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High Court Appeal No. 30 of 1984, decided on 23rd April, 1987.

‑‑‑O.XXVI, Rr. 9 & 10(3)‑‑Appointment of Local Commissioner for measurement at site for ascertaining purchased area‑‑Failure to raise objection on point of fact before local Commissioner‑‑Effect‑‑Terms of agreement between parties according to which consent decree was granted by Court contemplated that actual area at site, of which undisputed title and possession could be delivered by vendors, was to be the subject‑matter of sale after physical verification Local Commissioner on basis of site inspection alongwith revenue officials excluded a particular area on account of passing of the road and pipeline‑‑Another area which had been excluded by Local Commissioner was under encroachment of certain persons‑‑Objection by defendant/ appellants about exclusion of such area not raised before Local Commissioner at site when measurements were taken in their presence‑‑Effect‑‑Trial Court, held, had rightly overruled such objection which was raised before him in respect of excluded are but was not raised before Local Commissioner at time of measurement.

‑‑‑S. 4, C1. (f)‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 123‑‑Darya Khurdi Rights‑‑Rights of owner in Darya Khurdi land‑ Owner of the lost land to the river, would remain owner upon reformation of such land if same could be identified‑‑In absence of any statutory provision or custom having the force of law divesting ownership of land from owner on account of its having been lost temporarily because of the act of God or other acts upon which owner had no control, property, held, would remain in the original owner.

Felix Lopez v. Muddun Mohun Thakoor and Hurry Mohun Thakoor in XIII Moore Cases (1869‑70); Maharaja Bahadur Keshva Prasad Singh v. Secretary of State A I R 1927 PC 89; Thowerdas Sirumal and another v. Secretary of State and others A I R 1929 Sind 61; 13 M I A 467 (PC); East Godavari v. Sri Rajah Uppalopati Raju Garu and another A I R 1945 Mad. 396; Haji Nek Muhammad v. Province of West Pakistan and 12 others PLD 1966 (W.P.) Kar. 314 and Ali Khan and others v . Soomar and others Parial and Province of West Pakistan through the Secretary, Government of West Pakistan PLD 1968 Kar. 52 ref.

Surendra Lal Depal v. Satya Tamaj Ghoshal and others PLD 1960 S C (Pak) 179 rel.

‑‑‑O.XXVI, Rr. 9 & 10(3)‑‑Sale agreement‑‑Land excluded on account of river bed‑‑No finding or discussion either in report of Local Commissioner or in judgment of Trial Court whether such excluded land was identifiable at site or could not be identified‑‑Effect‑‑In absence of any finding of trial Court, Appellate Court, held, could not draw any inference merely on the basis that certain dimensions were shown in the sketch for purpose of excluding such area on account of river bed‑‑Case was remanded to Trial Court for ascertaining whether land excluded on account of river bed was identifiable or not and if such land could be identified, defendant /appellants would be entitled to insist upon inclusion of said portion as part of the sale deed as they would not be deemed to have lost their title over such land‑‑Where however, such land could not be identified, Local Commissioner's report and finding of trial Court based thereon, would be maintained.

‑‑‑S. 3‑‑Appeal, maintainability of‑‑Objection to maintainability of appeal that all the legal heirs of deceased defendant had not been impleaded as appellant or respondents not upheld by Division Bench‑ Held, surviving defendant could maintain appeal alone, although co‑defendant, the legal representative of deceased defendant, might be impleaded as co‑appellant or as respondent.

Akhtar Mahmood Khan for Appellants.

Imam Ali Kazi for Respondents.

Date of hearing: 15th April, 1987.

This appeal is directed against an order dated 22‑3‑1984 passed by a learned Single Judge in Suit No. 769 of 1979, whereby he accepted the Nazir's report dated 29‑4‑1982 and rejected the appellant's objections to the same. The operative portion of the order reads as follows:‑‑

"These are the main objections which for the above reasons are disallowed. Consequently the report of the Nazir is approved. The value of 10 Acres and 12 Ghuntas shall be calculated at the rate mentioned in the decree and the same shall be paid to the defendants after deducting the amount of advance. The interest which has accrued on this amount shall also be paid to the defendants. The balance, if any, shall be refunded to the plaintiffs alongwith proportionate interest. The Nazir shall be entitled to a fee of Rs.3,000 which shall be paid by the plaintiffs."

2. The brief facts leading to the filing of the above appeal are that the aforesaid suit was filed by the respondents for specific performance of a sale agreement dated 26‑5‑1978 against the vendors, that is, against appellant No. 2 and appellant No. 1's predecessor in interest, who is now represented by appellant No. 1 as one of the legal heirs in respect of survey numbers 237, 240 and 342, measuring 15 acres, 4 ghuntas, situated in Deh Drigh Tappo Malir, Taluka and District Karachi for Rs.7,98,600 at the rate of Rs.ll/‑ per square yard. One of the terms of the sale agreement was that the land was to be physically measured at site for ascertaining the area. Accordingly the Nazir was appointed as the Commissioner for the aforesaid purpose to submit his aforesaid report with the assistance of the Revenue Officers in pursuance of a consent decree. According to the report as per record of the Revenue the following were the areas of the three survey numbers:

"1. Survey No. 237 6 Acres 29 Ghuntas

2. Survey No. 240 7 Acres 17 Ghuntas

3. Survey No. 342 9 Ghuntas

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

Total: 14 Acres 15 Ghuntas".

However, on physical verification according to his report, the area was reduced to 10 Acres 12 Ghuntas due to the following three reasons:

"(1)An area of 1 Acre 18 ghuntas, out of Survey No. 240 was occupied by K.D.A. Pipe Line. (According to the sale‑agreement this area was to be excluded from the area sought to be sold);

(2) A road was passing through Survey No. 237 which covered an area of 13 Ghuntas; and

(3) One Acre and 17 Ghuntas out of Survey No. 237 and one Acre 14 Ghuntas out of Survey No. 240 was lost by 'Darya Khurdi"'

3. The learned Single Judge on the basis of the above report allowed the specific performance of the aforesaid reduced area of the land and ordered refund of the proportionate sale price if already received by his aforesaid order dated 22‑3‑1984. The appellant being aggrieved by the above order has filed the present appeal.

4. Mr. Akhtar Mahmood Khan learned counsel for the appellants has urged as under:‑‑

(1) That the area of Survey No. 240 has been wrongly reduced by one acre 18 ghuntas for the reason that the Nazir had shown Pipe Line to have been shifted downwards and had taken measurement from Beco wall instead of taking measurement from the pipe line itself.

(2) That the Nazir has wrongly excluded 13 ghuntas from Survey No. 237 on account of road and which has been wrongly excluded by the learned Single Judge.

(3) That an area of 1 acre and 17 ghuntas and 1 acre 17 ghuntas have been wrongly shown by the Nazir as having been lost by Darya Khurdi from survey No. 237 and 240 respectively though the said land is identifiable at the site.

5. On the other hand Mr. Imam Ali Kazi learned counsel for the respondents has urged as under:‑‑

(1) That the appeal has not been competently filed as all the legal heirs of Abdul Hameed Ghani, deceased defendant No. 1 have not been joined as the appellants or as respondents.

(2) That the Nazir was assisted by three Revenue Officecs as indicated in the report and, therefore, the Nazir on the basis of the actual condition prevalent at the site has excluded the aforesaid areas from survey numbers 240 and 237 on account of K.D.A. pipe line and road.

(3) That since the above areas of 1 acre and 17 ghuntas and 1 acre 14 ghuntas had become part of Malir River Bed, it had been rightly excluded.

6. Mr. Akhtar Mahmood Khan in support of his above two contentions has referred to his objections dated 26‑5‑1982 (X‑3) and an alleged sketch of the Revenue Department.

It may be pertinent to refer to clauses 3, 4 and 9 of the Agreement which read as follows:‑‑

"(3) That the Vendors within one month shal1 get the above said Survey Nos. 237, 240 and 342 and every part of the demised land, demarcated and measured from the Revenue Department and shall supply to the Vendees certified sketch of the actual area with a copy of Field Book from the Mukhtiarkar, Karachi, after fixing the survey stones on the site at their own expenses. The Vendees shall assist and make available their good offices to Vendors in this task, if need be.

(4) After receiving such sketch of the actual measurement and demarcation of the said Survey Nos. the Vendees, within a month shall make the due publication of the transaction.

(9) That the Vendors shall deliver vacant undisputed peaceful physical possession of the said land to the Vendees one day before the registration of the Conveyance Deed thereof. The Vendors have assured the Vendees that there is no Hari or Mazara on the said land."

7. A plain reading of the above quoted clauses 3, 4 and 9 indicate that upon receipt of a certified copy of a sketch of the actual area from the Field Book of the Mukhtiarkar Karachi, the actual measurement and demarcation of the said survey numbers was to be carried out at the site, whereas under the above quoted clause 9 the Vendors were to deliver vacant undisputed peaceful physical possession of the said land to the vendees one day before the registration of the Conveyance Deed. The vendees were also assured by the vendors that there was no Hari or Mazara on the said land. It is, therefore, evident that it was in contemplation of the parties that the actual area at the site of which undisputed title and possession could be delivered by the vendors was to be the subject‑matter of the sale after physical verification. The Nazir on the basis of the site inspection alongwith revenue officials has excluded the above area from survey Nos. 237 and 240 inter alla on account of passing of the road and the K.D.A. Pipe Line respectively. It has also come on record that certain area of survey number 240 which has been excluded is under encroachment of certain persons. This sketch itself shows the K.D.A. Pipe Line passing through survey number 240 whereas the road area is not much. From the Nazir's report, it seems that the appellant had not raised any objection at the site when the measurements were taken in their presence and therefore the learned Single Judge has rightly overruled the objections in respect of the above items. However, the question which requires consideration is, as to whether the Nazir has rightly excluded certain area treating as Darya Khurdi. It has been upheld by the learned Single Judge. Mr. Akhtar Mahmood Khan has vehemently urged that since no area has been lost to the Malir River in the sense that it cannot be identified, no area could have been excluded as Darya Khurdi. In support of the above submissions, he has referred to the following cases:

(1) Felix Lopez v. Muddun Mohun Thakoor and Hurry Mohun Thakoor reported in XIII Moore Cases (1869‑70) in which the dispute related to the boundaries in respect to land which had been submerged and partially washed away by the River Ganges, and afterwards re‑formed on the original site. The Privy Council after reviewing the case law held that the land washed away and re‑formed on the old ascertained site, was not land gained by increment within the meaning of section 4 of Bengal Regulation XI of 1825 but remained vested in the owner.

(2) Maharaja Bahadur Keshava Prasad Singh v. Secretary of State reported in A.I.R. 1927 Privy Council 89. In this case also the Privy Council while construing section 4 of the Bengal Alluvion and Diluvion Regulation held that the land washed away by a River and reformed in same place is not "gained" within section 4, though land on opposite side of the river is owned by different owners. It was further held that the above principle also applies when the question is between two riparian owners, who own property on either side of the river.

(3) Thawerdas Sirumal and another v. Secretary of State and others reported in AIR 1929 Sind 61 in which a Division Bench of the Sind Chief Court after referring Special Circular 23 issued by the Sind Commissioner and after relying upon 13 M.I.A. 467 (P.C.) held that the land washed away and afterwards reformed on an old site which can be clearly recognised remain the property of the original owner.

(4) Surendra Lal Depal v. Satya Tamaj Ghoshal and others reported in PLD 1960 Supreme Court (Pak.) 179. In the above case the Honourable Supreme Court of Pakistan while construing section 4 (1) of the Bengal Regulation, 1825 held that dilluviated land left freely again by the reflux and recess of the sea, the owner may have his land as before, if he can make out where and what it was; for he cannot lose his property of the soil, although it for a time becomes part of the sea, and within the Admiral's jurisdiction while it so continues. It was also held that the above principle is not merely of English Law but it is a principle founded in universal law and justice, that is to say that whoever has land, wherever it is, whatever may be the accident to which it, has been exposed, whether it be a vineyard which is covered by lava or ashes from a volcano, or a field covered by the sea or by a river, the ground, the site, the property remains in the original owner.

(5) Province of Madras, represented by Collector of East Godavari v. Sri Rajah Uppalapati Raju Garu and another reported in A.I.R. (32) 1945 Madras 396. In the above case a Division Bench of the Madras High Court has dilated upon the question, what is the bed of a river It has been held that the bed of a river is the areas over which the river will flow in a normal condition and which will some times be covered and some times left bare according to the quantity of water coming down the river. The question whether any particular piece of land is or is not to be held part of the bed of a river at any particular spot, at any particular time, is one of the fact, often of considerable difficulty and this is to be decided after taking all the facts into consideration. It was also held that upon the reformation of the land and reappearance though incomplete the owner is entitled of declaration to his right.

8. On the other hand Mr. Imam Ali Kazi has submitted that the above cases cannot be relied upon by the learned counsel for the appellants as the law in Sind is different and is regulated by the Commissioner's Circular which according to him is that once the land is lost to the river, the owner looses his title and on reappearance he can only take Yak Sala lease. In furtherance of his above submission he has referred to the following cases:‑

(1) Haji Nek Muhammad v. Province of West Pakistan and 12 others reported in P L D 1966 (W.P.) Kar. 314, in which the learned Single Judge while dealing with the question of title of the owner of the land lost to the river made following observations in para. 16 of the judgment:‑

"16. In the present case the appellant has not contended that the land in dispute belongs to him. If it could be identified to be the same land that had disappeared by the action of water, then he could claim to be its owner, and exercise his proprietary right on it without depending on its annual grant or allotment. The fact that he depends on its annual grant to himself is a patent indication of the absence of his title to the land. His claim that it should be annually granted to him means that the loss of his land occasioned by the action of water, needs to be equitably considered by the Authorities for compensating it by annually granting or allotting to him the land which has re‑appeared; but cannot be identified to be the same land that had disappeared. The repeated grant of the land to the appellant does not by itself create any right or title of the appellant in the land, or create any claim that it should be perpetually granted to him year after year. In this respect, the following part of paragraph 1 of Standing Order No. 10, on which counsel for the appellant has relied, is significant:‑

"The fact of any land having been repeatedly held on one year's tenure or on a lease for a longer, period, does not, of itself, confer any right over its permanent occupation, on the expiry of the term Covered by the tenure or the lease."

There is nothing in Chapter IV of the Bombay Land Revenue Code or the Sind Revenue Code and the Rules made there under to be helpful to the appellant in this case. This is the reason why the appellant did not rely on any of these provisions or on Standing Order No. 10 or on any Government Resolution during the proceedings before the Deputy Collector, the Commissioner and the Board of Revenue. In these proceedings also, learned counsel for the appellant has not relied on any particular section or rule of the Revenue Codes, nor has he pointed out any part of the said Government Resolution as helpful to his client."

(2) Ali Khan and others v. Soomar and others, Parial and Province of West Pakistan, through the Secretary, Government of West Pakistan, reported in P L D 1968 Kar. 52. In the above case a learned Single Judge held that Ijazatnama granted by Government n compensation for Darya Khurdi is nothing more than a licence though described as a lease.

9. The ratio of the above cases cited by Mr. Akhtar Mahmood Khan and also of the cases cited by Mr. Imam Ali Kazi seems to be that if the land lost to the river is reformed and can be identified, the owner of the land remains the owner of the reformed land. The factum that in Sind Yak Sala leases are granted in respect of Darya Khurdi rights does not negate the above proposition of law as Yak Sala lease is granted only during the period when the land is not identifiable by the owner at the site because of want of reformation which is also evident from the above quoted para.16 from the judgment in the above case of Haji Nek Mohammad v. Province of West Pakistan and 12 others P L D 1966 (W.P.) Kar. 314. Mr. Imam Ali Kazi is unable to produce the above circular or any law to indicate that the above consistent view of the superior Courts in Indo‑Pakistan prior to partition and during post partition period reflected in the above cited cases has been negatived or modified. In this view of the matter, even in Sind the law is that the owner of the lost land to the river remains the owner upon the reformation of such land if it can be identified. We may observe that in the absence of any statutory provision or the custom having the force of law divesting the ownership of land from the owner on account of its having been lost temporarily because of the act of God or other acts upon which the owner had no control, the legal position succinctly enunciated by the Hon'ble Supreme Court in the above case of Surendra Lal Depal v. Satya Tamaj Ghoshal and others, namely that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by Lava or ashes from volcano or a field covered by the sea or by a river, the ground, the site, the property remains in the original owner, still hold good

10. Neither the Nazir's report nor the order under appeal has dilated upon the above aspect. There seems to be no finding or discussion on the question, whether the land which has been excluded on account of Malir River bed is identifiable at the site or it cannot be identified. Mr. Akhtar Mahmood Khan has argued that from the sketch submitted by the Nazir it is evident that the excluded land on account of the Malir River bed is identifiable as the dimensions are mentioned. In our view, in the absence of any finding of learned Single Judge, we cannot draw the above inference merely on the basis that certain dimensions are shown in the sketch for the purpose of excluding the area on account of the river bed.

11. We would, therefore, allow the appeal with no order as to costs and remand the case to the learned Single Judge to the extent of ascertaining whether the land excluded on account of Malir River bed is identifiable or not. If it can be identified, in that event the appellants are entitled to insist upon the inclusion of the aforesaid portion as a part of the sale‑deed as they would not be deemed to have lost their title over the above land but in case it cannot be identified the Nazir's report and the finding in this regard are to be maintained. The case is, therefore, remanded to the learned Single Judge to decide the above question afresh after referring the case to the Nazir or to some other Commissioner as he may deem fit.

12. Before parting with the above discussion, we may take up the question of maintainability of the above appeal as urged by Mr. Imam Ali Kazi, namely, that all the legal heirs of defendant No. 1 Abdul Hameed Ghani have not been impleaded as appellants or respondents. It may be observed that defendant No. 2, who is now appellant No. 2 in this appeal could maintain the appeal alone though she might have to implead the co‑defendant as co‑appellant or as respondent. The above objection is, therefore, not upheld.

A.A./M‑178/K Case remanded.

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