'n'reasons highlighted in Paras 23 to 27 ante, the NI(FP Abolition of Jagirs Act' 1952 had no effect whatever qua this land as it was not a Jagir in 1952.

29.is explained in Paras 23 to 28 ante' the West Pakistai Repealing Ordinance, 1970 (XVIII of lg70) had repealed the NWFP Abolition of Jagirs Act,'1952 (YiI of 1952) w.e.f, lgth June 1970 and as noactionhadearlierbeentakentogiveeffecttothe Act VII of 1952 for resumption of such land by Governmint of erstwhile NWFP till repeal of that Act (ibid) through repealing Ordinance of 1970 (ibid), therefore, such power had ceased to exist on tg.i.tglo. They could take no benefit under a dead lan (rePealed Act VII of 1952)'

30.Regarded in perspective of foregoing foctual-cim-legal position, it could safely be concluded that findings on issues # 7 and 12 being based upon noi-,eading of evidence' misreading of materiil on record and misconstruction of law couldnotbesustained,Findingssoreturnedinthe impugned decision being result o{ incorrect assuiption of law and facts both would require to be inierfered with. The same would thus deserve outrighi reversal' Similarly, findings on issues # 13 and il would be liabte to be set aside at naught as well.

part of

31.In case of wiltingness, if any, on the land the appellants io seek compensation qua in^ qrrriin instead of seeking posseEsion, or in case of mutual understanding, if any, between the parties to that ffict, it shatl be treated as a preliminary decrei'for grant of compensation, at the prevalent- market- rati as it is today, in respect of suit land through rendition of accounts,,-as an alternative refief, in favour i7 tlrc appellants,- against the- ,r,rpondrnir. Such marl<et value shall be determined by the learned trial Court if and when 'an ippticationfor grant offinal decree' is made before ii.'fne appellints ask d for alternative relief in their plait'. Even otherwise, this Court is posses-se-d of ali powers which trial Court has,-as providedfor in iL S. ioz of C.P.C. on over all analysis of record

thelightoflaw,itwasfoundthattherespondents could not justify their possession over suit land' As regards Sariad Tourism Corporation' Khyber Pakhtunkhwa/respondent#l0,itismanagingthis land as a Pari because Government of Khyber Pakhtunkhwa/otherrespondentshadgiventhisland to it for managernent' iherefore, maior relieffor the appiltant s w iuld b e de cl ar ation-cum-po s s e s s ion of suitland,Thealternativereliefwouldberecovery of compensation qua land in dispute at the markpt ^presently price prevalent in the area through renditionofaccounts.Therefore,itisnotnecessary which fo, a party to askfor general or other relief may always be given as the Court may think iust to the same-exteni as if it had been asked for. In this behalf, Order VII Rule 7 of the Code (ibid) is self' contained.Theviewthatthiscourtwouldtakeof this matter would find support from case law reported in: i) 2012 SCMR 1688' ii) 2010 SCMR 984 and PLD 2006 SC 66' Cinsequently, this Regular First Appeal merits outrigit success. The appeal is accordingly allowed.Theimpugnedjudgmentanddecreeareset aside. This Court grants a declaratory decree' as asked for, in favour of the appellants against the respoidents. Possessory decree, as prayed for' stinds granted ot the appellants against the respondents. The appellants are, as hinted to in Para3lante,alsograntedagainsttherespondents a preliminary decree for recovery of compensation qia land in dispute through rendition of accounts at presently prevailing market value' Keeping in view -the intricate legal questions, this Court is not inclinedtopassanyorderastocosts,Consignthis file after comPletion".

11.Aggrieved from the aforesaid judgment/decree of the learned Appeal Court, the petitioners/defendants have filed the

instant Civil Revisions.

12.The learned counsel for the petitioners has essentially to raised two issues before this Court; firstly, while referring 1870 he has the record-of-rights (Misl-e-Haqiyat) for the year argued that the suit property was granted to Aseer Singh'

Gopal singh & Narain Singh sons of Behra Singh as Jagir and r

subsequently,thetransactionhavingtakenplacewherebythe suit property was purchased by the predecessor of the plaintiffs was illegal as the Jagir land could not be alienated bytheholderoflagirinanymanner.Tobolsterhis section 3 of submissions, the learned counsel has referred to the North-west Frontier Province Abolition of Jagirs Act,

1952 (,.Act, 1952") that.all kind of Jagir stood abolished and thus the landed property which was given on Jagir to Aseer Singh and others would by operation of law revert to the Government, therefore, the findings of the leamed Appeal Court are incorrect and liable to be reversed. The second contention was that the revenue record also suggests that the Government was in possession of the property and thus, the suit filed by the plaintiffs was barred by the period of timitation.

13.Since at one point of time i.e. in the first jamabandi, which was prepared in the year 1870 after the advent of British Empire, the suit property was described as Khalisa and Jagir,therefore, first it seems useful to shed some light on the concept of Jagir, and the effect of Act, 1'952' Meaning of Jasir

14.The term 'Jagir'is shortened form of the Persian word 'Jaygir' meaning possessing, occupying a place, fixing a habitation, or making a settlementl' It denotes an assignment by the sovereign of land revenue of a territory to a chief or noble, who pledges to grant support troops, police and other related services. The may or may not include a right in the soil that is originally for

life but often became hereditary2.

Historv

15.Under the Mughals the imperial territory' for the purposes of land revenue administration, was divided into two

road categories:

4 a. Khalisa and b. Jagtr Mahals3

saeed-ahmad/

The tand SYstem of British India BY Baden Powell, B'H' (Baden Henry), 1841-1901 Page 618l

mode/2up?q:jagir)

J

L*d R*-"* Administration under the Mughals, 1700.1750, by Siddiqi Noman Ahmad, 1930 Page' 108/

The system of granting land to the noble has remained throughout history both in Europe and Asia. Among the Mongols and Turks, a kind of jagirdari system was prevalent. Chingiz Khan and Timur allotted substantial iagirs to their nobles. They later laid down guidelines for granting jagtrs to nobles. The system of assignment in the form in which it came to India was first formulated by the Caliph Muqtadira. The bulk of the imperial territory during Mughal period consisted of jagir lands and the revenue of these lands was assigned to imperial servants known as the 'Mansabdars ' in lieu of their salaries according to their ranks in the imperial service. These assignees were entitled to collect the revenue of the 'Mahals' assigned to them as'Jagirs' or'Iqta'and in this capacity they were known as 'Jagirdars ' or 'Iqtidars'-s The East India Company inherited from the Mughal the revenue administration of various types of land tenures and rights in lands. There were Khas Lands, Jagirs and lands allotted to revenue farmers or rent collectors called Zamindars; Jagir/Inams were allotted to big feudal landlords in lieu of certain financial or military obligations they were supposed to fulfiItowards the state.

The iagirdari system essentially was a model of payment by assignments. The iagirdar was entitled to collect the revenue from the mahal assigned to him as iagir in order to meet his own expenses and those of the contingent staff maintained by him in the service of the Emperor. The 4 assignment of jagir as a mode of payment implied that his (https ://archive.org/details/landrevenueadmin0000sidd/page/ I 1 0/mod el2rf,)

https ://alchive.org/details/landrevenueadmin0000 sidilpage/ 1 0 8/mod e/2up?q:j agirdari+s),stem https //archive. ors/detail s/muraqqa-e-akbarab ad-vani -tafe ekh-e- aera- saeed-ahmad- marattravil]r{Jirdarso2}inoh2}ttrco/o2}Mrughalo/o20Empire?z}dt$ins o/o20tbeo/A}iignod2}ofo/o2}Akbarlpagel2glmodelzrtp?q=iagitdari+s vstem.

t4 claim was strictly limited to the revenue of the assigned mahal and this fact was specifically stated in the order of assignment.

By implication the jagirdar could not claim any right or title to the land of the mahal assigned to him. However, this right of assessment and collection of land revenue in a particular area for a considerable time, could, conventionally, be availed to create some sort of permanent right.6 The state of law on this subject has always been well- settled. In various parts of India, the British Government granted Jagirs and Muafis to various individuals and class of individuals. Some of these grants date back to the time of the Mughals and were confirmed by the British Government. Some of them were granted by the British Government for services rendered to them. The terms of these grants differed from each other. Under the terms of these grants the Jagirs could be resumed on the breach of any of the conditions mentioned therein. The government under the terms of the grant was within rights to resume the jaagir upon violation of any of the terms of the grant by the assignee, without seeking aid from the courts. It is amply clear that under the Crown Grants Act of 1895, govemment was entitled to resume lands and to take possession thereof, but, in absence of a term to the effect in the grffit, the executive authority certainly will not be entitled to resume the land or to cancel the grant and take possession of the propeny.T

t6. The first settlement in Peshawar District, then administratively part of Punjab, was carried out by Captain E.G.G. Hastings. He explains the concept of Jagir in Chapter- IX of his notably comprehensive report. He divides the iagirs of District divided into three classes:

' I. The jagirs which had been sanctioned by competent authority.

https ://archive.org/details/landrevenueadmin0000sidd/page/ I I 0/mod el2up?trjagir

Mir Abdul Husain Khan vs. The Province of west Pakistan (PLD 1958 (W.P.) Karachi 175

II. Jagirs enjoyed, but for which sanction of competent authority was wanting.

m. Old jagirs increased, and new ones granted in this settlement.

All Jagirs coming under Class-I have been revised; it was found necessary, as in nearly every case the jagirdars were, according to Sikh system, taking a half of the share of produce instead of the Government's demand, to which they were entitled. Reporting on these dues, and submission of proposals to make good their losses, have been no small share of the settlement work.8

17.Similarly, the remissions of land revenue to certain classes were referred to as 'Maafis'. The maafis were then classified/divided into six classes, which reads as under:- (1)Masjid maafis.

(2)Village servant maafis.

(3)Maafis to ziarats.

(4)Maafis to Hindu buildings.

(5)Miscellaneous maafis.

(6)Mill maafis.

It was found that in every village there was one or more masjids, to each of which was attached a small maafi availed by the imam, or village priest; some of these cases had previously been enquired into, and received the Financial Commissioner's sanction to be availed, either, during the pleasure of Government, or for life, and to be liable to reconsideration at death of the holder.

The relevant orders of Government are contained in 4 Secretary to Government's No. 255, dated 19ft April 1871; they laid down that the investigation and disposal of these cases were to be calried out under the rules hitherto in force, viz, those contained at para-49 of letter No. 418, dated 31't March 1849, from Secretary to Govemment of India to Report of Regrrlar Settlement of Peshawar District of the Punjab by Captain E.G.b. Hastings, settlement officer printed at the Central Jail, Press Lahore (1878).

President and Members of the Board of Administration for the affairs of the Punjab. This has necessitated the preparation of the registers in English

The general proposals, provided the maafis were proved to be of old standing, not necessarily three generations, have been to release in favour of the imam in occupation, during the pleasure of Government, "ta marzi sarkar" subject to the performance of the duties attached to the position; the succeeding imam's appointment was to depend on a majority of votes of the share-holders; in the event of any dispute the orders of the Deputy Commissioner were to be final. In those cases where orders had already been passed by competent authority, and the maafi upheld for the life-time of the imam at that time in occupation, the case has been revised and supplementary orders for the continuance of the maafi after death of the present maafidar proposed on the same terms, as in the new cases now for the first time enquired into and reported for sanction.

In the subjoined statement will be seen the number of masjid maafis,their total and average areas in each tehsil, with details of the number of those more and less than 10 acres in area,and the proposals in the different kinds of cases.e

18.Distinction between iagirs and muafis were then elaborately explained in the Land Administration Manual which was issued in 1928 .Pata-l9 of the said Manual explains the said difference in the following manner:- Distinction between iagirs and muafis,- The dffirence between a muafi and a iagir is that the 4 former is a remission of land revenue to the owner, whereas the latter is an assignme;nt of land revenue which is collected and paid to the iagirdar' The jagirdar may subsequently acquire the property, and if he does the grant technically becomes a muaJi though it always continues to be shown as a josi Foi some peculiar reason where small amounts are granted, more especially to a religious Report of Regular Settlement of Peshawar District of the Punjab by Captain E.G.b. Hastings, settlement officer printed at the Central Jail, Press Lahore (1878).

institution the word muafi is wrongly used to cover not only the cases where the institution owns the \./ property but also the cases where it does not and merely enjoys the revenue assigned.

For practical purposes grants of land revenue by the State to private individuals are often compendiously described as "jagtrs' and "mua/is", the former term being usually appropriated to the larger grants and especially to those given .for services of a military or fficial character, and the latter to assignments of less value and importance. The subject is one of much interest in the Punjab, where such alienations form a larger proportion of the total land revenue than in any other province in India.

Lg. The Apex Court in the case of Mst. Hazanl0,relyingon the law laid down by the worthy Lahore High Court in the case of Nm,vabzada Malik Habib Ullar Khan Tiwanat , t

observed that the distinction between the two terms has ceased to exist with the passage of time. The Hon'ble Apex Court interpreted the meaning of the word "ony" used in para-2 (vi) (a) of the Regulation 64 of 1959, which reads as under:- " .....as will be evident from various land tenures as reproduced frotn various text bool<s in the earlier part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist with the passage of time. And now pardon of the land revenue is also lmown as Mu'afi or Jagir. Anyhow without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the Act is not to give that technical meaning to it, because the words 'lassignment" or "release" have been prefixed by the word "any".The use of the word "any' shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person, will be covered by this z

phrase

It was further observed in the said judgment that:- "It is evident from para.2(vi) (a) of the Regulation that word 'Jagir' includes any grant of land by way of 'Jagir'. Actually by using the word 'tncludes' law'givers, had intention to include any l0 Mst. Hazan and 48 others vs. Government of Balochistan and 383 others (2007 SCMR l2l2) 11 Nawabzada Malik Habib Ullar Khan Tiwana and others vs. The Province of west Pakistan and another @LD 1967 Lahore 533)

grant of land, allowed to any person on whatsoever consideration, shall be treated as 'Jagir'. Respectfully following the said cannon of interpretation, we hold that in the instant case as well as Jagir 'includes' 'any' assignment or release of land revenue and the intention was to exclude any limitation or qualification. The two words 'tncludes' and 'any' in the context indicote that the intention was to make the concept of Jagir quite wide".

20.The North-west Frontier Province Abolition of Jagirs Act, 1952 was promulgated w.e.f. 24n March, lg5} which envisages for abolition of all kinds of jagtr. Since the main emphasis of the leamed counsel for the petitioners were on the verbiage/abolition of jagir, therefore, I would like to reproduce the same.

ACT VII OF 1952

THE NORTH.WEST FRONTIER PROVINCE

ABOLITION OF JAGIRS ACT, ]952

An Act to provide for the abolition of Jagirs No. 16II-L,D., 24th March, 1952 (Gazette, 24th March, 1952).-The followtng Act of the North -West Frontier Province Legislative Assembly having been assented to by the Governor, North-West Frontier Province, on the ISth March, 1952, is hereby publishedfor general information. Preamble.- Whereas it is expedient to abolish Jagirs in the North-West Frontier Province;

(I)Short title, extent and commencement.- (1) This Act may be called the North-West Frontier Province Abolitton of Jagirs Act, 1952.

(2)It extends to the whole of the North-West Frontier Province.

(3)It shall be deemed to have taken effect on the 2dh day of April 1949.

(2)Deftnitions.- In this Act, unless there is anything repugnant tn the subject or context:- (, "Jagir" means

(a)any grant of money implied or expressed to be payable out of land revenue or any assignment or remission of land revenue made by a competent authority;

(b)any estate in land created or affirmed by or on behalf of the Crown which carries with it the right of collecting land revenue or receiving any portion of the 4 landrevenue; and

(c)any grant of land byway of Jagir;

but shall not include the Mohmand 'Jagir' in the Panjpao villages near Shabqadar;

(ti)"Military Jagir" means grants for personal military services rendered on active service by the present recipient or by his immediate predecessor.

3.Abolition of Jagirs.- (I) AU iagtrs not being military jagirs, created at any time and operative at the time of the coming into force of this Act, shall cease to be operative.

(2)No jagir shall be teated after the coming into force of this Act.

(3)Subject to the provisions of subsection (l) all rights which have accrued to the holder of any jagir or to his successor-in-interest or assignee in respect of such jagir shall forthwith terminate.

4.Decision as regards Jagir by Provincial Government to be ftnal-The decision of the Provincial Government, whether an assignment or remission of land revenue or a grant of proprietary rights in land in lieu thereof is Jagir or otherwise, shall be Jinal, and shall not be called in question in any Court.

5.Indemnity.- No compensation shall be claimed by any one affected by the foregoing provisions and no Court shall have jurisdiction to entertain any suit or other proceedings instituted by or on behalf of any person claiming any such compensation or other benefit in respect of a jagir.

6.Rules.- The Provincial Government may frame rules to give ffict to the provisions of this Act.

21.In the year, 1959 a scheme for land refonns was introduced through West Pakistan Land Reforms Regulation (Martial Law Regulation No. 64 of 1959). Part VI of the Regulation deals with the abolition of jagirs.

22.An order of abolition of jagir was challenged before the Hon'ble West Pakistan High Court at Karachi. The Hon'ble Court in the case of Mir Abdul Hussain Khan (supra) held that "the best criterion to determine the nature of the grant is to ascertain fro* the terms of the grant the rights of the grantee of the land. Under the terms tf the grant, lte is found to possess substantial interest in the land, besides collecting the land reventte, such grant should be treated as also the grant of the soil".

23.The resume of the aforesaid case-law and the instruments stated above would clearly show that grant of jagir in the sub-continent were in the following manner:- t. Grant of the soil/land to the notables on the essential condition that the holder of jagir would show allegiance to the Queen.

lt. The title either granted the holder the authority to merely collect the Government's revenue share or bestowed on him als;o an interest in the land itself, subject to the conditions outlined in the original grant or sanad.

ut. It referred to the remission of land revenue in exchange for holding speci/ic land.s for designated services to the emperor, religious functions, or other

customary purposes acl*towledged within a particular regton.

24.In the present case, the comprehensive revenue record i.e. the first settlement record/periodical record for the year, 1870-71 was produced by Wali Muhammad ADK, Swabi as RDW.1/1. This record would show the names of Purtahman Singh and Diyal Singh sons of Aseer Singh. Further record was also produced before this Court by the Government through CM No. 2005-P12023. According to the first Misl-e- Haqiat, the property which was situated in Mauza Kund was divided in 13 khatajaat and khata No. 1 and 2 the names of owners were mentioned as Mujah-ud-din and Ibrahim. However, relating to description regard ing khaltsa andjagir, it is mentioned that:- el+ +l+d *ii e,j*.iJJS6-i5+- lg.l}.74 A-r.r 1784-xi ,,<j+.,.rrr rril,l'- t ":f-$:- l-Jaa ulJl.,id:j- +l> _l{S!.$,$!- u-l ^S "+J._,,& cr3Lr. ^.-sr.S.1 .,J y ',+ #t*,U I ; orl i af,",-'r -,fl.d dt- )l&-,p However, the subsequent jamabandi for the year, 1890- 91 (Ex.RDW.1/3) in khata No. 1 & 2 rhe names of Ibrahim and Mujah-ud-din were changed in the column of ownership as Purtahman Singh, Diyal Singh sons of Aseer Singh, Zain Singh etc and in the column of Kaifiyar, it is mentioned that:- lil (]'Ji-JS+.. r-r.l.i+ 14-10-1874 ^i-lr. 1173J+- ,rdi+ .+.-r.+ ,.1+ ('JS ^; .d.it - -.rlS+.;-a-,pli.ct$rl-, eL:.Sjl C--r. gl3 YL&-,p'tl-Ft +L;!

25.The record is completely silent about basis on which the names of the original owners were incorporated in the column of cultivation, despite the fact that in the original record Purtahman Singh and Aseer Singh did not belong to the proprietary body, yet they were shown as owner of the property. However, Ibrahim and others, who were the real owners of the property had never challenged the said entries and these entries in the revenue record continued and were also reaffirmed in the settlement of the area in the year, 1927-28. However, the essential question is whether the said

jagir which was granted to Aseer Singh and others on the basis of letter No. 1794 dated 19ft October, lB74 was in respect of the soil or merely remission in the revenue. It can be ascertained from the revenue record as the original sanadlletter, stated above, were never produced before the trial Court. Even in proceedings before this Court good numbers of opportunities were provided to the petitioners to produce the said sanad, however, the same could not be produced by the petitioners. The fact whether in Mauza Kund, the Government ever remained the owner of land can be ascertained from two documents; firstly, the first Jamabandi which was prepared in 1870; and secondly from Wajib-ul-Arz (Ex.RDW.ll4). According to Wajib-ul-Arz, stated above, prepared in l89l-92 it mentioned that no shamilat land exists in the village because the whole village is in the joint ownership of Partahman Singh etc in the following manner:-

"tjJS -Cl O-.+,g,1*)^.i.r:l-21 C.lS c*.lse ^4r -4 "S-,;r3&. LS o-,pi-1a(-. ir#a d+(L e;J^ dS However, the matter is funher clarified from Wajib-ul- Arz, entry No.10 whereof reads that:- b d-l-r. -jS;r- d+$,r,r.lS c.il35 t+ dlf d+$ '''t"'t -.1l.!i-,1-, ci-lis &.; "X-6 Je OK. c/-'S'"SI -61 -at g#,o-jgcj slS Yl+ d.Lrr+-l

.ul1 lb ^,.i.r,jil'j o;i3 ^.$i d.rlJLae 3 crt-fi,6S.f.J -Ut &-,ri. ! .# * jSy r-rljt 1887 e$l43 "rir,.,...- 13 jl Similarly, Misl-e-Haqiat for the year, 1895-96 (Ex.RDW.ll5) (para-l of Wajib-ul- /uz) also clearly mentions that:

cr$,I e;-r,JS ^fiJS -d gld14s dl)^,i (l'.:l-;l jJs r;" l.u ^4.r 4 -y' ^S r3&.lS 6lSJl- '-,;.rei$3- g*1i*

26.After jamabandi for the year, 1895-96 titl first settlement in the year, 1927-28 and onward, the revenue record is completely silent about the nature of the property being jagir in any form. In the column of cultivation, the legal heirs of Behra Singh have been recorded as owner of the suit property against both the khataiaat Therefore, it is

clear from the record that there has been no state land in w Mauza Kund which could be allotted to Aseer Singh etc as Jagir and the first settlement as well as the subsequent jamabandi would clearly show that Aseer Singh and then his legal heirs were exempt from the land revenue at the pleasure of the Government/crown, therefore, the assertion of the Government that the disputed property was a state land which was allotted to Aseer Singh and others is not supported by revenue record. It is true that the original owners of Mauza Kund were Ibrahim and other and the record is silent that in what manner the name of Aseer Singh and others were incorporated in the column of ownership in the jamabandi for the year,1870, however, the state/govemment cannot take any premium from the said entry because the revenue record is very clear that the Government/state never remained owner of any property in Mauza Kund, however, it is clarified that jambandi for the yetr, 1915-16 in respect of khasra No. 102/33 Government is shown as owner of some properly but the said property is not the subject-matter of this dispute. Through mutation No. 11 dated 27.05.1933 land measuring 560 kanal 11 marla was transferred in the nErme of Khan Bahadar Muhammad Ali Khan, the predecessor of the plaintiffs. Similarly, through registered deed No. 163 dated 10.10.1932 the disputed land was transferred in the name of Khan Bahadar Muhammad Ali Khan which was followed by mutations No. 10 and llattested on 30.11.1932 & 27.05.1933 respectively. This fact has even been admitted by Essa 4 Khan RDW-02 in his statement that Khan Bahadar Muhammad Ali Khan has throughout been shown as owner of the disputed property in the column of ownership and he has also admiued that no property was purchased by the Government in Matza Kund. The next important document is the consolidation proceedings which was carried out in the year, L952-53 and 1962-63 and in the said consolidation

proceedings, the suit property was allotted to the predecessor of the plaintiffs.

v

27.The learned trial Court in the impugned judgment has held that the property in question was Jagir, which was illegally transferred in the name of predecessor of the plaintiffs. The learned Appellate Court has also affirmed that atone point of time, the suit property was a land owned by the Government/state, howeveq it has held that since in the subsequent jamabandi the same entry did not continue, therefore, by afflux of time the legal heirs of Aseer Singh became owners of the suit property. The findings of both the Courts below in this respect are legally eroneous as admittedly, the grant of jagir to Aseer Singh was in the nature of Muafi and after 1895 the said Mau/i did not continue in the revenue record; hence, the only presumption can be drawn from the said revenue record is that Maufi in respect of the land revenue was then withdrawn by the Government.

28.The revenue record clearly envisages that the predecessor of the plaintiffs Khan Bahdar Muhammad Ali Khan, Aseer Singh and his successors were recorded owner of the suit property in the column of ownership; the ownership was changed through the legal instrument i.e. registered deed 163 dated 10.10. 1,932 (Ex.RPW.1/1) followed by mutations No. l0 and l1 attested on 30.11.1932 and 27.05.1933 whereby land measuring 342 kanal 3 marla was transferred in the nzrme of predecessor of the plaintiffs and thus, the owners were substituted. The subsequent consolidation of holding proceedings in the 4 year, L953-54 the katooni, subject-matter of the dispute was also shown in the ownership of predecessor of the plaintiffs and it is settled law that the long standing entries in the revenue record especially in the register of record of rights do carry presumption of truth which cannot be controverted

by mere oral evidence unless proved otherwise by superior evidence.12

29.Moving on to the question of limitation. According to the revenue record, the predecessor of the plaintiffs had purchased the suit property in the year, I93Z and since then, he was in continuous possession of the same. The consolidation proceedings were conducted in the year, 1952-53 and then in the year, 1962-63 and the suit property was allotted to the pool of the predecessor of the plaintiffs. Similarly, Wali Muhammad ADK, while appearing in the witness box as RDW-I, has admitted that in the Misl-e- Haqiat (periodical record) for the year, lggl-g2 and for jambandi for the year, 20L3-2014 lqbal Yousaf etc are continuously recorded as owner of the suit property and in the column of cultivation they are recorded as in possession of the suit property. The idea of establishment of Kund Park seems to have been conceived by the then Government of Khyber Pakhtunkhwa Physical Planning and Housing Department and the ADP scheme-l49 was approved in the year 1990. The executing agency was the Peshawar Development Authority. The suit was brought in the yetr, 1991.The period of limitation for suit for declaration is six years in terms of Article L20 of the Limitation Act whereas the period of limitation for possession of a property is governed by Article t42 of the Limitation Act. Article 142 of the Limitation Act deals with a specific case where the plaintiff while in possession of the properly has been dispossessed or while in possession of the property had discontinued the possession. The discontinuance of possession within the meaning of Article 142, therefore, t2 Mehr Khan and others vs. Mst. Basaee and others- (PLD 2008 Supreme Court 612); Mazloom Hussain vs. Abid Hussain and 4 others (PLD 2008 Supreme Court 571); Faqir Muhammad Khurshid and others vs. Chief Administrator of Auqaf (PLD 1987 Supreme Court 60); Rehmat Ali through L.Rs and others vs. Allah Ditta and others (2010 SCMR 464).

was more in consonance with the view that the discontinuance was a form of abandonment and not a transfer of possession under permission of title where an abandonment of property had taken place and another person had stepped in, the other would do so as trespasser or under some assumed title of his own; thus, his possession was not under the right derived from the true owner of the property.r3 In the said judgment, the Apex Court has very elaborately examined the stark difference between Article 142 and 144 (now deleted) of the Limitation Act and the relevant para is reproduced as under:-. "In the case in instance the respondents' plea of adverse possession has miserably failed. As held by this Court in Mirza Ghulam Hussain v. Iqbal Ahmad (PLD l9l SC 290), where as person is inducted into property under lawful permission or title, no adverse possession can be deemed to have originated from the time that he was so inducted, but it can be shown that it become adverse through an aggresstve act at some later stage by disclaimer of owner's permission/title of such a character that the owner can be presumed to lcnow that possession adverse to his title had been set up. In the instant case the respondents have failed in establishing thetr title by adverse possession. The appellants' case that the respondents had taken the Ahata on a temporary basis for their use and occupation stands made ouL A mere permission given to another to another to reside gratuitously does not amount to a discontinuance of possession. See Syed Zainuddtn Hossain v. Moulvi Muhammad Abdur Rahman (AIR 1933 Cal. 102). Thus, where such a licensee sets up afuerse possession. Article 144 of the Limitation Act would apply and not Article 142. See Syed Zainuddin Hossain's case (supra). In the tnstant case, according to the averments in their plaint, the appellants had given the respondents mere permission to reside gratuitously and when they requested the respondents on 4.7.1974 to deliver vacant possession to them, they refused to do so, and in their written statement raised the plea of adverse possession. The suit was therefore covered by Article 144 of the Limitation Act as the appellants had twelve years from the said date i.e. 4.7.1974 wtthin which to Jile the suit. The judgment of the learned Single Judge being in error, deserves to be set aside".

13 Noora and 1l others vs. Ali and 3 others (1992 SCMR l610)

Therefore, the suit of the plaintiffs was well within time.

V 30. The suit was dismissed by the learned trial court however, the learned Appeal Court instead of granting decree for possession granted decree for compensation of the acquired land which was to be determined by the Executing Court. The said judgments/decrees have not been assailed by the plaintiffs, and, even otherwise, since a public recreational park has been established on the property, therefore, the learned Appeal Court has very aptly granted decree for compensation of the property instead of actual possession of the property.

3 1. With the aforesaid observations, both the petitions having no merit are accordingly dismissed. Announced Dated: 23.01.2024

#JUDGE

Nawab Shah CS (SB) Justice Syed Arshad Ali