P L D 1975 Supreme Court 311 (PLP)

Mahfooz Khan, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for Respondents Nos. 1 and

2. Respondents Nos. 3 to 21: Ex Parte. Date of hearing: 10th February 1975. MUHAMMAD GUL J.‑This appeal by special leave is from the judgment` of the late High Court of West Pakistan, Peshawar Bench, dated 27‑5‑1969 in, second appeal, by which the judgment in the first appeal arising in a suit for declaration or proprietary title in land was reversed and that of the trial Court, decreeing the plaintiffs' claim was restored. The dispute concerns 3/8th share in the land measuring 13 kanals 15 marlas bearing khasra Nos. 5901 and 5887 in village Nowshera Kalan, which, it is not disputed, originally belonged to Ghulam Haider respondent 10 here in Rasul Shah and Abdul Malik respondents 1 and 2 herein, who were the plaintiffs in the suit based their claim in the land through one Abbas Khan, who was alleged to have purchased the same from Ghulam Haider by means of an oral sale followed by an instrument in writing dated the 5th March 1919 (Exh. P. W. 4/1 ) and that on the death of Abbas Khan, his estate de volved under custom, upon his minor son, Haider Khan whose mother Mst. Hawa Jan, purporting to act as his guardian sold the land in dispute to respondents 1 and 2 and two others by registered sale‑deed dated 1‑3‑1922 (Exh. P. W. 1/1). The latter, i: is alleged have also relinquished their rights in favour of Rasul Shah and Abdul Malik. It appears that notwithstanding the above alleged transaction, Ghulam Haider respondent 10 continued to be shown a co‑sharer in the land in the successive Jamabandis and apparently on the basis of these entries, he sold the land in dispute to Ahmad Khan appellant herein, by means of a registered sale deed dated 20-9‑1957 (Exh. P. W. 4/2). This obliged Rasal Shah and Abdul Malik (hereinafter referred to as the plaintiffs) to bring a suit for a declaration of their proprietary title in the land, that the aforesaid sale in favour of Ahmad Khan appellant herein was void and ineffective as against ‑their proprietary rights in the land on the basis of the alleged sales firstly by Ghulam Haider and later by Mst. Haws Jan on behalf of her minor son. Alternatively, the plaintiffs claimed title in the land by prescription, and a decree for possession, in case they are found out of possession. Of the various defendants, Ahmad Khan appellant alone entered appearance to contest the suit. He set up his title to the land on the basis of the registered sale‑deed in his favour dated 20‑9‑1957 by Ghulam Haider. The remaining defendants either accepted the claim of the plaintiffs or were pro ceeded ex parte. Abdul Malik respondent 2 died during the pendency of this appeal and, is now presented by his legal representatives. The suit was initially dismissed by Civil Judge, Nowshera. On appeal by the plaintiffs, the judgment of the trial Court was set aside and the learned Additional District Judge, after framing fresh issues, remanded the suit for retrial and fresh decision. Among the issues, those materials for the purpose .of this judgment were (1) Whether Ghulam Haider defendant No. 8 the original owner of the suit land had sold it to Abbas Khan on the basis of a sale‑deed dated 15‑3‑1919? (2) If issue No. 1 is proved whether heirs of Abbas Khan had sold that very land to plaintiffs 1 and 2 (defendants Nos. 10 and 11) and Abdul Khaliq, deceased, predecessor‑in‑interest of defendants Nos. 11 to 15, on the foot of a sale‑deed registered on 2‑3‑1922? (4) Whether plaintiffs have become owners of the suit land by adverse possession? (6) Whether the sale of the suit land by defendant No. 8 in favour of defendant No. 9 on the basis of sale‑deed registered on 23‑9‑1957 is void and ineffective against plaintiffs? After remand of the case, the learned trial Judge came to the conclusion that it was not proved that Ghulam Haider had sold the land in dispute to Abbas Khan, through whom the plaintiffs claimed the title, but that they had acquired title in the land by prescription. Therefore, the sale of the land vide sale‑deed dated 20‑9‑1957 (Exh. P. W. 4/2) by Ghulam Haider in favour of the appellant herein was ineffective against the plaintiffs. Accordingly, ‑the learned trial Judge passed possessory decree in favour of the plaintiffs. On appeal by Ahmad Khan to the District Judge, the decree of the trial ‑ Court was reversed and the plaintiffs' suit was dismissed. On second appeal by the plaintiffs to the High Court, the decree of the first appellate Court was set aside and the decree of the trial Court in favour of the plaintiffs was restored. Leave was granted to consider whether in view of serious divergence of opinion between the Courts below, on the question of perfection of the plain tiffs' title by prescription, the case was rightly decided by the High Court? This fact is admitted on both the sides that Ghulam Haider (respondent 10 herein) was a co‑sharer in possession of the suit land. Indeed, both the sides claimed their title from him, though the plaintiffs, as second string to their bow have also claimed perfection of their title in the land by prescription. Therefore, though the plaintiffs have failed to substantiate their title as trans ferees from Ghulam Haider through Abbas Khan, yet they succeeded before the trial Court in establishing their title by prescription, which finding has been upheld by the High Court, despite a finding to the contrary on the point by the first appellate Court. Learned counsel for the appellant stressed that the learned District Judge as final Court of appeal on a question of fact, had on a consideration of evi dence produced in the case, come to a definite finding that the plaintiffs failed to establish their adverse possession for a continuous period of twelve years and that being essentially a question of fact could not have been disturbed by the High Court in second appeal and the finding of the first appellate Court on the point should be accepted as final. In my opinion, the argument is an attempt to over‑simplify the question involved in this appeal. It may be that in some cases the question whether possession is adverse or not, is one of simple fact. But it may not necessarily be so in all cases, for it may as well be a conclusion of law or a mixed ques tion of law and matter of legal inference to be drawn from certain document or any proved or admitted fact. As will be seen presently, the plaintiffs relied inter alia upon entries in the successive Jamabandis of the land for more than 20 years in support of their perfection of their proprietary title by prescription. Right construction of documents and in particular in a revenue record has always been regarded as question of law which the High Court is not precluded from considering in second appeal. There had been a flood of case‑law in) support of this proposition. See among others: Lala Fateh Chand v. Rani Kishan Kanwar ((1912) 39 I A 247) and Satgur v. Kishan Lal ((1919) 461 A 197). I have no doubt in my mind that the instant case falls in that category of cases. It was not seriously disputed that the plaintiffs have not been able to sub stantiate their title under the first two issues. The instrument of the 5th March 1919 (Exh. P. W. 4/1) executed by Ghulam Haider, did not sufficiently des cribe the land so as to identify with the suit land. Therefore, the High Court and the Courts below rightly held this document to be unavailing to the plain tiffs to prove the title of their predecessor‑in‑interest, Abbas Khan, through whom they claimed the land. And the plaintiffs' case under the second issue ran into even greater difficulty, because they relied upon the registered sale deed dated 1‑3‑1922 (Exh. P. W. 1/1). But this deed is actually executed by Mst. Haws Jan widow of Abbas Khan, purporting to be on behalf of her minor son Haider Khan as guardian of his person and property to pay off curtain outstanding debts contracted by her deceased husband. It is well established principle of Muslim Law that a de facto guardian of a minor has no power to transfer any right or interest in immovable property of the minor. Such a transfer is not merely voidable but is void‑See Monogram 364 of Principles of Muhammadan Law by Mulla, 17th Edition at p.

299. This statement of law is based upon a number of judicial precedents of high autho rity including by their Lordships of the Judicial Committee, noticed at the foot of the page. Therefore, even if one were to assume that the instrument (Exh. P. W. 4/1) related to the transfer of the land in dispute by Ghulam Haider, the plaintiffs have still to face the insurmountable hurdle to show that a valid title was conveyed to them under the registered sale‑deed dated the 1st March 1922 (Exh. P. W. 1/1). It was in these circumstances that the learn ed trial Judge found the first issue in the negative and it was precisely for the reason that the plaintiffs' learned counsel did not address any argument on issue No.

1. However, that may be, these two documents whatever their legal affect, are explanatory of the nature of the plaintiffs' possession of the land, borne out by the entries in the successive Jamabandis relied upon by the plaintiffs to prove their title by adverse possession under issue No.

4. The plaintiffs produced copies of Jamabandis (Exh. P. W. I‑A/1 to P. W. I‑A/8) from the years 1928‑29 to 19.17‑58 which consistently record the posses sion of the suit land by the plaintiffs. In the Jamabandis from the year 1939 40 to the year 1957‑58, the entries in the rent column of bila lagan bawajja beh. In the opinion of learned trial Judge, these entries proved beyond any doubt, that the plaintiffs had remained in possession of the suit land. Reading these entries together with the instrument (Exh. P. W. 4/1 and P. W. 1/1) in my view, clearly establish the hostile nature of the possession of land by plaintiffs for more than twelve; years, so as to perfect their title in it by prescription. It is well‑established principle that a vendee who remains in possession after the sale of property which goes off or is otherwise defective in law holds adversely to the vendor. See among others: Mst. Jasoda Kaur v Janak Missir (A I R 1925 Pat. 787). Learned counsel for the appellant on the other hand relied on the Privy Council's judgment in Jagdev Narain Singh v. Baldev Singh (A I R 1922 P C 272) that mere non -payment of rent does not mature an adverse possession. That was however, a case of a tenancy in which the plea of adverse possession was raised on the basis of mere non‑payment of rent. The instant case however, stands on a di fferent footing. It is nobody's case that the plaintiffs entered into possession of the suit land as tenants under Haider Khan or Mst. Hawa Jan. Exh. P. W. 4/ 1 and Exh. P. W. 1/1 plainly militate against any such suggestion. Similarly, Noor Ahmad v. Mst. Hubab Jan (P L D 1974 SC 78) relied upon by the appellant's learned counsel has no bearing on this case. That case proceeded on entirely different facts. In that case, the respondent in this Court, Mst. Habub Jan entered into possession of land as legatee under a will executed by her father under a mistaken belief that the testator's son was dead and therefore, the land was mutated to her under the will of the original owner. The testator's son named Nur Ahmad, who having gone to Hong Kong, his whereabouts. were unknown. But the bequest was to take effect subject to the express. condition that the testator's son was not alive and does not return to the country. It later, turned out that the testator's son was alive, though he remained abroad for about 20 years at a stretch, without his whereabouts being known to his parents and others, who normally should have known about his whereabouts. On his return to Pakistan, he claimed the land as lawful heir of the deceased. Mst. Habub Jan, who was named as one of the beneficiaries under the will after the testator's son, claimed adverse possession as against the son of the testator. It was held by this Court in that case that no one can claim adverse possession against a person mistakenly presumed is be dead. Moreover, Mst. Habub Jan was also one of the co‑heirs to the deceased testator, and therefore, could not hold adversely to another co‑heir in the absence of a definite act of ouster. Learned counsel for the appellant next argued that even if it be assumed that to begin with the possession of the suit land by the respondent was hostile, it could not have matured into adverse possession for statutory period, because of the admission made by Rasool Shah on his own behalf and on behalf of Abdul malik addressed to the Excise and Taxation officer disowning all concern to the land in dispute. It appears that proceedings were initiated for the recovery of certain taxes in respect of the land in dispute. To avoid the liability, Rasool Shah, by means of that application dated 19‑2‑1959 (Exh. D. W. 1/1) stated that the land in dispute had been sold by Ghulam Haider to the appellant by means of a registered sale‑deed and that therefore, be and his brother Abdul Malik should be "excused" from payment of the tax. Learned counsel for the appellant strenuously urged that this was a solemn acknowledgment by Rasool Shah, disclaiming any interest or title in the land and arming the subsistence of title in the appellant under the registered sale‑deed executed by Ghulam Haider respondent in favour of the appellant herein. It was stressed that this admission was conclusive and the findings of the trial Court and the High Court cannot therefore, be maintained. I find it difficult to subscribe the proposition that this admission is conclusive or it would otherwise destroy the title in the land accruing to the plaintiffs -respondents on the basis of their adverse possession for the statutory period. As ruled by their Lordships of the Judicial Committee in Daulat Singh Ji v. Khachar Mansoor admissions of facts are only relevant, and are no conclusive and therefore, may be shown to be wrong. Their Lordships observed in that case: "Evidence Act expressly provides that admissions are not conclusive proof of the matters admitted. Even if it amounts to clear admissions, it will not bar a suit." Therefore, an admission which is wrong in point of fact or is made in ignor ance of legal right, has no binding effect on the person making it. This is however, subject to two well recognized exceptions. First: such admissions become conclusive and are binding on a party making them only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not the permitted to show that the admission was wrong. Such admission is really hit by rule of estoppel in section 115 of the Evidence Act, 1872. Here, in this case, it is not the appellant's case that he was misled into purchasing the suit land by reason of the application dated 19‑2‑1959 (Exh. D. W. 1/I) made by Rasool Shah: Second: apart from the representation which operates as estoppel, admissions in pleadings are also made conclusive under section 58 of the Evidence Act, 1872. But the application dated 19‑2‑1959 is not a pleading either, so as to become conclusive as between the parties herein. It seems to me that Rasool Shah was unnerved by the coercive process for the recovery of property tax which also entailed the possibility of committal to civil prison To ward off such evil eventuality, he appears to have applied to the Revenue Authorities, which otherwise, he thought, would befall him. In the above circumstances, therefore, it will not be right to contend that the admission contained in Exh. D. W. 1/1 is conclusive against the plaintiffs -respondents nor would it otherwise undo the extinction of the title of the original owner in the land which had taken place by reason of the plaintiffs' continuous possession for more than twelve years. This is the effect of section 28 of the Limitation Act, 1908, which after the effect of the period 'prescribed by the Act, "for the possession of any property" extinguishes the right of the owner in that property. This is different from merely barring the 'right for the enforcement of the right as in the case of a mere "chose in, action" as distinguished from right in property. Finally, learned counsel for the appellant relied upon the entries in the khasra gird2wari (Exh. P. W. 3/3) which though recorded the plaintiffs' possession of the land do not repeat the entry bila lagan bawwjja beh as in the case of jamabandi. It was stressed that the initial presumption of correctness in favour of jamabandis is sufficiently displaced by the khasra girdawaria. Indeed this argument prevailed with the first Appellate Court. The argument in my opinion, is devoid of substance. For one thing unlike jamabandis, no; statutory presumption of correctness attaches to khasra girdawari. Secondly, it appears that the plaintiffs were in possession of the land through tenants and had been realising rent for, in the khasra girdawarl from Kharif 1950 to Rabi 1954, the entry in the relevant column is muzarah awal bila lagan bawajja beh and muzarah dnem barai behissa soem. This entry is repeated until the institution of the suit. The mere fact that in the khasra girdawari, prior to Kharif 1950, there is no such entry, would not undo the effect of the entries in the jamabandls. Even otherwise, if it be accepted that the entries in the khasra girdawari are of cogent evidence, not only of possession, but also are explanatory of the character of possession, the later entries must be preferred over the earlier entries, because presumption, if any would attach to the later entry. Then as pointed out already, there is no evidence worth the name that the plaintiffs were inducted on the land as tenants under Ghulam Haider or Abbas Khan. Apart from the entries in the jamabandis, indicating the plaintiffs' possession of land without payment of rent to the persons recorded as owners in the property column, it would be consistent with the probabilities of the case, to attribute their possession of the land to the registered sale deed executed by Mst. Hawa Jan, purporting to sell the land on behalf of her minor son. For the foregoing reasons, I would dismiss the appeal, but leave they: parties to bear their own costs. MUHAMMAD APZAL CHEEMA, J.‑--I agree. K. B. A. Appeal dismissed.