P L D 1967 Lahore 1051 (PLP)

This Regular Second Appeal is directed against the judgment and decree of the Senior Civil Judge, Gujrat with enhanced appellate powers dated 8th October 1957, whereby he confirmed the judgment aid decree of the trial Judge dated the 4th of April 1957, decreeing the plaintiffs' suit for possession in respect of 30 kanals 11 marlas of agricultural land situate in village Santpura Tehsil Kharian of Gujrat District.

2. The brief facts giving rise to the case are that out of the respondents, Rahmat, Nur Ahmad and Muhammad filed a suit for possession of the suit land against appellants 1 to 3, 10, 11 and Nur Ahmad, predecessor‑in‑interest of appellants 4 to

9. The allegations contained in the plaint were that the plaintiffs respondents were the owners of the suit land, and the defendants had encroached upon the same. The suit was decreed by the trial Judge on 3rd August 1956, in the first instance placing reliance on the report' of the Local Commissioner, to which both the parties had preferred objections. Two cross appeals were filed by the parties and the lower appellate Court on 6th December 1956, remanded the case under Order XLI, rule 23‑A C. P. C. for fresh trial on the following re‑cast issues: (1) Whether the plaintiffs are owners of khasra No. 425 and 440 in suit? O. P. (2) Whether the defendants have committed encroach ment on khasra Nos. 425 and 440 in suit and to what extent? O. P. (3) Whether the plaintiffs have been in possession of the area encroached upon within 12 years of the present suit? O. P. (4) Relief. It was directed that the parties shall be given opportunity to lead further evidence on the above issues.

3. A perusal of the record shows that Nur Ahmad defendant, predecessor‑in‑interest of the appellants 4 to 9 had alone resisted the suit and filed a written statement showing ignorance of the plaintiffs' ownership of the suit land and asserting that the defendants had been in possession of the same for more than twelve years as its owners. Ex parte proceedings were taken against the rest of the defendants who could not be served in the ordinary course and their service was effected through proclamation by beat of drums. To this extent the trial Court's judgment appears to be rather misleading inasmuch as it gives an impression as if the suit had been contested by all the defendants. Placing reliance on copies of khasra girdawaris from 1941‑50 (Exh. P. 3) and copies of Jamabandis Exhs. P. 4, 5 and 6, for the years 1941‑42, to 1951‑52 and 1955‑56 respectively, which showed the plaintiffs as owners of the suit land all along described as Ghair Mumkin Rait (sands), the learned trial Judge decided issue No. 1 in favour of the plaintiffs respondents. As regards issue No. 2, placing reliance on the report of the Local Commissioner, and over‑ruling the defen dants' objections, a finding was given in the affirmative, showing an encroachment on the part of the defendants as alleged in the plaint.

4. Issue No. 3 appears to have been seriously contested by the defendants' who besides adducing oral evidence to show that they had been in continuous possession and exclusive enjoyment of the suit land for more than twelve years, produced copy of the earlier plaint Exh. D. I. filed by Rahmat and Nur Ahmad, plaintiffs on 6th January 1942, against the defendants in the instant case, impleading Muhammad their brother and co‑plaintiff in the instant case, as a co‑defendant. This plaint was purported to have been filed in a suit for possession of 27 kanals 10 marlas of land in khasra No. 440, described as Ghair Mumkin Rait (sands) Exh. D. 2, is a certified copy of a short judgment whereby the aforesaid suit was dismissed on 5th of March 1942. By these documents supplemented by the statements of five witnesses, a continuous, uninterrupted and exclusive possession of the suit land was sought to be established by the 'respondents. On the contrary, the position‑taken up by the plaintiffs in this regard was that the parties had arrived at a compromise about ten or eleven years prior to the institution of the present suit, when the defendants abandoned their claim to the suit land and consequently the plaintiffs got the suit filed. The contention relating to compromise did not carry conviction with the learned trial Judge who nonetheless placing reliance on the revenue records also found this issue in favour of the plaintiffs.

5. In appeal, the defendants fared no better. Their witnesses were disbelieved as being interested witnesses, besides making discrepant statements regarding the extent of area around which the defendants had allegedly raised a hedge excluding the plaintiffs and every body else from access to or entry upon the land in question. Exh. D. 1 being a certified copy of the original plaint was held inadmissible in evidence in the absence of the proof of the original plaint and as such was excluded from consideration. Its exclusion rendered a copy of the judgment Exh. D. 2 simply meaningless and of no avail to the defendants. In short, upholding the findings of the trial Judge on all the issues, the learned appellate Court of first instance confirmed its judgment and decree, giving rise to the present R. S. A.

6. The learned counsel for the appellants raised the following contentions before me: (1) That the lower appellate Court has erred in holding Exh. D. 1 a certified copy of the plaint in the earlier suit for possession filed by the plaintiffs against the defendants in respect of at least a part of the land in question on allegations of encroachment as inadmissible in evidence; and (2) that on a proper consideration of Exh. D. 1 and D. 2, supported by oral evidence the defendant‑appellants adverse possession of the suit land since 1941 would be established beyond doubt.

7. On the contrary, it was contended by the learned counsel for the plaintiff‑respondents that the question of possession was obviously one of fact on which a concurrent finding had been given by the two Courts below which should not be interfered in second appeal. It was further argued that a certified copy of a plaint which was not a public document, could not be held admissible in evidence as secondary evidence without a formal proof, and as such was rightly excluded from consideration by the lower appellate Court. Lastly, it was contended that since the land was unculturable, Gnair mumkin sands, of which the plaintiff‑respondents have all along been described as owners both in the Jamabandis as well as the Khasra Girdawari, the alleged doubtful raising of a hedge by the defendants around it would not make their possession adverse to the plaintiffs which even otherwise has not been established to be for a period of more than 12 years.

8. In support of the first contention raised by him, the learned counsel for the appellants contended that ‑in the first instance, Exh. D. 1, a certified copy of the plaint was by itself sufficient proof of the contents under section 77 of the Evidence Act which dispensed with a formal proof of the original plaint. It was argued that assuming that a plaint was not a public docu ment once a certified copy is put in evidence without objection by the opposite‑party, a subsequent objection in this regard would be irrelevant and should not be permitted to be raised. Reliance was placed in this regard on Firm Durga Dal Jagan Nath v. Firm Ram Partab Sukh Dayal (A I R 1923 Lah, 138). Section 77 of the Evidence Act lends such an authenticity to a certified copy of a public document as to dispense with a formal proof of the original, but the question is whether Exh. D. 1, which is a certified copy of a plaint is a public document in terms of the definition contained in section 74 of the Evidence Act. It was held in Tarkeshawar Prasad Tewari v. Devendra Prasad Tewari (92 I C 184) that a plaint is not a public document and, therefore, a certified copy of it is not admissible in proof of the age of the person signing it. This clearly excludes Exh. D. 1 from the purview section 77 of the Evidence Act. As regards the alternative plea that these documents had been received in evidence at the trial without objection by the opposite‑party, I am inclined to agree with the learned counsel for the appellants that since Exh. D. 1 had been received in evidence by the trial Judge without the plain tiff‑respondents having taken any exception to it, it was not proper for the lower appellate Court to have excluded the same from consideration. In The Firm Durga Dal Jagan Nath v. The Firm Ram Pertab Vukh Dayal a Division Bench judgment, the learned Judge did not permit the plaintiffs' counsel to object to the admissibility of a certified copy of a written state ment filed in the Court without objection by him. It was observed by their Lordships: "A certified copy of this written statement was put in the lower Court in the presence of plaintiffs' counsel and without objection by him. We cannot permit plaintiffs' counsel in this Court now to object, as he has attempted to do, that only the original could have been received as proof of the statement and of the admissions which it contains and which are relevant as such in this case." The same view was re-affirmed in subsequent authorities Tarkeshwar Prasad Tawai v. Derendra Parasad Teivari and Manbodh and another v. Hirasai (93 I C 650). The learned counsel for the respondents has not been able to produce any authority to the contrary. The question, however, is whether in the instant case, on the strength of the aforesaid authorities, the exclusion of this document from consideration by the lower appellate Court was justified or not Normally whenever inadmissible evidence has been mace the basis of a finding, the Court notwithstanding any objection or want of objection on the part of a party as the case) may be, would not only be justified in excluding such a piece of inadmissible evidence from consideration, but that would be the only proper course for it' to do. But in a case like this, where the defect is only of a technical nature and was impliedly condoned, by the opposite‑party, I am of the view that it would be proper for the appellate Court to exclude it from consideration. However, apart from an academic interest, this would 'hardly be of any consequence in so far as the instant case is concerned, inasmuch as, notwithstanding the consideration of Ex. D. 1, by the trial Court and its exclusion by the lower appellate Court, the result remains the same and the finding given by the former was re affirmed by the latter. These documents were filed by the defen dants in order to prove their adverse possessions of more than 12 years. This being essentially a question of fact on which a concurrent finding has been given by the Courts below it is not, to be lightly interfered with unless there are compelling reasons for doing so. It is my considered view that even if fullest consideration is given to these documents and the oral evidence adduced to supplement them, the position remains the same. It cannot be denied that the land in question is an agricultural piece of land which was never brought under the plough. The plaintiff respondents have all along been shown as its owners in the Jamabandis Exhs. P. 4 to P. 6 and even the Khasra Girdawaris Exh. P.

3. As such even if it is assumed that the defendant‑1 appellants had raised some kind of hedge around it, it would hardly be of any consequence. Shah Niwaz v. Ghulam Shah (176 I C 930) is an authority which supports this view. In this case some earlier authorities were also referred to by Bhide, J. who delivered the judgment in which on the basis of enclosures of permanent character in the shape of a wall adverse possession was held to be established. It was observed by his Lordship that: "The land in dispute is close to the field of the defendants and is in the midst of a large Khasra number which was lying waste. I, therefore, hold that the case comes within the rule laid down in Framji Cursetji v. Goculdas Madhowaji (16 B 328)." Even otherwise, in a case where allegations relate to an erncroachment of land on the part of an owner of a contiguous piece of land, which was to be determined on the basis of measurements carried out by metes and bounds at the spot, the authorities referred to by Bhide, J. in which a contrary view was taken would hardly be of any avail to the appellants being clearly distinguish able. It may however be observed in passing that the precise extent of the area encroached upon had to be calculated by carrying out measurements at the spot and in that too there appears to be some discrepancy in the measurements of the area allegedly encroached upon as it was calculated by Muhammad Yusuf Girdawar vide his plan Exh. P. 1 and report Exh. P. 2, and as it emerged from the report of Muhammad Ibrahim Local Commissioner. According to the former, the encroachment in Khasra No. 425 was 11 knalas 4 marlas while in Khasra No. 440, it was 23 kanals 7 marlas with a total of 34 kanals 11 marlas. According to the report of the local Commissioner it worked out to be 10 kanals 5 marlas in regard to Khasra No. 425 and 9 kanals 14 marlas in regard to Khasra No. 440 with a total of 19 kanals 19 marlas. However, this discrepancy is neither referred to in the judgments of the Courts below, nor has it been taken as one of the grounds of attack before me. In short, a concurrent finding of fact on the fectum of encroachment and the area encroached upon has been given by both the Courts below and it is hardly necessary to raise this issue. The point, however, to be brought out is that in a case where the evidence regarding the extent of the area enclosed by means of a hedge is discrepant and where also the plaintiff ‑respondents' evidence on the question of encroachment is not consistent, the mere existence of an enclosure by raising a hedge even if assumed to be correct, does not advance the case of the defendant‑appellants, so as to make their possession adverse to the plaintiff‑respondents which could mature into rights of ownership after a lapse of twelve years.

9. Before parting with this case, it may be observed that since it was the plaintiff-respondent who had come to the Court, the onus of issue No. 3, namely, whether plaintiffs have been in possession of the area encroached upon within 12 years of the present suit was rightly placed on them. After having accorded due and proper consideration to the evidence adduced by the parties, the Courts below had come to the conclusion that this onus had been fully discharged by the plaintiff‑respondents and as such a concurrent finding was given in their favour. The entries in the revenue records coupled with the oral evidence on the factum of possession fully support them. On the contrary, in order to rebut this evidence a much heavier onus lay on the defendant‑appellants and no such rebuttal was held to be forth coming and very rightly so. It was held in Nand Lal v. Lehri (A 1 R 1929 Lah. 34) that where evidence as to possession is conflicting the Court' should rely on the presumption that possession follows title in the case of vacant land. In support of the proposition that mere tying or grazing of cattle on a waste land does not necessarily amount to adverse possession, and the fact that the person occupy ing it is not paying any rent on account of long possession would not make any difference. This view was taken in Labha Singh v. Municipal Committee (A I R 1934 Lab. 960). Obviously the appellant are compar tively speaking on a weaker wicket than the appellants in the aforesaid authority, inasmuch as in the instant case the land being Ghair Mumkin Sands, the question of payment of rent did not arise.

10. For the foregoing reasons, there is no force in this appeal which is hereby dismissed with costs. K. B. A. Appeal dismissed.