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(From the Judgment of the Lahore High Court, Rawalpindi Bench, dated 26‑2‑1986, passed in Civil Revision No. 87/1) of 1986).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 96 & O.XLI, R.31‑‑Appeal from original decree‑‑Appellate judgment not in accordance with provisions of O.XLI, r.31, C.P.C.‑‑Plea that petitioners were denied fair adjudication and disposal of their case according to law, not sustained‑‑Supreme Court after going through entire case agreed that impugned judgment did not reflect that understanding and acquaintance as was required in case and law provided for disposing of appeal‑‑Nevertheless, as no question of law arose for further consideration, leave to appeal was refused.

Bashir Ahmed Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondent

Date of hearing: 16th April, 1986

SHAFIUR RAHMAN, J.‑

‑ The petitioners, unsuccessful plaintiffs, seeks leave to appeal against the judgment of the Lahore High Court, dated 26‑2‑1986, whereby their revision petition was dismissed in limine thereby maintaining the judgment of affirmance passed in first appeal by the Additional District Judge.

2. The petitioners claimed to be owners of land measuring 11 Kanals 5 Marlas comprised in Khasras Nos. 2272, 2273, 2274 and 2275, in village Malak Mala, Tehsil and District Attock. In the alternative they claimed that they had become its owners by remaining in adverse possession for over twelve years. The background for their claim was that they had purchased this land from the father of the defendant. The sale was successfully pre‑empted by the defendant who obtained a decree on 2‑7‑1965. It was, however, according to the petitioners, never executed and the petitioners continued to remain in possession as owners of the land. The suit was contested by the respondent. A number of issues were framed but the two issues which are: relevant at this stage are issues Nos. 5 and 6, more particularly issue No. 6. The petitioners claimed to have become owners of the Land under Order XX, rule 14, C.P.C. (issue No. 4), to be in possession as owner (issue No.5) and to have adversely prescribed title for having remained in possession as owner for over 12 years (issue No. 6) . The trial Court negatived these claims. The Additional District Judge dismissed the appeal. Their revision petition was also dismissed.

3. The learned counsel for the petitioners, Mr. Bashir Ahmed Ansari, contended that the appellate judgment is not in accordance with law contained in Order XLI, rule 31, C.P.C., that it erroneously mentions that the finding on issue No. 6 was not contested and that wrong precedents with altogether different set of facts and laying down propositions of law not applicable to the case were referred to for sustaining the conclusions drawn by the trial Court. In this background, according to the learned counsel for the petitioners, the petitioners have been denied a fair adjudication and disposal of their case in accordance with law applicable to the case.

4. In view of the nature of the grievance voiced by the learned counsel for the petitioners at the hearing, we have taken care to go through the entire facts of the case and find that in the Jamabandi of 1967‑68, the petitioners are recorded in possession of two Khasras Nos. 2273 and 2275, measuring 4 Kanals 6 Marlas as occupancy tenants in equal shares, Khasra No. 2272 measuring 4 Kanals 3 Marlas is shown to be in the possession of mortgagee of occupancy rights under the petitioners, while Khasra No. 2274 measuring 2 Kanals 16 Marlas is shown to be in their possession as tenants on payment of cash rent at the rate of 0.67 per Bigha. What was pre‑empted by the defendant was this land measuring in all 11 Kanals 5 Marlas part of which was under occupancy tenancy. The suit was decreed on a compromise. The petitioners obtained the money deposited. The subsequent Jamabandi shows that their occupancy tenancy was converted into proportionate ownership and the petitioners are recorded as co‑sharers. The revenue record on which reliance has been placed to make them out as owners shows their possession either as tenant (1y68 Jamabandi) or as co‑sharers (1971‑72 Jamabandi). There is, therefore, no material on the record to show that their possession was as exclusive owners, hostile to the true owners and had continued so for more than twelve years.

5. It transpires from the record that it is when the defendant attempted to get a mutation attested in accordance with the decree of the civil Court and the Revenue Officer refused to do so as more than twelve years had elapsed to the decree in favour of the defendant, that the petitioners were prompted to institute this suit claiming their own title by adverse possession. In this background they could succeed. Their claim to be owners simplicitor is untenable because not only a decree had been passed in favour of the defendant but they had also withdrawn the money deposited by him and on the basis of such a conclusion of the earlier litigation the title in the property had come to vest in the defendant.

6. We may agree with the learned counsel for the petitioners that the appellate judgment does not reflect that understanding and acquaintance as was required in the case and the law provided for disposing of the appeal in terms of Order XLI, rule 31, C . P. C . Nevertheless, as no question of law arises which may require further consideration by this Court, leave to appeal is refused.

M.I. Petition dismissed.

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