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Civil Revision No. 72 of 1975, decided on 1st August 1975.

Paras. 16, 17 & 18-Resumption of excess land- Words "any in-cumbrance" in para. 16-Held, governs customary rights of grazing and cutting grass in certain mountain area-Resumption of such mountain area by Government free from encumbrance-Not arbitrary exercise of power-Rights of legitimate owners of encumbrances, however, protected under para. 16(2) and such owners also entitled to compensation under paras. 17 & 18.-[Words and phrases].

Nadir Khan and others v. Niamatullah Khan and others P L D 1961 Pesh. 131; Managing Committee, George High School v. Abdul Karim Khan and others A I R 1935 All. 895; Yaraset Basirhat Light Railway Co. Ltd. v. Krisingha Charan Nandi Chowdhury A I R 1943 Cal. 128 and Mst. Daroupadi Dehi and another v. S. K. Dutt and another A I R 1957 All. 48 ref.

-- Para. 16-Word "encumbrance"-Definition.-[Words and phrases).

Law Lexicon by Aiyar, pp. 389, 578 ref.

Q. Abdur Rashid for Petitioners.

S. Ibne Ali, A: G. for Respondents Nos. 3 and 4.

Respondents Nos. 1 and 2 : Ex parte.

Dates of hearing : 31st July and 1st August 1975.

This revision petition has been moved by Muhammad Akbar Jan and others, who sued in representative capacity so as to secure a declaration as also a permanent injunction that the residents of 'Khiri Banda' and 'Banda Daud Shah' have grazing rights in the mountain area fully described in the plaint, which has been resumed under Martial Law Regulation No. 64 by the Land Commission, defendant No. 1, and has been transferred to the Forest Depart ment and D. F. O. Kohat, defendants 3 and 4 respectively, adding that these rights were being enjoyed by them since long for over 100 years. It may be mentioned that both the Courts below have non-suited the petitioners on the ground that the grazing rights were encumbrance within the contemplation of paragraph 16 of M. L. R. and since it has been provided that the land in excess of the limits permissible is to vest absolutely free from any encumbrance or charge and without payment of any compensation and the regulation has the overriding effect as is clarified in paragraph 3 thereof, they were left without the said rights.

2. It may be mentioned that the Courts below have not given a categorical finding as to whether the petitioners had a right to graze their cattle and cut grass from the mountain in dispute. They have, however, proceeded to decide the case on the basis of the assumption, namely, even if they had such rights, those will constitute an encumbrance and will be hit by paragraph 16 of the Regulation.

3. The learned counsel for the petitioners submitted that the rights in question were customary rights as distinguished from easement or licence and would not, therefore, be encumbrance and in support he referred me to clause (8) of section 4 of the West Pakistan Land Revenue Act, 1967 wherein 'encumbrance' has been defined as "a charge upon or claim against the land arising out of a private grant or contract".

4. When it was pointed out to the learned counsel for the petitioners that a reference to the definition of the expression 'encumbrance' in the West Pakistan Land Revenue Act, 1967 will not clinch the matter, for, the said expression has not been defined in M. L. R. 64 and again the language of sub -para. (1) of paragraph 16 of M. L. R. 64 was of the widest amplitude when it says that the land is to be resumed by the Government "free from any encumbrance or charge", the word "any" and the use of both the expressions "encumbrance" and "charge" simultaneously would by itself show that the Regulation not only intended the extinction of a charge but also of every encumbrance, not in the nature of a charge, which expression generally signifies a debt or liability and is at times used in the sense of a mortgage or lien, the learned counsel for the petitioner endeavoured to emphasise that the rights claimed by him being customary rights would not constitute encum brance even if one was to rely upon the general meanings assigned to that expression.

5. The view that the expression 'encumbrance' was defined for limited purposes of the West Pakistan Land Revenue Act will get ample support if one refers to section 89 of that Act. It will be seen that apart from saving the encumbrance made by a purchaser himself it proceeds to enumerate several encumbrances which were not to be affected and adds that such encumbrances, grants and contracts in respect whereof the Commissioner is satisfied that those were not entered into in good faith will also be affected.

6. There can be no dispute that the rights in question are customary rights and in this contention the learned counsel for the petitioners is well supported by a Division Bench authority in Nadir Khan and others v. Niamatullah Khan and others (P L D 1961 Pesh. 131). But this is not the end of the matter, for, a customary right may constitute an encumbrance and on this point following passage from Managing Committee, George High School v. Abdul Karim Khan and others (A I R 1935 All. 895) can be quoted with advantage:

The plaintiffs went in appeal to the lower appellate Court who has decreed the suit. He has made a distinction between assessments and customary rights and seems to hold that a customary right is not an encumbrance within the meaning of that word in section 16, Land Acquisition Act. It is difficult to see why a customary right of way or a similar right should not come within the meaning of the word "encumbrance". The whole object of the Land Acquisition Act is to enable the Government acquiring land for public purposes and to use such land in any way, which may be convenient or necessary for the public in general. If rights of way and other customary rights were not destroyed by acquisition, it would often be impossible for the Government to acquire and use land in such way as might be necessary. . . . . However, that may be, there is not the slightest doubt in my mind that the word "encumbrance" is sufficiently wide to cover a customary right such as that to which the Judge of the lower appellate Court refers.

7. The above authority of the Allahabad High Court is under section 16 .of the Land Acquisition Act and the same is in pari materia with paragraph 16 of the M. L. R. 64. Both the provisions are being placed in juxtaposition to facilitate the point that is being made.

8. In this context I should also like to notice Baraset Baeirhat Light Railway Co. Ltd. v. Nrisingha Charan Pandt Chaudhury (A I R 1943 Cal. 128) and Mst. Daroupedi Debi and another v. S. K. Dutt and another (A I R 1957 All. 4). In the Calcutta case it was assumed that the disputed portion of the bed of the 'Khal' vested in the Railway Company by the proceedings under the Land Acquisition Act and the question for consideration was: could the Railway Company claim the right to divert the entire volume of water from the 'Khal' acquired into the channel excavated by them. It was submitted on behalf of the Railway Company that they could do so inasmuch as the burden upon the portion of the 'Khal' acquired of passing the water by it from its upper portion to its lower portion was an encumbrance within the meaning of section 16 of the Land Acquisition Act and the same stood extinguished. Their Lordships, observed as follows:

The word "encumbrance" has not been defined in the Land Acquisition Act. In Shorter Oxford English Dictionary, Vol. I, p. 606, under the heading "Encumbrance Law", it is stated that the word 'in-cum brance' means a claim, lien, liability attached to property; as a mortgage etc., (Wharton). The word 'in-cumbrance', in our opinion, means some burden or obligation created by acts or omissions of human beings. It does not mean a burden or obligation created by nature. We are, therefore, unable to accept the contention of the appellants that the burden upon the alleged acquired portion of the Khal to pass the running water downwards was extinguished by the proceedings under the Land Acquisition Act.

In Allahabad case though the customary right of privacy could not be dis puted, their Lordships held that these rights did not exist in any person at the time when land was acquired and therefore no question of its extinction would arise. It appears that prior to acquisition of the land building of the either party did not exist. It is obvious that before a right could be extinguished under section 16 of the Land Acquisition Act it should have existed on the crucial day of acquisition. The point will stand indeed clarified further if I refer to the Law Lexicon by Aiyar, on page 389 whereof the learned author defines 'encumbrance' as:-

Burden on property; impediment; mortgage or other claim on property. . . . . Apart from mere dealings such as mortgages which create a charge upon the land, there are other dealings which interferes with the unrestricted rights of the proprietors as they then existed; would be an encumbrance upon the land, even the granting of a lease of Zarait lands, that is to say the lands which the landlord is entitled to hold in direct possession and to cultivate for his own purposes.

A lease of such lands granted to an occupier in circumstances which would give him a right of occupancy over the land, would amount to an encumbrance.

He elaborates it further on page 578 and proceeds on to say :-

In-cumbrance or Encumbrance, is a burdensome and troublesome load; a burden, obstruction, an impediment; anything that impedes motion or action; or renders it difficult or laborious; clog; hindrance; check; a word used as synonymous with "obstruction": a burden of charge- upon property; a legal claim or lien upon estate which may diminish its value; a liability resting upon an estate; anything that impairs the use or transfer of property; an embarrassment of an estate or property so that it cannot be disposed of without being subject to it. As applied to an estate in land it may fairly include whatever charges, burdens, obstructs, or impairs its use, or prevents or impedes its transfer.

An encumbrance is defined to be a 'burden on land' depreciative of its value such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee.

In-cumbrances on lands are liens, which, proprio vigore, bind the reality which fasten upon and follow it into the hands of all purchasers who take it with notice of their existence; and which may be enforced by a sale of the property. They are called 'incumbrances' because they rest as a burden on the title until they are removed by payment or release.

The word 'incumbrances' when applied to incumbrances on real estate, includes mortgages.

It may be mentioned that the above quotations are not reproductions in extenso of what the author has to say. These have been restricted to the relevant parts.

9. On a consideration of the definitions and the case-law referred t above I am clear in my mind that the words 'any encumbrance' as those occur in paragraph 16, would govern the case of customary rights of grazing and cutting grass, now in question, and that the Government will take the mountain free from these encumbrances. This is not an arbitrary exercise of power but there is a public purpose behind it and again a provision has been also made by protecting the legitimate owners of the encumbrance mentioned in sub-paragraph (2) ibid wherein it has been laid down that such encumbrances shall stand transferred to the land retained by the owners and the persons claiming will also be entitled to compensation payable under paragraphs 17 and 18 to the extent necessary.

10. For the reasons I will dismiss the petition but before I part I should like to bring it to the notice of the Government that by placing a complete and effective ban on the grazing of cattle and cutting of grass by the petitioners they might be ruining their economy. I hope that the Government will see to it that they are accommodated to the extent that is possible. No order as to costs.

S. Q.

Petition dismissed..

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