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Revision Application No.17 of 1975, decided on 19th March,1986.

‑‑‑S. 115‑‑Sind Court of Wards Act (I of 1905)‑‑Sind Encumbered Estates Act (XX of 1896)‑‑Specific Relief Act (I of 1877), S. 42‑‑Suit for declaration as to title‑‑Maintainability‑‑When suit was instituted in civil Court for declaring title of plaintiff, suit land was under management and control of Manager Encumbered Estates and it had nothing to do with Court of Wards‑‑Sind Encumbered Estates Act, 1896 is not designed to settle disputed title of land between rival claimants‑‑Institution of suit in civil Court, held, was neither barred by Sind Encumbered Estates Act, 1896 nor by Court of Wards Act‑‑Findings of appellate Court to the effect that since petitioners failed to file their claim both before Court of Wards and before Manager, Encumbered Estates, in accordance with provisions of said two Acts, their remedy before Civil Court was barred, reversed.

‑‑‑S . 42‑‑Civil Procedure Code (V of 1908) , S . 115‑‑Suit for declaration as to title‑‑Wrong entries in Record of Rights confer no title‑‑Petitioner showing entries in their favour in Record of Rights to prove their title‑‑Documentary evidence produced by respondent revealing that land in dispute was sold by Barrage Department to predecessors‑in‑interest of respondent and that entire balance of sale price of land was paid by Court of Wards‑‑Findings of appellate Court that existing entries in Record of Rights were wrong and could confer no title on petitioner held, unexceptionable.

claiming land in dispute on basis of adverse possession but Trial Court framed no specific issue with regard to adverse possession and parties having no opportunity to lead evidence on this vital issue in suit‑‑Case remanded to Court below with direction to allow parties to lead evidence on issue whether petitioner‑plaintiff acquired title over suit land by adverse possession.

‑‑‑S. 42‑‑Civil Procedure Code (V of 1908), S. 115‑‑Declaratory suit‑ Alternate pleas‑‑Petitioners claiming ownership of suit land by virtue of a purchase from Barrage Department and in alternative by virtue of adverse possession‑‑Both pleas, held, were atlernate pleas and could be raised in same suit‑‑Contentions respondent, that both pleas were inconsistent, repelled.

Mst. Ghulam Illahi v. Muhammad Waris Khan P L D 1955 F C 31 ref .

Budho and others v. Ghulam Shah P L D 1963 S C 553 rel.

Abdul Qadir Halepota for Petitioners.

Gulab M. Rang for Respondents.

Date of hearing: 19th March, 1986.

This revision application is filed by the petitioner against the judgment of the First Appellate Court, whereby the Judgment and decree granted by the trial Court in F.C. Suit No. 53 of 1965 was reversed, and the suit was dismissed with costs.

The petitioners instituted a suit for declaration and injunction on the allegation that the lands, comprising Survey Nos. 121‑2/3‑1, 35/3, 43/1‑2, 42/1, 2, 3, 4 and 41/3 measuring 31‑37 Guntas, situated in Deh Panhwarki, Tapo Sultanpur, Taluka Hala, District Hyderabad, were purchased by them from the Barrage Department on full rate conditions. It was further alleged that the land was entered in the record of rights in the names of the plaintiffs, and the said land was in their peaceful possession and enjoyment for the last over twenty‑five years, and they have been getting the and cultivated in a peaceful manner. It was also alleged that defendants 2 and 3, who are respondents 1 and 2 in this petition had no right, or, title, or interest in the said land, and the petitioners had been in po3session of the land in suit for over twenty‑five years openly, and their title was never challenged, or, disputed during this period by the respondent. It was accordingly contended in the plaint that the title, if any possessed by the respondent, stood extinguished as a result of long, continuous and hostile occupation of land by the petitioners. On the basis of the above averments in the plaint, declaration of title to the suit land was sought by the petitioners against the respondents, in addition to the relief of permanent injunction, restraining the respondents from interfering with the peaceful possession and enjoyment of the land by the petitioners. The suit was contested only by respondent No. 1, who filed his written statement, and denied the title of the plaintiffs/ petitioners. On the. basis of controversy between the parties,' the following issues were framed by the trial Court:‑

"(1) Whether the suit is not maintainable and it is not in proper form

(2) Who of the parties purchased the land from Government and who remained in possession of it and what period and what is its effect

(3) Whether the lease of the suit lands to defendant No. 1 is legal and binding on the plaintiffs.

(3) What relief if any the plaintiffs are entitled to

(4) What should the decree be "

On Issue No. 1, the trial Court reached the conclusion that the suit is maintainable, and is in its proper form, and, on Issue No. 2, it was held that the petitioners have led sufficient evidence to show that the land in dispute was purchased by them from the Government, and they remained in possession of it for a period of over twelve years. As a result of the findings on these two issues, the suit was decreed by the trial Court both on the grounds of valid title in favour of the petitioners as well as that the land remained in adverse possession. On appeal, the learned First Appellate Court, on Issue No. 1, came to the conclusion that the suit was not maintainable because of the provisions of Court of Ward Act, 1905, and Sind Incumbered Estates Act, 1896. The learned First Appellate Court was of the view that, as the petitioners failed to file their claim both before the Court of Wards and before the Manager, Incumbered Estates in accordance with the provisions of the above mentioned two Acts, the remedy in the civil Court was not available to the petitioners. On Issue No. 2, the learned First Appellate Court reached the conclusion that mere entries in favour of the petitioners in the record of rights were not enough to prove their title over the land, and, in this connection, the learned First Appellate Court referred to the basic document of title, namely, Form "A" produced by the respondents in evidence, which showed that the land in dispute was sold by the Barrage Department to the predecessor‑in‑title of respondent No. 2, and the entire balance of the sale price of the land was paid by the Court of Wards. The learned First Appellate Court also reached the conclusion that the entries existing in the record of rights in favour of the petitioners were basically wrong and could not confer any title on the petitioners /plaintiffs. On these considerations, the finding of the trial Court was reversed, and the suit was ordered to be dismissed. According to the evidence on record, the suit land was allotted by the Barrage Department initially in favour of Peer Fateh Muhammad Shah, predecessor‑in‑title of respondent No. 2, in the year 1940. This land was taken over after the death of allottee by the Court of Wards in the year 1943. This land remained under the Superintendence of the Court of Wards upto 1955, when it was released to respondent No. 2. From 1955 upto 1965, this land remained in possession of respondent No. 2, when, on the application of respondent, it was taken over by the Manager, Encumbered Estates in the year 1965, and, since then, it has remained in his possession. It is now stated by the learned counsel for the respondent that, in the year 1984‑85, the land has again been released in favour of respondent No. 2.

From the above stated facts, it is quite clear that, on the date the suit was instituted in the civil Court, the land was under the management and control of Manager, Encumbered Estates, and it had nothing to do at that particular time with the Court of Wards. It is quite clear from reading of the provisions of the Sind Encumbered Estates Act, 1896, that the Act was designed to protect the estate of a s debtor from the Encumbrance existing on the estate, and the Act was not designed to settle the disputed title of the land between the rival claimants. The suit instituted by the petitioners/ plaintiffs in the civil Court was with regard to declaration of their title and, as such, the institution of such a suit was not hit by any of the provisions of the Sind Encumbered Estates Act, 1896. 1 am, therefore, unable to understand the reasoning of the learned First Appellate Court in holding that the suit instituted by the petitioners was barred under the provisions of Court of Wards Act, 1905, and that of Sind Encumbered Estates Act, 1896. In so far as the former Act is concerned, the property was not at all under the control and management of the Court of Wards on the date of institution of the suit, and in so far as the provisions of the latter Act are concerned, they did not bar institution B of a suit of the present nature, as it did not relate to any charge, or, Encumbrance of any nature on the property, which was the subject‑matter of the suit. I accordingly reverse the. finding of the First Appellate Court on the issue of maintainability of the suit, and hold that the suit was maintainable in its present form. In so far as the findings of the learned First Appellate Court on the merits of the case, namely, that the entries in the record of rights conferred no title on the petitioners, are concerned, they were correctly arrived at, and it was rightly held by the learned First Appellate Court on the basis of C document of title, namely, Form "A ' that the land in dispute was sold by the Barrage Department to the predecessor‑in‑title of respondent No. 2, and, in these circumstances, a wrong entry did not confer any title on the petitioners /plaintiffs. It is, therefore, quite clear that, so far as the finding on the first part of Issue No. 2 is concerned, it needs no interference. However, the learned First Appellate Court also reached the conclusion that there was no issue framed with regard to the adverse possession, and, therefore, it reversed the finding of the trial Court in so far as it was in favour of the petitioners on the plea, of adverse possession. It is true that no specific issue on the question D of adverse possession was framed by the trial Court, but the Issue No.2, as framed, could be interpreted as also embracing the plea of adverse possession raised by the plaintiffs /petitioners in the suit. However, as the parties did not have the full opportunity and could not lead evidence on this vital issue in the suit, and the learned First Appellate Court was of the view that no such issue was framed in the suit, I will deem it only proper that an issue with regard to adverse possession is framed specifically, and the case is remanded back to the First Appellate Court with direction to allow the parties to lead evidence on this issue. I may mention here that the learned counsel for the) respondent urged before me that the plea of adverse possession could not be raised in the circumstances of the case, as the petitioners had based their possession on a title, which was found by the First Appellate Court as defective. To support his contention, the learned counsel referred to the case of Mst. Ghulam Illahi v. Muhammad Waris Khan QLD 1955 FC 31. This case is, however, distinguishable on facts, and;. in my view, is not of any assistance to the learned counsel for they respondent. In fact the argument of the learned counsel for the respondent in support of his contention is that the plea of adverse possession and the plea, that the petitioners had acquired the land by l purchase from the Barrage Department, are inconsistent pleas that destroy each other, and therefore, they could not be sustained in the same suit. In this connection, the learned counsel for the petitioner has invited my attention to the case of Budho and others v. Ghulam Shah P L D 1963 S C 553, in which the test of inconsistent pleas was laid down by the Court in a suit as follows:‑

"The test of inconsistency between two facts would be that a plaint which contains both the facts could not be verified as true by a plaintiff. If for instance the plaintiff alleges a document. to be a forgery and at the same time states that the execution by him of the document is the result of the undue influence, the pleas are inconsistent with each other and a plaintiff cannot E verify both the statements of facts as true. In the case before us the two alleged inconsistent facts are only the will and the relationship. There is obviously no inconsistency between the facts themselves. When a party puts forward more than one source of his title he is not taking up an inconsistent position. He is only pleading in the alternative."

In the light of the above observation of the Supreme Court, I am in no doubt that the plea raised by the petitioners /plaintiffs in their suit that they were the owners of the land by virtue of a purchase from the Barrage Department and, in the alternative, by virtue of adverse possession of the land were not inconsistent, but they were alternate pleas and could be raised in the same suit. I accordingly accept this Revision Petition, set aside the order of the First Appellate Court and remand the case back to the learned First Appellate Court with the direction to decide the following issue:‑

(1) Whether the petitioners/ plaintiffs acquired this title over the suit land by adverse possession "

The learned First Appellate Court will be at liberty to allow the parties to lead evidence on the above issue, and thereafter decide the issue in accordance with the law. There will be no order as to costs in the circumstances of the case.

M.Y.H Case remanded.

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