JUDGMENT

Bhide, J. - Civil Appeal No. 2055 of 1922 and Civil Appeal No. 1058 of 1923 arise out of suits by the occupancy tenants of the village Ruri, in tahsil Sirsa of the Hisar District, for a declaration that the shamilat land in patti Machhi and patti Harya of that village, of which partition was sought by the proprietors, was reserved for grazing purposes and was not liable to be partitioned. The occupancy tenants relied upon the conditions of the wajib-ul-arz of the settlements of 1854, 1882 and 1901-02, which were in their favour. The learned Senior Subordinate Judge, relying upon a recent extract from the wajib-ul-arz of the settlement (apparently of the year 1921), held that the condition as regards the impartibility of these shamilat lands was no longer in force. He considered, however, that the occupancy tenants were entitled to have areas of 200 and 100 bighas respectively in patti Machhi and patti Harya reserved for grazing purposes in the present circumstances of the patti and granted declaratory decree to this effect only. From this decision the occupancy tenants have appealed in both the suits.

2. The sole point for decision in these appeals is whether the condition as regards impartibility of the shamilat lands in dispute, which appeared in the wajib-ul-arz of the old settlements was rightly held to be inoperative now. The extract from the wajib-ul-arz of the recent settlement, on which the learned Senior Subordinate Judge, has relied, does not expressly say that the lands in dispute will hereafter be subject to partition. All that can be urged on behalf of the proprietors is that the condition as to impartibility does not appear in the wajib-ul--arz of the settlement of 1921. But this was merely due to the fact that a dispute on the question arose between the parties and the occupancy tenants were referred by the revenue authorities to get the matter settled in a civil Court. The omission of the condition as to impartibility from the wajib-ul-arz of 1921 is, therefore, by itself no evidence of the condition having become inoperative.

3. It is true that it has been held in some cases that certain agreements embodied in the wajib-ul-arz of a settlement were operative only for the terms of the settlement. But this cannot obviously be taken to be a general proposition, and each case must depend upon the terms of the agreement in dispute. In the year 1901-02, it appears that the unculturable land available for grazing in the village had already become much reduced in area, and the parties concerned agreed that banjar land shall always be excluded from partition and shall continue to be shamilat land set apart for grazing purposes and public good': (vide Ex. P-8, p. 22-27 of the printed paper-book). It will thus appear that the condition in question was not only not restricted to the term of the settlement, but was expressly stated to be operative for all time. It may be stated that the occupancy tenants in this village have substantial rights and pay no malikana. It seems that the agreement referred to above was arrived at for the purpose of safeguarding adequately the rights of the occupancy tenants in respect of pasture lands.

4. There is no evidence of any subsequent agreement between the parties concerned superseding the agreement of 1901-02. The learned Senior Subordinate Judge has held that the conditions of the village have changed and that 200 and 100 big has will be sufficient for the purposes of grazing in patti Machhi and patti Harya respectively. But these figures appear to have been fixed in a somewhat haphazard manner. The number of cattle is apt to vary from time to time and I am not satisfied that the areas set apart by the decrees of the Senior Subordinate Judge will be adequate for the future. In any case the parties concerned are the best judges of their requirements and the agreement arrived at by them in 1901-02, in view of all the circumstances, cannot be lightly ignored. I would therefore hold o