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Civil Petition for Special Leave to Appeal No. 13‑R of 1979, decided on 13th February 1979.

(On appeal from the judgment and order of the Peshawar High Court, dated 20‑10‑1978).

‑‑ S. 115‑Estoppel‑Mutation entered on basis of registered deed of exchange of land but Revenue Officer by mistake mentioning a larger share of plaintiff's land than exchanged‑No evidence showing plaintiff's predecessor having made any contrary averment before Revenue Officer in mutation proceedings‑High Court in circum stances, held, rightly observed plaintiff's predecessor having had no means of knowing Revenue Officer mentioning a larger share of his land‑Plaintiff not shown responsible for erroneous entry later reflected in successive jambandis‑No question of estoppel in circumstances, held, arose and no reason to interfere with findings recorded by High' Court.‑

Rulia and another v. Nur Muhammad and another A I R 1926 Lah. 615 and Mahabir Pattak and others v. Jageshar Patthak and others A I R 1927 Oudh 21 ref.

----Art. 140‑Limitation‑Land in possession of mortgagee until 1966 ----Time, held, would run against plaintiff only when land redeemed.

M. S. Mahboob, Advocate and Yaqub Husain Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 13th February 1979.

‑This petition seeks leave to appeal against the judgment and decree of a learned Judge of the Peshawar High Court, dated the 28th of October, 1978, whereby he has accepted the second appeal filed by the plaintiffs/respondents 1 to 7 and restored the judgment and decree made in their favour by the trial Court on the 22nd of March, 1968, in a suit for declaration and possession in respect of certain agricultural land situate in village Kholian Bala in Tehsil Haripur, District Hazara.

The facts giving rise to the litigation between the parties are that by means of a registered exchange deed dated the 8th of August, 1945, Abdur Rehman predecessor‑in‑interest of the plaintiffs exchanged 1/16th share of his land measuring 26 kanals and 14 marlas of land comprised in Khasra No. 213 with 1/4th share of land owned by Mst. Khan Sahibai predecessor‑in‑interest of respondents 8 and 9. He also paid her Rs. 250 in cash. On the basis of this registered exchange deed Mutation No. 4883/2 was attested on 5‑1‑1946 by the Revenue Officer in the presence of Abdur Rehman, but instead of 1/16th share, the exchange transaction was entered in respect of 1,14th share of his holding. The exchange was later incorporated in Misal‑i‑Haqiat of 1947‑48, and then carried forward in successive Jamaban dis up‑to date. It may be mentioned here that Mst. Khan Sahibai had died in 1951 and mutation of her inheritance was attested in favour of her husband and son on the same basis.

The land in dispute was purchased by the present petitioner Mohammad Aslam on the 30th of May, 1966, from respondents 8 and 9. Previously the land was under mortgage, and it was redeemed by the petitioner under a mutation attested on the 10th of August, 1966. In the ,registered sale deed in favour of ,the petitioner 1/4th share was mentioned as having been sold to him.

The plaintiffs filed their suit against the petitioner on the 11th of July, 1967, claiming a declaration that they were still the owners of 3/16th share of the land and they also prayed for possession. The suit was decreed by the learned trial Court on the 22nd of March, 1968, on the footing that the divergent entry in the mutation of exchange, contrary to the recital in the registered sale deed, did not create any right in favour of Mst. Khan Sahibai, nor did it amount to any representation by the plaintiffs or their predecessors‑in‑interest. He further held that the suit was within time.

In appeal by the petitioner, the learned District Judge took a different view on the ground that at the time the original mutation of exchange was attested, Abdur Rehman, predecessor‑in‑interest of the plaintiffs, was present before the Revenue Officer, and, therefore, he was estopped by section 115 of the Evidence Act, and the suit was also barred by time as it was governed by Articles 120 and 144 of the Limitation Act. On these findings he dismissed the plaintiffs' suit.

In second appeal by the plaintiffs, the learned Judge in the High Court has held that there was no question of estoppel under section 115 of the Evidence Act against Abdur Rehman or his successors‑in‑interest, as the mutation of exchange was clearly being attested on the basis of the registered exchange deed, as would appear from Column No. 13 of the mutation, and, therefore, no advantage can be taken from the fact that Abdur Rehman was present before the Revenue Officer, as he could not be expected to know the contents of an order being made against the terms of the sale/ exchange deed. He further found that as the mortgagee was in possession from 1945 to 1966 and the plaintiffs were not entitled to sue for possession, time would run against them only when the transferee stepped into the possession of the excess share. This happened in 1966, and, therefore, the suit brought in 1967 was well within time. On these findings the learned Judge has restored the judgment and decree of the trial Court.

In seeking leave to appeal, Mr. Mahboob, learned counsel for the petitioner, contends that the High Court has gone wrong in taking the view that section 115 did not operate in this case, as admittedly Abdur Rehman was present when the mutation was attested by the Revenue Officer, and excessive share amounting to 1/4th was shown as having been alienated as against 1/16th share mentioned in the exchange deed. He next contends that the High Court has also fallen in error in thinking that the suit was within time, as the adverse possession started right from 1945 when the muta tion with regard to the disputed share was entered and attested by the Revenue Officer. In support of these submissions the learned counsel has placed reliance on Ruha and another v. Nur Muhammad and another (A I R 1926 Lah. 615) and Mahabir Pattak and others v. Jageshar Pattak and others (A I R 1927 Oudh 21).

After hearing the learned counsel at some tength, we are of the view that there is no merit in the submissions made by him. As to the question of estoppel, it is clear that the mutation had been entered on the basis of the registered deed, and there is no evidence to show that Abdur Rehman had made any contrary averment before the Revenue Officer. In the circumstances, the High Court was right in observing that Abdur Rehman had no means of knowing that the Revenue Officer had by mistake mentioned a larger share of his land having been exchanged. It is not shown as to how Abdur Rehman was responsible for the erroneous entry which was later reflected in successive Jamabandis. We, therefore, see no reason to interfere with this part of the findings recorded by the High Court.

As to the question of limitation and adverse possession, it will be seen that the land was, indeed, in the possession of the mortgagee until 1966, and, therefore there could be no question of any adverse possession over the disputed shares. The land was redeemed by the present petitioner in g 1966, after he had purchased from the same heirs of Mst. Khan Sahibai. The suit having been filed in 1967 was, therefore, clearly within time.

The cases cited by the‑ learned counsel are hardly relevant. In the first case, it was observed by Zafar Ali, J. that using the land as a cattle‑shed was not tantamount to possession and it was upon the defendants to establish adverse possession for over 12 years.

In the second case, it was no doubt observed that where a plaintiff's case is that a cloud is thrown upon his title by reason of an entry in the revenue registers made at his own instance, and he seeks by a declaratory suit for the removal of that cloud, limitation for such a suit runs from the date on which an entry in the revenue registers was first made.

A perusal of the facts of this case shows that the impugned entry had been made on a specific application having been made by the plaintiff to the Revenue Officer, and the Court held that limitation in such 'a case would run from the date the entry was made on the plaintiff's own submis sion. In the instant case, the plaintiffs' predecessor Abdur Rehman had informed the revenue authorities about the exchange on the basis of the exchange deed. We have already said that there is no evidence that he gave any contrary information. This is, therefore, not a case where the wrong entry in the mutation was made at the instance of Abdur Rehman himself. In the circumstances limitation would run from the date on which the land became available for possession, namely, on redemption of the mortgage in 1966.

For the foregoing reasons, it appears to us that the High Court was right in restoring the judgment and decree of the trial Court. If the vendee had taken the trouble of examining the exchange deed which formed the basis of the relevant mutation, he could have easily discovered that the share exchanged by Abdur Rehman was only 1/16th and not 1/4th. For this reason the petitioner is not entitled to any benefit on account of the incorrect entry having been repeated in the revenue records since 1946‑47.

The petition, therefore, fails and is hereby dismissed.

Petition dismissed.

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