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Second Appeal No. 244 of 1948, decided on 29th June 1949, from the order of Additional District Judge, Gujrat, dated 1st September 1948.

‑Pai bila qaid miyad‑

The expression "pai bila qaid miyad" appears to mean a cultivator holding without limit of time. In Urdu the word "pai" or "pahi" means primarily a cultivator who lives outside the village in which the land he cultivates is situate, but it also means a tenant‑at‑will or arzi, i.e., temporary cultivator.

(b) Muhammadan Law‑Khanqah essentially private property Certain rights devolve upon particular persons.

A khanqah is essentially private property, in the particular sense of an institution which is managed by members of the family of the founder so that the right of managing the property,‑the right of receiving offerings, the right of initiating and instructing disciples, the right of holding an urs, etc., devolve upon particular persons, generally the mutawalli or members of the founder's family.

(c) Revenue record‑Settlement of 1868‑No one can cut trees on graveyard for personal use.

No one in the village was entitled to cut any tree standing on the graveyard for his personal use, but the person in possession of the graveyard could make use of any tree which had fallen down.

Sh. Muhammad Amin for Appellant.

Muhammad Sadiq for Respondent.

‑This is a second appeal by the plaintiff Wilayat Shah who had sued Maula Dad and others, proprietors of village Bharonga in Tahsil and District Gujrat for certain reliefs. Wilayat Shah is entered in respect of certain land, now apparently covered with graves, as "par bila qaid miyad." Among the graves is a large pacca grave of an ancestor of the plaintiff, which is referred to as khanqa, although it appears to have none of the qualities of a true khanqah, There are a large number of trees standing on the land entered in the plaintiff's name. He claimed a declaration that he was "owner" and in possession of the land in suit as pai bila qaid miyad, and sought an injunction against the defendants to restrain them from interfering with his possession and management of the land, and further to prevent them from interfering with the plaintiff's intention to sell the trees standing on the land with the object of applying the sale proceeds to the repairs of the well standing on the land. up‑keep of the khanqah and extension of the khanqah by acquisition of further land. The defendants contested the claim of the plaintiff to be owner of the land and denied an3‑ right in him to cut down the standing trees and apply the proceeds to the purposes specified in the plaint. They also pleaded that the dispute was Yes judicata by reason of earlier litigation. The trial Court found that in 1939 a suit had been brought by the present plaintiff against one of the proprietors for recovery of the price of a tree cut by the defendants ; the Court held that the proprietors had no right to cut trees from the land in the plaintiff's possession. His suit was decreed. Then in 1945, a representative suit was brought by the proprietors against the plaintiff to settle their rights in relation to this land, and the suit ended in a compromise whereby it was agreed between the parties that the proprietors were not owners of the trees standing on the land but were only interested in maintaining the graveyard. On Wilayat Shah's part, it was agreed that he would not cut down any tree but that he could appropriate to his own use any tree which had fallen down. This is in exact accordance with the provisions on the point contained in the Settlement Record of 1868 that no one in the village was entitled to cut any tree standing on the graveyard for his personal use, but the person in possession of the graveyard could make use of any tree which had fallen‑ down. Nothing was said either in the Settlement Record of 1868 or in the compromise of 1945 regarding the application of the trees to the maintenance of the khanqah. The learned Subordin ate judge of the trial Court held that there was no proved right in the plaintiff to cut down the trees for the maintenance of the khanqah. As for the alleged khanqah, the learned Subordinate judge inspected the spot and found that it was merely a pacca grave which needed no repairs. The well was kacha and only eight feet deep ; it also needed no repairs. Accordingly it was held that the plaintiff was entitled to no relief except a declaration that he was in possession of the land pai bila qaid miyad and this being granted, the defendants were restrained from interfering with his possession. It was declared also that the plaintiff had no right to cut the trees standing on the land for maintenance of the khanqah or the well, but only fallen trees could be applied to these uses. An appeal was taken before the District Court by Wilayat Shah but was dismissed. Wilayat Shah has accordingly come up to this Court in second appeal.

The expression pai bila qaid miyad appears to mean a cultivator holding without limit of time. In Urdu the word pai or phai meang, primarily a cultivator who lives outside the village in which the land he cultivates is situate, but it also means a tenant‑at‑law or arzi, i.e., temporary cultivator.

Reference may be made in this connection to the Feroz‑ul‑Lughat published by Feroz Sons, Lahore, and to Durga Dass's Concise Law Dictionary (Ram Narain Lal, Allahabad). Wilayat Shah's ancestors were not proprietors of the land in this village. Their only function in the village appears to have been to look after this graveyard. It is suggested on behalf of Wilayat Shah that this graveyard has sprung up round the tomb of his ancestor, but the probability appears to me that the said ancestor was buried in the village graveyard, where his tomb has since been venerated. It is not usual to find khanqahs being converted into communal graveyard. Generally the space in a khanqah is limited and usually only members of the family of the founder or specially favoured disciples are buried within the precincts. Therefore, where it is found that an alleged khanqah is situated in a communal graveyard, the more likely thing is that the graveyard existed before the tomb to which sanctity is attached. It is on the record that the graveyard stands on dedicated land, which further goes to support the conclusion that the alleged khanqah is of later origin than the graveyard. On previous occasions when the proprietors asserted their right in the land, on which the graveyard stands, it has been made clear that the care taker is not entitled to cut down any of the trees standing on the land ; the proprietors themselves gave up all rights to cut down these trees, and the combined effect of the limitations placed upon the rights of the proprietors as well as the care‑taker is necessarily that the trees are communal property. A khanqah is essentially private property, in the particular sense of an institution which is managed by members of the family of the founder so that the right of managing the property, the right of receiving offerings, the right of intiating and instructing dis ciples, the right of holding an urs, etc., devolve upon particular persons, generally the mutawali or members of the founder's family. The present suit appears to me to be an attempt by the plaintiff to convert communal property, viz., the trees to the private uses of the khanqah, and this is clearly contrary to the stipulation in the revenue records regarding these trees as well as the compromise which was effected so lately as 1945 in respect of these trees.

In my opinion the decisions of the Courts below in this case are perfectly correct and I accordingly dismiss the appeal with costs.

K. M. A. Appeal dismissed.

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