Sir Lawrence Jenkins:-

In the district of Dera Ismail Khan there are two villages, Mauzah Darakki and Mauzah Sher Ali. Of the first the plaintiffs are the proprietors, of the second, the defendants.

The dispute is between the proprietors of these two villages as to the ownership of village common lands measuring upwards of 7,989 acres. The plaintiffs contend that these lands belong to them jointly with the defendants in proprietary right by virtue of ownership of the two villages; the defendants maintain that they are the exclusive proprietors. There was a subsidiary question as to the omission of certain provisions from the Wajib-ul-arz relating to these common lands, but on this there is no longer any contest.

On the 10th May, 1912, the District Judge of Dera Ismail Khan decided on both points in the plaintiffs' favour. On the 13th January, 1913, this decree was varied by the Judicial Commissioner, North-West Frontier Province, who dismissed the plaintiffs' claim of joint ownership. In other respects the decree was confirmed. It is from this variation in the appellate decree that the present appeal has been preferred by the plaintiffs. The history of the land in suit is summed up in the following passage taken from the judgment of the Judicial Commissioner :-

"This land originally formed part of the hinterland of the Kundi village of Darakki. During the period that Nawab Sarwar Khan of Dera, held a vague authority in the district under the Sikhs, one Mian Khan, a Kundi, obtained a Sanad authorising him to found a new village on the Darakki waste. He collected a group of colonists, consisting chiefly of Murats, and the village of Sher Ali was established. At the regular settlement (1874 - 78) the separate entity of Sher Ali was recognised by the authorities, and the persons actually holding land in the village were shown as owners in the Record-of-Rights."

Mian Khan was not an unwarranted intruder, entering on his new possession with a strong hand and with no sanction. He acted under the authority of the Nawab. And in this connection it is interesting and relevant to observe what Sir Henry Maine has to say of such matters:-

"The Native Indian Government," he writes; "sometimes claimed (though in a vague and occasional way) some exceptional minority over the waste; and acting on this precedent the British Government at the various settlements of land revenue has not seldom interfered to reduce excessive waste, and to re-apportion uncultivated lands among the various communities of a district." ("village Communities," p. 122.)

This is aptly illustrated at p. 38 of Vol. II of "Tapper's Punjab Customary Law," where it is said:-

"Nawab Muhammad Khan, Sadaozai, Governor of the Province of Dera, gave a great impulse to Beloch immigration. Without much regard to the claims of the old had proprietors he allotted waste lands to any one who would found a village.''

It is principally by reference to the settlement of 1874 - 78 that the dispute between the litigants has to be determined. There are certain matters that are beyond controversy. Thus it is clear (a) that though what is now Mauzah Sher Ali was at one time a part of Mauzah Darakki, it was at the date of the settlement, and still is, a separate and distinct village, and (b) that the lands in suit are within the boundaries of Mauzah Sher Ali.

At the same time it is apparent from the Revenue proceedings which led up to the wajib-ul-arz of 1878 that in adjusting the rights in these lands regard was had to the origin and history of Mauzah Sher Ali, and it was a part of the scheme of adjustment that the claims of the parent Mauzah should be recognised.

The settlement officer responsible for the Robkar of the 5th February, 1876, recorded the opinion that it was fair and proper that the waste land should be entered as the joint property of the village Sher Ali and Mauzah Darakki. But from the earlier part of this document, it would seem that what was in the settlement officer's contemplation was