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Civil Petition for Special Leave to Appeal No. 1212 of 1980, decided on Ist March, 1980.

(Against the judgment of the Lahore High Court Bahawalpur Circuit dated 21‑6‑1980 in Civil Revision No. 48 of 1978).

Specific Relief Act (I of 1877)‑

‑‑‑ S. 42‑Declaratory relief‑Adverse possession‑‑Owners of land admitted by petitioners themselves to have permitted them to occupy and enjoy usufruct of land while away most of time‑Gift having not been established possession of petitioners over land only permissive qua owner‑Merely because of petitioners being recorded in cultivation column or in Khasra Girdawari as being in possession as Hissedar such fact cannot amount to assertion of hostile title as against co‑sharers or owners‑Entries in Revenue records ‑Not by themselves sufficient to establish adverse possession‑Adverse possession, held, constituted when very nature of possession and act‑ of person claiming adverse possession clearly establishes allegation of title and interest hostile and adverse to owner continuously and uninterruptedly.

Sh. Inayat Ali, Advocate Supreme Court with Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 1st March, 1982.

SHAFI‑UR‑REHMAN, J.

‑The petitioners seek leave to appeal against the judgment of the Lahore High Court dated 21‑6‑1980 whereby a revision petition filed by them against the dismissal of their suit was dismissed.

2. The plaintiffs/petitioners claimed to be close relatives of one Ali Ahmad who was issueless but owner of extensive agricultural property in village Muhammad Nawazwala. Tehsil Sadiqabad, District Rahimyarkhan. When he died in the year 1967 his inheritance was mutated in favour of some of the respondents. The petitioners claimed in the civil suit that long before his death Ali Ahmed had orally gifted to them 274 kanals 11 marlas land of his joint ownership and had handed over its possession to them and they were enjoying it as owners. They claimed to be the owners of this land firstly under the oral gift made by the owner and in the alternative on the basis of adverse possession as co‑sharers for over 12 years. The suit was contested by the heirs of Ali Ahmad and they denied the possession of the petitioners, their claim under the oral gift or on account of adverse possession. Issues were framed. The trial Court considered the oral evidence and concluded that the case of the petitioners was proved on following reasoning

"All these witnesses have not been cross‑examined by the defendant in any way on this point. P. W. 8 is plaintiff whose credit has not been impeached on the point of gift in any way. The non cross‑examination of all these important witnesses may raise a rebuttable presumption that there was a gift of the suit land."

3. On appeal the learned Additional District Judge examined the state ment of each witness and also the questions put to him in cross‑examination and held that the oral gift as was claimed by the petitioners was not proved. Their possession was held established from the documents placed on record but it was concluded that they were in possession as tenants. The appeal was accepted. The suit was dismissed. The learned Judge in the High Court while disposing of the civil revision petition held that "the oral evidence produced by the petitioners suffered from inherent contradictions and that was also not sufficient to prove the factum of gift in presence of documentary evidence".

4: The learned counsel for the petitioners contended that the long uninterrupted possession of the petitioners over the property since 1951 in the capacity of Hissedar which capacity Ali Ahmed enjoyed, along with the oral evidence on the record established the gift claimed by the petitioner, and that, in any case, their possession being open and hostile they should have been held to have prescribed title by adverse possession.

5. After having considered the nature and the contents of the statements made by the witnesses who were to prove the oral gift' we are satisfied that the High Court and the First Appellate Court committed no error of law in considering it unsatisfactory and insufficient for proving the gift. As regards the adverse possession, it is the petitioners own case that Ali Ahmed was their close relative and had permitted them to occupy and enjoy the usufruct of land while he was away most of the time from there. The gift having not been established, this fact would only demonstrate that the possession of the petitioners over the land was permissive qua Ali Ahmed and simply because they were recorded in the cultivation column or in the khasra girdawari as being in possession as Hissedar would not amount to an assertion of hostile interest as against the co‑sharers or the owners. The entries in the revenue record it has been held time and again are not by themselves sufficient to establish adverse possession. There must be something in the very nature of possession and in the act of the person claiming adverse possession which may establish clearly that a title and interest hostile and adverse to the owners was alleged continuously and uninterruptedly. The oral evidence of the petitioners shows that they were claiming under Ali Ahmed who was countenancing their possession and the enjoyment of the property on account of his close relationship and there being none else so close to him. We find that the judgment under challenge suffers from no legal infirmity such as may require our fuller consideration, Leave to appeal is, therefore, refused.

Leave refused.

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