Definition of “Aala Malik and Adna Malik” and “Aala Malkiat and Adna Malkiat”.

  Sir Jamas Duie’s Settlement Manual defines in paragraph No.143 “where the proprietary right is divided the superior owner is known in settlement literature as “Aala Malik” or “Talukdar” and the inferior owner as “Adna Malik”. The local names given to these tenures are not uniform. Thus, in the Cis-Sutlaj tract the superior owner is called biswadar, and the inferior “Zamindar”. In the southwestern Punjab the latter title is appropriated by the superior owner, and the inferior proprietor is commonly described as Chakdar”. Paragraph No.144 then lies down that the usual policy of the Government has been to arrive at a settlement with the inferior’s proprietors apparently with the intention of eliminating intermediate interest. The old possessors who were known as Zamindars and Makaddims, and in modern official language Malikan Aala and Talukdars. The settler, formerly called Riaya and Chakdars, and now generally Maliakn Adna. The Chakdar was so called from the wooden frame on which the masonry cylinder of a wall is built. The name was meant to express that the ‘Chakdar’ had acquired his rights in the land by his having sunk the wall. For this reason he was also called the “Silkdar” or owner of the bricks of the wall. An essential condition, therefore, for qualifying as an “Adna Maalak” is in possession of an interest in the soil, and not merely in irrigation facilities provided by the party concerned. Paragraph No.168 described inferior proprietors or Chakdars by stating that “the settlers introduced by the State, or by the Zamindar himself, into a Zamindar's village, are known as Chakdars. The name is also applied to those proprietors of the Zamindar' s tribe who have continued to pay the hakk zamindari or mukaddimi to their chief or chief’s family, and it is some-times even extended to settlers who have sunk wells under direct permission, of the State in tracts where there has never been any one to claim a Zamindari due. Thus when Diwan Sawan Mal made his new canal, the Diwanwah through the Mailsi bar, he gave direct grants to settlers, proclaiming at the same time that if anyone could establish a claim to Zamindari it should be allowed; no such claim was established, but still the settlers were generally described as Chakdars. The supposed connection of the name with the wood- work of the well and the payment of the Zamindari gave rise to the idea that the Chakdar owned the well only; in fact that he was a capitalist who had sunk a well for the Zamindar who remained the true owner of the soil, and could buy out the Chakdar on repaying him the money expended. This idea was still further encouraged by the fact that the Chakdar, sometimes did not cultivate himself, but let his well to tenants, and it occasionally happened that the tenant was one of the old Zamindars. There was consequently rather a tendency at the commencement of our summary settlements of regard the Chakdar as an interloper who, by the power of money, was ousting the old family from its original rights. But this was quite a mistake: the Chakdar whether he got his title from the Zamindar direct or through the State, always held his land in full proprietary right, subject only to the payment of a quit rent in the shape of the hakk Zamindari. Of course if he abandoned his land it reverted to Zamindar, but this was because the latter was the owner of all the waste land and not in virtue of any contract entered into at the time of purchase. On the other hand any right of cultivation enjoyed by the Zamindar was acquired by a distinct contract between him as tenant on the one side and the Chakdar as proprietor on the other; the terms of the contract might vary from that of a tenancy-at-will on a full rent to that of a permanent occupancy on a quit rent, but the original rights of the Zamindar in no way influenced his position as tenant”. Paragraph No.169 elaborates the respective rights of superior owners and of Chakdars by stating that “the superior proprietors claimed to be owners of all un-appropriated land. The Malikan Adna are full proprietors of the land in their possession subject to the payment of the share of the old proprietors and not liable to eviction on failure to pay it and are entitled to introduce tenants without reference to the superior proprietors. The superior proprietors, as such, have no right to interfere in the management of the cultivation of the appropriated land of the village. The settlement has in no case been made with them, except where they are also inferior proprietors. Their rights are restricted to receiving their fee in grain or cash and to disposing of their un-appropriated waste in the village.”

The Digest of Customary Law in the Punjab by Rattigan also defines distinction between “Malik Aala” and “Malik Adna”. Paragraph 139 of Rattigan states that “a distinction may be drawn between superior (Malik Aala) and inferior (Malik Adna) proprietors, the former simply levying a sort of customary rent from the latter, who actually occupy the soil, either cultivating themselves or through tenants.” Paragraph 142 of the same Digest defines a Chakdar as one who occupies an intermediate position between the proprietor and cultivator, possessing inheritable and transferable property in wells constructed by him, and cultivating the land attached thereto either himself or by his own cultivators. He is usually responsible for the revenue, and the proprietor is only entitled to a fixed cash allowance, locally called a Lichor Haq Kasoor. Generally a 16th or 17th and he alone is entitled to repair the well or to replace it by a new well.”

Paragraph 22 of Martial Law Regulation 64 of 1959 provided that “Aala Milqiat and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person effected by the abolition.” On the 3rd of March 1960, the West Pakistan Land Commission issued a notification, in exercise of the powers conferred by paragraph 4(5) of the Regulation, laying down that Adna Maliks shall be made full proprietors of the land held by them as such, and that with effect from Rabi 1959-60 they shall discontinue the payment of rent or other dues in cash or kind to Aala Maliks. In clause (c) of rule 6 of this notification it was stated that “a person who engaged with Government to pay land revenue shall be treated as Adna Malik or Aala-cum-Adna Malik and considered full proprietor.” The effect of this notification, read with the substantive Paragraph 22 of the Regulation, appears to be that the payment of land revenue to the Government was a necessary qualification for being regarded as an Adna Malik.

The framing of issues is one of the most important stage of the trial. On the basis of material, the Court is to frame issues in respect of those material propositions of facts or law alleged by one party and denied or not admitted by the other party. Material propositions are those which the plaintiff must alleged to show right to sue or a defendant in order to constitute his defence. Separate issues are to be framed for each material proposition in dispute. It is the duty of the Judge himself to frame proper issues, so that the parties may know the controversy. The object of framing of issue is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. The power of a Court in relation to framing, striking out and amending issues is provided under Order XIV Rule 5 C.P.C.

The later part of Rule 5 makes mandatory upon the Court to make or framed issue necessary for determining matters in controversy between the parties. The power vested in a Court under Rule 5 can be exercised at any stage prior to the final disposal of the case. Even the appellate Court can exercise power under order XIV Rule 5 C.P.C. where the case cannot be disposed of on the basis of issues as already framed. Although it was the duty of the parties to point out framing of necessary issues, yet the Court was, equally bound to frame correct issues, which are necessary for determination of real controversy between the parties. Merely because the parties had not pointed out such issue, Court was not absolved from performing its legal and statutory duty. Action or inaction on the part of the Court could not prejudice a party to litigation. Even if a point not raised in the pleadings, nonetheless, it would come to the notice of the Court during the course of evidence Court could frame issue in this regard, in order to resolve the controversy between the parties.

Writ Petition No.8993 of 2012.
Syed Amjad Hussain Jaffri, etc. Versus Addl. District Judge, etc.
Date of hearing: 27-06-2022