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Civil Revision No. 350 of 1960, decided on 13th March 1964.

S. 34, read with West Pakistan Civil Courts Ordinance (II of 1962)‑Revision filed before corning into force of Ordinance‑To be disposed of in accordance with provisions of Regulation‑Order, admitting appeal, after period of limitation, made ex parte by Single Judge of High Court‑Could only be impugned and set aside by Division Bench and that too on ground that reasons assigned for admitting appeal were erroneous and inadequate.

Dubey Sahai v. Ganeshi Lai I L R (1875) 1 All. 34 and Pir Bakhsh v. Ajaib Gul and others P L D 1962 Pesh. 61 ref.

Entries based on mutation proceedings‑No proof, by themselves, of title‑Section 44, Punjab Land Revenue Act (XVII of 1887), raises, at best, rebuttable presumption in favour of party in whose favour mutation effected‑Burden of proof lies on party in whose favour entries exist and not on party challenging correctness of such entries‑Punjab Land Revenue Act (XVII of 1887), S. 44.

Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan P L D 1960 Lah. 181 distinguished.

Salamat Rai and others v. Mokand Lai and others A I R 1940 Lah. 421; Nirmansingh and others v. Thakur Lal and others A I R 1926 P C 100; Wali Muhammad and others v. Muhammad Bakhsh and others A I R 1930 P C 91; The P. & T. Co‑operating Housing Society, Karachi v. Ch. Manzoor Ahmad Shah P L D 1961 Kar. 53; Manzoor Ahmad Sahi v. P. & T. Housing Co‑operative Society Ltd., Karachi P L D 1962 Kar. 476; Hamed All v. Rahela Khatun P L D 1963 Dacca 734; Mst. Sahib Jar. Bibi and others v. Wali Dad and others P L D 1961 Pesh. 9 and Mst. Jummi v. Shamsuddin P L D 1960 Azad J & K 11 ref.

Objections re: placing of burden‑Should be raised at earliest stage‑‑Party accepting onus without demur‑-Cannot, in appeal challenge its validity‑Evidence Act (I of 1872), S. 101.

Pokhar Das v. Thakurdas A I R 1930 Lah. 213 and A I R 1934 Lah. 1010 ref.

Khan Bahadur for Petitioners.

Mian Yunus Shah for Respondents 1 to 3.

Respondents Nos. 4, 5, 7, 8 and Mst. Sucha (Legal Representative of Respondent No. 6) : Ex parte.

Reader of the Court for the minor Legal Representatives of Respondent No. 6.

Date of hearing: 4th March 1964.

This revision petition is directed against the concurrent findings of the two Courts below dismissing the claim of the petitioners for possession of land measuring 15 kanals and 11 marlas situated in the village of Lund Khowar in the Tehsil of Mardan, bearing Khasras Nos. 1877/1 and 1871/1. these two Khasras Nos. were carved out of what was originally known as Khasra No. 941 with an area of 15 kanals and 11 mamas. In respect of this land, one Sarhiland and others were shown as the owner of the half share in what is known as the Misal Haqiat, the sharers of the other half being shown as Ghulam Qadar, Pardil and Saiffor. The entries in the jamabandi continued in this strain until 1952‑53, with additions of certain mutations on account of inheritance. 13y a partition mutation No. 3497 attested on 26th May 1957, the khasra numbers in dispute were allotted to Ghulam Kadar and the heirs of Pardeel and Saifoor. This partition‑mutation was mentioned in the kaniabandi of 1956‑57, by which Ghulam Kadar along with the heirs of Pardeel and Saifur were shown as the owners of these Khasras, and Sarfraz, Nadar and Abdul Jalil the heirs of the other half sharers were shown in possession as co‑sharers without payment of rent. On the 20th April 1959, Ghulam Kadar instituted a suit being S. No. 96 of 1959 against Abdul Jalil and Sarfaraz and Nadar for possession of these khasra numbers, contending that they belonged to him, and defendants Nos. 4 to 8 contending that the defendants Nos. 1 to 3, namely, Abdul Jalil, Sarfaraz and Nadar were in illegal possession of it, being trespassers. The other defendants were ex parte. During the pendency of the suit, Ghulam Kadar died and his legal representatives who are the present petitioners, were brought on the record. The learned Judge of the Court of the first instance, the Second Class Civil Judge, Mardan, on the averments of the parties, struck seven issues which were

(1) Whether the Civil Court had' no jurisdiction to try the suit

(2) Whether the suit was bad for non‑joinder of necessary parties

(3) Whether the suit was not in proper form

(4) Whether plaintiff was the owner of the suit land

(5) If issue No. 4 was proved in the affirmative, whether defendants Nos. 1 to 3 had acquired title to the land by adverse possession

(6) Whether defendants Nos. 1 to 3 had made improvements in the land, if so, of what value and what was its effect

(7) Relief.

It may be mentioned here that the suit was contested by the original defendants 1 to 3. The result was that the learned Civil Judge Mardan by his judgment dated 31st May 1960, dismissed the petitioners suit, holding that the petitioners had been unable to prove that he was the owner of the disputed land, and further that the petitioners had never succeeded in acquiring possession at any time of the suit‑land. In appeal, the learned Additional District Judge, Mardan, by his judgment dated the 14th September 1960, confirmed the findings of the learned Civil Judge, Mardan, in addition holding on a discussion on issue No. 5, that since the contesting respondents had been in possession of the land for more than 12 years even after the mutation for 1923, they had matured their title to the suit‑land, even otherwise and by adverse possession. This matter was admitted to regular hearing on the 23rd of December 1960, whereafter an application was made that one Lalpur who was the original defendant No. 7 had been dead long before the institution of the suit, but that this fact could not be discovered or asserted during the entire proceedings of this matter, in consequence of which the learned counsel for the petitioner applied for the legal representatives of Lalpur to be brought on the record, and for the appointing of a guardian of two of the legal representatives who were minors. This application was allowed. When the matter was argued before me, it was urged that the fact of Lalpur having died before the suit was filed is of no consequence, since during the entire proceedings the contesting and the affected parties were the defendants 1 to 3, the other defendants being ex parte from the very inception of the matter.

2. Mian Syed Yunus Shah for the contesting respondents 1 to 3 raised a preliminary point that this revision application was not tenable in view of the provisions of sub‑rule (b) of rule 34 of the N. W. F. P. Regulation 1931, as amended up to July 1962.

This objection can be disposed of on the short point that the rule refers to the Court of the J. C. making an order in the case as it thinks fit if an application is made to it, and it is of the opinion that there is an important question of law or custom involved, and that such question requires consideration. The relevant proviso to the rule in sub‑rule (4) of rule 34, namely, that when any such application has been admitted, as has been done in the present case on the 23rd December 1960, the Court shall subject to proviso (3) treat the matter of the application a. if it were an appeal. Proviso (3) refers to the Court not being competent to revise the decisions of the Courts below, except in so far as such decision involves the question of law of custom.

3. It must be presumed that the order dated the 23rd December 1960, admitting the matter to regular hearing, and ordering notice to issue to the other side, was done on the basis, that the matter involved important questions of law and custom. This is beside the impropriety of my sitting singly, in judgment Nana on the order dated the 23rd of December 1960, which matter could only be heard and adjudicated upon by a Division Bench of this Court. I am fortified in this view in Dubey Sahal v. Ganeshi Lal (I L R (1875) 1 All. 34), where a Full Bench of that Court, consisting of five Judges, held that the order admitting an appeal, after the period of limitation, made ex parte by a Single Judge of a High Court, sitting to receive applications for admissions of appeal, could only be impugned and set aside at a hearing by a Division Bench on the ground that the reasons assigned for admitting were erroneous and inadequate.

4. In addition, the position in the context of Pir Bakhsh v. Ajab Gul and others (P L D 1962 Pesh. 61), is that this matter was filed as a revision application before the coming into force of the West Pakistan Civil Courts Ordinance II of 1962, and, therefore, it was held that the general rule is that an enactment operates from the date of g its commencement, unless it was made retrospective either expressly or by necessary intendment. This petition, therefore, will be heard and considered as one in revision properly instituted under section 34 of the N. W. F. P. Courts Regulation, 1931.

5. Mr. Khan Bahadur Khan for the petitioners has attacked the consistent findings of the both the Courts below on issues Nos. 4 and 5 only. His contention is, with reference to issue No. 4, that in view of the fact that the entries in the Record‑of -Rights, from as early as 1923, was in favour of predecessors‑in -title of the petitioners, the presumption would be in terms of section 44 of the Land Revenue Act, that those entries were correct, and indicated the title of those in whose favour the entries had been made to the suit land. His contention also was that the onus of proof had been wrongly put on the petitioners, specially in view of the partition of 1957, and the inventory based thereon, where the petitioners had been shown as the owners. Reliance is placed on Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan (P L D 1960 Lah. 181), where Changez, J., held that the term "Record‑of- Rights" itself connotes that these records are something more than mere record of possession or record of assessment. Although the Record‑of‑Rights are not instruments of title, but they are certainly presumptive pieces of evidence to prove a person's title, and by virtue of section 44, a presumption of truth is attached to such entries. He further held that the entries in the jamabandi are initial presumption in favour of a person in whose favour such entries exist, and that the burden of proof in cases is on the party that seeks to disprove them, and to establish that the entries were false, and that the relevant party was not entitled to inherit the property as it claims to be.

6. The second contention on this point was in regard to possession, since the Courts below had held against the petitioners. The contention was that the petitioners obtained possession of the two Khasras on account of the partition on the 30th July 1957 and as the petitioners were shown in the Jamabandi as co‑sharers.

7. Mian Younas Shah for respondents 1 to 3 repelled these arguments on the ground that the entries based on mutation proceedings are by themselves no proof of title. The plaintiffs' contention on title is based initially on the mutation made in their favour in 1923, and that on the basis of an alleged partition in July 1957. It would here be necessary to refer to the reasons which impelled both the Courts below to decide against the petitioners on the ground whether they were the owners of the disputed land. The learned Civil Judge discussing the context of the remarks in the Khana Kafiat and the order of the Revenue Officer in consequence of it, has observed that the deed on which this mutation was sought to be made, had not been produced in evidence by the petitioners. It was not known who the executants of the deed were, what were the contents of the deed, not even the date of its execution. In addition, it was also observed that at the time of the attestation of the mutation, the presence of the executants was not recorded.

8. In supporting these findings, the learned Additional District Judge in appeal, remarked that this entry did not indicate that the other owners of the land in dispute had agreed to the insertion of the names of the petitioners, and that the revenue records prior to 1923 indicated that the predecessor‑in -title of the petitioners had no interest in the land whatsoever. No pedigree‑table had been produced to support that the petitioners were in any way related to Sarfaraz and others, who had been entered originally as the owners of the land according to the jamabandi of 1921‑22. The overwhelming circumstance was that although the mutation was made in favour of the petitioners as far back as 1923, they never took possession of the land or any portion of it, until the alleged partition took place in 1957. The learned Additional District Judge, therefore, concluded, and quite rightly, that the petitioners had no right whatsoever in the suit‑land, and that the mutation had been wrongly attested in their names, which did not affect the right of the actual owners, the respondents, who were admittedly in possession of the land, and whose possession, for reasons later discussed in the findings on issue No. 5, was never disturbed.

9. Mr. Yunus Shah has further contended that the petitioners were the aggrieved party, that they filed this suit for possession contending that the respondents 1 to 3 were in illegal possession, had ousted them from possession which the petitioners had obtained for a short period, and that the defendants were trespassers, and for this reason the onus was rightly placed on the petitioners. The mere fact of the entries having been made on the basis of the mutation proceedings is, according to the learned counsel for the respondents, no proof of title. It is quite clear and obvious that the mutation originally mode in favour of the predecessors, or the predecessor-in‑title, Is not only of a highly suspicious nature, but is in addition vague.

10. It Is established law upheld from as early as Nirmansingh and others v. Thakur Lal and others (A I R 1926 P C 100), that mutation proceedings are not judicial proceedings, and do not decide title, and mutation by itself Is no evidence of exclusion from property. Their Lordships went on to observe that:‑

"It is an error to suppose that the proceedings for the mutations of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.

Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co‑owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim."

11. In Salamat Rai and others v. Mokand Lai and others (A I R 1940 Lah. 421), It was observed that a mere entry in a mutation register will not give any title, and in Wall Muhammad and others v. Muhammad Bakhsh and others (A I R 1930 P C 91), it was held that entries in the Record‑of -Rights are not the foundation of title, but are more items of evidence to be adduced by a vendee to prove the sale. Similar views have been expressed in The P. & T. Co‑operative Housing Society, Karachi v. Ch. Manzoor Ahmad Shah (P L D 1961 Kar, 53), Manzoor Ahmad Sahi v. P. & T. Housing Co‑operative Society Ltd., Karachi (P L D 1962 Kar. 476) and Hamed Ali v. Rahela Khatun (P L D 1963 Dacca 734).

12. It was also argued by Mr. Yunus Shah that the mere omission of a name in the Record‑of‑Rights does not divest a person of his rights of ownership. Reliance was placed on Just. Sahib Jan Bibi and others v. Wali Dad and others (P L D 1961 Pesh. 9), where their Lordships observed that adverse possession by female heirs under the Muhammadan Law receiving their share of income of Inherited land, must be presumed and deemed to be in possession of their share of the estate by succession as co‑heirs with male heirs, though their names are not entered in revenue records, and further that possession of the male heirs was not adverse to the female heirs. It was also rightly urged that if reliance was placed on section 44 of the Land Revenue Act section 45 of the same Act should also be read in reference to the petitioner's case, and that there was, at best, a rebuttable presumption in favour of the petitioners, if the contention merely was that the entries in the jamabandi were proof of title in favour of the petitioners.

13. It is difficult to accept the reasons given by the learned counsel for the petitioners that the petitioners have ever been in possession of the suit land. Thus the entries in the Record‑of. Rights of 1923 are of an extremely suspicious nature. There is no doubt that possession was not obtained on the basis of the second mutation made on the 26th May 1957, the latter mutation being cleat ly made by the back‑door, and the reasons for it being recorded in favour of the petitioners. in the absence of the contesting parties and co‑owners, are dishonest.

14. On the principles enunciated in the rulings referred to earlier, on which reliance has been placed by Mr. Yunus Shah for the respondents, and in consequence of which the burden of proof lay on the petitioners, I am in no doubt that the petitioners had failed to discharge their burden, being unable to prove that they were either entitled to the suit‑land, or that they were ever for any length of time in possession of it. If, as they state, it was possible for the petitioners to obtain possession of the suit land in 1957, it would have been as easy for them to do so earlier in 1923. I do not accept the reasons given for petitioners not seeking possession after the entry in 1923.

15. The other point in respect of issue No. 4, as urged by learned counsel for the petitioners, was that the burden of proof was wrongly placed on the petitioners, and that in view of the entries in the jamabandi which raised a presumption in favour of the petitioners, the burden should have been on the defendants/ respondents, and that they were consequently prejudiced. It is clear that this ground has been raised for the first time, and was not even raised in the revision application. No protest at any stage heretofore was made by the petitioners in respect of the framing of this issue.

16. The observations and conclusion in P L D 1960 Lah. 181, were made as the objections to the burden of proof there were raised at the earliest stage. Here the present petitioners had acquiesced in issue No. 4, as framed, ands Mr. Yunus Shah, in repelling this ground, has relied on Pokhar Das v. Thakurdas (A I R 1930 Lah. 213), where it was held that a party accepting the onus without demur cannot object at a late stage saying that the burden was wrongly put on them. Later in A I R 1934 Lah. 1010, a learned Single Judge held that where a party accepts the burden of proof laid on him by the Court below, and undertakes to discharge it, put fails to do so, he cannot in appeal turn round and say that he has not been fairly treated in the matter of burden of proof.

17. I am, therefore, firmly of the view, for the reasons given by the Courts below in sufficient detail for their repelling the presumption that arose on account of the suspicious entries initially in 1923 in favour of the petitioners, that the burden of proof on issue No. 4, was rightly placed on the plaintiffs, and that they were unable to discharge it. I, therefore confirm the findings of both the Courts below on issue No. 4.

18. In regard to issue No. 5, the learned Additional District Judge found it difficult to believe that the petitioners were actually given possession of the suit‑land on the 30th July 1957, and the reasons why the entry was made in favour of the petitioners in the Record‑of‑Rights. It was contended that the defendant No. 1 had been informed of the possession that was about to be given to the petitioners on the basis of the alleged partition, but that they did not turn up, and that consequently possession was handed over to the petitioners. The learned Civil Judge also held that according to the petitioners, the respondents‑defendant took back possession after the petitioners had held it for the period of a single harvest, and observed that that was a concocted story, that the entry with regard to the factum of possession, was not false, and that it was unthinkable that the defendants would allow the plaintiffs to take possession without contest or objection, and that the defendants in turn would be obliging enough to let the petitioners back into possession after they had possession of it for some time. No tenants were examined by the petitioners in support of their contention. On the other hand, Khan said stated that he had been cultivating the land on behalf of the defendants‑respondents for 10 or 11 years. The name of this witness is mentioned in the revenue records as being in possession as tenant of the suit -land. For this reason, it was concluded against the petitioners in respect of having acquired possession of the suit land, taking also into account the fact that the petitioners were poor, and were unable to meet the cost of and indulge in litigation. On this issue, the learned Additional District Judge also opined that the predecessors‑in‑title of the defendant‑respondents were in possession of the land as owners, and that their possession had never been disturbed by anybody, and that the mere attestation of the mutation in their absence could not affect their rights, and went on further to hold that since the defendant‑respondents had been in possession of the land for more than 12 years, even after the entries as a result of mutation proceedings in 1923, they had matured their title to the suit‑land by adverse possession.

19. Mr. Khan Bahadur Khan, has also addressed me on the point that the respondents were unable to assert open and hostile title in respect of the findings of adverse possession in their favour, that in any case, the respondents held the suit‑land as co‑sharers, and that the possession in this particular respect, had not properly been thrashed out by the Courts below. Reliance was placed on Mst. Jummi v. Shamsuddin (P L D 1960 Azad J & K 11), in that ordinarily, the possession of one co‑sharer in possession on behalf of all, and that such possession cannot be held to be adverse to the other co‑sharers, who are out of possession, unless there is a clear disclaimer of title of the absentee co‑sharer made by the co‑sharers in possession, or there is an overt act amounting to ouster of the absentee co‑sharers by the co‑sharers in possession. A mere entry of names in the revenue registers or mere non‑enjoyment of the produce of the land, does not amount to ouster, and is not sufficient to prove adverse possession. The co‑owner in possession must make a disclaimer of the right of the other by an open an unequivocal assertion of a hostile title. It was therefore contended that since the defendant- respondents had made no disclaimer of the rights of the petitioners who claimed to be in possession, no plea of adverse possession could be entertained.

20. Mr. Yunus Shah for the respondents in answer has rightly contended, and I feel that this point sets the entire issue at rest, on the basis of the mutation of 1923, that the petitioners had neither become the owners, nor was there a presumption of title in their favour. This was urged on the principles of law consistently accepted and confirmed. In these circumstances, the question of the petitioners being considered as co‑sharers did not arise for determination, since there was no proof by evidence, demeanour, or oral, to convincingly establish this plea of the petitioners.

21. I am firmly of the view, after hearing learned counsel on both sides and giving this matter my most earnest con sideration, that the Courts below applied their mind to the facts and circumstances that arose by the case of either party as set out by them, that the issues as such were properly framed in the context of the averments by the contesting parties, and that the findings on issues 4 and 5 were fully justified. Neither of the Courts below, in their conduct of the case or in their assessment of the legal and factual aspect of the matter, have fallen into any error of law, and no material irregularity has been pointed out.

22. I, therefore, dismiss this appeal with costs.

K. B. A. Appeal dismissed.

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