DILAFROZ Vs. RAJA GAUHAR ZAMIR KHAN

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the Court of the Judicial Commissioner, North-West Frontier Province, dated 22 November, 1941, which set aside a judgment and decree of the Court of the Senior Subordinate Judge, Hazara, dated 14-10-1940.

(2.) The principal question to be determined in the appeal is as to the right of the grantees to alienate lands granted by a robkar, or order of Government, dated 26-11-1872, and issued by Captain Wace, Settlement Officer of the Hazara District. The question depends upon the construction of the robkar, and it will be convenient at the outset to notice its material provisions.

(3.) The robkar recites that orders dated 1-9-1872, from the Secretary to the Punjab Government embodying the proposals of the Financial Commissioner regarding restoration of the estate of the Khanpur tract to the Ghakhars, the descendants of Diwan Fateh Khan, etc., Guzarakhors and Serikhors (persons enjoying grant for services rendered) had been received and that it was necessary to give effect to those orders and, accordingly, the proposals sanctioned by those orders were detailed below. The document then goes on to state that the reasons for the restoration of the grant of this estate were that it was proved from the enquiry made at the settlement that, from the year 1600 to 1831, the descendants aforesaid enjoyed the estate of Khanpur as heirs and Jagirdars (persons enjoying free grant), and in the year 1831 the Sikh Government dispossessed the aforesaid heirs and escheated the estate to Government, and that, the administrative rights of the Sikhs having passed to the British Government, and as the aforesaid family had, during the last 26 years, at all times rendered valuable service to the British Government, the latter had been graciously pleased to restore the estate escheated by the Sikhs with effect from the beginning of Kharif (autumn harvest) of 1872 to the descendants of Diwan Fateh Khan, etc., subject to conditions detailed below. After dealing with matters not material to this appeal the document proceeded, in para. 5, to state that it had been proved that in the year 1831, before their dispossession by the Sikh Government, Raja Najaf Khan, the ancestor of Raja Jehandad Khan and Raja Sher Mohd Khan, the ancestor of Raja Feroz Khan, held proprietary possession of the whole tract of Khanpur in equal shares with certain exceptions noted, though Najaf Khan, the ancestor of Raja Jehandad Khan, was acknowledged to be the chief, and that, regardless of the previous partition, the whole of the ilaqa (tract), save certain lands as therein mentioned, had been divided into two parts, and the Settlement Officer was directed either by toss or other means to give one part to Raja Jehandad Khan and one to Raja Feroz Khan. Two villages, however, had been excluded, one of which named the village of Jawalian had been given to Raja Jehandad Khan as his exclusive property by way of "dastar" as the chief of the Gakhar tribe. In the rest of para. 5 there is a discussion of the problems to be solved and of the reasons for imposing the conditions subject to which the grant was made. Paragraph 6 of the robkar laid down these conditions and so far as material was in the following terms :-