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Civil Appeal No. 31‑P of 1982, decided on 9th December, 1985.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 21‑11‑1979 in Civil Revision No. 226 of 1976).

‑‑‑ Art. 185(3)‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 39, 44 & 52‑Evidence Act (I of 1872), S. 35‑Leave to appeal granted to examine contentions (i) that High Court had fallen into an error in setting aside concurrent finding of facts of two Courts below ; (ii) that entries in revenue record, right from 1925‑26, had not been correctly interpreted by High Court ; (iii) that first entry of contesting respondents over suit land was in capacity of tenants at‑will and they were estopped to set tip plea of adverse possession against landlords, and (iv) that High Court had also incorrectly interpreted Ss. 39, 44 & 52, West Pakistan Land Revenue Act, 1967 and S 35, Evidence Act, 1872.

‑‑‑ Ss. 39, 44 & 52 ‑Civil Procedure Code (V of 1908), S. 115 Record‑of‑rights‑Jamabandi Respondents at most of relevant places in Jamabandi mentioned as Ghair Dakhil Karen ‑‑Patchy entry in Lagan column, of respondents being Hissadaran or lagan column having been left blank, being of no help to them, respon dents, held, were clearly tenants‑at‑will and could not therefore be said to be in adverse possession‑Concurrent findings of Courts below that respondents were not in adverse possession therefore could not justifiably be set aside by High Court in revision.‑[Shad Muhammad v. Khanpur P L D 1979 Pesh. 93 overruled].

Shad Muhammad v, Khanpur P L D 1979 Pesh. 93 overruled.

Shad Muhammad v. Khanpoor P L D 1986 S C 91 affirmed.

Lala v. Mst. Jante 1968 S C M R 131 ; Ahmad Khan v. Rasul Shah P L D 1975 S C 311 ; Khair Muhammad v. Khuda Bakhsh 1976 S C M R 69 ; Muhawar Hussain Shah v. Mst. Bilora Bi P L D 1978 S C (Azad J & K) 33 ; Bashir Ahmad v Mushtaq Ahmad 1982 S C M R 663 ; Sohawa Singh v. Kesar Singh A I R 1932 Lah. 586 ; Mst. Bhag Bhari v. Mst. Bhagan P L D 1954 Lah. 356 ; .Muhammad v. Salehan P L D 1955 Lah. 483 : Hayat v. Muhammad Sadiq P L D 1956 (W. P.) Lab. 195 ; Mst. Jinao v. Custodian of Evacuee Property, West Pakistan Lahore P L D 1964 (W.P.) Lab. 351; Wassan v. Hassan P L D 1977 Lab. 429 ; Umar Said v. Faiz Muhammad Khan P L D 1961 (W.P.) Pesh. 110 ; Shamsur Rehman v. Hukmat Khan P L D 19,57 Pesh. 304; Sh d Muhammad v. Khanpur P L D 1975 Pesh. 93 ; Shamshad and others v. Mukammi Shah and others 1984 S C M R 912 ; Mehrab Shah through his legal Heirs v. Shah Zaman and others 1985 S C M R 497 and Fazal Ghani v. Khitah Gul 1968 S C M R. 1040(2) ref

‑‑ Ss. 39, 44 & 52‑Record‑of‑rights‑Jamabandi‑Adverse posses sion‑Respondents at most of relevant places in Jamabandi mentioned as Ghair Dakhilkaran‑Plea that ancestors of both parties were brothers inter se therefore with the help of Hissadari entries it should be held that appellant was given land as a share from ancestral land‑Such plea running contrary to pleadings, issues, Jamabandi entries and case set up by appellant at various stages, as also to deposition of respondent‑ defendant‑Co‑sharer, held, could not claim adverse possession and remanding of case ,could open field for purgery in circumstances.‑[Adverse possession].

Shad Muhammad v. Khanpoor P L D 1986 S C 91 fol.

Z. Mahfooz Khan, Advocate Supreme Court and Nur Ahmad Khan, Advocate‑on‑Record for Appellants.

M. Younis Shah, Senior Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record for Respondents Nos. 5 and 14.

Remaining Respondents: Ex parte.

Date of hearing : 9th December, 1985.

This appeal through leave of this Court is directed against the judgment dated 21‑11‑1979 of the Peshawar High Court ; whereby a Civil Revision arising out of a land suit decreed throughout in appellants plaintiffs favour was, allowed and suit was dismissed by conceding to the respondents/defendants maturity of title through adverse possession.

The relevant facts at this stage, not controverted and set up in the petition are that the appellants filed a suit on 7‑11‑1973 against defendant respondents for possession in respect of the suit land. It was stated in the plaint that the plaintiffs and defendants‑respondents 21 to 50 are the owners for of the suit land and defendant respondents 1 to 20 are in possession of the same as tenants-at-will under the plaintiffs and respondents 21 to 50 that for two months the said defendants‑respondents stopped payment of the share of produce to the plaintiffs and defendants 21 to 50 and they also denied the title of the plaintiffs pertaining to the suit land. That defendants‑respondents 1 to 17 resisted the suit of the appellants which gave rise to the following, amongst others, issues

(1) Whether the plaintiffs and defendants 21 to 50 are the owners of the suit land and defendants 1 to 20 are in its possession unlawfully

(2) Whether the plaintiffs have got a cause of action

(3) Whether the suit is within time

(4) Whether defendants 1 to 17 have matured their title to the suit land by adverse possession for over 12 years

That the learned trial Judge discussed issues 1, 2 and 4 together and held "the predecessor‑in‑interest of the plaintiffs and defendants were cousins Inter se. In .1amabandi for the year 1925‑26, Exh. P. W. 1/l, in column of cultivation the names of Khan Mir, Baz Mir son of Bazrat Mir, prede cessor‑in‑interest of the plaintiffs are recorded as Dakhilkar under section 8 of Act 16 of 1887. One Barkat is recorded as owner in the ownership Column. The rent column iN blank. The same entry is repeated in Jamabandi for the year 1931/32, Exh. P. W. 1/2. In Jamabandi for the year 1935/36, Exh. P. W. 1/3, the names of predecessor‑in‑interest of the plaintiffs are recorded to cultivation column as Dakhilkaran. In the same column for the first time the names of Ashrif Khan, Salarzai, Faqir son of Gula Mir, predecessor‑in‑interest of the defendants are recorded as Ghair Dakhi Kai‑an. In rent column the entry in Bila Lagan Bawaja Dakhil Kaari. Defendants entered upon the suit land as Ghair Dakhil Karan f. e. as tenant at will. In subsequent Jamabandis 1939/40, 1943/44, 1950; 51 (Exh. P. W. 1/4 to Exh. P. W. 1/6) these entries were repeated in regard to column of ownership, cultivation and Rent column. By the operation of tenancy laws of 1950, "Dakhlikars" became owners In the jamabundi for the year 1958/59 (Exh. P. W. 1/8) entry regarding ownership column remain the same. In cultivation column defendants are recorded as Hissadaran while the rent column is blank. This entry is repeated in jamabandis for the year 1962‑63 Exh. P. W. 1/9. In Jamabandi for the year 1966/67, Exh. P. W. 1/10 in cultivation column predecessor‑in‑interest of the defen dants are shown as Ghair Dakhilkaran while in rent column the entry is as "Bila Lagan" ea‑Tassaivar Hissadari" The learned trial Judge found that in the year 1935/36 for the first time Ashraf Khan etc. defendants were shown in cultivation column as Ghair Dakhilkars. They were tenants and as such could not claim adverse possession against the true owner. The suit was subsequently decreed on 20‑2‑76 leaving the parties to bear their own costs. That defendants‑respondents 1 to 20 filed an appeal in the Court of District Judge Mardan and in the grounds of appeal the juris diction of the Civil Court was questioned though the point had not been raised in the written statement. This objection was repelled by the learned District Judge and the remaining two grounds urged in support of the appeal regarding the plea of adverse possession and the Bar of limitation also did not find favour with‑ the first appellate Court and the t appeal was dismissed on 12‑5‑76 after considering the evidence in great detail. The defendant‑respondents I to 20, sill not being satisfied by the concurrent findings of the two Courts below, preferred a Revision Petition in the Peshawar High Court on the grounds that the appellants' suit was barred by time and respondents 1 to 20 were in adverse possession of the suit land for more than 12 years. In the alternative the contesting respondents had claimed compensation for alleged improvement of the suit land.

The learned Judge of Peshawar High Court referred Ka ruling of the Peshawar High Court reported as shad Muhammad v. Khanpur (P L D 1979 Posh., 93) and held (relying on this overruled case) as follows.:‑

"The overall effect of sections 39, 44 and 52 of the Land Revenue Act and section 35 of the Evidence Act will be to raise a rebuttable presumption for all the relevant entries in the Jamabandi. If a person is given as owner and another a tenant their relationship stall have to be referred to the column of Lagan. If no rent is payable right from the very beginning mere presumption of tenancy or naming of relationship as tenancy, will not by itself be sufficient to raise another presumption under section 116 of the Evidence Act."

The learned Judge of the Peshawar High Court thereafter further held

"It is not proved that possession of the defendants was under an agreement and so the entry right from its inception was adverse to the interest of the owners".

It was lastly held that the concurrent findings of the two Courts below would not be immune from being challenged in a Revision Petition. The petition was consequently accepted and the suit of the appel lants was dismissed.

Leave to appeal was granted in order to examine the following conten tions

"That the learned Single Judge has fallen into an error in setting aside the concurrent finding of facts of the two Courts below; that the entries in the revenue record right from 1925‑26 have not been correctly interpreted by the learned Judge; the first entry of the contesting respondents over the suit land was in the capacity of tenants‑at‑will and they were estopped to set up the plea of adverse possession against the landlords ; that the learned Judge has also incorrectly interpreted sections 39, 44 and 52 of the West Pakistan Land Revenue Act, 1967 and section 35 of the Evidence Act."

Two questions arise now for determination. One, whether the learned Judge in the High Court was right in giving preference to some entries in the Lagan Column of the Jamabandi over those in the cultivation and ownership columns ; and two, whether the concurrent findings of fact on question of adverse possession have rightly been upset in the impugned judgment.

It has been recently observed by this Court in line with a string of authority in Shad Muhammad v. Khanpoor (PL D1986 SC 91), decided on 25th November, 1984 overruling the High Court decision reported in P L D 1979 Pesh. 93, that

"In this case the respondent relied on the Lagan column entry to the effect that the appellant was not paying rent, on account of a mort gage. This stands contradicted by the cultivation column where he is mentioned as tenant as also, indirectly by the ownership column of the Jamabandi where other persons are mentioned as mortgagees but not the appellant. The explanation of she learned counsel for the respondent is that although the mortgage in favour of the appellant, indicated obliquely in the Lagan column, had taken place, the muta tion was not yet sanctioned when the relevant Jamabandi was prepar ed. But he failed to produce any evidence to support this. It was his burden, as held in Mehrab Shah's case, to adduce such evidence. The reliance of similar entry in the Khasra Girdwari as in Lagan column of Jamabandi, is of no avail to the respondent because it cannot be given preference over the above referred two columns of the Jamabandi. Similarly there is no force in the argument of the learned counsel for the respondent that Lagan column does not show payment of any Lagan therefore the appellant even if mentioned as tenant in the cultivation column was not a tenant' as defined in the relevant law which required payment of rent unless contracted otherwise. Firstly it is based on the entry in the Lagan column which is contradicted by the cultivation column and secondly nonpayment of rent as shown in the Lagan column by itself would not change the character as tenant of the appellant if shown so in the cultivation column."

It will be of advantage for comparative study to mention here the cases cited by the learned counsel for the respondent which in his view, one way or the other, can go against his contentions on the legal question involved in this case. They are Lala v: Mst. Jante (1968 SCMR 131) ; Ahmad Khan v. Rasul Shah (PLD1975SC311) ; Khair Muhammad v. Khuda Bakhsh (1976 SCMR 69) ; Muhawar Hussain Shah v. Mst. Bilora Bi (PLD 1978SC(AJ&K)33) ; Bashir Ahmad v. Mushtaq Ahmad (1982 S C M R 663) ; Sohawa Singh v. Kesar Singh (A I R 1932 Lah. 586) ; Mst. Bhag Bhari v. Mst. Bhagan (P L D 1954 Lah. 356) ; Muhammad v. Salehon (P L D 1955 Lah. 483) ; Hayat v. Muhammad Sadiq (P L D 1956 (W.P.) Lah. 195) ; Mst. Jindo v. Custodian of Evacuee Property, West Pakistan Lahore (P L D 1964 (W. P.) Lah. 351) ; Wa san v. Hassan (P L D 1977 Lah. 429); Umar Said v. Faiz Muhammad Khan (P L D 1961 (W. P.) Pesh. 110) ; Shamsur Reh nan v. Hukmat Khan (P L D 1967 Pesh. 304) and Shad Muhammad v. Khanpur. The Office has also taken out three more cases viz., Shamshad and others v. Mu‑cammil Shah and others (1984 S C M R 912), Mehrab Shah through his legal Heirs v. Shah Zaman and others (1985 S C M R 497) and Fazal Ghani v. Khitab Gul (1968 S C M R 1040(2)) for reference sake.

In the present case the respondents are at most of the relevant places mentioned as Ghai Dakhikaran. The patchy entry in the Lagan column of their being Hissadaran or the Lagan column having been left blank is of no help to the respondents. They were clearly tenants at will and could not be held to be in adverse, possession. The concurrent findings of the learned Courts below could not justifiably be set aside by the High Court in its revisional jurisdiction. The impugned judgment is set aside. This appeal is thus allowed but the parties will bear their own costs.

Before closing this judgment two more points made by the learned counsel for the respondents need to be mentioned, as his alternative arguments. Firstly he argued that the ancestors of both the parties were brothers inter se therefore it should be held with the help of "Hissadari" entries that the appellants were given this land as a share from the ancestral land. This runs contrary to the pleadings, the issues, the Jamabandi entries and the case set up, by the appellants at various stages including in the deposition of the respondent defendant Abdul Ghani D.W.1 Moreover a co-sharer could not claim adverse possession in the circumstances like those of the present case. Secondly, as was done in the case of Shad Muha mad, learned counsel prayed that this case may also be remanded to afford opportunity to the respondents to adduce more evidence. This will open field for purgery in the circumstances of this case. The plea is thus ,untenable.

M.B.A. Appeal allowed.

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