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Writ Petition No. 1139/R of 1964, decided on 31st March 1970.

Part I, Para. 4 read with Punjab Refugees (Registration of Land Claims) Act (V of 1949), S. 2(c) and Limitation Act (IX of 1908), S. 28‑Adverse possession ‑ No basis for a claim under Rehabilitation and Resettlement Scheme.

The framers of the Rehabilitation Resettlement Scheme (Punjab) have deliberately excluded from the purview of the Scheme persons basing their claim on adverse possession of land in the prescribed territory. This exclusion would operate ,irrespective of the legal effect of such adverse possession in terms of section 28 of the Limitation Act.

Irrespective of the operation of section 28 of the Limitation Act and the definition of landholder as appearing in section 2(c) of the Punjab Refugees (Registration of Land Claims) Act, 1949, the Settlement authorities are right in refusing to verify the claim in respect of land in adverse possession of the applicant stated to have been abandoned in prescribed territory in India as such a claim is expressly excluded from the purview of the Rehabilitation Resettlement Scheme by clause (e) of Paragraph 4 of Part I thereof.

6 I C 392 ; 60 I C 165 ; I L R 21 Bom. 509 and Madhavrao Waman Saundagekar and others v. Raghunath Venkatesh Deshponde and others A I R 1923 P C 205 ref.

Abdur Rashid v. Pakistan and others P L D 1962 S C 42 rel.

Awan Muhammad Hanif Khan and Ch. Muhammad Bashir (only on 25th January 1970) for Petitioners.

Nemo for Respondents Nos. 1, 2, 3 and 5.

Syed Muhammad Ali Zaidi for Respondents Nos. 4, 6, 7, 8,9,10,11,12 and 13.

Dates of hearing : 24th and 25th February 1970.

The petitioners are aggrieved by the refusal of the Officer Incharge of the Central Record Room, under the Chief Settlement Commissioner, to verify their claim in respect of agricultural land abandoned by them in Mauza Saddo Mazra, Tehsil Sirhand, District Bassi Patiala State. The case set up by them before the relevant authorities was that their predecessors‑in‑interest had purchased this land for sum of Rs. 2,000 from the predecessors‑in‑interest of respondents 4 to 13 somewhere towards the close of the last century and had obtained possession thereof on payment of the full consideration, but for some reason or the other sale certificate as required by the provisions of the Land Alienation Act then obtaining in Patiala State was not granted to the vendees, as a consequence whereof the attestation of the mutation of sale in their favour was delayed. Before the Tehsildar the vendors denied the receipt of full consideration, although on an earlier occasion they had admitted having received the same. Nevertheless the Tehsildar sanctioned the mutation, but on appeal the mutation was set aside and the appellat.: order was upheld by the Chief Court of Patiala. On the basis of the order of the Chief Court on the revenue side, the predecessors‑in‑interest of the respondents were mentioned as owners in the revenue papers, but the vendees were shown in adverse possession by being described as "Basharah Malkana Batasawwar Malkiyat".

2. According to the petitioners, the vendors then filed a suit for possession of the land against the processors‑in‑interest of the petitioners, but the same was dismissed on the 5th Poh, 1958‑Bikrimi. The vendors' appeal was also dismissed by the District Judge, Bassi and their second appeal was similarly dismissed by the High Court of Patiala on 6th Maghar 1961 Bikrimi.

3. It is further stated by the petitioners that on the failure of the vendors' suit for possession, a declaratory suit was filed by certain collaterals of the respondents challenging the alienation made in favour of the predecessors‑in‑interest of the petitioners, but this suit was also dismissed with costs on 21‑3‑2004‑Bikrimi by Naib Nazim Diwani, Bassi. However, the mutation of sale was not sanctioned in favour of the vendees or the present petitioners until the partition of the country in 1947.

4. On migration to Pakistan the petitioners filed a claim which was, however, not verified as they were not shown to be the owners of land in the Special Jamabandi concerned. Thereafter, the petitioners filed an application on the 31st of July 1952 for sanctioning the mutation of land in their favour on the basis of the judgments and decrees of the civil Courts in Patiala State including that of the Patiala High Court. On the 10th of July 1962 an order was made by an Additional Settlement Commis sioner allowing the petitioners' application to the extent that the orders passed by the Patiala High Court be implemented in the revenue record received from India. This officer held that "in a nutshell the position is that had the petitioners remained in India they would have continued to derive benefit from the land in dispute. Their adverse possession had been judicially recognised by the highest civil Court in Patiala State". Having directed the implementation of this position in the revenue records the Additional Settlement Commissioner went on to observe :" Whether the petitioners would be entitled to any compensation is quite a different matter ; that would have to be decided in accordance with the provisions of the West Pakistan Rehabilita tion Settlement Scheme and the instructions governing the policy in such cases". On receipt of a copy of this order of the Additional Settlement Commissioner the Officer on Special Duty, Central Record Room, once again considered the question of the verification of the petitioners' claim, and decided on the 8th of December 1962 that as according to the decree of the Patiala High Court their claim was based on adverse possession, it could not be verified in accordance with the provisions of the Rehabilitation Settlement Scheme. The petitioners thereupon filed a revision petition which was dismissed by the learned Settlement Commis sioner by his order dated the 8th of February 1964, on the ground that he had no jurisdiction to interfere in the matter.

5. It is submitted on behalf of the petitioners that it has been conclusively held by the Patiala High Court that the predecessors‑in‑interest of the petitioners had perfected their title in the land in dispute on account of adverse possession for more than the prescribed period, and it was for this reason that the vendors' suit for possession was dismissed, with the necessary consequence that the title of the vendors stood extinguished in terms of section 28 of the Limitation Act and the persons in adverse possession became full owners. It is submitted that the case, therefore, fell within the purview of Paragraph 52 of the Rehabilitation Settlement Scheme which relates to giving effect to Court decrees, and that it has been wrongly dealt with by the Rehabilitation and Settlement authorities under Paragraph 4(e) of the Scheme.

6. On behalf of the respondents the position taken up by Mr. Muhammad Ali Zaidi is that the sale in question in favour of the predecessors‑in‑interest of the petitioners was in contravention of the provisions of the Land Alienation Act and full consideration had also not been paid, and it was for this reason that the necessary certificate of sale, enabling the attestation of the mutation, was not granted by the competent authorities. In these circumstances, it is submitted, the sale in favour of the predecessors‑in‑interest of the petitioners was not complete and no title passed to them simply on account of their adverse possession for more than the prescribed period. It is further submitted that the verification of the claim and the allotment of land in Pakistan under the Rehabilitation Settlement Scheme are in the nature of a grant, and the matter is, therefore, to be governed by the relevant provisions of the Scheme and not by the legal effect of section 28 of the Limitation Act.

7. It is true that section 28 of the Limitation Act does prescribe that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". It has been held that the effect of this section is not merely to extinguished the title of the rightful owner of the land, but also to create a title by negation in the occupant which he can actively assert, if he loses possession, even as against the true owner (See 6 I C 392, 60 I C 165 and I L R 21 Bom. 509). If on the other hand, the sale in question in favour of the predecessors‑in‑interest of the petitioners was indeed in violation of the relevant provisions of the Land Alienation Act, then, as observed by the Privy Council in Madhavrao Waman Saundagekar and others v. Raghunath Venkatesh Deshpande and others (AIR 1923 P C 205), it would be somewhat difficult to see how a stranger to a vatan can acquire a title by adverse possession for twelve years of lands, the alienation of which was, in the interest of the State, prohibited. In other words, if the contention raised by the respondent regarding the inadmissibility of sale is accepted, then the petitioners could not be regarded as having perfected their title by adverse possession.

8. However, assuming that the petitioners or their predeces sors‑in‑interest had perfected their title by adverse possession and that the title of the vendors had been extinguished by operation of law, namely, section 28 of the Limitation Act, the question still remains whether such a title is recognised in Pakistan by the relevant provisions of the law relating to the verification of claims or by any provision of the Rehabilitation Settlement Scheme under which the petitioners are claiming the allotment of land in lieu of the disputed land abandoned in India. According to section 2(c) of the Punjab Refugees (Registration of Land Claims) Act (V of 1949) landholder means an owner of land or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 or a tenant as defined in section 3 of the Colonization of Government Lands Act, 1912 and such holder or grantee of land as may be specified by the Provincial Government. This definition would appear to include a person who has acquired prescriptive title by adverse possession as he is to be deemed to be an owner in the eye of law. However, this statutory provision has to be read in conjunction with the Rehabilitation Settlement Scheme framed under section 6(1) of the Pakistan Rehabilitation Act, 1956 as allotments of land have to be made under that scheme. Paragraph 4 appearing in Part I of the Scheme is relevant in this behalf. It lays down that:

"Subject to any limitations that may be imposed under preceding clause 3, land under the Scheme will be allotted to a claimant in an area corresponding in produce value to the land owned and abandoned by him provided that‑

(a)

(b)

(c)

(d)

(e) claims submitted on the basis of adverse possession of land in the prescribed territory shall be rejected."

It will be seen that the framers of the Scheme have deliberately excluded from the purview of the Scheme persons basing their claim on adverse possession of land in the prescribed territory, which includes the Patiala State. This exclusion would to my mind, operate irrespective of the legal effect of such adverse possession in terms of section 28 of the Limitation Act.

9. In Abdur Rashid v. Pakistan and others (PLD 1962 SC 42) their Lordships have observed:-

"Under the Registration of Claims (Displaced Persons) Act, 1956 a claim is merely the ascertained of a right to the ownership of, or to any interest in, property which has been treated as evacuee property in India or of which a displaced person has otherwise been deprived under any law in force in India ----------------------- It is fallacious to conceive of a claim under the Act of 1956 as being in the nature of a right or interest in property which could devolve like property according to the personal law of the deceased ------------------ As it was a question of purely granting a benefit or a privilege, there can be no manner of doubt that it was certainly open to the Legislature to determine as to who were to be the persons to whom it would give such benefit------------."

These observations were no doubt made by the learned Judges while considering the question of inheritance under the Rehabilita tion Resettlement Scheme, but they are equally applicable to the question arising in the instant case. While in the purely legal sense the petitioners may be able to assert a right or interest in property abandoned by them in India, they have no right to allotment of land in lieu thereof in Pakistan, as the matter must be governed by the relevant provisions of the Scheme under which the allotment is being claimed. Paragraph 4 of the Rehabilita tion Settlement Scheme makes it clear that rights based on adverse possession of land in India are not to be compensated in Pakistan under this Scheme. Such being the case, the Central Record Office and the Settlement authorities appear to have acted correctly in refusing to verify the petitioners' claim for the purpose of enabling them to obtain an allotment under the Rehabilitation Settlement Scheme.

10. It was however, contended on behalf of the petitioners that as a matter of fact the relevant paragraph applicable to the case was Paragraph 52 contained in Part II of the Rehabilitation Settlement Scheme which contemplates that the Additional Rehabilitation Commissioner appointed for the purpose will deal with such applications for claims to land allotment in the Province as are based on registered deeds and decrees of civil Courts, effect to which had not been given in the revenue records of the prescribed territory of India due to the disturbed conditions prevailing in those areas before Independence. It seems to me that this paragraph has no relevance to the facts of the present case. The mutation of sale in the present case did not remain unattested in India due to the "disturbed conditions prevailing in those areas before Independence", but because the relevant authorities took a deliberate decision that the necessary certificate of sale was not to be granted to the vendees. In these circum stances, the entries appearing in the revenue records received from India in fact truly reflected the correct position of the parties, namely, the vendors were shown as the owners and the vendees as being in adverse possession. No question, therefore, arose of giving effect to the decrees of the Patiala High Court in the revenue records received from India under Paragraph 52 of the Scheme.

10‑A. In any case, even if the paragraph was held to be applicable, the Additional Rehabilitation Commissioner concerned could only show the petitioners to be in adverse possession and this is what was done by the order passed by the Additional Rehabilitation Commissioner on the 10th of July 1962. He rightly observed in that order that the question whether the petitioners were entitled to have their claim verified and obtain an allotment of land on the basis of this entry was a different question, to be decided under the Rehabilitation Settlement Scheme.

11. For the foregoing reasons, I have come to the conclusion that irrespective of the operation of section 28 of the Limitation Act and the definition of landholder as appearing in section 2(c) of the Punjab Refugees (Registration of Land Claims) Act, 1949, the Settlement authorities have acted rightly in refusing to verify the claim of the petitioners as such a claim is expressly excluded from the purview of the Rehabilitation Settlement Scheme by clause (e) of Paragraph 4 of Part I thereof. The petition, therefore, fails and is hereby dismissed. However, in view of the legal questions involved, the parties are left to bear their own costs.

A. E. Petition dismissed.

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