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Petitioner: ALI JAN AND 5 Other VS Respondent: COMMISSIONER, F. C. R., QUETTA DIVISION AND 7 JUDGMENT
Court Name: Balochistan High Court Judge(s): Muhammad Afzal Zullah, Muhammad Fazle Ghani Khan Title:ALI JAN AND 5 Other vs COMMISSIONER, F. C. R., QUETTA DIVISION AND 7
JUDGMENT
Reported As: PLD 1970 Quetta 93 Result: Appeal dismissed Judgment JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-The judgment, dated 13th August 1965, passed in Writ Petition No. 96 of 1963 (Quetta), by a learned Judge in Chamber of this Court, is under challenge in this Letters Patent Appeal. The legal question involved is whether there is any limitation in respect of causes for the possession of land, arising in the area of Tehsil Chaman, Quetta----Pishin District, dealt under the Frontier Crimes Regulation No. 3 of 1901. 2. Briefly stated, the facts are that Muhammad Rasul (respondent No. 3) filed a suit in December 1959 against the appellants and respondents Nos.4 to 8, for possession of certain land, water and trees situate in Ilaqa Chaman Toba. The Additional District Magistrate, Chaman (respondent No. 2) acting under section 8 of the F. C. R., by order, dated 18th May 1960, referred the matter to the Council-of-Elders comprising five persons. The following were the issues :- "(1) Whether the suit is within time? (2) What are the lands in suit and where situate? (3) In whose possession the land is? (4) Whether plaintiff had any right in the suit property if so, Jirga to express the share of plaintiff? (5) If answer to question No. 4 is in affirmative, how the plaintiff to get possession of his share? (6) Any other recommendation that Jirga wants to make?" By an award, dated 27th June 1960, four members of the Jirga held that the claim of the respondent-plaintiff was time-barred, while one of them held that there was no limitation for making such claim, therefore he gave the opinion that the claim be decreed. When the matter came before the respondent No. 2, he did not agree with the majority award and referred the
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matter again to a Jirga comprising of four persons which, by a unanimous award, dated 6th April 1961, agreed with the minority view, on limitation of the earlier Jirga and recommended that the claim of the plaintiff be decreed. This latter award was accepted by the respondent No. 2 by his order, dated 6th April 1961, and a direction was given for the implementation thereof in the form of decree. The appellants filed a revision before the Commissioner, F. C. R. (respondent No. 1) which was dismissed by a short order, dated 23rd January 1953. A subsequent review application was also dismissed as incompetent. The appellants then challenged the orders of the respondents, dated 6th April 196 i, and 23rd January 1963 by a writ petition under Article 98 of the Constitu--petition, which was dismissed with costs by our learned brother Mushtaq Hussain, J., on 13th August 1965. Hence this Letters Patent Appeal. 3. A brief mention of the claim of the parties, in so far as it directly relates to the question of limitation, will not be out of place. According to the plaint, the plaintiff was connected with Wali Kahol. Sardar, Sultan, Sarteep and Khuda Dad were four brothers and were from the line of Wali Kahol. Sultan died issueless, while the plaintiff claimed to be successor of Sarteep. The land in dispute was in possession of Haji Bismillah, one of the defendants, Muhammad Lal and Haji Fazool Muhammad. The latter, it appears, was the predecessor-in-interest of some of the present appellants. The land subsequently, it is further averred, came under possession of and remained with the successors of the aforesaid three persons; and because the plaintiff was a minor therefore he could not institute a suit. In para. 1 of the plaint, the fact about the minority of the plaintiff and his having become major at the time of filing the suit, is specifically mentioned. In the written statement, it was claimed that the defendants were in possession of the land for several generations; and because of the long period of possession, the suit was claimed to be baseless. One of the defendants, i.e., aforesaid Haji Bismillah, in a separate written statement accepted the claim of the plaintiff as absolutely true. He, in his written statement, gave more details about the right and claim of the plaintiff, which are found missing in so far as the plaint is concerned. It is further stated therein that the plaintiff was "Muhajir" (in technical sense so far as it applies to the evacuees migrating from these areas to Afghanistan) and that it was a confirmed rule/custom in Chaman Sub-Division that whenever a Muhajir returned back, his share in property is restored to him ; and further that because of the fact that the plaintiff was earlier a minor and had then, at the time of filing the suit, become major, therefore he was fully entitled to recover his share of the property from the defendants. It is mentioned in the opening line of this written statement that the aforesaid defendant, i.e. Haji Bismillah was a white-bearded person and that he was a very old man and knew the circumstances well. The majority of the first Jirga noted in its award that the claimant (plaintiff) had returned from Afghanistan only two years back; therefore, his claim was time-barred and that if he was a minor, a claim could be preferred on his behalf by his mother or grand-father; which was never done and because the claim was being preferred after about 60/70 years, therefore it was time-barred. It was admitted as a rule of custom that if somebody went to Afghanistan as a result of some estrangement or a crime and that if someone from his family came back after several years, it was as a matter of brotherly feelings that "the property is restored to the Muhajirs or their successors." However, it was noted that this rule based on sympathy has led to adverse consequences; in that the person getting the property sells the same and returns back to Afghanistan. As a matter of expediency, it was further opined that if the plaintiff/claimant in this case was allowed to have the property and then if he goes back to Afghanistan, this will lead to a spate of similar claims; which it would not be possible for the administration to cope with. The minority view, which was expressed in a detailed dissenting note, further explained the aforesaid rule of custom of restoration of the property to a Muhajir without any restriction of limitation on his claim. It was held in this note that
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the assertion of the defendants with regard to the long period after which the claim was being preferred, may be correct ; but in the tribe and clan, to which the parties belonged, there was a confirmed custom that whenever and after whatever long period a Muhajir returned back to his original place of residence, his share in the property was restored to him and that the passage of such long time never destroys the right to property. It is of significance to mention that this member particularly noted that hundreds of instances were known to him and the other four members of the Jirga where this rule of custom was applied. When the matter came before the second Jirga, they also wrote a detailed order; but with regard to limitation, they did not dilate the question except that they unanimously agreed with, as they put it, "the detailed award by the minority" which means that they adopted the aforesaid reasoning of the single member of the earlier Jirga. The same course was adopted by the respondent No. 2 in his order, dated 6th April 1961, whereby the award of the second Jirga was accepted. The commissioner, it is to be noticed, in revision has not discussed the question but appears to have agreed with the decision of the second Jirga and of the respondent No. 2, on the question of limitation. 4. The only point pressed before the learned Single Judge was of limitation. The contention raised and noticed in the judgment under appeal was that instructions contained in memos. Nos. 3129 to 3132, dated 6th October 1882, issued by the Agent to the Governor-General, printed as Serial No, 52 under the heading "Limitation" at page 134 of a publication "The Administration of Customary Law through the Frontier Crimes Regulation in Baluchistan" popularly known as the Green Book, laid down thirty years as the period of limitation for claims to ownership of land and water in Quetta and the assigned districts of Sibi and Pishin. The further contention that this instruction (S. No. 52) on the question of limitation, had the force of rule and law, was repelled by the learned Single Judge. Placing reliance on the observations in Mehrab Khan v. Taj Mohammad and others (PLD 1961 Quetta 1) and Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105) it was held that the aforesaid instruction was only a direction and could not have the force of a rule framed under section 62 of the F. C. R., 1901, and thus it could not determine the rights of the parties. 4-A. This Letters Patent Appeal was admitted to regular hearing in 1966. When it came up for regular hearing in August 1969, a D. B. Of this Court observed that a question had arisen before them whether the aforesaid instruction (S. No. 52) "was universally applied since the date it was issued". Therefore, the learned Additional Advocate-General was ordered to assist the Court. In the order, dated 3rd September 1969, it was observed that the learned Additional Advocate-General took the position that said instruction (S. No. 52) was a rule made under section 62 of the F. C. R., 1901 and, therefore, "the period of limitation in respect of civil litigation was prescribed for the first time superseding the custom in respect of the Districts of Quetta and assigned districts of Sibi and Pishin". 1t was further noted that "Mr. Agha Ahmad Shah, the official in charge of the cases arising out of the F. C. R. Is also present in Court and he as well as the learned Additional Advocate- General state that the Rule at S. No. 52 has been applied in all the civil cases under the F. C. R. Ever since it was issued". The hearing could not proceed because a further question arose "whether the territory in which the dispute arose, namely, Toba, Tehsil Chaman was a part of the three Districts of Quetta, Sibi and Pishin on 16-10-1882". Parties were given opportunity to produce evidence on this question and the case was adjourned. When the appeal came up for hearing before us on 13th April 1970, both the contesting parties declined to lead any evidence and relied "on Baluchistan District Gazetteer, Quetta-Pishin District (Volume V) prepared in 1905 and published in 1907 A. D." Mr. Kamal Mustafa Bokhary, the learned Assistant Advocate-General, supported the appellants' assertion that Toba was included in the area known as Chaman in 1882 and, in this behalf, relied on a report of the Settlement Officer of the Revenue Department for preparation of settlement record of Toba Hills in the year 1967. Mr.
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Basharat Ullah, learned counsel for the respondent/plaintiff objected to the admissibility of the said report. We, however, overruled this objection and closed the evidence by the following order: --- "No other evidence is adduced. The evidence of the parties is, therefore, closed." 5. The question of fact whether or not the area in question, i.e. Toba/Toba Hills was or was not included in the administrative unit then known as Chaman in 1882, does not present any serious difficulty. It is apparent that if at the relevant time the area in dispute is found to have been included in Chaman or Pishin, this would satisfy the territorial application and requirement of the instruction at Serial No. 52. Both the parties have relied on the same material, i.e. The aforementioned Gazetteer. Under Chapter IV heading "Miniature Gazetteer" sub-heading "Chaman Sub-Division" at page 298 of the Gazetteer, it has been observed as follows: --- "The Chaman or Khojak Sub-Division of Quetta-Pishin lies between 30-- 28' and 31-- 18' N., 66-- 16' and 67-- 19' E.; it is bounded on the north and west by Afghan Territory; on the east by the Toba Kakari Circle of the P shin Tahsil: on the south-- West by the lower sloes of the Khwaja Annrap; and op the south-east by the main ridge of the Toba Hills, by which it is separated from the Pishin Tehsil. Its length from east to west is about 65 miles, and its breadth about 30 miles, its total area being about 1,236 square miles." Under the sub-heading "Pishin Sub-division" at page 305, it is observed as follows:- "The Pishin Sub-Division and Tahsil lies between 30-- 31 x 31-- 12' N. And 66-- 21' and 67-- 46' E., and is bounded on the north by the Toba Hills and the Khwaja Amran, the latter also forming its western limit; on the east by the Hindubagh Tehsil of the Zhob District; on the south-east by the Sharing Tahsil of the Sibi District; and on the south by the Quetta Tabsil including the Shorarud Valley. Its length from east to west is about 100 miles, and its breadth about 40 miles." Under the sub-caption "History" of Pishin Sub-division at page 307, it is mentioned as follows: ---- "Before its occupation in 1878 and its subsequent assignment to the British Government by the treaty of Gandamak in 1879, Pishin always formed part of the Province of Kandahar. . . After the British occupation and up to 1882, it was under an Assistant to the Governor-General's Agent, but in 1883 was combined with Quetta and Shorarud into the administrative charge of a Political Agent . . . ." At page 6 under the sub-caption "Toba Hills" it is observed that these hills consist of a mass of mountains, which are roughly divided into two parts by a line drawn through Sabura. BOIL portions are named after their inhabitants, the smaler, on the east, being known as Toba Kakari and the larger, on the West, as Toba Achakzai. The map of the area on page 5, when studied with the help of the boundaries of Chaman and Pishin as mentioned at pages 298 and 305 of the Gazetteer (quotations from which have been given above), clearly shows that in 1905 the entire area of Toba Hills with the tribal divisions of Toba Kakari and Toba Achakzai was included in Chaman and Pishin. The question arises as to when the area ire question was included in Chaman and/or Pishin. The history of the area is given in some detail and appears from page 34 (at sequence) of the Gazetteer. We are not concerned with the earlier history At page 43, under the caption "The Second Afghan War Cession of Pishin", it is mentioned as follows: -- "On the general advance being made on New Year's Day, 1879, Captain Wylie was appointed Political Officer in Pishin with headquarters at Gulistan Karez." After mentioning that General Stewart left behind in Pishin some armed units to help the Agent to the Governor-General in preservation of the peace of the country, it is stated that the Achakzais and some discharged sepoys of the Amir's (of Kalat) army threatened the line of communication in front of Gulistan Karez, but the problem was promptly solved. On the same page, it is further observed as follows: ---
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"The first phase of the Afghan War closed with the signing of the treaty of Gandamak by Yaqub Khan on May 26, 1879, under the sixth article of which it was provided, that the districts of Sibi, Pishin and Kurram were to be ceded to the British Government." This clinches the matter that in 1879, the entire area which was then known as Pishin was ceded to the British Government. However, the matter is further clarified by the following observa--petition :- "In September (1880), General Baker marched from Chaman into the Toba highlands, accompanied by Captain `H. Wylie as Political Officer, in order to punish the Achakzais for their behaviour. (Earlier it is mentioned that some skirmishes had taken place with the Achakzais). A number of sheep and goats were captured, and some small hamlets in the Arambi glen were destroyed, when the headmen submitted unconditionally and, in addition to their losses in cattle, were ordered to pay a fine of Rs. 600." Under the caption "Final retention of Pishin", it is mentioned that finally the permanent retention of Pishin was settled in 1882. It appears from page 45 of the Gazetteer that the area described therein as "Chaman" (and the boundaries of which have already been mentioned above from the quotation at page 298) "formed part of Pishin Sub-Division up to 1888, but on the extension of the railway works beyond Kila Abdulla, temporary arrangements were made for its administration, first by locating the Naib-Tahsildar of Pishin in the Khojak Pass, and afterwards by placing the District Superintendent of Police in charge of it". From all that has been noted and discussed above, it becomes absolutely clear that the area known as Toba hills was ceded to the British Government in 1879 and it became permanently settled under the British Government by 1882. This as noted earlier, read with the boundaries of Chaman and Pishin, as they existed in 1905 leads to the conclusion that in 1882 the area known as Toba did fall within Quetta-Pishin District. Mr. Basharatullah, learned counsel for the contesting respondent plaintiff contended that the word "Chaman" at page 45 of the Gazetteer should be read as only the area of the small town that existed in 1882. This contention cannot be accepted, because the boundaries of Chaman as already mentioned extended much beyond the town. He admitted that in 1905, the area in dispute was included in Chaman. When called upon to show from any source as to when, if not in 1879/1882, was this area included in Pishin (the Chaman Sub- Division) the learned counsel expressed his inability to do so. Considering the entire material that has been placed before the Court, I hold that the area in question was included within the territorial limits of "Quetta and the assigned districts of Sibi and Pishin" in 1882 as they are mentioned in the instruction (S. No. 52). 6. The next and the most important question to be considered is whether there is any limitation for making the claim with regard to land, water and trees in the area in question, which is the subject- matter of the present case. Mr. S. H. Jaffri, learned counsel for the appellants, stated that he does not rely on the general principles of limitation/laches or estoppel nor does he rely on any custom for the purpose of importing the concept of limitation in the present case. He also stated that the instruction of 1882 would not, by application of section 24 of the General Clauses Act, be available to be utilised, as he put it, `by way of inheritance' under the F. C. R. No. III of 1901. But he vehemently contended that the said instruction (S. No. 52) has the force of rule which existed before the coming into force of the F. C. R. Of 1901, and that it will be deemed to have been adopted as a rule under the Rule-making provision of the F. C. R. i.e., section 62 which reads as follows :- "62. Power to make rules. The Local Government may make rules to carry out the purposes and objects of this Regulation." Mr. Kamal Mustafa Bokhary, the learned A. A. G. Has supported the last-mentioned argument of Mr. Jaffri, and has gone further to state that the instruction (S. No. 52) was a rule made under the earlier F. C. Rs., and that by virtue of the Government of India Act, 1870, it became a statutory rule
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which, by the force of section 24 of the General Clauses Act, became a rule under section 62 of the F. C. R., of 1901. Mr. Basharat Ullah, learned counsel for the contesting respondent, has contended that the instruction in question (S. No. 52) was neither drafted as a rule nor was it ever acted upon as a rule arid, in any case, it could not be considered to be a rule made under section 62 of the F. C. R., 1901. We have also considered, of course with the help of all the learned counsels, the question whether the Limitation Act could. By its own force or by virtue of the provisions of Regulation No. II of 1913, have application to the matters dealt under the Frontier Crimes Regulation. 7. The argument of the learned A. A: G. In support of the contention that the instruction in question (S. No. 52) should be treated as a rule under the F. C. R. Of 1901, by application of the General Clauses Act, is as follows :- "It was applied to Baluchistan with certain modifications from 1-11-1901. . . The instructions and directions issued from time to time by the Agent to the Governor-General prior and up to the promulgation of Regular IV of 1887 became rule under section 52 thereof and on its repeal, a similar provision under section 62 of Regulation III of 1901 came into force. These instructions and directions of the A. A.-G. Issued under the various Frontier Regulations from 1872 to 1887 were based on the authority of Government of India Act, 1870. In 1887 when the A. A. G. Was appointed as ex-officio Chief Commissioner, the Scheduled Districts (Pishin was a Scheduled District) in Baluchistan came under his control and the laws to such districts continued to be applied by the A. G. G. In his capacity as Chief Commissioner on the authority vested in him by the Government of India Act, 1870 as substituted from time to time read with the Scheduled Districts Act, 1874, both of which continued to remain in force until the promulgation of the Government of India Act, 1935 whereafter these instructions and orders were adopted and continued to remain in force under section 95 thereof. Therefore, all the instructions and directions issued by the A. G.-G. In 1882 or earlier had the force of law and have continued to remain in force by virtue of the General Clauses Act." It must be said that the argument is elaborate, but it is without any basis. The general and sweeping statement that the instruc--petition in question (S. No. 52) was issued "under the various Frontier Crimes Regulations" passed before 1882 cannot be accepted, unless it is shown that the instruction was specifically issued under anyone of them. The three Regulations before 1882 are of 1872, 1873 and 1876. The learned A. A.-G. Was unable to show as to whether and when all or any of these Regulations was applied to the area in question. He was specifically asked as to what provision of any of these Regulations he relied upon for the purpose of supporting the general statement, to which he could not make any reply. In fact, he frankly stated that these Regulations are not available. The second general statement that the instruction in question (S. No. 52) was made on the authority of the Government of India Act, 1870 is also too general to be accepted. No provision has been relied upon to show that the Agent to the Governor-- General could, by issuing a memo. As is the case with regard to instruction (S. No. 52), make and promulgate the law of limitation in respect of certain claims. In the absence of any such specific source of power, to say that the instruction (S. No. 52) became a rule by virtue of section 52 of Regulation No. IV of 1887, is also begging the question. I am, therefore, not satisfied that the instruc--petition in question (S. No. 52) was made under any law or by virtue of any power conferred by law on the Agent to the Governor-- General to make or enact the law of limitation by means of a memo. It appears that the Agent to the Governor General issued, at least, four Memos. Nos. 3129 to 3132 on or about 6th of October 1882. The original memos. Have not been placed before the Court. They are given in the consolidated form (instruction at S. No. 52) on page 134 of the Green Book. The memos. May have been issued as a general guidance for entertain--ing the claims to the ownership of land and water in specified
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areas and for the peculiar conditions prevailing at that time, i.e. To and about 1882, and they were never intended to be made or applied, in the form of a law or a rule. There is another aspect of this matter. Admittedly, the memos. In question were issued before the coming into force of Regulation No. III of 1901. Even if it could be carried on by virtue of section 52 of Regulation No. IV of 1887 for which there is no material to support, the same could not be read as a rule under section 62 of the F. C. R. No. III of 1901, by virtue of section 24 of the General Clauses Act. The latter Act was enforced in 1897. The opening part 4f section 24 reads as follows: --- "Where any Central Act or Regulation is, after the com--mencement of this Act, repealed and re- enacted with or without modification, then, unless it is otherwise expressly provided, . . . . . . . . Admittedly, Regulation of 1887 was repealed before 1897. Therefore, this provision, in turns, would not apply to the present case. 1, therefore, hold that the instruction in question (S. No. 52) cannot be treated as a statutory rule which could be enforced under the F. C R. Of 1901, by virtue of the General Clauses Act; even if the Regulation (of 1901) is treated as the repeal and…
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