Shamlat Deh

 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”.