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Constitutional Petition No. 51 of 1973, decided on 11th March 1976.

- S. 4(2) - Reference to Tribunal - Deputy Commissioner or his -delegate prohibited from referring dispute to Tribunal only if suit on such dispute barred by Limitation Act, 1908-Averments in applica tion not indicating by any stretch of imagination that suit in respect of dispute could be barred by time under Limitation Act, 1908, application, held, ought to have been referred to Tribunal.-[Limitation Act (IX of 1908)].

-- Art. 144-Adverse possession-Nature and scope of.-[Adverse possession].

It is well settled that a plea of adverse possession i9 essentially a question of fact, unless on admitted or proved facts some unwarranted conclusion is drawn, when the question becomes a question of law, or a mixed question of fact and law, as the case may. In order to succeed on a plea of adverse possession, persons are required to prove that they were in actual possession of the land in dispute, their possession was visible, exclusive and hostile to the petitioners and it continued during the time necessary to create a bar under the statute of limitation, for if any of these elements was lacking, no claim of adverse possession could ripen.

Zainab Bai v. Ibrahim and others P L D 1962. Kar, 209 ref,

S. 4(2)-Reference to Tribunal-Adverse possession-Respondents setting up plea of adverse possession -Obligatory on part of Deputy Commissioner to frame issue on point, constitute a Tribunal, and refer whole case to Tribunal for giving a finding-Tribunal in its turn has to give parties opportunity to appear, have their say, and adduce evidence.-[Adverse possession].

-- Art. 144 - Adverse possession - Suit falling under Art. 144 -Petitioners required to establish their title to land and not possession Respondents alleging adverse possession-Burden of proof lies on respondents to prove such possession.-[Adverse possession-Burden of proof].

Dube Mal v. Rawal Bakhsh A I R 1930 Lah. 608 and Sukhdeo v. Mt. Ram Dulari A I R 1926 Oudh 313 ref.

Mere entry in Revenue Record, however, old-Does not by itself establish that person entered as owner is owner by adverse possession Entries in revenue record-Do not by themselves amount to open or overt acts of actual and exclusive possession against true owner.

Khair Mohammad v. Khuda Bux 1976 S C M R 69 ref.

S. 4(2) read with Specific Relief Act (I of 1877), S. 42-Reference to Tribunal - Application not being maintainable under S. 42 of Specific Relief Act, 1877-No ground for refusing to refer dispute to Tribunal-Plea of non-maintainability of application on such ground An issue to be decided in accordance with provisions of Ordinance.

Muftakhiruddin for Petitioners.

Mohammad Aslam Chishti for Respondents Nos. 1 to 5.

Date of hearing: 11th March 1976.

This is a petition under Article 199 of the Constitution whereby the orders of the Assistant Commissioner, Quetta Saddar Sub-Division, Quetta dated 27-11-1972, the Deputy Commissioner, Quetta, dated 22-3-1973, and the Revenue Commissioner, Baluchistan, dated 27-8-1973 have been impugned.

2. The facts giving rise to this petition, to state them, briefly are :

The land bearing Khasra No. 3717 situated at Urak. Mauza Hanna, Mahal Sirki, Tappa Durrani, Tehsil Quetta measuring 33 poles belonged to one Daulat, the predecessor-in-interest of the petitioners. Out of the aforesaid land, Daulat orally sold 29 poles to one Shah Muhammad, the father of respondents 1 to 3 and his name was mutated in the Revenue Record at Serial No. 53, on or about the 17th November 19 f7 and the remaining land measuring 4 poles under Khasra No. 5780/3717 however, remained in his possession. Daulat died issueless and therefore, his property devolved upon one Akram son of Dad Muhammad. Consequently his name was mutated in the revenue record in respect of 4 poles and this entry remained throughout in his name in the revenue record since the year 1936-37. The petitioners have inherited the land of 4 poles through Akram being his son and grand sons who had also died. The petitioners further claimed that trees were grown on this land and that they have remained in possession of the same. It is also the case of the petitioners that in June 1972, the land of the neighbour hood was measured by the officials of the Tehsil as there was some dispute between respondent No. 3 and one sahib Khan, when for the first time, the petitioners learnt that the land under Khasra No. 5780/3717 (new No. 2600) measuring 4 poles has been got entered in the revenue record in the names of respondents Nos. 1 to 5 behind the back of the petitioners unauthorisedly though there was never any transaction in respect of the land after the year 1917. The Petitioners have also alleged that on getting further details from the revenue officials, it was discovered that respondents Nos. 1 to 5 have made some encroachment on the land owned by the petitioners.

3. Therefore, on or about 7-8-1972, the petitioners made an application under section 3 of the Civil Procedure (Special Provisions) Ordinance, 1968 (Ordinance I of 1968) (hereinafter called the Ordinance) before the Assistant Commissioner, Quetta raising the dispute about the land owned by them.

Respondents Nos. 1 to 5 filed their written statements wherein they inter alia, took a plea that from the statement in the application itself a civil suit in respect of the dispute would be barred under the Limitation Act and therefore the application merited dismissal in terms of subsection (2) of section 4 of the Ordinance. Their further defence was that they were in adverse possession of this land for more than 40 years.

4. That Assistant Commissioner, Quetta, without constituting a Tribunal referring the dispute to it by his order dated 27-I1-1972 dismissed the appli cation filed by the petitioners on the ground that the same was barred by time under Article 144 of the Limitation Act by holding that :

"The counsel for the defendants has drawn attention to section 28 and Article 144 of the Limitation Act. Section 28 extinguished the right itself where suit for recovery of possession of any property is not filed within the period provided therefore, in the present case as much 12 years have elapsed. Under Article 144 defendants are shown owners and are in possession of the land since 1945. As such the suit is hopelessly time-barred."

5. Against this order petitioners preferred an appeal to the Deputy Commissioner, Quetta, who, by his order dated 22- -1973, dismissed the same on the grounds that the "suit is not only barred by limitation but is also not maintainable under section 42 of the Specific Relief Act because the property is in possession of the defendants. Instead of asking relief the plaintiff has sought declaratory decree. I do not see any reason to interfere with the order of the lower Court". The petitioner also remained unsuccessful in their revision under section 12 of the Ordinance, before the Revenue Commissioner, Baluchistan. The operative part of the order of the Revenue Commissioner reads as follows :

"Since the respondents have been shown as owners of the disputed lands since 1945 when the , Settlement Operations were undertaken in the Mahal, and they did not file a suit for more than 26 years, the appli cation. at this stage is hopelessly time-barred and the trial Court had rightly dismissed it on this ground. In view of this position, I see no reasons to interfere with the impugned orders and the Revision Peti tion is accordingly dismissed."

6. Aggrieved by all the three aforesaid orders, the petitioners have come sip before this Court in this Constitutional petition.

7. I have heard Mr. Muftakhiruddin, Advocate for the petitioners and Mr. Muhammad Aslam Chishti, Advocate for respondents Nos. 1 to 5. The respondents whose orders have been impugned in this petition have not chosen to contest the petition.

8. The learned Advocate for the petitioners has raised before me two fold contentions. His first contention is that the application was not barred by time on the allegations made in the application and the second contention is that the defence of adverse possession raised by respondents Nos. 1 to 5 in their written statements was one of fact or in any case, a mixed question of fact and law and, without recording of evidence, it could not be decided and, as such, the provisions of section 4, subsection (2) of the Ordinance were not prima facie attracted.

9. After hearing the learned Advocate of the parties, I am of the opinion that both the contentions of the learned Advocate for the petitioners are well founded.

Under section 4, subsection (2) of the Ordinance, it is provided as follows:

(2) A dispute shall not be referred to a Tribunal if a civil suit in respect thereof would be barred by the provisions of the Limitation Act, 1908 (IX of 1908).

It would be seen from the above-quoted provisions that the Deputy Commissioner or the Assistant Commissioner to whom he has delegated his powers under section 30 of the Ordinance, was prohibited from referring the dispute to a Tribunal only if a suit in respect thereof would be barred by the provisions of the Limitation Act. In the present case, from the averments made in the application, it could not be said, by any stretch of imagination, that the suit in respect of the dispute could have been barred by time under the Limitation Act, as held by respondents Nos. 6 to 8 for the allegations made in the application are that some time in June 1972, the land of the neighbourhood was measured by the officials of the Tehsil when it was for the first time learnt that the land under Khasra No. 5780/3717 measuring 4 poles was got entered in the revenue record in the names of respondent Nos. I to 5 behind the back of the petitioners unauthorisedly, though there had been no transaction in respect of the land and that on getting further details from the revenue officials, it was discovered by the petitioners that on portion of the land some trees were grown by respondents Nos. 1 to 5 and also a hotel was very recently constructed which was in fact an encroachment on the land. It is further averred in the plaint that some trees were grown on the land which have been in the possession of the petitioners. In the defence respondents Nos. 1 to 5 have set up a plea of adverse possession.

10. It is well settled that a plea of adverse possession is essentially a question of fact, unless on admitted or proved facts some unwarranted conclusion is drawn, when the question becomes a question of law or a mixed question of fact and law, as the case may be. In order to succeed on a plea of adverse possession, respondents Nos. 1 to 5 were required to prove that they were in actual possession of the land in dispute. Their possession w3 visible, 'a exclusive and hostile to the petitioners and it continued during the time necessary to create a bar under the statute of limitation, for if any of these elements was lacking, no claim of adverse possession could ripen. If any precedent is required for the proposition preference can be had to the case of Zainab Bai v. Ibrahim arid others (P .L D. 1962 Kar. 209). Therefore, it was obligatory on the part of the Deputy Commissioner to frame an issue on the plea of adverse possession, constitute a Tribunal and alongwith other issues refer this issue for a finding thereon in accordance with the provisions of section 8 of the Ordinance whereunder it is necessary for the Tribunal to give opportunity to the parties to appear before it and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called by the Tribunal on issue of adverse possession including the above elements.

It was not and is still not the case of respondents Nos. 1 to 5 that they had purchased the land, measuring 4 poles from the petitioners or from their predecessor-in-interest. Therefore, in a suit falling under Article 144 of the Limitation Act what the petitioners were required to establish was their title D to the land. In such a case, the petitioners had not to prove possession. It was for respondents Nos. 1 to 5 to prove that they were in adverse possession of the disputed land. See Daube Mal v. Rawal Bakhsh (A I R 1930 Lah. 608) and Sukhdeo v Mi. Ram Dulari (A I R 1926 Oudh 313).

11. A perusal of the three impugned orders shows that the Assistant Commissioner, the Deputy Commissioner and the Member, Board of Revenue, appear to have been very much influenced by the fact that in the revenue record the names of respondents Nos. 1 to 5 appear as owners of the land g for more than 40 years. But a mere entry however old, in the revenue record by itself does not establish that the person whose name is entered in the record as owner, is the owner, by adverse possession for an entry in the revenue record does not by itself amount to an open or overt act of actual and exclusive possession against the true owner. Here I may refer to the latest pronouncement of the Supreme Court of Pakistan in the case of Khair Mohd. v. Khuda Bux (1976SCMR69), wherein a somewhat a similar question came up for con sideration of the Court and his Lordship Anwarul Haq, J.-who wrote the opinion of the Court observed

"On the merits of the case, we find that the learned Judge has rightly held that the mere entry of the petitioner or his predecessor-in-interest as a tenant-at-will not paying any Legan or Batai owing to assertion of ownership did not, in law, amount to an open and overt act of hostile or adverse possession against the true owners."

It was further observed :

"We are also in agreement with the High Court that in any case, in order to succeed in a claim based on adverse possession, the plaintiff has to show that he has been in continuous and uninterrupted adverse possession for the prescribed period of twelve years. This onus could not be discharged by filing copies of revenue jamabandis for the years 1931-32 and 1933-34. It was necessary for the petitioner to show by producing evidence in the shape of the intervening jamabandis that this position as a person in adverse possession had been continuously maintained throughout the prescribed period of twelve years. This the petitioner failed to do. Even if he is treated as being in adverse possession in the years 1931-32 and again in 1943-44, there is no pre sumption that he continued to maintain the same position during the twelve intervening years."

The above observations are applicable to the present case with full force not only on the question of value of an entry in the revenue record in the context of the claim of adverse possession but also on the question of requirements of establishing a claim of adverse possession.

12. It may also be noticed from the order of the Deputy Commissioner quoted in extenso hereinbefore that he was also influenced by the plea of respondents Nos. I to 5 that the application was also not maintainable under' section 42 of the Specific Relief Act. This could not again be a ground for refusing to refer the dispute to a Tribunal under section 4(2) of the Ordinance. P This plea only raises an issue to be decided in accordance with provisions of the Ordinance.

13. Therefore, I have come to the conclusion that all the three orders are manifestly based on misconception of law and are patently erroneous and illegal, and, as such. they are liable to be declared to be without lawful authority and of no legal effect and I do hereby declare them to be so.

14. Under the circumstances of this case, it is necessary to remand the case to the Assistant Commissioner, Quetta with the directions that he shall frame necessary issues arising on the pleadings of the parties in the case including the issue whether respondents Nos. 1 to 5 are in adverse possession and constituting a Tribunal refer the same to the Tribunal fur their findings thereon, and thereafter decide the case in accordance with law.

15. Since respondents Nos. 6 to 8 have not chosen to contest this petition, I do not award any cost. The parties present before me shall bear their own costs.

S. A. H Petition accepted.

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