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Petitioner: MIR HAJI KHAN And 11 Other VS Respondent: Mir AIJAZ ALI AND 2 Other
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Muhammad Afzal Zullah, Karam Elahi Chauhan Title: MIR HAJI KHAN And 11 Other vs Mir AIJAZ ALI AND 2 Other Case No.: Civil Appeal No. K-21 of 1975 Date of Judgment:1979-08-21 Reported As: PLD 1981 Supreme Court 302 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-This is an appeal through special leave filed by the defendants in a declaratory suit which was dismissed by the trial Court on 19-2-1962. The first appeal filed by the respondents-plaintiffs was allowed on 28-9-1963 and the second appeal filed by the appellants-- defendants was dismissed by the Sind & Baluchistan High Court on 16-8-1971. The respondents claim in the plaint was that agricultural land in two villages Deh Lakhisar and Deh Barer! in~ Tapo Chitshah, District Hyderabad, which were originally included in Deb Khobrani Jagir, comprising of Survey Nos. 400 and 445 to 465 (part of Original Unsurveyed No. 400) in Deb Lakhisar and Surveys Nos. 144, 296 and 297 (part of original unsurveyed No. 144) in Deh Bareri.Was "owned and possessed" by them, on the basis of inheritance of what they called "mukhadim! rights all 16 annas", in the land, from their father Mir Samano Khan who inherited it from his cousin Abdullah Khan the latter "owned and possessed this land as Mukhadimi owner of the land till his death". This claim was prefaced, as disclosed in para. 4 of the plaint, with an important assertion that "long before 1892, before the survey settlement was introduced, his (Abdullah Khan's) mukhadimi rights were recognised and claim of Mir Allahdad (predecesor-in-interest of defendants-appellants), then Jagirdar who contested the mukhadimi rights of Abdullah Khan, was rejected finally by the then Commissioner in Sind" ; and that "defendants falsely denied the right of plaintiffs and challenged the right of ownership in this land on the basis of inheritance from this Mir Allahadad Khan's heirs falsely claiming that Mir Allahadad Khan had been Mukhadimi owner of this land". In the alternative the plea of adverse possession was also taken with the assertion that "the plaintiffs and their predecessor as above-mentioned, from the time of Abdullah Khan son of Ghulam A.I Khan had been in adverse possession for more than 12 years ; the possession of plaintiffs and their
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ancestors had been open, continuous and hostile to the rights of defendants and their predcessor in their own rights as owner ; as such rights of defendants if any have been extinguished due to adverse possession . . . . : ' Giving it as a part of cause of action the plaintiffs- further asserted that the defendants had fraudulently with the help of Revenue Authorities got the record-of-rights changed in February 1960 from the name of plaintiff's father namely Samano Khan in their own names on the strength of a decree which was based on collusive compromise dated 4th December 1945 in Suit No. 70 of 1945. The plaintiffs' formal claim in the suit was that they "are the owners of land and the defendants have got no right, title or interest in the land to any extent." mukhadimi rights in the land also belonged to the defendants. Regarding adverse possession, in reply, it was averred that plaintiff No. 2 (Mir Muhammad Khan) was lessee of the suit land and that after the expiry of the lease the possession was retrieved from him therefore, no question of adverse possession arose. Another significant assertion was made in the written statement namely that "record-of-rights was all along in favour of defendants. At one time without notice to defendant Mr. U,jjan mutated record-of--rights in favour of plaintiffs. Defendants appealed to Collector who upheld appeal and mutated record-of-rights back in the names of defendants". It was denied that the decree in favour of the defendants which was given effect in the revenue record was collusive. A counter assertion was made that the plaintiffs knew about the said suit from the time it was filed. The following issues were framed by the learned trial Court :- "(1) Is the suit undervalued and understamped ? (2) 1s the suit barred under section 42 of the Specific Relief Act ? (3) Is the suit bad for non-joinder of necessary parties ? (4) Whether properties belong to plaintiffs ?. (5) Has the suit property been acquired by plaintiffs by adverse possession ? (6) Is decree in Suit No. 70/73 not binding on plaintiffs ? (7) Is defendant No. 2 insane ? If yes, is the suit bad for not appointing his guardian ad item ? (8) What should the decree be ?" On a remand by the High Court at an earlier stage, the following additional issue was framed :-- "What was the nature of the grant by the Government to Mir Allahdad Khan ? Whether the grant in this case conferred upon the Jagirdar merely the right to collect land revenue or it also included the right in the land, such as the Mukhadimi rights ? Voluminous, documentary and oral material was produced from both sides. The suit was dismissed by the learned trial Judge after taking into consideration the evidence as also the conduct of the plaintiffs and their predecessor-in-interest. Reliance by them on certain reports and orders of the Revenue Settlement Survey Authorities in 1x92/93 was not considered as of binding effect so as to render a decision in their favour, because they contained varied opinions. The respondents appeal was accepted by the learned District Judge mainly on the consideration that a consent decree passed in 1945 in favour of the defendants was not binding on the plaintiffs because they were not parties to it and that the aforementioned decisions of the Revenue Authorities were based on evidence, therefore, they could not be ignored. It was also held that the defendants had not proved, in a positive manner, that they and their ancestors had enjoyed the Mukhadimi rights in the land. At the stage of the second appeal in the High Court it was realised that the questions relating to the Jagir granted to the predecessors-in-interest of the defendants as also whether it included all the rights in lands such as Mukhadimi rights, were not properly dealt with. Accordingly, the case was remanded to the District Judge after framing the necessary issue, for recording additional evidence and returning the record with his findings to the High Court. The learned District Judge
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after due proceedings, again expressed his opinion in favour of the plaintiffs and remitted the record to the High Court. The second appeal was dismissed by the High Court in Single Bench by the impugned judgment. Considerable stress was laid on the fact that the question relating to the Jagir (and the Sanad through which it was granted) as such was not raised in the trial Court. The earlier remand order passed by another learned Judge of the same High Court was subjected to lengthy adverse comments. It was held that the defendants had not succeeded in establishing their Mukhadimi rights in the land in dispute. It was also observed that the Courts below had failed to give full effect to the defendants' so-called admission on issue No. 2. The precise reasoning was that the defendants not having pressed the objection regarding the form of the suit vis-a-vis section 42 of the Specific Relief Act, would be deemed to have accepted that the plaintiffs were in possession of the land in dispute; and further, that this would lead to another presumption that the defendants had given up the contest on the question of adverse possession as well. On other question of merits it was found that the possession of the plaintiffs %was in the capacity of Mukhadimi who were also called as Zamindars with heritable and transferable rights in the soil of land; notwithstanding the creation of the Jagirdari rights in favour of the defendants-appellant's zincestors. The two important considerations which heavily weighed with the learned Single Judge against the appellants were (i) that in 1892 a Committee ,of Messrs Seymour and Kadirdad Khan conducted an enquiry and survey with regard to the nature of the rights of the Jagirdars as also the persons in possession of the Jagir Lands, claiming to be Zamindars thereof, gave finding that the Jagirdars had no rights in the soil such as Zamindari rights and further that the persons in possession in fact held the same; (ii) that Mir Allahadad Khan Jagirdar, a predecessor-in-interest of the appellants had, in an earlier, suit, admitted that the persons in possession of the Jagir Lands held Zamindari rights. The decision of the first appellate Court decreeing the suit of the plaintiffs was accordingly upheld. It needs to be mentioned that the Division Bench ruling of the same Court inI Mir Abdul Hassain Khan v. Province of West Pakistan (PLD 1958 Kar,175dealing with the similar Jagirs and the sanads granting them as are involved in this case, wherein a contrary view qua the rights in soil, was taken in favour of the Jagirdars, was not followed in the judgment impugned in this appeal on an assumption that it could be distinguished. The plaintiffs' case about the origin of their rights to the ownership of the land in dispute in addition to what is stated in the plaint, as elaborated by their learned counsel, is that it existed in the form of Mukhadimi rights through possession of the land in that capacity. The right 'in land thus owned was heritable. He contended that the plaintiffs' ancestors held those rights even before the grant of Jagir to the forefathers of the defendants by the British rulers. One Mir Abdullah Khan. And on the death of Mir Samano Khan in 1957, it is further claimed, they inherited those rights. The case of the defendants regarding Jagir as visualised by the High Court in para. 7 of the impugned judgment is that the first Jagirdar before the British regime was Mir Budho Khan but the first Jagirdar during the British Sovereignty was Mir Ahmad Khan Talpur Khanani and the Jagir which was granted to him by the British Government in 1861. In supersession of the previous grants, made by the previous rulers covered 70,000 bigahs." Earlier it was observed that "Mir Sher Muhammad Khan (son of Mir Allahdad Khan) who was the last Jagirdar, had no male issue; therefore, on his death in 1942 the rule of succession which was admittedly male primogenature, could not work. The property, therefore, devolved on his heirs according to Shariat. The heirs made gifts inter se with the result that his cousin Mir Khan Muhammad Khan received eight annas from the property which was formerly a Jagir. Mir Khan Muhammad Khan had four sons to whom he gifted in equal shares of that property. Defendants I and 2 are his sons and the other defendants are the heirs of his deceased sons".
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The Jagir in question granted by the British rulers to the ancestors of the appellants was through a Sanad, which except for minor variation, is similar to that considered in the case of Mir Abdul Hussain Khan. It reads as follows .:- "Whereas it is the object of the British Government to respect both private rights and public usages in the disposal of such lands as have fallen to them by virtue of conquest, to give honour to those who are worthy of honour, and to keep respectable persons from want and difficulty, it has been thought fit to institute inquiry into the land tenures and general circumstances of the Jagirdars of Sind, so that provision may be made, not only to meet the present necessities, but also for the future support of the sons and lineal male descendants of a certain number." Now your father (Mir Jan Muhammad Talpur, Khanani), killed at the battle of Meani, having been found on inquiry to have been possessed at the conquest of Jagir land in this province, continued to you by His Excellency the Governor, Sir Charles Napier, under the terms of one-fourth resumption, the British Government have determined that position shall not be interfered with for the term of your natural life so long as you remain true and loyal; and this Sanad is now granted to you in supereses--sion of all prior documents confirming you in the grant aforesaid. And further, in consideration of your rank and the social position of your family, and of the late Governor's proclamation in respect of the four Talpur divisions of Shahdadani, Shawani, Khanani and Manikani, it is ordered that from the whole amount of bigahs in your possession (deducting one-fourth in lieu of one-fourth produce now exacted) the amount of 70,000 bigahs be accorded to your lineal heirs males, failing whom to the lineal male descendant of the Jagirdar (Jan Muhammad having been killed at Meani this provision is inapplicable) recognised at the conquest free of all assessm ent except 5 per cent. For roads and schools. In this amount no more than one- third of your present possession will have been resumed on account of waste land, agreeably to custom under the late Governor, His Excellency Sir Charles Napier. This allotment may be now chosen by yourself, and marked off in communication with the Settlement Officer of Government, or reserved for after consideration by your heir. Should you have, as is most probable, sufficient waste land to cover the Govern--ment demand on that account, you will not necessarily give up one inch of productive soil, the only provision being that the permanent Jagir consists of one consolidated and well-defined land alienation where the possessions are contiguous, and as far as practicable, complete makans. With respect to the. Payment of water rates, you will be subject to the local rules in force to meet the Government expenditure on canals, due regard being had to the particular circumstances of your Jagir. this sanad will be revoked, and the grant resumed. Hyderabad,(Sd.) J. D. INVERARITY, 28th March 1861. Commissioner in Sind. The above reproduction (same as in Exh. 132-B) is from History of Alienation in the Province of Sind . (Volume I) (1886) mentioned hereinafter as the History) a-publication under the authority of the then Government. Before cling with the other questions raised during the arguments it needs to be observed in the very outset, with respect to the learned Single Judge in the High Court, that some assumptions made in the impugned judgment already referred to, are not correct: (1) The present appellants had not given up the contest of the question of adverse possession. 1t formed the subject-matter of a separate and independent issue namely Issue No. 5 which was never given up. Moreover, giving up of the contest on Issue No. 2 relating to the bar under section 42 of the Specific Relief Act could not be given more meaning in the contest of the question involved in other issues than that a technical objection which could have held up the trial was
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given up, as it did not affect the merits of the controversy relating to posses--sion which was included in Issues Nos.4 and 5 on ownership and adverse possession. (2) It was on the same appeal that at an earlier stage thereof a learned Judge of the High Court had, coming to a final conclusion regarding the trial of the additional issue, remanded the case for further proceedings and resubmission to the High Court. On the contrary the impugned judgment gives an impression that the order of remand in the appeal was also the subject of the same appeal. It was not permissible for the learned Judge who finally decided it, to have criticised the order B of remand and the lengthy discussion in this behalf could have been avoided. We may also remark that it was on account of this criticism that vital question which formed subject-matter of remand proceedings did not receive proper attention in the impugned judgment; (3) The ruling of the same Court in Mir Abdul Hussain Khan's casewas not given due importance and it was not followed on the assumption that the same could be distinguished. The so-called two distinguishing features mentioned in the impugned judgment are (i) that the point of view canvassed in the said case of Mr. Ab4u: Hussar Khan was different from the aspects involved in the ascertainment of mutual rights of Jagirdar and the occupants as involved in this case and (ii) that the Division Bench had given an alternative supporting reason for final decision. Which showed as if it did not depend upon the findings based on the grant of Jagir and the Sanad creating the same. With respect, it needs to be remarked that the decision given in the said case, notwithstanding the fast that there was no contest therein between a Jagirdar and occupant and that a supporting reason was mentioned by the learned Judges, as an alternative, would not make the said ruling less binding on the learned Single Judge who decided the present case. In this behalf it may also be mentioned that it (the Karachi case of Mir Abdul Hussain khan) was cited with approval by this Court in Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236 1). (4) And lastly, it was not correct to assume that the burden of proof o1 Issue No. 4 ("whether properties belong to the plaintiffs"?) indirectly fell on the defendants to show affirmatively that they. Were the owners. The arguments on main Issues (Nos.4 and 5) regarding ownership and possession addressed at the Bar can be classified into three controversies:- (i) Whether the plaintiffs and their ancestors were in possession of the land in dispute as Zamindars/Mukhadimis, with rights of ownership in the soil? (ii) Whether the Jagir/Sanad in question conferred any rights in the soil on the Jagirdars--the predecessors-in-interest of the defendants? (iii) Whether the plaintiffs have become owners of the land in dispute through adverse possession? The text of the Sanad in this case itself shows that the Jagir was in the fulfilment of the promise regarding the existing grants under the Muslim rulers of Sind, made by the British ruler immediately on the assumption of the power. After the so-called conquest of Sind. As is obvious from the Sanad the land in the Jagir was found in "possession" of the original Jagirdar (ancestor) of appellants holding the Jagir from the Muslim rulers). He was (it has been acknowledge by Sir Charles Napier in his book "Conquest of Sind" referred in the History (Volume II) at page 111 in the form of a note) "one of the greatest and most warlike chiefs" of his people, who made supreme sacrifice of his life in the battle of Meani. It was in recognition of his qualities that his people raised a tomb over his grave, which Sir Charles Napier, described as a "great one". Both of the volumes of the History are full of reference to correspondence between the then British functionaries. It shows that on account of the political and social situation then prevailing in Sind and for political and administrative reasons, those who commanded respect and reverence from their people (even if they were otherwise found hostile to the British ingress) were given due importance in the new dispensation, and restoration of the Jagirs in the form of regrants to many of them was a manifestation thereof. It
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was with this background that despite the general resistance to the regrant of Jagirs to those whose "fathers" had "died fighting" at Meani (and at Dabba) the regrant in this case was made to Mir Ahmad Khan, Talpur the son of aforementioned Mir Jan Muhammad Talpur in recognition of their status. It is stated in para. 45 (page 35 of the History, Volume I) that although lineal heirs of those who had fallen at Meani were not "necessarily" to be continued in Jagirs yet, it depended upon "the will of Sir Charles Napier to make the grant or not". The Sanad itself speaks of the reasons as to why, despite the aforementioned .Bar, re-grant was made in this case. Again as a general rule, the re-grant was made "conditional on payment of quarter - produce" to the Government from what the Jagirdar realised as produce from the land. This . Condition became a subject of prolonged controversy; which was ultimately in some Jagirdars paying what was called chowth i.e. one-fourth from the produce, others paying two annas per bigah and yet the third category in which. The present case falls, where the Jagirdar was to surrender 1/4th of land itself in lieu of the quarter produce: This last mentioned condition would be unrealistic unless it is assumed that the Jagirdar was given the necessary rights in the soil as well: In this context it is interesting to note that in order to encourage the heirs of the original Jagirdars to whom the Jagirs were restored, "to cultivate the waste land", it was proposed at the initial stage that "a promise might be given that the amount of rent levied should not be increased during his life time. Few, if any, of the Jagirdars reside upon their Jagirs, and it would, I think, be a great advantage not only to the country generally but to the Jagirdars themselves, if when a Jagir is restored, a clause were inserted binding the Jagirdars. Either personally to reside upon and superintend the estate, or to appoint one of his brothers or sons to take charge of it- (see page 26 of the History, Volume I). . It is not correct that the use of word `Jagir' would signify only a revenue receiving grant. A detailed analysis in this behalf has been done in the Lahore case of Nawabzada Malik Habib Ullah Khan Tiwana v. The Province of West Pakistan and another (PLD 1967 Lah 533). As held therein we are also of the view that some Jagirs were of composite character and involved rights in soil as also the Muafi qua revenue. The Jagir in the present case is of that type.This view also finds support from the ruling of this Court in the case of Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner (PLD 1973 SC 236) wherein somewhat similar questions were involved. Except for in. Consequential slight difference between the language of the Sanad involved in this case and the language used in the sanads granted to some other Jagirdars amongst, the four Talpur . Families mentioned in this sanad, it is the same it is also agreed that the sanad which was the subject- matter of consideration and interpretation in the Karachi case of Mir- Abdul Hussain Khan is one of these Sanads and the decision in that case is not only highly relevant but is of considerable importance in the resolution of the major controversy nosed earlier. The learned Judges of the Division f Bench in the said case gave convincing reasons for reaching the following conclusions :- ' '(i) It would be most unfair to import thti view of the Officers of the bombay Government in respect of Jagirs in Deccan and 'Southern Marahatta Country relied upon in the Bombay decision for the interpretation of the term of grant of Jagirs in Sind, and we are not inclined to adopt this method for construing the terms of the grant in dispute. (ii) It cannot be denied that. With the introduction of modern system of irrigation through well-laid canals the waste lands- were bound to come under cultivation and under the terms of the sanad the ... Jagirdars were entitled to cultivate them, and .Acquire the status of Zamindars. White worth, J. In II Sind Decisions (Sind Sadar Court) 41 recognised this right of the Jagirdar and we see no reason to differ from the view expressed in that decision. (if) The best criterion to determine the nature of the grant is to ascertain from the terms of the grant the rights of the grantee in the land. If under the terms of the grant he is found to possess
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substantial interest in the land, besides collecting the land revenue, there is no doubt in our mind that such grant should be treated as also the grant of the soil. (iv) Judging the Sanad under consideration from this angle, it seems to us that the grantee under its terms is not only entitled to enter into agreements with the Zamindar to vary the terms on which the Jagir dues were recovered, but were also entitled to bring waste land under cultivation and, to -put them to more beneficial uses and to enjoy their enhanced value and profits. The only legitimate inference in these circumstances ought to be that the grant in question was also the grant of the soil. (v) On a careful consideration of all the authorities and other material placed on the record, it appears to us that the corpus of the grant having been expressed in clear terms cannot and should not be abridged or curtailed by raising unwarranted inferences when no reservations in that behalf have been - made .In the Sanad. The terms under consideration clearly stipulate that land was subject-matter of the rant. And that these lands were granted free from assessment. (vi The operative part of the grant makes it perfectly clear that the right of the Jagirdar in respect of land found in his possession at the time of conquest was recognised and. That he was allowed to hold them free from land .;revenue subject to other terms. In…
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