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Civil Petition for Leave to Appeal No. 234/R of 1984, decided on 8th October, 1985.

(On appeal from judgment and order of Peshawar High Court, Abbottabad Bench, dated 30th May, 1984, Criminal Revision No. 84 of 1983).

‑‑‑Art. 185(3)‑‑Entry in revenue record as tenancy‑at‑will‑‑Claim of adverse possession on plea of non‑payment of rent‑‑Burden of proof‑ Petition for leave to appeal‑‑Perusal of record showing that question involved .was worth consideration by Supreme Court‑‑leave granted.

Maulvi Sirajul Haq, Advocate Supreme Court with Ch: Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 5th October, 1985.

According to the facts given in the petition the petitioners are shown to be the owners of land measuring 5 Kanals and 9 Marlas bearing Khasra Nos. 5712, 5714 and 5710 part of Khewat No. 694 situated in village Mansi, Tehsil Swabi, District Mardan. The defendants/ respondents were sued for produce rent in the Revenue Court and were successful in the Court of first instance but the learned Collector dismissed the suit on 13‑7‑1973 on the ground of entries of possession being Bila Lagan Badal Kham. The petitioners then filed a civil suit for possession of the suit land against the defendants/ respondents on 9‑4‑1975 but the learned Civil Judge, Swabi dismissed the suit vide order, dated 27‑10‑1976.

2. Appeal filed against the aforesaid order, dated 27‑10‑1976 was allowed with costs vide judgment and decree of the learned Additional District Judge, Swabi, dated 5‑2‑1983. Respondents Nos. 1 and 2 filed a civil revision in the Peshawar High Court which was partially accepted vide the impugned judgment, dated 30‑5‑1984 while suit for possession of Khasra No. 5710 measuring 4 Kanals and 14 Marlas was dismissed. Petitioners have now come up to this Court seeking leave to appeal against the impugned judgment.

3. Learned counsel for the petitioners contended that in the revenue record the respondents were shown as tenants‑at‑will and in the column of Lagan it was stated that the rent was not being paid; mere non payment of rent, therefore, could not make respondent's possession as adverse; non‑payment of rent because of the assertion .of Tabadla Kham which is not proved and which is non‑existent in the eye of law would not make the possession in any manner hostile; that the onus of proving lies heavily on the person claiming title by adverse possession, has not been satisfactorily discharged; that the entry in the Lagan column is without law, authority and is against the direction of the revenue authorities and moreover the entries were inconsistent with no proper order of the higher authorities and, hence, could not be decisive in the case.

4. On going through the record we find that there is a question for consideration by this Court involved in the petition. Accordingly, we grant leave. Security rupees two thousand and five hundred with liberty to the parties to file additional documents, if desired.

M. Y. H. Leave granted.

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