2013 PLP 684 (SCMR)

C.M.As. Nos. 4160 and 4161 of 2012 Subject to all just exceptions, these C.M.As. are allowed. 2. TASSADUQ HUSSAIN JILLANI, J.

This judgment shall dispose of Civil Appeal No.1619 of 2005 filed by legal heirs of Fateh Muhammad deceased (appellant-defendant) and Civil Appeal No.1620 of 2005 filed by Muhammad Yahya and another (appellant /plaintiff) who are successor-in-interest of Nizam Din deceased. Both these appeals are directed against the same judgment dated 29-9-2004 passed by the learned High Court vide which R.S.As. Nos.28 and 31 of 1990 were dismissed and the concurrent judgments and decrees whereby the suit filed by Muhammad Yahya and another was decreed were upheld. In Civil Appeal No.1620 of 2005 filed by Muhammad Yahya and another, the appellants have challenged only part of the concurrent findings given by the courts below whereby the suit to the extent of Shah Muhammad respondent/defendant was dismissed and the said Shah Muhammad was held to be owner of part of the suit land (88 kanals) by way of adverse possession.

3. Facts in brief are that Muhammad Yahya and Muhammad Ashraf sons and heirs of Nizam Din filed suit for declaration impugning the order of the Deputy Commissioner, Bahawalnagar dated 5-7-1957 vide which the permission under Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 was granted for the sale and transfer of the land in favour of Fateh Muhammad. It was averred in the plaint that the suit land measuring 288 kanals was originally given by the Ruler of the then State of Bahawalpur to Nizam Din deceased, the predecessor-in-interest of the respondent/plaintiffs (in C.A. 1619 of 2005) under the provisions of Colonization of Government Lands (Punjab) Act, 1912; that Fateh Muhammad predecessor-in-interest of appellants (in C.A. 1619 of 2005) had been cultivating the suit land as a lessee under Nizam Din; that the order dated 5-7-1957 under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 permitting Nizam Din to sell his land in favour of Fateh Muhammad and the issuance of patta malkiyat subsequently in favour of Fateh Muhammad and mutation No.38 dated 6-10-1967 pursuant thereto were not sustainable; that the legal heirs of Nizam Din were never party to those proceedings and that the afore-referred orders being void they be delivered possession of the suit land. The suit was decreed in the first round of litigation vide the judgment and decree dated 5-11-1969 but the first appeal against the said judgment and decree was allowed, the case was remanded as it was found that Shah Muhammad (son in law of Fateh Muhammad) respondent had been gifted part of the disputed suit land by Fateh Muhammad (predecessor-in-interest of the appellants) prior to the institution of the suit and he was a necessary party. After the requisite amendment and filing of written statement, following issues were framed:-- "

1. Whether the defendant No. 1 purchased the suit-land for Rs.24,000 from Nizam Din deceased and the sale is valid.? OPD

2. Whether Nizam Din deceased appeared for permission to sell the suit land to defendant No. 1 in his life time and the same was lawfully granted to him? OPD (onus objected).

3. Whether the sale in favour of respondent No. 1 is in contravention of Sec. 54 of T.P. Act and is thus illegal and void? OPD

4. Whether the plaintiffs suit is within time? OPD

5. Whether this court has no jurisdiction to try this suit? OPD

6. Whether the defendant No. 1 has become the owner of the suit-land by adverse possession for more than 12 years? OPD 6-A. Whether the plaintiffs are estopped to bring the action? OPD 6-B. Whether the plaintiff is deficient in court fee? OPD 6-C. Whether the plaintiffs have no cause of action? OPD 6-D. Whether the plaintiffs have not challenged mutation No. 39 and order dated 5-5-1957? Its effects? OPD

7. Relief. Special costs?"

4. The evidence led by respondent/plaintiffs comprised of P.W.1 Asad Ullah, P.W.2 Ghulam Haider, P.W.3 Gonman, P.W.4 Mst. Ayesha wife of Nizam Din, the grantee and P.W.5 Qadir Bakhsh. The documentary evidence led was a copy of the order of the Deputy Commissioner Exh.P1/1 dated 5-5-1957, the impugned mutation No.38 Exh.P2, copy of Jama Bandi Exh.P3 and copy of Khasra Girdawries Exh.P4 relating to the year 1967-1968. Appellant/defendants, on the other hand, produced D.W.1 Naseer ud Din, Ahlmad Muhafiz Khana, D.C. Office, Bahawalnagar, D.W.2 Basheer, Ahlmed Abadi Office, SDM, Chishtian, D.W.3 Muhammad Shafi, D.W.4 Shah Muhammad, D.W.5 Muhammad Alam, D.W.6 Naseer-ud-Din, Ahlmad Muhafiz Khana, D.C. Office, Bahawalnagar and D.W.7 Fateh Muhammad. The suit was decreed by the learned Senior Civil Judge, Bahawalnagar vide judgment dated 29-11-1984 primarily in terms of its findings on issues Nos.1, 2, 3 and 6(D). The said judgment and decree stand concurrently upheld i.e. by the Additional District Judge on 10-6-1990 and by the learned High Court vide the impugned judgment dated 29-9-2004. Leave was granted by this Court to consider inter alia the questions framed in para 6 of the order dated 6-12-2005, which reads as follows:-- "(a) Whether the transaction of sale of land in favour of Fateh Muhammad was hit by the provisions of section 19 of the Act 1912 and other relevant provisions of law? (b) Whether the High Court dealt with R.S.As. in a perfunctory manner without discussing various questions of fact and law involved in the dispute between the parties?"

5. Learned counsel for the appellants Mian Allah Nawaz, Senior Advocate Supreme Court in Civil Appeal No.1619 of 2005 in support of this appeal submitted that the learned Second Appellate Court (High Court) passed a totally mechanical judgment affirming the judgment and decree of the learned First Appellate Court (Additional District Judge) without conscious application of mind; that the State land had been granted to Nizam Din, the predecessor-in-interest of the respondent/plaintiffs; that the latter sold it to Fateh Muhammad (predecessor-in-interest of the appellants); that vide the order dated 5-5-1957 Collector granted sanction to sale of suit land in his favour as he had paid all the instalments till then; that after payment of the remaining price of the grant by Fateh Muhammad, conveyance deed was duly issued; that in the face of these orders, the learned trial Court had no jurisdiction to adjudge the grant of sanction of sale under section 19 of the Act and issuance of patta malkiyat in view of bar stipulated in Section 36 of the Act. He added that the learned courts below have concurrently non-read material evidence with regard to payment of instalment by Fateh Muhammad to the Colony Department; that the courts have not considered the testimony of Qadir Bakhsh P.W.5, of Muhammad Hayat who appeared before the Assistant Commissioner, Haroonabad (Exh.D/2), the statement of Mst. Ayesha P.W.4 and the findings rendered on issues Nos.1, 2 and 3 reflecting misreading cannot be sustained. Elaborating this submission, learned counsel argued that Mst. Ayesha wife of Nizam Din had admitted that Fateh Muhammad had been paying instalments of land to the Colony Department. He maintained that the courts have also ignored that Fateh Muhammad deceased had all along been in possession and the belated claim by way of a civil suit filed in 1968 was liable to be dismissed. Referring to section 10(4) of the Act, learned counsel added that the suit land was a colony land and no person could be deemed to be a tenant or have any right or title until written order had been passed and possession delivered by the Collector. In the instant case all the installments of the land having been admittedly paid by Fateh Muhammad and patta malkiyat having been issued after the requisite grant of sanction in terms of section 19 of the Act by the Collector, Nizam Din grantee was left with no right and the suit filed by his successor-in- interests could not succeed. In support of the submissions made, learned counsel relied on A.M. Morad v. Muhammad Azmatullah Siddiqui (1991 SCMR 2415), Rehmat Bibi v. Jhando Bibi (1992 SCMR 1510), Begum Bibi v. Abdul Sattar (1987 SCMR 1), Hakim Ali v. Ali Muhammad (1981 SCMR 993), Masood Ali v. Ali Haibat Khan and others (PLD 1958 Lahore 340) and Muhammad Shafi v. Hayat Khan (PLD 1978 Lahore 1228).

6. Learned counsel for the appellants in the connected Civil Appeal No.1620 of 2005 submitted that the finding of the learned High Court in para 5 of the impugned judgment to the effect that since the appellant/plaintiffs attained the age of majority in 1971 but did not implead Shah Muhammad respondent as party until 21-5-1984, a prescriptive title had matured in favour of Shah Muhammad in respect of 96 kanals out of the suit land on the basis of an adverse possession is not sustainable because there was no proof on record of a valid gift by Fateh Muhammad in favour of Shah Muhammad; that Shah Muhammad claimed gift to have been made on 4-4-1961 and even if the said gift is deemed to be valid Fateh Muhammad could not have gifted the suit land as patta malkiyat was issued in his favour on 6-10-1967; that no evidence was led to prove adverse possession rather in terms of revenue record Shah Muhammad was shown as a tenant (Jama Bandi for the year 1965-66 Exh.P3 and Khasra Girdawari Exh.P4) and that the findings rendered in favour of Shah Muhammad are reflective of non-reading and misreading of material evidence on record and cannot be sustained in law.

7. Mr. Qalb-e-Hassan, learned counsel for the respondent Shah Muhammad defended the impugned judgment and decree with regard to its findings qua Shah Muhammad defendant but did not dispute that in revenue record Shah Muhammad was shown as a tenant. He however, contended that the concurrent findings that his possession matured into title are unexceptionable as those are based on proper appreciation of evidence. In support of the submissions made, he relied on Noor Muhammad v. Abdul Qadeem (1995 SCMR 522) and Khuda Bakhsh v. Mureed (1999 SCMR 996).

8. Learned counsel for the respondent Shah Muhammad Qari Abdur Rasheed, Advocate Supreme Court defended the impugned judgment qua the findings rendered in his favour but on court query could not dispute the fact that in revenue record he is shown as a tenant.

9. We have heard learned counsel for the parties and have gone through the record.

10. A bare perusal of the written statement filed by the appellant/defendant Fateh Muhammad indicates that he admitted that the suit land was a grant in favour of Nizam Din though pleaded that he had purchased the same from him for a sum of Rs. 24,

000. A specific issue No. 1 was framed qua sale and the onus was on him to prove a valid sale. However, no oral or documentary evidence was led to prove as to when the bargain between the two was struck and when payment of sale consideration was made. On his own showing Fateh Muhammad was in possession of the suit land in his capacity as a lessee but the change of his status into an owner could neither be proved by any document nor it is so reflected in the revenue record i.e. Roznamcha Waqiati of Patwari. Even the bona fides of the permission granted under section 19 of the Act is shaken. Because, if he was in possession since 1937 and had purchased it from Nizam Din as claimed by him then why he made no effort to obtain sanction from the Collector and have it transferred during the lifetime of Nizam Din who died in 1953. His explanation was that Nizam himself had given an application to Collector for permission to sell the land to him during his lifetime but before sanction could be granted he died. But admittedly no such application was available in revenue record and the only application purported to have been filed in this behalf was the application supposedly filed by his wife Mst. Ayesha Bibi (P.W.4) Exh.D

1. The revenue official who appeared to prove this document i.e. Naseer-ud-Din D.W.1 admitted in cross-examination that the said document was neither signed nor thumb marked by Ayesha and that the persons who allegedly identified her namely Jan Muhammad and Moulvi Fazal Din also did not sign the application. He further admitted in cross-examination that in the office file pertaining to 'Kankoot Paidawar' there was no thumb mark of Mst. Ayesha and there was overwriting on her statement. Mst. Ayesha herself appeared as P.W.4. She candidly stated that the suit land was given by her husband Nizam Din on lease to Fateh Muhammad and he used to give lease money to him and even after 8/9 years of Nizam's death he used to pay the lease money and Nizam Din never sold the suit land to Fateh Muhammad. On the other hand, the evidence adduced by the appellant/defendants instead of proving defendants' case is partly supportive of the claim of the respondent/plaintiffs. Shah Muhammad was produced as D.W.4 but he in his examination-in- chief candidly stated that a panchayat was convened in which Ayesha wife of Nizam Din also appeared and she loudly claimed that the suit land was owned by her and that she wanted her possession to be delivered to her. Fateh Muhammad defendant admitted in cross-examination that he was a tenant and he had obtained lease from Nizam Din.

11. In the light of the analysis of the evidence led in the preceding paragraphs, the concurrent findings on issues Nos. 1 and 2 are not reflective of any misreading or non-reading of evidence to warrant interference. Learned counsel for the appellants has not referred to any material piece of evidence which was non-read or misread or which could have persuaded this Court to reach to a different conclusion.

12. This brings us to the question of the plea of adverse possession and findings rendered in favour of Shah Muhammad defendant who is son in law of Fateh Muhammad deceased. He claimed ownership to the extent of 88 kanals purported to have been gifted by the said Fateh Muhammad. In dismissing the suit of the respondent/plaintiffs to the extent of Shah Muhammad, the learned trial Court was of the view that he was in adverse possession; that though the respondent/plaintiffs - minors attained majority in 1971 but Shah Muhammad was impleaded in 1984, therefore, his possession matured into title by way of adverse possession. The said finding cannot be sustained. First, because admittedly in the revenue record Shah Muhammad was shown as a tenant. Second, it was a State land and adverse possession could only be claimed if the possession was of more than 60 years. Third, he derived his title from Fateh Muhammad whose title has been annulled vide the concurrent judgments and decrees. Fourth, he never himself appeared in court as witness to raise such a plea. Fifth, appellant/defendant Fateh Muhammad deceased had raised the plea of adverse possession as an alternative. In the first, he claimed to have purchased the suit land. Such inconsistence pleas erode credibility and bona fides of his claim. In these circumstances, he could not have been declared owner by way of adverse possession. In Ghulam Hussain v. Iqbal Ahmad (PLD 1991 SC 290), this Court upheld the concurrent judgments where the defendant had raised contradictory pleas of ownership and adverse possession in the alternative. At page 300, the Court observed as follows:-- "The defendant/appellant while rigidly maintaining his claim to possession and ownership has based it on lawful title through purchase. It is only in the alternative in order to gain an advantage in litigation that he relies on what he thinks can also be granted through the Court instrumentality. This claim in Courts is totally different from the claim at the spot and in the field, vis-a-vis, reality which he has faced throughout against the ownership rights of the respondent/plaintiff. There is neither hostility nor openness nor adverseness because the appellant has always aimed to have become owner through purchase. If he keeps a concealed intention of converting his lawful pursuit to a treacherous pursuit, at a certain stage, when the requisite period is passed that cannot at all be treated as adverse possession. It, is in this context that several judgments, mostly recent, have been rendered to hold that sources of lawful title and adverse possession are contradictory pleas and cannot stand together. They amongst others are: Ghulam Qadir v. Ahmed Yar and others PLD 1990 SC 1049; Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765; Juma Khan and another v. Abdul Karim and another 1980 SCMR

364. See also Mst. Ghulam Ilahi v. Muhammad Waris Khan PLD 1955 FC 31; Ayisa Bibi Animal v. Kalandaras Routher AIR 1925 Mad. 1020; Charles Edward Victor Seneviratne Corea v. Mahutanlrigey Iseris Apphamy and another AIR 1914 PC 243 and Shah Mohammad Jamil Ata v. Shah Mohammad Hafiz Ata and others AIR 1928 Oudh. 449; "Possession is not adverse if it could be referred to a lawful title. 1912 AC 230, 69 English Reports 701, ILR 37 Allah 203, 35 Cal. 961, AIR 1926 Oudh 144 and AIR 1926 Oudh 258, con. and rel. on (P-460)"

13. For what has been discussed above, Civil Appeal No.1619 of 2005 is dismissed whereas Civil Appeal No.1620 of 2005 is partly allowed and the concurrent findings with regard to the title of Shah Muhammad respondent on the basis of adverse possession are set aside and the suit titled as 'Muhammad Yahya and others v. Fateh Muhammad and others' is decreed throughout with no order as to costs. MWA/G-6/SC Order accordingly.