Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-09-16, officially reported as 2025 SCMR 174. In this matter between Muhammad Ramzan and others, Muhammad Ashraf and others, Haji Ladhoo (Late) through LRs and others and Member (Judicial-II) Board of Revenue, Punjab, Lahore and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s): Amin-Ud-Din Khan, Ayesha A. Malik, Yahya Afridi Title:Muhammad Ramzan and others, Muhammad Ashraf and others, Haji

Ladhoo (Late) through LRs and others vs Member (Judicial-II) Board of Revenue, Punjab, Lahore and others Case No.: Civil Appeals No. 936 to 938/2012 Date of Judgment:2024-09-16 Reported As: 2024 SCP 314, 2025 SCMR 174 Result: Appeal Allowed Judgment

ORDER Of THE BENCH By majority of two to one (Ayesha A. Malik, J. dissenting), Civil Appeal Nos. 936, 937 and 938 of 2012 are dismissed. ORDER Amin-ud-Din Khan, J. Against the dismissal of Writ Petition No. 10329 of 2005, the appellants filed two petitions i.e. CPLA.No.1661-L of 2010 as well as CPLA No. 1750 of 2010, whereas Writ Petition No. 8274 of 2005 was also dismissed through the consolidated judgment and same was challenged through CPLA No. 1718-L of 2010. After grant of leave the petitions have been converted into appeals respectively as CA No.936, 938 and 937 of 2012. Leave granting order dated 8.10.2012 is reproduced:- "These petition for leave to appeal have arisen out of the judgment dated 20.07.2010 of Lahore High Court, Lahore whereby a learned Judge in its chambers dismissed the petitions filed by the petitioners and maintained the order dated 30.3.2005 of Member (Judicial-II) Board of Revenue Punjab. 2. The dispute between the parties, indeed, pertains to the interpretation of the judgments rendered in the cases of "Ladhoo Vs. B.O.R." (1991 MLD 99), and "Ladhoo. v. B.O.R" in CP. No.823 and 824-L of 1990. 3. Learned counsel appearing on behalf of the petitioners contended that where Ala Malkiyat and similar other interest stood abolished by virtue of paragraph 22 of MLR-64, no Ala Malik could assert any right in respect of the property comprised in Shamlat Deh except to the extent it was

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recognized in the judgments mentioned above. The learned counsel next contended that though Wajibul Araz being one of the most fundamental documents regulating the rights of the village proprietary body could have been looked into but paragraph 3 of the Regulation tends to override it, therefore, it cannot be made a basis for distribution of the property comprised in Shamlat Deh. The impugned judgment, learned counsel added, when seen in this background, runs counter to the declared law of the land. 4. As against that learned counsel appearing on behalf of the respondents contended that neither the Regulation nor the judgments rendered in the cases of "Ladhoo vs. B.O.R." and "Ladhoo v. BOR" in CP No.823 and 824-L of 1990 (supra) tend override the recognized modes prescribed by law for distribution of Shamlat, therefore, the land comprised in Shamlat Deh shall have to be distributed not according to possession but according to the share in the village proprietary. The impugned judgment, the learned counsel submitted, being in line with the entries made in the Wajibul Araz and dicta laid down in the cases of "Ladhoo. Vs. B.O.R." and "Ladhoo. V. B.O.R" in CP No.823 and 824-L of 1990 (supra) is not open to any interference. 5. When we asked the learned counsel for the respondent as to what decision was taken by the Member Board of Revenue which was upheld by the High Court and this Court in the judgments mentioned above and whether all these aspects of the case which are relevant for the purposes of determining entitlement of each owner have been fully considered, he could not refer to any. We also for a while paused to consider that in case Shamlat is to be distributed on the basis of possession, where would go the village proprietary and what would be the implication of paragraph 13 of the Regulation which provides for inclusion of share of each owner in Shamlat for determining the maximum limit he is entitled to retain thereunder. Whether a property which is comprised in Shamlat Deh would cease to be Shamlat simply because a part or whole of it has been rendered cultureable by one or a handful owners? All these questions and the questions raised by the learned counsel for the parties not only require a thorough examination but authoritative pronouncement. We, therefore, grant leave to appeal, inter-alia, to consider the above mentioned aspects of the case. The parties would be at liberty to submit additional documents. In the meantime, entire record of this case culminating in the judgment dated 29.07.1990 of the High Court be also requisitioned. As this matter has been lingering on ever since sixties, we would desire that it be listed within a period of two months. As far as the question of mesne profits is concerned, it would be decided at the time of final hearing of the appeal. CMA No.1493-L of 2010 in C.P. No.1718-L of 2010 also stands disposed of." 2. We have heard the lengthy arguments advanced by the learned counsel for the parties on various dates of hearing. In Writ Petition No. 10329 following prayer was made:- "In the circumstances, it is most respectfully prayed that the mutations No.2064, 2065, 2066 and 2067 sanctioned by the Assistant Collector-II Grade Bhakkar respondent No.4 on 27-02-1994 and 28-02-1994 and the order of the Assistant Commissioner/Collector Bhakker respondent No.3 dated 07-02-2001 and order dated 26-11-2001 of the Executive District Officer (Revenue) Bhakker respondent No.2 and the impugned order dated 30-03-2005 of the Member (Judicial-II) Board of Revenue respondent No.1 affirming the aforesaid mutation No.2064, 2065, 2066 and 2067 may kindly be set aside as illegal, corum non judice, void ab initio and without lawful authority and of no legal consequences whatsoever. It is further prayed that the New Jamabandies prepared on the basis of the partition of Shamlat Land in Khata No.304 amongst the right holders of Khata No.1 to 303 and consigned to the Tehsil Office may also kindly be declared to be the illegal having been prepared without lawful authority and of no legal consequences whatsoever.

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It is further prayed that the respondents may kindly be directed to implement the judgment of the Lahore High Court, Lahore dated 29-07-1990 and the judgment of the Supreme Court of Pakistan dated 01-04-1991 in letter as well as in spirit, on the basis of the possession/cultivation amounts the Aala Malik, Aala Khud Adna Maliks and Adna Maliks in Khewat No.304 only. Any other relief which this Honourable Court deems fit and proper may also be awarded. Cost of the petitions may also be awarded." In Writ Petition No. 8274 of 2005 following prayer was made:- "WHEREFORE it is most respectfully prayed that the order dated 30.03.2005 of respondent No. 1 upholding the orders dated 07.02.2001 of Assistant Commissioner/Collector and order dated 26.11.2001 of Additional Commissioner may kindly be declared to be malafide in disregard of the judgments of Hon'ble High Court and august Supreme Court and of no legal effect and Assistant Commissioner-II, Bhakkar may kindly be ordered to cancel the impugned mutations No. 2064, 2065, 2066 and 2067 dated 27/28.02.1994 and enter and sanction mutations as ordered by the Hon'ble High Court in judgment dated 29.07.1990 allowing the petitioner to retain possession of land in their possession and cultivation as full proprietor." 3. The claim of the appellants revolves around the facts as pleaded by the appellants that previously through the judgment of the High Court of 29th July 1990 "Ladhoo vs. B.O.R" (1991 M LD 99) and "Ladhoo v. B.O.R" in CP.No.823 and 824-L of 1990 whereby the rights over the suit property of Aala Maalkan were denied and thereafter the petition filed by them before this Court was dismissed and the review petition was also dismissed, therefore, the revenue authorities were pressed to implement the said judgment which as per the appellants that their rights were established and the revenue authorities were bound to transfer the proprietary rights in their favour on the land which is in their possession, therefore, the last portion of the first prayer is also to the effect (allowing the petitioners to retain possession of land in their possession and cultivate as full proprietors). When we go through the complete record and the judgment passed by this Court in case of "Ladhoo v. B.O.R" in CP.No.823 and 824-L of 1990 as well as High Court in case reported as 1991 M LD 99 the stance of the appellants does not seem to be correct as in the previous writ petitions i.e. W.P.Nos.5168 of 1983 and 1226 of 1967 and 1221 of 1969 which were decided through judgment dated 29th July 1990 (1991 MLD 99), Aala Maalkaan pressed the point that after the promulgation of MLR-64 which relates to the proprietorship khata only khata 303 measuring 19920 kanals whereas with regard to Shamlaat Deh their status as Aala Maalik has not been abolished and the revenue authorities were pressed through their petition that whole of the Shamlaat Deh land be transferred in favour of Aala Maalik as no Adna Maalik is recorded in Shamlaat land. Their stance and claim to that effect was rejected as it was against the settled principles of law that the Shamlaat land is to be distributed on the basis of ownership in the village proportionately. At this stage it will be appropriate that the crucial questions involved in this litigation be kept in mind, which are as follows: i. Whether the High Court or this Court while dealing with the matter under Article 199 or 185 of the Constitution of Islamic Republic of Pakistan, 1973 respectively can create a new right in favour of anyone of the parties? ii. Whether any right was created by the High Court through judgment reported as 1991 M LD 99 or by this Court through the judgments whereby leave was refused in CP.No.823 and 824-L of 1990 against the judgment of the High Court referred supra and Review was also dismissed? For consideration of these points it will be further appropriate that the nature and rights attached to the suit property admittedly Shamlaat Deh be discussed in the light of the judgments of the High Court, revenue court as well as of this Court.

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"Karim Bakhsh and others versus The State and others" (PLD 1980 Rev.55). Relevant paragraph is quoted as under:- "It may be noticed that the rights of shamlat were created by the operation of first regular Settlement and could not be taken away subsequently except by consent of or in consequence of a decree or order binding on the parties after making entries in the record of rights in accordance with section 37 of Land Revenue Act, 1887 (section 45 of Act, 1967). Likewise the reference to mutations which had been sanctioned during the term of second regular Settlement starting from 1901-02 is not relevant." Paragraph No. 15 from the above judgment is also relevant which is as follows: "As regards the entries of jamabandi for 1949-50 the same would no doubt be kept in view for the purposes of adjustment but so far as the determination of the rights of owners as to their share in the shamlat was concerned, it had to be done with reference to the entries of last "Misl Haqiyat" prepared in 1921-22 whereby shamlat was to be shared only by those owners whose wells were assessed to land revenue during the first regular Settlement of 1878-80 i.e. in accordance with "hisa hasab rasad khewat jama bandobast qanuni". "Mst. Fattain versus Muhammad Aslam etc." (PLJ 2003 Lahore 374) "I have heard the learned counsel for the parties and find, that the entries of Hasb-e-Rasad Khewat and Hasb-e-Rasad Zar-e-Khewat, in fact, are interchangeable terms and do not have much significance when the entitlement of the propriety body of the village for the purposes of partition of Shamlat is under consideration. In this regard, the judgments relied by the learned counsel for the respondents, are very clear, thus, applying either of the two rules, the partition of the Shamlat is to be made on the basis of the land revenue assessed to the holding of the co-sharer of the Shamlat. The judgment of the learned Court of appeal is absolutely in line with the above principle and is based upon the proper interpretation of the entries. Moreover, in the earlier round of litigation between the Tullas and Gondals, Ganga Ram, the Collector, had also partitioned the Shamlat in between these two groups, on the basis of revenue assessed on the holdings. Furthermore, as has been argued by the respondents side, that Mst. Fattan has a very meager share in the Shamlat and it seems that the other legal heirs of Jallu, had already accepted the scale of partition, therefore, for such small share, the settled division should not be upset." "Faqir Muhammad versus Mst. Alain Bibi and others" (PLD 1982 Rev. 10). "11. In the result I would allow these revision petitions, set aside the order of the Additional Commissioner (Cons.), Lahore, dated 17.3.1981 and restore, as between parties, the confirmation order of the A.C.O. dated 31.5.1963 distributing the shamlat land among all the right holders according to their pro rata shares calculated on the basis of Hasad Rasad Khewat." "Muhammad Saleem Shah and 80 others versus Aziz ur Rehman Shah and 43 others" (PLD 2002 Supreme Court 280). "Even otherwise the implications of the entries of column of rent and those of column of cultivation being irreconcilable could be that none of the parties could take the possession of the disputed property by virtue of their status as co-sharers in the village Shamilat. The long-standing entries of the revenue record from 1909-1910 to 1987 would show that usufruct of this land was to be enjoyed by the Imam of the village mosque and that neither the proprietary body of the village can take possession thereof nor Imam could relinquish by any mode the possession thereof in favour of anyone else. Another implication of these entries is that the proprietary body of the village notionally remained the owner of the land and that they can jointly evolve any formula to regulate the status thereof as they wish by their own concurrence." Any entry available in the revenue record unless it is substituted through a valid entry by the decree of any court or valid attestation of mutation of correction of any rights in the land remains in the field, simultaneously if once it is found that the entries have been unlawfully changed, it shall

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be deemed that the old entries would continue. "Karamat Hussain and others versus Natho Khan and others" (2007 CLC 1391). "I have gone through the copies of the record. Copy of Misl-e-Haqiat prepared in the year 1956-57 in both these cases in Exh.D.2 wherein Khasra No.2107 measuring 203 Kanals, 19 Marlas is recorded to be owned by Shamlat Deh and in possession of Maqbooza Malkan. Out of this land, an area of 10 Kanals was shown in possession of nathu Khan, respondent No. 1, whereas 20 Kanals in possession of Barkat Ali, respondent No. 1, in the other case. In the record prepared for the years 1966-67 and 1978-79, the classification remained the same. As far as Khasra No. 2313 is concerned, the same was recorded in Exh.D .2 as and Maqbooza Malkan and 26 Kanals out of this land was recorded in possession of Barkat Ali, respondent No. 1, showing 20 Kanals as and 6 Kanals as Maira. The entries were accordingly corrected and restored to Maqbooza Malkan. It is well-settled law that uncultivable common land has to be recorded in possession of the owners. Reference may be made to the case of Gul Khan v. Said Hassan Shah and others PLD 1968 Pesh. 148. The entries have, therefore, been lawfully corrected. According to the said judgment of the Honourable Supreme Court being relied upon by the learned counsel for the petitioners once it is found that the entries have been unlawfully changed, it shall be deemed that the old entries would continue. Learned lower Courts, on the face of the said evidence, have acted without lawful authority while passing the impugned judgments and decrees. Both the civil revisions are accordingly allowed and the impugned judgments and decrees are set aside and the suits filed by respondent No. 1 in each of these cases is dismissed but without any order as to costs." So far as case of Haji Ladhu v. Member Board of Revenue reported as 1991 MLD 99 is concerned, at that time the basic dispute was with regard to claim of erstwhile Aala Malkan over the whole Shamlat land was that they are exclusive owners of whole of shamlat land and no one else including Adna Malkan has no right in it. Para No. 2 of the judgment starts as "The dispute relates to land measuring 96,000 kanals comprising Khata No.304 of village Doggar Aulakh Tehsil and District Bahakkar which is admittedly Shamilat land. The petitioners Sullah etc. were Aala Maiikans", which was finally determined by the High Court through the said judgment and Writ Petitions were dismissed and even through the decision of CP.No.823 and 824-L of 1990 through judgment passed by this Court dated 1.4.1991 whereby CPs as well as review petition were dismissed. 4. The matter in issue in the instant litigation was not in issue in the said litigation and rights claimed by the present appellants neither agitated nor decided in their favour as they have claimed that the matter was decided earlier in their favour. Even appellants are unable to state their status that what is their status except that they are in possession and cultivating the Shamlat land, that does not create any right in their favour if they arc in possession of Shamlat land. It seems that appellants who were previously Aala Maalik or under the Aala Maalik, they want to grab Shamlat land on the plea that they are in possession. Without any right or valid entrance upon the Shamlat land they cannot claim any right. The rights are on the basis of ownership of the proprietorship in the village i.e. ownership khata i.e. Khata No. 303. We are further of the view that various terms of distribution of Shamlat land upon the proprietors on the basis of pro rota shares calculated on the basis of Hasab Rasad Khewat or Hissa Hasab Rasad Khewat Jama Bandobast Qanuni are interchangeable as held by the revenue hierarchy reported as PLD 1980 Revenue 55. 5. The claim of the appellants now on the basis of pick and choose some portions from the above said previous judgment referred supra of the High Court and of this Court that it has been decided previously that the appellants who are in possession of shamlat Deh land are entitled for recording of their name as owners in Shamlat Land, therefore, through this round of litigation they claim that title of the said land which is in their possession be transferred to the appellants. It is stated by the revenue officials as well as admitted by the learned counsel for the appellants that some of the

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appellants are even in possession of thousands of kanals of land out of the shamlaat deh land which is subject matter of this litigation. It is also not clear that if there are some appellants before this Court who were previously Aala Maalik. The previous litigation as claimed by the appellants that their rights were declared in the shamlaat Deh land is absolutely incorrect. We agree that the learned High Court has rightly applied the formula that shamlaat Deh land is to be distributed with full proprietary body of the village in accordance with their entitlement. The fact that Aala Maalik is no more in existence after promulgation of MLR-64. The only two categories remain that Aala Khud Adna Maalik as well as Adna Maalik and distribution of Shamlat land is between the said two categories in accordance with their entitlement in the village i.e. ownership land measuring 19920 kanals in the shamlaat land which is now 96312 Kanals is subject matter of their litigation as the remaining 50688 Kanals land has been acquired by Thal Development Authority. 6. On the other hand, learned counsel for the respondents as well as learned AAG have fully supported the judgment passed by the learned High Court as well as revenue hierarchy. Even we have summoned the Member Board of Revenue to state the position. He also clearly stated that there is no other formula for distribution of shamlaat land, same is distributed in accordance with the entitlement of the proprietary body of the village in accordance with their share and has fully refuted the claim of the appellants. 7. Learned counsel for the appellants were asked many times that what created right they press for declaration in their favour through the writ petition, whether they are recorded Adna Maalik or Aala Khud Adna Maalik, the answer is in the negative. It is admitted by the learned counsel that they are not recorded Aala Khud Adna Maalik or Adna Maalik in the village proprietary land or impugned land but their reply was on the basis of previous judgment of the High Court as well as Supreme Court that their rights have been created through the said judgment. They have a right to retain the possession and cultivate the same and proprietary rights be transferred in their favour. We are afraid that without any existing right the High Court or even this Court cannot create a right when there is no basis for claim of that right. It is also misconception of appellants that in the previous round of litigation High Court or this Court has created any right in their favour. As we have already noted that some portions of paragraphs of the previous judgment have been referred by the learned counsel for the appellants to claim the right asserted by them when the full paragraph is read it says otherwise, therefore, the claim of the appellants that their rights were established through the previous judgment of the High Court and of this Court is absolutely misconceived. Thus we are clear in our mind that the High Court while dealing with the matter under Article 199 or this Court while dealing the matter under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 cannot create a new right in favour of any of the parties before the Court. It is a matter of policy, the Government can offer grant of proprietary rights on the basis of any policy issued under any legislation or through the legislation and it is also clear that through the decision of case titled "Ladhoo v. B.O.R" reported as 1991 MLD 99 and order of dismissal of CP.Nos. 823 and 824-L of 1990 by this Court no rights were created in favour of the present appellants. 8. To understand the controversy in issue it will be appropriate to note the relevant provision of the Regulation and the Notification. Para No.22 of West Pakistan Land Reforms Regulation, 1959 No.64 is reproduced: - "Intermediary interests.--- Ala-milkiat, and similar other interests subsisting immediately before the commencement of this Regulation, shall on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person affected by the abolition." Para No.6 of the Notification dated 3rd March, 1960 issued under the said Martial Law Regulation is also reproduced, (d) is the most relevant:- "(a). Adna maliks shall be made full proprietors of land held by them as such. (b). Adna maliks shall not be liable to pay any compensation to the ala maliks or the Commission.

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(c). Adna maliks shall with effect from Rabi, 1958-59 discontinue the payment of rent or other dues in cash or kind to ala maliks. (d). Where a person is entered as ala malik, as well as adna malik or where land is held only by an ala malik and there is no adna malik under him the ala malik shall be considered as full proprietor and the entries in the revenue records shall be corrected accordingly. (Underline & bold is ours) (e). A person who engaged with Government to pay land revenue shall be treated as adna malik or ala-cum-adna malik and considered as full proprietor. No ala malik shall be entitled to any compensation on account of the extinguishment of his rights as such." In this Regulation, the land "held", means any ala maalik who was having land in his possession in malkiyat khata, meaning thereby he was cultivating the same. This term is synonymous to ala- khud-adna malik. When an ala malik was holding nothing in the ownership khata, all his rights were abolished under Para 22 of the Martial Law Regulation, therefore, it is clear that for determination of rights in the Shamlat Dch the benchmark as well as formula for grant of rights is on the basis of entitlement of a person in the malkiyat khata whatever rights he was holding on the basis of said rights he is entitled to get land in the shamlat deh. A person who is having absolutely no rights in the malkiyat khata, he cannot be granted any right in the shamlat deh khata. At this stage we can quote paragraph No.14 of the impugned judgment of the Member Judicial-II, Board of Revenue:- "I have considered the arguments of all the parties. The parties do not have a major conflict about the matters settled by the Hon'ble High Court. Shamlat land was partitioned according to the…

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