P L D 2004 Supreme Court 321 (PLP)

Date of hearing: 1st December, 2003. MUNIR A. SHEIKH, J.‑‑‑This appeal is directed against judgment dated 31‑10‑1997 of learned Judge in Chambers of Peshawar High Court, Peshawar, whereby revision petition filed by respondents against judgment of the first Appellate Court has been accepted and judgment of the trial Court of dismissal of suit of the appellants restored.

2. The land in dispute measuring 24 Kanals, 18 Marlas was admittedly owned by Mian Burhan‑un‑Din deceased, predecessor‑in- interest of the appellants. He in the year 1876 donated usufructs of this land to Najeem Khan alias Dangary Baba who was Imam Masjid in lieu of his service as Imam Masjid. After the death of Najeem Khan alias Dangary Baba admittedly his son Muhammad Faiq succeeded as Imam Masjid who continued to appropriate the usufructs of the land, after whose death Atiq his son succeeded as Imam Masjid and till the institution of the suit by the appellants in 1982 from which this appeal has arisen he has been performing the functions of Imam Masjid and appropriating the usufructs of the land.

3. Atiq deceased, the predecessor‑in‑interest of the respondents in the year 1982 started raising construction over the land which culminated in institution of the present suit by the respondents for possession thereof. It was pleaded that proprietary rights in the land were not transferred to respondents and only the usufructs had been donated to Imam Masjid in lieu of his services. He was already cultivating the land as Ghair Dakhilkar", therefore, his successors had no right to claim ownership of the land and raise any construction. The trial Court on 28‑7‑1991 dismissed the suit by holding that the land was not given as Sadaqa/Seri Khor to Najeem, therefore, he did not become owner thereof. In appeal filed by appellants the case was remanded to the trial Court for fresh disposal of the suit. After remand it was again dismissed on 14‑3‑1992. The appeal filed by the appellants against this judgment was, however, accepted by First Appellate Court through judgment dated 27‑7‑1994 and the suit was decreed subject to payment of Rs.67,700 as costs for improvement of the land made by the respondents. In this judgment the documentary evidence as to the status of the land has been elaborately discussed. The relevant para. is reproduced herein-below in extenso:‑‑ "Utilization of usufruct of a property by a tenant in lieu of his services specified by the owner is yet another shape of tenancy. Respondent has not denied this fact that suit‑land was entrusted to his ancestors in lieu of his service as `Imam'. Though he hasp claimed that it was Hibba/Sadaqa but this claim of respondents did not find support from the Revenue Record or any other documentary proof. Revenue record in respect of suit‑property brought on file‑during hearing of present appeal and during trial shows that from year 1895‑96 to 1907‑08 vide Exh.C.W.1/2 to Exh.C.W.I/5, suit‑property remained in possession of Sadiq, Muhammad Khaliq sons of Najeem and then it went into possession of Muhammad Taib son of Muhammad Sadiq. All of them were occupying it as tenant's son payment of 3rd share of produce. From 1911‑12 up to 1965‑66 vide Exh.C.W.1/6 to Exh.C.W.1/10, Exh.P.W.1/2 to Exh.P.W.1/10, Muhammad Taib son of Muhammad Sadiq, Muhammad Khaliq son of Muhammad Fariq, Muhammad Sadiq and Muhammad Khaliq sons of Muhammad Fariq remained in possession of suit‑land as `Ghair Dakheel Karan' (tenants) without payment of rent in lieu of their services as `Imam'. So it is apparent from the Revenue Record that suit‑land was not bestowed upon respondent No. 1 as gift or Sadaqa. Respondent No. 1 as well as his predecessor remained in possession of the suit‑property as tenants. Their tenancy was subject to the condition of their services as Imam. It was not given to them as gift, Sadaqa or Serai."

4. Revision petition filed by respondents in the Peshawar High Court, Peshawar has been accepted through the judgment dated 31‑10‑1997 against which this appeal is directed.

5. We have heard learned counsel for both the parties and gone through the record with their assistance. From the entries of the Revenue Record as discussed by the First Appellate Court in the paragraph reproduced above, the correctness of which was not disputed by the learned counsel for the respondents that in the ownership column the name of Mian Burhanuddin and his successors‑in-interest had appeared throughout whereas in the other column the predecessors of the respondents have been recorded as Ghair Dakheelkar on the condition that 1/3rd share of the produce was to be paid as rent but the same had been donated to Najeem in lieu of his services as Pesh Imam. The respondents, however, pleaded in their written statement that the land itself had been given to Najeem as Sadaqa or gift about which they used the term `Seri Khor'. These words have not been incorporated in the Revenue Record. The entries in the Revenue Record had throughout been, as stated above, therefore, it was rightly concluded by the First Appellate Court that the oral evidence could not be given credence over the long‑standing entries in the Revenue Record to the contrary, therefore, it was rightly held that only the usufruct/rent had been donated to Najeem as Imam Masjid which otherwise he would have paid as tenant to the owner. His status of Ghair Dakheelkar was maintained throughout this long period.

6. The respondents also pleaded their right of ownership by way of adverse possession since 1876 to 1982 when the suit was filed.

7. Apart from the fact that the respondents and their predecessor- in‑interest were in possession of the land a Ghair Dakheelkar, they could not claim that their possession was adverse, since Atiq predecessor‑in‑interest of the respondents was performing the functions of Imam Masjid when the suit was filed in 1982 and before him his father Muhammad Faiq was Imam Masjid, therefore, the gift of usufruct would continue to be operative till Atiq continued to perform functions of Imam Masjid, as such even if the respondents remained in possession of the land as Ghair Dakheelkar for any length of period the same could not legally be claimed to be adverse.

8. The learned Judge of the High Court altogether ignored the above position as is borne out from the long‑standing entries in the Revenue Record and committed an error of law by holding that it was a case of Seri Khor gift of land itself which finding is based on grave misreading of evidence, therefore, the impugned judgment is not sustainable.

9. For the foregoing reasons this appeal is accepted and judgment dated 31‑10‑1997 passed by Peshawar High Court, Peshawar of acceptance of revision petition of the respondents is hereby set aside and the judgment of the First Appellate Court dated 27‑7‑1994 restored. There will be no order as to costs. M.H./T‑57/S Appeal allowed.