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Petitioner: GHULAM HUSSAIN And Others VS Respondent: ALLAH BAKHSH And Other
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Abdul Shakurul Salam, Rustam S. Sidhwa Title: GHULAM HUSSAIN And Others vs ALLAH BAKHSH And Other Case No.: Civil Appeal No-439 of 1980 R.S.A. No.331 of 1963 Date of Judgment:1991-02-03 Reported As: 1991 SCMR 1386 Result: Appeal dismissed
JUDGMENT
JUDGMENT ABDUL SHAKURUL SALAM, J: --This appeal by leave arises in the following circumstances: The respondents filed a suit for possession with a declaration that they were the owners of the share of Shamilat. It was stated that their predecessor-in---interest Bakhsh sunk a well known as Chah Bakhsh Wadhiwala and got land vide Khata No.14/1, Khasra Nos. 1, 3, 4, 12/3 and 12/7, five pieces measuring 400 kanals. He sold 1/3rd share of the well to Sarang vide Muation No.519 dated 26-10-1983 Ex.P5. The latter sold it to Kamal Khan through Mutation No.1972 dated 19-3-1985 Ex.P6. Bakhsh further sold 1/3rd share to Kala Ram vide Mutation No.3 dated 18-1-1887 Ex. P.39. Bakhsh having died, his son Ahmed Bakhsh sold the remaining 1/3rd share to Kala Ram vide Mutation No.15 attested on 15-2-1901, Ex. P.40. Kamal Khan sold his share to predecessor-in---interest of the appellants vide Mutation No.55 on 25-1-1905. Kala Ram sold his entitlement to predecessor-in- interest of the appellants vide Mutation No.4 dated 25-8-1904 Ex. P.4. Thus, the predecessor-in- interest of the appellants became the owner of the entire well earlier vesting in the predecessor-in- interest of the respondents. In consolidation proceedings in view of the aforesaid purchases by the predecessor-in-interest of the appellants, the latter were given proportionate share in the Shamilat. The respondents filed a suit on 24-3-1960 for possession of the share in the Shamilat saying that in the sale-deeds aforesaid executed by their predecessor-in-interest, Shamilat was not included. Shamilat having been partitioned in 1957, they were entitled to the possession of their share. The then defendants, now appellants contested the suit saying firstly, that Shamilat was also included in the sale-deeds; secondly, that the plaintiffs' predecessors-in-interest after sale left the village and thus abandoned their rights and so the suit was barred by time. Two relevant issues for the purpose of this appeal were framed as follows:
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"3. Whether the plaintiffs' suit is within limitation? 4. Whether the sales of land by Bakhsh on 26-10-1883,18-1-1887, 15-2-1901 and in October, 1890 were without Shamilat shares and the plaintiffs are still owners of the land in dispute:' The learned Civil Judge First Class, Mianwali on 27-3-1961 found that the sales were without Shamilat and in view of the Punjab Land (Disposition Saving of Shamilat) Act, 1951 as substituted by the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959--Ordinance I of 1959, the sales by Bakhsh or Ahmed predecessors-in-interest of the plaintiffs-respondents did not convey the rights in Shamilat. The suit was within limitation from the date of cause of action, that is to say, the partition of the Shamilat land. It was decreed with cost. Defendants/appellants filed an appeal before the District Judge who vide order dated 12-9-1962 directed framing of additional two issues and remanded the case for the trial thereof to the Court of first instance. The issues are:- "(1) Whether Bakhsh the ancestor of the plaintiffs 1 to 4 had abandoned the village after the sale of his land and when? (2) If so did Bakhsh and his heirs lose their right in the Shamilat land of village on account of such abandonment? The learned Administrative Civil Judge, Mianwali vide order dated 19-11-1962 found that there was no abandonment, nor did the plaintiffs lose their rights in the Shamilat land and continued to enjoy the same. During the course of hearing of the appeal, the learned District Judge noted that "This much is agreed before me that at the time when Bakhsh and his son Ahmed sold the entire land of Chak Bakhshwala they did not sell the appurtenants Shamilat rights. In view of the provisions of section 3 of Ordinance I of 1959 they cannot be treated to have sold Shamilat rights by their conduct or by implication. I am, therefore, in agreement with learned trial Court that section 3 of Ordinance I of 1959 does come into play in the present case and it must be held that at the time when Bakhsh and his son sold the land of Chah Bakhshwala they did not sell the Shamilat rights which pertained to this area. The exception contained in subsection (2) of section 3 of the Ordinance does not apply in this case because the plaintiffs-respondents were not parties to these mutations proceedings and also because the order of the Revenue Officer cannot be treated as conclusive on the subject. "However, he proceeded in para. 7 of his judgment to observe that "the main question in this case is whether Bakhsh and his descendants lost their rights in the Shamilat land on account of abandonment and efflux of time". He held that "I entertain no doubt about the fact that this evidence is very much sufficient to conclude that the heirs of Bakhsh abandoned the village Gulkala sometime before 1896 with no intention to come back in this village to assert their rights in the Shamilat land". He concluded, notwithstanding that he had earlier noted that "This much is agreed before me that at the time when Bakhsh and his son Ahmed sold the entire land of Chak Bakhshwala they did not sell appurtenants of Shamilat rights, "that" it appears obvious that when the land at Chah Bakhshwala was sold the intention was that the shamilat land also would go with the land at Chah Bakhshwala. This is why the heirs of Bakhsh have not taken any interest in the huge shamilat land subsequently to the year 1896. But for the coming into force of the Ordinance No.1 of 1959 the plaintiffs would never have thought of asserting their rights in the Shamilat land of village Gulkala. I consider that the suit is hopelessly beyond limitation. As a result I accept the appeal, set aside the judgment and the decree of the trial Court and dismiss the suit of the plaintiffs". This is vide judgment and decree dated 15-1-1963. The plaintiffs-- respondents filed Regular Second Appeal No.331 of 1963 in which the learned Judge of the High Court after considering a large number of precedents came to the conclusion, rightly so we if may say so, that intention not to resume or come back is a necessary concomitant of abandonment and that "in the present case it is also not shown that the appellants abandoned with an intention never to come back. It is evident from the circumstances that they were forced to seek livelihood elsewhere on account of drought". The learned Judge further held that the "suit was for possession on the
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basis of title in the Shamilat. To bring the suit in time it is either Article 142 or Article 144, Limitation Act which would apply. The suit, as it stands, is not based on dispossession or discontinuance but on account of mere right of ownership, and in the circumstances when it was not found that the appellants were actually dispossessed on a certain date it was not Article 142 but Article 144 of the Act which would be applicable. Under Article 144, the period of limitation is 12 years from the dated when possession of the defendants becomes adverse to the plaintiffs. In this case it was, therefore, not for the appellants to show that their suit was within 12 years from the date of their dispossession, but when the respondents proved they entered in the land adversely "Considering the facts, the learned Judge came to the conclusion that "there is no evidence on record worth the name to show that Bakhsh left the village with a proclaimed intention to abandon his land and the share of Shamilat. His mere absence from the village, non-participation in agreement with the State anti non-payment of dues would not amount to abandonment unless he and his successors were deprived of their rights in the Shamilat by adverse possession. Adverse possession means possession by a person holding the land on iris own behalf or behalf of some other person other than the true owner having aright to immediate possession. If by this adverse possession the statute is set running and it continues to run for twelve years, then the title of the true owner is extinguished and the person in possession becomes the owner. In order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent of area to show that it was adverse to the real owner. It must be actual, exclusive and uninterrupted. The possession of the trespasser must be confined to the land actually occupied by him. Beyond that there can be no presumption of possession in his favour. It is not sufficient to show that some acts of possession have been done. In other words the possession must not only be actual, visible, exclusive, but hostile, continued and uninterrupted as wets as open and notorious. Simply because the respondents and the other villagers had been gracing their cattle in the Shamilat would not constitute adverse possession, for the reason that promiscuous acts done at different times by an undefined and deflocculating body of persons from the village and the neighbouring villages cannot be said to be acts done with the intention of obtaining exclusive control over the lands and do not amount to adverse possession." It was noted that "although they have contended in para. No.4 of their written statement that the respondents and their ancestors were in possession of the Shamilat from the very beginning and they made it culturable and were paying revenue to the Government. They did not specifically allege adverse possession, but they said that they would be deemed to be owners under Martial Law Regulation No.64. That being the position, the question of adverse possession would not arise". Thus finding adverse possession not proved, the suit based on title was found to be within limitation The appeal was finally allowed vide judgment and decree dated 16-7-1975. 2. In support of the appeal by defendants, the learned counsel Mr. Zainul Abidin has firstly submitted that in the plaint it was not stated that Bakhsh or Ahmad were owners of Shamilat land at the time of sales and it has wrongly been assumed without evidence that they were owners of Shamilat at the time of sales of land in 1883, 1887 and 1901; secondly, that section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 has no application; thirdly, that the question of abandonment has rightly been decided on the basis of evidence on record by the learned District Judge and the learned High Court erred in interfering in the finding of fact in the second appeal and fourthly, that the predecessor-in-interest of the respondents had abandoned their rights by selling away their land, going away from the village and never participating in revenue proceedings. He referred to Corpus Juris Secundum Vol. I wherein it is stated as follows: "Abandonment," then, may be defind as an absolute relinquishment of the property; a giving up of something to which one is entitled; the act of forsaking or leaving; a total desertion."
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More specifically, it is the intentional relinquishment of a known right; the relinquishment of a right by the owner thereof without any regard to future possession by himself or any other person, and with the intention to forsake or desert the right; the relinquishment of all title, possession, of claim to or of property, or virtually throwing it away; the voluntary relinquishment of a thing by its owner with the intention of terminating his ownership, and without vesting ownership in any other person; the giving up of a thing absolutely, without reference to any particular person or purpose; the relinquishment of property to which a person is entitled, with no purpose of again claiming it, and without concern as to who may subsequently take possession. The term has also been defined as the surrender of a right, or of property, and it has been held to be, at least in some usages, synonymous with, or substantially the equivalent of, "surrender", "forfeiture", or "repudiation", but, as is pointed out in S 2, "surrender," "forfeiture," and "repudiation" are, in strictness, different and distinct from "abandonment". Lastly, he submitted that the suit was for declaration and possession and it fell under Article 142 of the Limitation Act and the question of adverse possession did not arise and was misconceived. Article 144 had no application. He referred to Settlement Manual by Douie, para. 153, Khair Din v Muhammad Hussain PLD 1961 SC 468. He also referred to Amir Abdullah Khan v. Muhammad Attaullah Khan PLD 1990 SC 972 to contend that construction of title document and the legal effect thereof is not a question of fact but a pure question of law. 3. Mr. Zakiuddin P.1 in support of the appeal, submitted that abandonment was complete in all respects by sale of land, going away from the village and non-- participation in revenue proceedings etc. He relied on Mr. Nihal Kour v. Chanda Singh 118 P.R.1893. In this case it was observed that "now, it is evident that for more than a whole generation, viz. Since 1852; the plaintiffs and his father have taken no concern whatever with the land until now. The intention to hold for oneself is a necessary element of the fact of possession. How can any one be supposed to hold possession of property when there is nothing to show that for over a whole generation he has once given a thought to it? It is also evident that a whole settlement, that of 1865, has passed by without, as far as we know, the plaintiff making any inquiry regarding the land which should have come to him. This conduct may be due to the plaintiff's having enough ancestral land in the neighbourhood to live on, or it may be due to other causes. If it was due to the supposed cause, it would not indicate any intention to hold on to the land, but rather one to relinquish. We think these facts are sufficient to justify us in presuming abandonment." He then referred to Shahzada Suryajah v. Azim and others 29 P:R.1910, wherein it was laid down; "long silence and inaction of defendants and their ancestors, are evidence of abandonment---s, and therefore, the possession of defendants and their ancestors ceased when they left the village and ceased to take a share of the profits and so forth. Hence, inasmuch as limitation began to run against defendants more than 12 years before suit, their rights are under Article 142 aforesaid extinct. Had they sued within 12 years of the "abandonment" they would have recovered Sain Ditta v. Ghulaman 85 P.R. 1892, F.B. Notwithstanding the "abandonment", but at the end of 12 years all their rights were lost." (Section 28, Limitation Act, 1877). It may be noted that in all these cases the `abandonment' was of proprietary land. ' He then referred to a decision of the Privy Council reported as Bagga and others v. Saleh and others (No.61916 PC) and read out paragraph 3 which is to the following effect: ---It is to be observed that in their plaint the plaintiffs did not base their claim to share on the partition of the common lands of patti Lak upon any right as proprietors of any lands assessed to the revenue in Patti Lak.The plaintiffs were not recorded in the Khewat as persons paying land revenue in respect of land held by them in Patti Lak.They did not, in fact, hold any lands in Patti Lak which were assessed to land revenue.What they claimed was that as they had paid grazing dues they should be treated in the partition of the common land of the village and if they were
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proprictos of the village, holding lands which had been assessed to the revenue.The trial Judge rightly held that the plaintiffs had not proved any right to participant in the partition of the common lands and dismissed their claim.On appeal the Chief Court held that the payment of tiring by a person who was not a proprictor paying land revenue did not confer upon him any right to share in the Shamilar of Patt Lak.The plaintiffs have failed to prove that they have any right to participate in the partition of the Sahmilar of Patti Lak. He then referred to Karam Dad and others v. Rehmat and others AIR 1931 Lahore 648 and stated that it has been held therein that "where a holder of khewat land in a village loses by adverse possession the proprietary holding not only the proprietary holding but also the Shamilat land appurtenant thereto to lost. "He then referred to Shahabud Din v. Noor Ahmad PLD 1955 Lahore 234 wherein the facts were that the plaintiffs sued as co-sharers for their share of produce of a parcel of Shamilat land cultivated by other co-sharers and were met with the plea that the Shamilat had been declared as the Shamilat of four pattis and that the plaintiffs did not belong to any of the four pattis. The Revenue Assistant who tried the suit, found conflicting entries in the Revenue Records and held that the matter was for adjudication by a Civil Court and dismissed the suit for rent. No suit, however, was instituted. Later on a question of title arose and they were referred to Civil Court. On 14th of August, 1921 they Filed a civil suit which was dismissed by the first two Courts on two grounds: one that the plaintiffs had no right to the land in suit, and two, that their suit was time- barred. In second appeal, learned single Judge held that both the plaintiffs were co---owners with the defendants, their suit was time-barred. On their Letters Patent Appeal, it was contended that the possession of the defendants was openly adverse only in respect of land which formed a subject-matter of previous suit and could not affect the remaining land. However, it was held that the result of the suit of 1890 affected the entire Shamilat and the cause of action for the whole case, therefore, accrued in 1890. The plaintiffs could have been regarded as co---sharers only if their rights had not been extinguished; but if the cause of action has already arisen to them and they have not instituted a suit within the six years allowed by Article 120 then under section 28 of the Limitation Act, their right has become extinguished." The appeal was, accordingly, dismissed. As regards the three last cases, it may be noted that these related to share in the Shamilat. In the first one it was held that since plaintiffs did not base their claim upon any right as proprietors of any land assessed to land revenue, they were not entitled to a share in the Shamilat. This was in view of the fact that only land-holders had/have any right in Shamilat. The Ordinance I of 1959, however, envisaged that even if land-holding is sold it will not be taken that Shamilat rights have also been sold unless specifically so stated: The right in Shamilat was no more contingent on land holding. The reason may be that the (Legislature took into account the fact that because of drought or famine, a landholder may sell his land, go away to any other place or in the neighbourhood for livelihood and still retain his cattle and graze them in the old pasture of Shamilat, or, that he was not to be ousted from the community by depriving him of his share in the Shamilat. Reasons may be diverse but it is clear that the Ordinance recognised two rights independently of each other and not contingent, i.e. Right in the land proprietor ally held and right in the Shamilat land. The second case too, is based on contingency of land-holding for share in Shamilat and if the former is lost by adverse possession the latter is also lost. But this too is prior to the Ordinance. In the third case, the right was lost because from cause of action suit was not filed within limitation. So, the aforesaid three cases are, not helpful to the appellants being based on law prior to the Ordinance when rights were collateral or contingent. If holding was lost the share in Shamialat went with it. Under the Ordinance the two rights are recognized independently and disposal of the holding will not carry like with it the disposal of share in the Shamilat unless specifically so stated.
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4. Mr. S.M. Zafar, learned Advocate for the respondents submitted that although in the sale-deeds there is no mention of sale of the Snamilat yet for making it plain that Shamilat was not included, he would refer to Saleh v. Mst. Bakhtawar and others (3 P.R. 1917) that "the Shamilat was not a mere accessory to the land held by any proprietor and that the sale of the latter does not ipso facto convey any rights in the former. "He then referred to Mahomed Azim v. Sultan Ahmad (AIR 1921 Lahore 264) and read the observation that "Mr. Nanak Chand made an attempt to argue that the right to the Shamilat land must be treated as an accessory to the Malki land, but this argument is opposed to the rulings of this Court on this point. In Ahmad v. Ahmad (1910) 75 P.W.R 1910, the learned Judges who decided the case made the following observation: "The rule of law applicable to cases like the present is that laid down to s Ram Das v. Amir Shah (1901) 113 P.R. 1901, namely, that the rights of a proprietoY; in the Shamilat of a village are not a mere accessory to the land separately held by him and a sale of the latter does not convey Shamilat rights to the purchaser, unless the contrary intention is clearly and unequivocallly established." To the same effect is Gobind Ram v. Ali Muhammad (AIR 1925 Lahore 99) wherein it was laid down that "sale of proprietary land does not necessarily include a share in Shamilat land". He further referred to Rehman v. S.1 (AIR 1925 Lahore 922) wherein it was held that "as the rights of a proprietor in the Shami!At are not a mere accessory to the land held by him an alienation of the latter does not ipso facto convey any rights in the former to the alienee." He then referred to Land Records Manual by Syed Ejaz Hussain, page 242 and read out para. 7.19:. "Cases in which mutation order must show whether the transfer includes a share in the Shaniilat As regards transfers by sale, gift, mortgage or exchange, it is necessary to show whether a share of the Shamilat is transferred with the land and the following instructions should, therefore, be observed on this subject: (i) In cases of sale, gift or mortgage, the mutation order should always state whether a share of the Shamilat is included in the transfer. In cases of exchange the Shamilat is seldom excluded from the transfer and nothing should, therefore, be said about it except where it is excluded when the fact that it is exclude should be mentioned in the mutation order (ii) If a deed of transfer by sale, gift, mortgage, exchange does not specifically mention that a share of Shamilat is transferred with the land it should be presumed that the Shamilat is not transferred." He then referred to Black's Law Dictionary, Fifth Ed, p. 2, and read out the meaning of the word "abandon" which is to desert, surrender, forsake, or cede. To relinquish or give up with intent of never again resuming one's right or interest. To give up or to cease to use. To give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert. It includes the intention, and also the external act by which it is carried into effect." The word "abandonment" is explained as follows: "The surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it .... The giving up of a thing absolutely; without reference to any particular person or purpose, as vacating property with the intention of not returning, so that it may be appropriated by the next comer or finder. Intention to forsake or relinquish the thing is an essential element, to be proved by visible acts. The voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other person....The relinquishing of all title, possession, or claim or a virtual intentional throwing away of property." "Abandonment" includes both the intention to abandon and the external act by which the intention is carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon.
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Time is not an essential element of `abandonment', although the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been an abandonment." He then referred to "A Treatise on Customary Law in the Punjab" by Kaikhosru, J. Rustomji and read from page 216 which is to…
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