Find a Lawyer

Regular Second Appeal No. 516 of 1966, decided on 6th January, 1987.

‑‑‑S. 28 & Art. 144‑‑Adverse possession‑‑Ingredients necessary to constitute adverse possession‑‑Overt act of hostility to knowledge of the original owner, an essential element‑‑Suit for possession‑ Defendant‑respondents claiming adverse possession on suit land and their claim accepted by appellate Court below on basis only of entries in revenue record‑‑Defendant‑respondents otherwise leading no reliable evidence to prove any open and overt act of hostility to convert their possession as adverse to plaintiff to his knowledge and necessary ingredients of adverse possession not proved by them‑‑Order of appellate Court below reversed and order of trial Court decreeing suit of plaintiff‑appellant restored in circumstances.

Lala and. another v. Mst. Jante 1968 S C M R 131 and Khair Muhammad v. Khuda Bakhsh and 2 others 1976 S C M R 69. rel.

C.A. Rehman for Appellant.

M.A. Khadim for Respondents Nos. 1 to 3.

Dates of hearing: 18th April, 1984 and 6th January,1987.

A suit filed by the appellant, to recover possession of 12 Kanals 13 Marlas of agricultural land situated in village Trehun, Tehsil and District Sheikhupura on the basis of his title as an owner thereof; was contested by the defendants by denying his claim and also alleging themselves to have therein perfected title on account of adverse possession extending over a period of more than 12 years. They also raised objection regarding improper valuation of the suit, which was consequently set down to be tried on a total of four issues but, since the valuation was got corrected later to also have the deficiency in court‑fee made up, therefore, the objection on that count lost efficacy. Only the following two issues survived for trial:

"(1) Is the plaintiff owner of suit land

(2) Have the defendants become owners of suit land by remaining in adverse possession of suit land for period 12 years or more prior to the institution of this suit "

During the trial, apart from his own statement of the plaintiff recorded as P.W.4, he examined Muhammad Saleem Akhtar, office Kanungo, Zahoor Ahmad Patwari Consolidation and Akbar Ali, Patwari of the circle as P. Ws.l to 3 respectively and produced copies of Parcha Zimindaran Ishtimal and Khasra Girdawari as Exhs.P.l and P.2 respectively alongwith the Jamabandis for the period 1953 to 1962 as Exhs.P.3 to P.5. In rebuttal, said defendant got his own statement recorded as D.W.1 and produced copies of Jamabandis relating to the period from the year 1945 to 1958 as EXhS.D.l to D.4 and closed his case. Upon considering this evidence, learned trial Judge decided issue No.l in favour of the plaintiff and by repelling the plea of the defendants with regard to adverse possession, as having not been proved, decreed his suit on 30‑11‑1965.

2. In appeal thereagainst filed by four out of five defendants, a learned Additional District Judge reconsidered the evidence and, while holding the plaintiff to be the owner of the suit land, concluded on the basis of the entries, appearing in the copies of the Jamabandis produced by the parties, to the effect that the land was held by the defendants on the assumption of their being the owners thereof and, for one reason or the other, had not been paying any rent for it; that they had proved their possession over the land to be adverse to the plaintiff, held for the statutory period to have extinguished his title therein under section 28 of the Limitation Act and in consequence, accepted the appeal by his judgment dated 24‑3‑1966, by reversing the trial Court's finding under issue No.2 and deciding it in favour of the defendants to also decide issue No.l against the plaintiff and, setting aside the trial Court's decree, he dismissed the suit for the plaintiff who has now come up to this Court in this second appeal.

3. Learned counsel contends that finding recorded in the appeal, below in favour of defendants under issue No.2 is not sustainable for the reason of its being founded merely on the entries to that effect appearing in the revenue record and that, beyond a self‑servings statement of one of the defendants himself, there is no other evidence available in support of the plea. Submission of the learned counsel is correct in so far as that the said finding adverse to the plaintiff has been reached by the learned Additional District Judge on the basis only of the entries in the revenue record which, however, do not call for examination in detail for the reason that in Lala and another v. Mst. Jante 1968 S C M R 131 their lordships of the Supreme Court have held that entry in the Jamabandi as 'Ba Sharah Malikan Kiwajah Kabza, by itself, is not sufficient to prove adverse possession, and, while observing that mere non‑payment of rent does not alter the nature of tenancy, it was also held that clear and unequivocal evidence of the assertion of a hostile title is necessary to be led. To the same effect also is Khair Muhammad v. Khuda Bakhsh and 2 others 1976 S C M R 69. There is no reliable evidence led to prove any open and overt act of hostility by the defendants to convert their possession as adverse to the plaintiff, to his knowledge. Necessary ingredients of adverse possession have not been proved by the respondents and finding recorded in the appeal below under issue No.2 is accordingly reversed.

4. In result, this appeal is accepted and setting aside the decree dated 24‑3‑1966, passed in the appeal below, the one dated 30‑11‑1965 8 passed by the Civil Judge, Sheikhupura is restored. Parties are, however, left to bear their own costs.

M. Y. H./752/L Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.