P L D 1962 Azad J & K 11 (PLP)

(3) Did the defendants purchase the suit land from Sundar Dass and Krishan Lall and they are continuing in possession as occupancy tenants since then ? (O. P. D.). (4) In case issue No. 3 is proved in the affirmative were Sundar Dass and Krishan Lall competent to sell the‑ suit land ? (O. P. D.). (5) Has the possession of the defendants over the suit land continued for over 12 years and had it matured into ownership and how ? (O. P. D.). (6) Have the defendants effected improvements upon the suit land and what is its value ? (O. P. D.). (7) In case issue No. 6 is proved in the affirmative what amount of compensation are the defendants entitled to when they claim to be in adverse possession and how ? (O. P. D.). (8) Relief. The trial Court found issues Nos. 1 and 2 against the plaintiff and issues Nos. 3, 4, 5 and 6 in favour of the defen dants. As regards issue No. 7, the trial Court held that the defendants would be entitled to the payment of Rs. 5,000, the costs of the houses built by them but that in case of disposses sion they would not be entitled to any compensation for improvements effected by way of planting fruit trees. The learned District Judge, also agreed with the finding of the trial Court on issues Nos. 1 to

6. As regards issue No. 7 it was recorded that it was not necessary to go into this issue. The appeal was dismissed with costs. Mr. Cheema on behalf of the appellant has argued that the trial Court has found issue No. 1 in favour of the plaintiff and that the learned District Judge, has erred in reversing this finding. On going through the judgment of the trial Court I have to agree with the learned counsel for the respondents that Mr. Cheema is wrong when he says that the trial Court has found issue No. 1 in favour of the plaintiff. The learned Sub- Judge, has in clear terms written in his judgment that issue No. 1 is decided against the plaintiff. Karima and Bhalli, who are first cousins, no doubt, possessed occupancy rights in the suit land during the settlement operations as is evident from the copy of the Misl‑i‑Haqiat. Bhalli died issueless and without any widow. His rights then would have passed to Mst. Bholi, the widow of Karima and the mother of the plaintiff, if it could be proved that the occupancy rights were subsisting after the death of Karima and Bhalli. It has been found by the Courts below that Karima and Bhalli had sold their occupancy rights in favour of Sundar Das and Krishan Lall, therefore, it cannot be said that issue No. 1 has been decided in favour of the plaintiff. The learned District Judge, has written in his judgment that ad it is clear from the statements of Muhammad Akram, Sakhi Muhammad, Hassan Shah and Dulla P. Ws. that Sundar Dass was in possession and have also stated that not only Sundar Dass was in possession but was also paying the land revenue. These witnesses have also stated that 5 or 6 years before the War of Liberation started, the mother of the plaintiff had sold the suit land to Sundar Dass and this fact is further corroborated from the statements of Muhammad Latif, Amir Ali and Allah Rakha D. Ws. who have unanimously stated that Sundar Dass had purchased the suit land from the father of the plaintiff by an oral sale. Mr. Cheema has argued that the learned District Judge is wrong in his finding when he says that Muhammad Akram, Sakhi Muhammad, Hassan Shah and Dulla P. Ws. have stated that the plaintiff's mother had sold the suit land to Sundar Dass 5 or 6 years before the War of Liberation and is also wrong when he says that Muhammad Latif, Amir Ali and Allah Rakha D. Ws. have unanimously stated that Sundar Dass had purchased the suit land from Karima the father of the plaintiff, through an oral sale. The learned counsel has taken me through the statements of these P. Ws. and D. Ws. Muhammad Akram, Sakhi Muhammad, Hassan Shah and Dulla P. Ws. have nowhere stated that the mother of the plaintiff had given this land to Sundar Dass 5 or 6 years before the War of Liberation. Muhammad Latif D. W. has, no doubt, stated in his examination‑in‑chief that the defendants had purchased the suit land from Sundar Dass through an oral sale and that mutation had been entered but then, in cross examination, he has stated that he was not present when the bargain was struck with the defendants and he has no knowledge of the purchase of the suit land by Sundar Dass nor was he present at the time of the attestation of any mutation in his favour. He has also stated that he was not present at the time of the attestation of the mutation in favour of the defendants. Amir Ali D. W. has stated in his examination‑in‑chief that the suit land belonged to Bhalli and that Sundar Dass had purchased the same from him and continued in possession. Karam Ellahi and Raj Muhammad had purchased the suit land from Sundar Dass so had Feroze and Atta Muhammad but in cross examination he stated that Sundar Dass had not pur chased the suit land from Bhalli in his presence but he had heard shout it. Similarly, Allah Rakha has stated in cross‑examination that he was not present at the time of the attestation of his own mutation. He is the son of Atta Muhammad defendant. He also stated in cross‑examination that he was not present at the shop of Diwan Chand when the bargain was struck. The statements should be read as a whole. Whatever is stated in cross‑examination is also a part of the statement of a witness. If he states one fact in examination‑in‑chief but then states quite a different thing in cross‑examination which negatives his statement made in examination‑in‑chief, it cannot be said that he has proved a fact. Allah Rakha is the s9n of a defendant and is an interested witness, no doubt. He has stated that his father had been paying the land revenue of the suit land to Akram ; and that his father had received receipts for the land revenue from Sundar Dass. Mr. Cheema's objection is that Akram appeared as a P. W. and he was not put any question about the receipt of the land revenue from Atta Muhammad defendant ; and that the receipts that Atta Muhammad had received from Sundar Dass have not been produced. Atta Muhammad defendant has produced his Parcha Zimindari about the suit land in which there are seven entries purporting to be in the hand of Sundar Dass showing the receipt of the land revenue from Rabi 2001 to 2004. Akram P. W. has also admitted in cross‑examination that he had been receiving the land revenue for the suit land from Sundar Dass, through whom the defendants claim their title to the suit land as occu pancy tenants through an oral sale. The‑Courts below while deciding the suit against the plaintiff have relied upon a copy of the alphabetical index as also a copy of the index Numberwar (according to the survey numbers) in which the suit land has been shown to have been entered in the names of the defendants. These indexes are attached to a Jamabandi. Mr. Cheema's argument is that no presumption of truth attaches to the indexes though a presumption of truth attaches to the Jamabandi and that the index is no part of the Jamabandi. He has, further, argued that the Jamabandi does not exist but only the index exists so no reliance should be placed upon‑the detached indexes. The Jamabandi was prepared in two volumes. Volume I existed but volume 11 in which entries had been made about the defendants had been destroyed. It is proved on the record that the entire revenue record of the Tehsil Kotli had been destroyed during the War of Libera tion. Presumption of truth may or may not attach to the indexes but in view of the fact that the revenue record has been destroyed we are left with index only. These indexes were prepared by a public servant in the discharge of his official duty. We have to fall back upon whatever is left. 1 am prepared to believe that the indexes were correctly prepared unless the plaintiff could have shown on the record that certain other people had been omitted from the indexes. The name of ‑the plaintiff does not exist in these indexes. The index Numberwar shows that the Khata in which Survey No. 1405/194 was entered was torne. Survey No. 1464/185 was entered in Khata No. 759 and Survey No. 1465/185 was entered in Khata No.

760. The Survey No. 1405/194 according to the Parcha Zimindari was entered in Khatha No.

736. The alphabetical index shows Atta Muhammad defendant entered as against Khata No. 736 and Karam Ellahi, the father of defendants Nos. 1 and 2 entered as 'against Khata No. 759 and Noor Muhammad defendant son of Karam Ellahi also in Khata No.

759. Nizam Din defendant has been shown as against Khata No.

760. This index is necessary for a ready reference to the Jamabandi since entries in the Jamabandi are not made according to the serial numbers of the survey numbers but entries are made in the Jamabandi according to the serial numbers of the Khatas and in order to find out who is in possession of a certain survey No. one has to advert to the index Numberwar first from d where it can be found out in which Khata the survey No. is entered and then by a reference to the No. of the Khata in the Jamabandi, the owner and the occupant can be easily found out. I am prepared to place reliance on these indexes. The Courts below have also relied upon the Parcha Zimindari Exh. D. A. produced by Atta Muhammad defendant. The defen dant has stated that during the War of Liberation, the houses of the rest of the defendants were burnt down and alongwith it their records were also burnt down. Atta Muhammad's house was not burnt down and he has produced his Parcha Zimindari in which the suit land has been entered in his name. Exh. D. A. shows that Sundar Dass possessed occupancy rights in Survey No. 1405/194 (one‑half) and Krishan Lall and the Sardari Lall son of Diwan Chand Khatri were the occupancy tenants of the other half. Sundar Dass and Krishan Lall are entered as vendors whereas Atta Muhammad son of Kalla, Qasbi, resident of the village, is entered as vendee. Then there is reference to two mutations in this Parcha Zimindari, one is mutation No. 1337 pertaining to the succession of Diwan Chand, the other is mutation No. 1361 pertaining to the sale of the occupancy rights which was attested on 9th Jeth, 2000 (Bikrimi). This Parcha Zimindari Exh. D. A. was prepared by the Patwari on 13th Chet, 2000 and corroborates the case of Atta Muhammad defendant. Mr. Cheema's objection with regard to this Parcha Zimindari is that Parchas are usually given to the Zimindar at the time of the settlement operation but he admitted that there is no bar to a Parcha being prepared at the request of the Zimindar and given to him subsequently even. It appears that when the defendants purchased the suit land from Sundar Dass and Krishan Lall they got Parchas prepared and obtained the same and they had been paying the land revenue according to the entries of this Parcha. I am prepared to believe that this Parcha Exh. D. A. is a genuine document. The plaintiff seems to have built his case on an order passed by Kabala Singh, Revenue Assistant, on 22‑9‑1999 (Bikrimi) which has been exhibited as P. A. The Revenue Assistant was on tour and at Camp Dongi, Mst. Bholi the mother of the plaintiff approached him and made a verbal complaint that she was a helpless woman and that her son was also serving in the military and that Sundar Dass resident of Khui Ratta had forcibly entered into possession of her land over which she possessed occupancy rights. The Revenue Assistant by order Exh. P. A. directed the Sirpanch of Punchayat Khui Ratta to look into the record of the Patwari and to decide Mst. Bholi's case according to the facts and if her complaint was found to be correct she should be entered into possession of her land. This is the original order that has been produced by the plaintiff. If Mst. Bholi's complaint had been a genuine one she would have carried this order before the Sirpanch and they would have started some proceedings but as appears from Exh. P. A, no proceedings were ever taken on this order which shows that her complaint was not genuine. It is also possible that Mst. Bholi did not know that her husband and Bhalli had alienated the land in favour of Sundar Dass but when inquiries were made from the Patwari she having found that Sundar Dass had a genuine claim upon the suit land took no further proceedings in the matter. It was argued by the learned counsel for the appellant that the defendants had not been shown to be in possession of the suit land before 1954. The Girdawari was entered in the names of Karima and Bhalli till 1954 and from thence onward the defendants were shown as in possession. The Girdawari is incorrect on the face of it. Karima and Bhalli admittedly died before the War of Liberation and during the Dogra regime and Girdawaries are being entered in the names of dead persons. It is, no doubt, correct that the defendants were not shown in possession but then the plaintiff was also not shown in posses sion. The Patwari seems to have been repeating the old entries without making any inquiry at the spot as to who was in possession. But one fact emerges from Exh. P. A. and this is that Sundar Dass was in possession during the year 1999 (Bikrimi) and the plaintiff's counsel stated before the framing of the issues that Mst. Poli never obtained the possession of the suit land. Sundar Dass continued in possession and according to the Parcha Zimindari Exh. D. A. the defendants entered into possession after him as vendees from him. It has been argued by the learned counsel for the appellant that according to the Transfer of Property Act which was in force in the State there could be no valid transfer without a registered deed ; and that the possession of Sundar Dass even if he is taken to be an alienee from Karima and Bhalli and of the defendants who claim to be alienees from Sundar Dass would be that of trespassers. His argument is that one trespasser cannot tack on the period of adverse possession of another trespasser. A person who is in possession of land without title has, while he continues in possession and before the statutory period had elapsed, a transmissible and heritable interest in the property, and if such person is succeeded in possession by one claiming through him, who holds till the expiration of the statutory period, such a successor has then as good a right to the posses‑ B sion as if he himself had occupied for the whole period . . . . . . . . . Halsbury Laws of England, Vol. XIX, page

157. If the period of possession of a trespasser and his predecessor‑in‑title who was also a trespasser extended over a period of 12 years, he acquired an absolute title to the property of which he had been thus in possession. Article 144 of the Limitation Act reads as under :‑ "(suit) for possession of immovable property in or any interest therein not hereby otherwise specially provided for

12 years,

when the possession of the defendant becomes adverse to the plaintiff" . . . . . The word defendant' in this article includes a person through whom the defendant derives his liability to be sued and hence he can tack the period of the adverse possession of his predecessor‑in‑title to that of his own. It was laid down in 43 I C 913 that one adverse possessor cant tack the period of his own possession to the period of adverse possession held by another person through whom he derives his C title so as to make up the period of 12 years. The principle is that a title by adverse possession in course of succession, is heritable, transferable and devisable. It was held in 3 Cal. 224, (226) that the title of a wrong doer may be transferred to a third person, while it is in course of acquisition, so that if the possession of the originally wrong doer together with that of his transferee covers a period of 12 years, the title of the original owner would be extinguished. It is, no doubt, correct that the defendant cannot add to his own adverse possession, the adverse possession of another independent previous trespasser from whom he did not derive his liability to be sued within the meaning of the definition of `defendant' in section 2 (4) of the Limitation Act and whom he does not represent by birth, transfer or device. A I R 1934 P C 23 is an authority for this proposition. Mr. Cheema has cited P L D 1954 Lah.

594. Abdul Aziz Khan, J., has held in this ruling that if an intruder without title holds possession for less than 12 years and is then dispossessed by another trespasser, who does not hold for the statutory period, the title of the rightful owner is unaffected by the statute. I quite agree with the authority cited by the learned counsel but in this case trespasser has not derived his liability to be sued through the first trespasser. Two indepen dent trespassers cannot tack on the period of each other. It was held in A I R 1940 Oudh 184 that a true owner would be barred by 12 years continued adverse possession, even if that possession be that of two or more independent trespassers, who do not claim under one another. I do not agree with the view expressed in A I R 1940 Oudh 184 because an indepen dent trespasser does not represent the previous independent trespasser by birth, transfer or device. It was laid down in 35 Bom. 79, (90) that the defendant cannot tack to his posses sion, the possession of another person whom he has dispossessed. A I R 1951 Orissa 248 is an authority for the proposition that the possession of the persons who are not the predecessors -in‑interest of that person cannot be tacked on to his posses sion. The general principle regarding the tacking of possession of separate trespassers is that it will be tacked when the second trespasser derives his possession from the first, but that this D cannot be done if the two trespassers are independent of each other and the second had obtained possession otherwise than through the first. Taking Sundar Dass and Krishan Lall to be trespassers because they had not obtained the transfer of the occupancy rights from Karima and Bhalli through a registered deed and the defendants also as trespassers since they too had not obtained a registered deed from Sundar Dass and Krishan Lall, we shall have to allow the defendants to tack on to their own adverse possession, the adverse possession of their prede cessors‑in‑interest i.e., Sundar Dass and Krishan Lall. Both sets i.e., Sundar Dass and Krishan Lall arid the defendants' possession would be adverse because they had entered into possession under an invalid sale and the defendants can tack on the adverse possession of Sundar Dass and Krishan Lall. If we do not go far back, at least Sundar Dass was in adverse possession in the Bikrimi year 1999 as is apparent from Exh. P. A. The suit was instituted on 20‑10‑

56. The Bikrimi year 1999 would correspond to the year 1942 A. D, and a suit brought in 1956 would be clearly beyond 12 years, therefore, I hold that the defendants have been in adverse possession of the suit land for over 12 years and their title has matured by prescription, extinguishing the title of the plaintiff's ancestors and the plaintiff accordingly cannot be held to own occupancy rights in the suit land. It was also argued by Mr. Cheema that at least occupancy rights cannot be acquired by adverse possession. He has referred to section 9 of the Tenancy Act which provides that no tenant shall acquire a right of occupancy by mere lapse of time. But it is significant to note that section 9 precluding the, acquisition of right of occupancy by mere lapse of time applies is to a claim to occupancy rights by adverse possession when originally claimed and not a successor to the deceased occupancy tenant. Similarly, if an occupancy tenant sells his right of occupancy to a third person without getting the consent of the, landlord and the landlord allows the statutory period of six years to expire without bringing a suit for its cancellation, the person would have acquired the right of occupancy. Mr. Cheema has cited P L D 1951 Lah. 85 where Kayani, J., has held that if section 9 of the Punjab Tenancy Act is interpreted differently the landlord may occasionally have an occupancy tenant thrust on him without any laches on his part, and that would be a result entirely foreign to the spirit of the Tenancy Act. Akram P. W. is the proprietor of the suit land. He has stated that he had been receiving land revenue from Sundar Dass. If the proprietor was receiving land revenue from a transferee from his occupancy tenants, he cannot complain that an occupancy tenant has been thrust on him. I am in respectful disagreement with Kayani, J., when he says that occupancy rights cannot be the subject of adverse posses sion. If the landlord sees a trespasser entering upon occupancy rights in his land which existed already and keeps quiet for the statutory period then he cannot complain that an occupancy tenant has been thrust upon him. The occupancy tenant who has acquired occupancy rights by prescription does not claim adversely to the landlord but claims adversely to the previous occupancy tenants. My view is that a trespasser can acquire occupancy rights by prescription against another occupancy tenant. Noor Muhammad defendant from the witness‑box, when cross‑examined, stated that Sundar Dass had acquired occupancy rights from Bhalli and Karima during the Sambat year 1975‑

76. Though he stated that he had heard about it yet this is a statement that finds corroboration from the Parcha Bondo‑Basti produced by the plaintiff in which the last entry about the payment of the land revenue pertains to the year 1977 (Bikrimi). The payment by the plaintiff's ancestors ceased with the year 1977 and it corroborates the statement of Noor Muhammad D. W. that Sundar Dass had acquired occupancy rights during the year 1975‑

76. Mr. Cheema's reply to this point was that there was no space left in the Parcha for making any further entry but there is a blank page still left on the reverse of the page where the last entry is made. I believe that Sundar Dass and Diwan Chand father of Sundar Dass and Sardari Lall were transferees from the ancestors of the plaintiff though they had obtained the transfer of occupancy rights through an oral sale. Similarly, the defendants were transferees from Sundar Dass and Krishan Lall, who had succeeded his father on his death, through an oral sale. The law, no doubt,' requires that transfer should be made by registered deed but, then it is common knowledge that mutations were entered on the basis of oral transfers and the State, Legislature sometime before or after the close of the year 2000 had to pass a validating Act legalising such transfers by oral sale where mutations had been sanctioned. Mr. Cheema raised an objection with regard to the genuineness of the Parcha Zimindari Exh. D. A. produced by the defendants. He said that in this Parcha the caste of Atta Muhammad defendant is entered as Qasabi, therefore, he was a non‑agriculturist and a non‑agriculturist could not obtain the transfer of agricultural land but then he conveniently forgets that his transferer Sundar Dass was a Khatri, also a non agriculturist. When his attention was drawn towards this fact, he countered saying that Sundar Dass could not have obtained a transfer from Karima and Bhalli who were Gujjars and agricul turists. According to Mr. Cheema the alienation of land would have stood in the way of such transfers. No doubt, a transfer from a agriculturist to a non‑agriculturist was not valid but then there was no bar to people making illegal transfers and the Alienation of Land Act provided a remedy that where such an illegal transfer was brought to the notice of the Collector, he could convert such an illegal transfer into a lease for 21 years. However, the Collector had not intervened and now the Alienation of Land Act has been scraped. I hold that the defendants having acquired occupancy rights in the suit land by prescription, the plaintiff did not own any occupancy rights in such land on the date of the institution of the suit, therefore, his suit has been rightly dismissed. The appeal is accordingly dismissed with costs. The learned counsel for the appellant did not argue any other point. K. B. A. Appeal dismissed.