Shamlat Deh۔شاملات دیہہ
THE PUNJAB LAND DISPOSITIONS (SAVING OF SHAMILAT) ORDINANCE, 1959
(W.P. Ordinance I of 1959
C O N T E N T S
SECTIONS
1. Short title and extent.
2. Definition.
3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.
4. Repeal.
THE PUNJAB] LAND DISPOSITIONS (SAVING OF SHAMILAT) ORDINANCE, 1959
(W.P. Ordinance I of 1959)
[27 January 1959]
An Ordinance to provide for a uniform interpretation of general expressions with regard to disposition of “Shamilat” lands in the Province of [3][the Punjab];
Preamble.— WHEREAS it is expedient to provide for a uniform interpretation of general expressions with regard to disposition of “Shamilat” lands in the Province of the [4][the Punjab].
Now, THEREFORE, in pursuance of the Presidential Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance:-
1. Short title and extent.— (1) This Ordinance may be called [5][the Punjab] Land Dispositions (Saving of Shamilat) Ordinance, 1959.
[6][(2) It extends to the whole of the Province of [7][the Punjab] except the Tribal Areas].
2. Definition.— In this Ordinance, unless there is anything repugnant in the subject or context, the expression “Shamilat” means land described as such in the Record of Rights, and the land so described, shall be deemed to be Shamilat, notwithstanding that the whole or a part of it is in the possession of one or more of the proprietors in the estate, or of any other person.
3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.—
(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights or interests incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof appurtenant to such land, unless such Shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition.
(2) This section shall not affect any decision of a competent court or authority given before the commencement of this Ordinance:-
(a) if it is not open to review, appeal or revision, or
(b) if it is so open, no such proceedings have been taken, and the decision has consequently become conclusive between the parties.
4. Repeal.— The Punjab Land Dispositions (Saving of Shamilat) Act, 1951[8], is hereby repealed.
[1]This Ordinance was promulgated by the Governor of West Pakistan on 23rd January, 1959; published in the West Pakistan Gazette (Extraordinary), dated 27th January, 1959, pages 455-456; saved and given permanent effect by Article 225 of the Constitution of the Islamic Republic of Pakistan (1962).
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Case Law
2011 YLR 58
[Peshawar]
Before Mazhar Alam Khan Miankhel, J
Mst. AMTARI and others---Petitioners
Versus
Mst. HAKIM JAN and others---Respondents
Civil Revision No. 684 of 2005, decided on 20th September, 2010.
Specific Relief Act (I of 1877)---
---Ss. 42 & 54---Suit for declaration-cum-injunction---Both Trial Court and Appellate Court
had concurrently dismissed suit filed by the plaintiff---Validity---Plaintiffs who claimed to be
owners in possession of suit property measuring 158 Kanals and 16 Marlas, had alleged that
only 21 Kanals and 16 Marlas of land had been shown in their names in Revenue Record and
remaining 137 Kanals had been incorrectly incorporated in the Revenue record in the name of
defendants---Property in dispute was the common village property/Shamlat Deh though in
possession of some of the plaintiffs and entire evidence on record was silent to the fact as to
what was the actual ownership of the plaintiffs in the village and what was the share to be
claimed by them in the village common property measuring 1764 Kanals 7 Marlas in total---
Mere assertions of the plaintiffs would not entitle them to claim the village common property
to be their exclusive ownership---Plaintiffs had also failed to prove the factum of ownership of
the entire property as claimed by them---While challenging the entries in the Revenue record
and that too of the Settlement record they were required under the law to have brought specific
and direct evidence in support of their claim---Nothing was on record which could suggest that
it was actually the property owned by the plaintiffs and that defendants had no concern
whatsoever with the same---Plaintiffs had failed to make out a case for interference in exercise
of revisional jurisdiction of High Court---Concurrent finding arrived by the courts below,
needed no interference.
Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 ref.
Altaf Ahmad for Petitioners.
Asghar Khan Kundi for Respondents.
Date of hearing: 20th September, 2010.
JUDGMENT
MAZHAR ALAM KHAN MIANKHEL, J.---The impugned herein are the concurrent
findings of the two Courts below whereby a suit for declaration-cuminjunction was
dismissed throughout by the Courts below. The petitioners in their suit have alleged
themselves to be the owners in possession of the suit property measuring 158 Kanals 16
Marlas fully explained in the head note of the plaint situated in Mouza Charh, Tehsil
Daggar, District Bunir and the entries in the revenue record were incorrectly made whereby
only 21 Kanals 16 Marlas of land was shown in their names and remaining 137 Kanals of
the land was wrongly and incorrectly incorporated in the revenue record in the names of
respondents. During the pendency of the suit, certain transfers of the disputed property
were effected which were also challenged through amended plaint by the petitioners. The
claim of the petitioners was denied by the respondents. After recording pro and contra
evidence, the learned trial Court dismissed the suit vide its judgment and decree dated 27-
9-2002 and appeal there against of the present petitioners also met the same fate.
2. The learned counsel for the petitioners contended that the findings of the two Courts
below are not only based on misreading and non-reading of evidence available on the
record but the jurisdiction exercised by the two Courts below was also not in accordance
with law. The revenue record specially Exh. P. W.1/3 and oral evidence of the petitioners
was totally discarded. The findings of the learned Appellate Court are against the
provisions of Order-XLI Rule 31, C.P.C., and are based on surmises and conjectures. He
even failed to appreciate the pleadings of the petitioners while placing reliance on Gul
Rehman v. Gul Nawaz Khan (2009 SCMR 589).
3. As against that, the learned counsel for the respondents submitted that the petitioners
had no cause of action available to them and their present suit was also not maintainable.
The petitioners under the law were required to have proved their case as per assertions
made in the plaint. The suit property is `Shamilat-i-Deh' which cannot be the exclusive
ownership of the petitioners and thereby supported the findings of the two Courts below.
4. Learned counsel for the parties were heard and record of the case was perused which
would reveal that the petitioners have claimed to be the exclusive owners of the suit
property whereas only 21 Kanals 16 Marlas have been shown in their names and remaining
property measuring 137 Kanals was recorded in the names of respondents and he has
sought the correction of the revenue record in this regard. The first ever settlement in the
area took place in the 1977/78 and a document "Shart Wajibul Arz" Exh.P.W.1/3 besides
the "Misal-i-Hagiat" was also prepared which would reflect that the suit property was the
common village property though in possession of some of the petitioners but the entire
evidence on the record is deficient to the fact that what was the actual ownership of the
petitioners in the village and what was the share to be claimed by the petitioners in the
village common property measuring 1764 Kanals 7 Marlas in total. Mere assertions of the
petitioners would not entitle them to claim the village common property to be their
exclusive ownership. The petitioners have also failed to prove the factum of ownership of
the entire property as claimed by them. Their claim is based on oral evidence and that too
is against the record. While challenging the entries in the revenue record and that too of the settlement record, they were required under the law to have brought specific and direct
evidence in support of their claim. There is nothing on the record which could suggest that
it was actually the property owned by the petitioners and the respondents had no concern
whatsoever with the same. As against their claim of the entire property, the revenue record
reflects the same to be a village common property (Shamilat-e-Deh) wherein every owner
recorded in the proprietary body of the village will have the proportionate right of
ownership as per his ownership in the village. Even only purchases of village property will
have no right in the village common property.
5. If para-4 of the plaint is taken into consideration that the petitioners were the actual owners of
the suit property which was wrongly and incorrectly recorded as village common property again
will have no support from the record or evidence led by the petitioners.
6. The learned trial Court had decided the issue of limitation in favour of the present petitioners
which was never challenged by the respondents by way of separate appeal or cross objection but
the learned appellate Court while considering the appeal of the petitioners without considering
the facts and circumstances of the case has held the suit of the present petitioners to be time
barred. The revenue record available on the file would suggest that both the parties to the suit are
cosharers/co-owners and the petitioners appear to be in possession of the same. So, every
successive preparation of revenue record would give them a fresh cause of action. While
considering the issue of limitation in this background, it appears to have been dealt with
incorrectly by the learned appellate Court and even if such findings on the questions of limitation
by the appellate Court are set aside would not affect overall merits of the case for which the
petitioners have failed to prove their case.
7. What has been discussed above would reveal that the petitioners have bitterly failed to make
out a case for interference in exercise of revisional jurisdiction by this Court. Hence, the
concurrent findings arrived at by the Courts below need no interference and this revision petition
is dismissed as such.
H.B.T./300/P Petition dismissed.
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IN THE PESHAWAR HIGH COURT BANNU BENCH.
C.R No.06-B of 2008
Muhammad Nazir through LRs
Vs.
Ameer Jan and others.
Date of hearing 04.05.2015 .
Appellant-Petitioner:
By Pir Hamd Ulah Shah,
Advocate.
Respondent:
Shahid Saleem Mina
Khel & Hafeez Ullah
Khan, Advocates.
JUDGMENT
MUHAMMAD YOUNIS THAHEEM, J:- Through
instant revision petition, the LRs of petitioner
Muhammad Nazir, have called in question the
judgment and decree dated 09.02.2008 passed by
learned Additional District Judge-I, Lakki Marwat,
whereby up holding the judgment and decree dated
19.12.2006 of learned Trial Court/ Civil Judge-IV,
Lakki Marwat, the appeal of petitioner was dismissed.
2. Concise facts of the case are that
predecessor in interest of respondents No.1 to 10 - 2 -
Baidullah Jan instituted a suit for declaration to the
effect that suit property comprising Khata No.262
bearing Khasra Nos. 1974, 1975, 1976, 1833, 1934,
1935, 1936, 1937 & 1972 measuring 1442 Kanals
situated at village Marmandi, Lakki Marwat is
“Shamelat-e-‘Deh” and was used for the purpose of
grazing fields of the village since 1904-05 and
petitioners/ defendants are neither the sole owners in
possession nor entitled to deprive other co-owners of
village from its utility being common property i.e.
Shamilat, as such any mutations or gift mutations in
favour of others in column of cultivation in violation
of shart wajibul Arz, is illegal, unlawful, void, hence,
the suit.
3. Petitioners/ defendants were summoned,
on appearance they contested the suit by submitting
written statement. On divergent pleadings of the
parties the learned trial court framed as many as seven
issues including relief. The parties produced pro and
contra evidence in support of their respective stance. - 3 -
On conclusion of trial, the learned trial court after
hearing arguments of learned counsel for the parties
decreed the suit vide judgment and decree dated
19.12.2006.
4. The petitioners/ defendants being feeling
aggrieved from the judgment and decree of learned
trial court preferred appeal before the Court of learned
Additional District Judge-I, Lakki Marwat. The
learned appellate Court after hearing arguments of
learned counsel for the parties dismissed the appeal
vide impugned judgment and decree dated 09.02.2008,
hence, the instant revision petition.
5. Arguments heard and record perused.
6. In this case statement of Patwari Halqa is
very important, who was examined as PW-1 and
produced Fard Jama Bandi for the year 1995-96 (Ex:
PW 1/1) according to which total Shamilat land is
1442 Kanal, Shajra Nasab Khandan No.170, (Ex:
PW1/4) according to which petitioners belongs to
same Khandan and Wajib-ul Arz of Moza Marmandi - 4 -
(Ex:PW1/5) consist of six pages. Perusal of the same
reveals that the disputed land is Shamelat-e-Deh used
for the purpose of pasture (Charagah) for the Aqwam
Baist Khel and Ghazni Khel whereas people of other
mozajat/village can graze their cattle with their
permission. Moreover, it is also admitted by DW-4,
Qasim Khan in his cross examination that disputed
property is entitlement of Baist Khel and Ghazni Khel
Aqwam. In view of such a situation, when it is
abundantly clear that suit property is Shamlat-e-Deh
and ownership of two Aqwam Baist Khel and Ghazni
Khel, no person from any one of the said caste is
authorized to transfer the disputed land, hence, any
kind of transactions including gift in column of
cultivation without the consultation of other owners of
common property carried out by the petitioners in
violation to the condition laid down in the Wajib-ul
Arz (Ex:PW1/5), are illegal against the law, void ab
initio. In this regard wisdom is derived from the
Judgment in case titled “Sher Afthan Vs. - 5 -
Muhammad Rafiq and another (2012 CLC 1803)
Board of revenue Punjab, wherein it has been held:
“As a matter of fact, the land in
Shamilat Deh is not only the ownership
of the villagers living in that village but
also the ownership of the coming
generations following in succession.
The misuse, sale and illegal occupancy
will deprive the future generations of
their due inheritance and societal
rights. Section 136 of The Land
Revenue Act, 1967 clearly imposes
restriction and limitation on the
partition of Shamilat land. In the
instant case, while attesting the
Mutation of Shamilat Deh, all co
sharers have not been consulted, which
is mandatory. It was incumbent upon
the Revenue Officer to summon all
interested parties and stakeholders for
consultation, before attestation of such
Mutation. It has been held in 1985 CLC
796 that partition sanctioned without
consulting a large number of co-sharers
is not justified. It has also been held in
2003 SCMR 1857 that partition of
Shamilat Land should be made on the
basis of Shart Wajib-ul-Arz and not on
the basis of Misl-e-haqiat.” - 6 -
7. The other point for determination is, as to
whether any wrong entry in column of cultivation or
mutation can be challenged through any member/ owner of
proprietary body or suit land is to be challenged through
representative suit in view of Order I Rule 8 of the Civil
Procedure Code. To this legal aspect I hold that any such
entry in shape of mutation in column of cultivation without
consultation of other co-owners or in violation of Wajibul
Arz can be challenged by any member of proprietary body
and it would not be necessary to be challenged by all the
members of proprietary body or through a representative
suit in view of Order I Rule 8 of CPC. Reliance is placed
on case titled, “Major Muhammad Alyub Khan Vs Capt.
Jamroz Khan and 3 others”, (1979 CLC 788)(SC (AJ&K)
wherein it is held that:
“A co-sharer or a co-owner in the
common village property can
challenge such a sale even if the
Shamilat Deh land sold is beyond his
share, provided it affects the interest
of the other proprietary body and the
challenger does not set up an adverse - 7 -
title of his own against the rest of the
proprietary body. Of course if such a
shareholder wishes to get the
possession of his own share in the
Shamilat Deh, he can do so through
partition proceedings and can get
possession to the extent of his own
share only.”
7. The scope of revisional jurisdiction is very
limited in which the court cannot set aside the
concurrent findings of facts recorded by Courts of
competent jurisdiction nor it can upset the same,
unless these findings are shown patently illegal,
without jurisdiction, based on conjectural
presumptions or erroneous assumption. No such
infirmity has been pointed out by the learned counsel
for the petitioner in the impugned judgments, hence,
not warranted any interference by this Court.
8. In view of the above discussion and the
dictum laid down by the august supreme Court, it is
held that both the courts below have rightly
appreciated the evidence as well as revenue record and - 8 -
reached on a right conclusion, which need no
interference under revisional jurisdiction of this Court,
therefore, this revision petition being devoid of merits
is dismissed. No order as to costs.
Announced.
04.05.2015
J U D G E
[2]Substituted by the Punjab Laws (Adaptation) Order, 1974 (Pb. A.O. 1 of 1974), for “West Pakistan”.
