2015 PLP 1452 (MLD)

AZHAR SALEEM BABAR, J.

The above captioned appeal has been filed against the judgment and decree passed by learned Additional District Judge Dhirkot dated 24-7-2009, whereby the judgment and decree passed by learned Civil Judge Dhirkot dated 31-3-2008 has been maintained.

2. Necessary facts culminating into the instant appeal are that Muhammad Manzoor Khan, appellant herein, filed a declaratory suit in the Court of Civil Judge Dhirkot stating therein that he is in possession of the suit land since his forefathers. The appellant claimed that he is in possession of land under survey No.178 measuring 15 kanals situated in village Bathara Tehsil Dhirkot since the year 1980 BK. It has also been alleged that the suit land remained in possession of the appellant's father since the year 1980 BK, and after death of his father, the appellant/ plaintiff remained in continuous possession of the suit land, so, per his request, he is entitled to a decree for adverse possession on the basis of 60 years' possession. Learned Civil Judge, after due process of law, dismissed the suit being filed without cause of action and for want of proof. Feeling aggrieved, appellant herein, preferred an appeal before learned Additional District Judge Dhirkot, which also met the same fate. Hence the instant second appeal.

3. Appellant through his written arguments has contended that suit land is under the adverse possession of the appellant for more than 60 years right from his father-in-law and the appellant has made improvements over the suit land. In the year 1980 respondents moved for ejectment of the appellant but appellant declared himself as adverse possessor. Learned counsel relied on the statement of Sadar Qanun-Go regarding the refusal of adverse possession and perpetual injunction. It has been stated that subordinate Court framed issues but despite request, issue regarding perpetual injunction has not been framed, even learned Additional District Judge also did not frame any issue in this regard, which amounts to patent illegality, so, the judgments and decree passed by both the Courts below are liable to be remanded. It has been alleged that despite order of the Court official respondents/defendants did not produce any evidence which means that they admitted the claim of the appellant, whereas witnesses appearing on behalf of the private respondents also admitted possession of the appellant since his forefathers and improvements made thereon by the appellant. It has been contended that evidence produced on behalf of the appellant is quite sufficient to resolve the controversy at hand. It has also been alleged that the suit land has been known as Crown Land since Dogra era, thereafter it has been entered as shamilat deh land and in both the categories, appellant is entitled to the suit land. It has further been alleged that in view of statements of the witnesses produced on his behalf, the appellant is in continuous possession of the suit land since Dogra regime and thereafter from the year 1980 he is in adverse possession of the suit land and has improved the land in question in the sum of Rs.3,88,

500. Report of Local Commissioner alongwith report of Patwari Halqa Exh.CA dated 25-2-2008 has been referred in this regard, which has been rejected by the Courts below without any justification. Therefore, he is of the view that both the judgments and decrees are liable to be set aside. It was stated that both the Courts below have dismissed the suit of adverse possession filed by the appellant on the ground that law of adverse possession has been cancelled, whereas it is not correct. Law of Adverse Possession has been amended on 29-6-1992. Keeping in view the amended law, limitation of adverse possession on village common land has been provided as 36 years and Section 149-A has been added which is holding the field at the moment like Law of Land and has not been cancelled as yet. It has been mentioned that according to addition of 149-A, limitation of adverse possession has been fixed as 36 years instead of 60 years but the Courts below without taking into consideration this true position and law on the subject, dismissed the suit merely on surmises and conjectures. It has been stated that case of the appellant has sufficiently been proved through evidence, revenue record and law on the subject but learned courts below dismissed the suit as well as appeal without considering the same. It has been argued that witnesses appearing on behalf of the appellant have not been cross-examined. Law is abundantly clear on the subject that when witnesses are not cross-examined then it will be considered that claim of the party is admitted. It has also been alleged that both the Courts below have committed misreading and non-reading of evidence. Learned counsel for the appellant has referred to the following case law on the points like adverse possession, non-cross-examination of the witnesses, possession over the shamilat deh land till partition and misreading or non-reading of evidence etc.: (1) 2001 MLD 493, (2) 2012 MLD 1635, (3) 2002 MLD (AJ&K High Court) 1923, (4) 2003 YLR 2812, (5) 1982 CLC (SC AJ&K) 1309, (6) 2008 SCR 46, (7) SCR 2005 222, (8) 1982 CLC 1709, (9) 1980 1611 CLC at page 616, (10) PLD 1995 SC AJ&K 41, 56, (11) 2007 SCR 86, (12) PLD 1986 SC AJ&K 56, (13) 1992 SCMR 816, (14) 2001 CLC (SC AJ&K) 920 at 923-924, and (15) 2007 SCR 392 at page 397 C. Lastly, it has been requested that appeal may kindly be accepted with cost of the case.

4. I have gone through the written arguments submitted on behalf of the appellant. The respondents have already been proceeded ex-parte. A perusal of pleadings reveals that only proposition to be resolved by this Court is that:-- "Whether the appellant is entitled to decree of ownership on the basis of adverse possession, if not, what remedy the appellant is entitled to?"

5. The appellant, in the original suit has contended that he is in possession of the Wit land since his forefathers. The appellant claims possession of land under survey No.178 measuring 15 kanals situated in village Bathara Tehsil Dhirkot since the year 1980 BK. Para 02 of the plaint states that suit land remained in possession of the appellant's father since the year 1980 BK, and after death of his father, the appellant/plaintiff remained in continuous possession of the suit land, so, he is entitled to decree for adverse possession on the basis of 60 years' possession. When the appellant/plaintiff was invited to adduce evidence in support of his version, he recorded his statement before the trial Court on 12-1-2005 wherein he stated at the very outset in the following words:--

6. It is obvious that the appellant/plaintiff has recorded his statement as his own witness in conflict with his pleadings. As a matter of law, the evidence contrary to the pleadings cannot be read in favour of a party. 2003 SCR 292 is referred in this regard.

7. It may be stated here that possession of the land delivered to the appellant/plaintiff by his father-in-law may be treated as continuous and adverse in nature as well. In this context, learned counsel for the appellant has rightly relied on 2000 SCR

31. However, the fact remains that a party cannot be allowed to lead evidence in conflict with his pleadings. The evidence led by the appellant does not benefit him.

8. In order to claim adverse possession, the plaintiff has to prove that he has been in a continuous, open and hostile possession of the suit land for a specific period of time. On the one hand, the appellant has attached with his pleadings the only photostat copy of register khasragirdawari for the years 1989 to 1993 which obviously does not prove his possession for a period of 60 years or 36 years, as the case may be. On the other hand, the appellant/plaintiff has tried to prove his possession on the suit land through oral evidence which is not a substitute of the documentary evidence. It may also be stated here that none else than the appellant/plaintiff stated as witness the true prescription of the suit land. The appellant/plaintiff has, however, stated that he has been in possession of the suit land measuring 15 kanals but no other witness appearing on his behalf could even narrate, the quantum of the land in possession of the appellant/plaintiff. Although, statement of the appellant/plaintiff to the extent of quantum of the suit land i.e. 15 kanals is found in accordance with his pleadings, yet the claim stands negated by Local Commissioner appearing as witness on a direction issued by the First Appellate Court in its revisional jurisdiction. Mr. Abdul Ghafar Sharrar Advocate, Local Commissioner, appeared before the Court as witness on 25-2-2008. The report filed by the Local Commissioner forms part of record of the trial Court as Exh. CA. It may be mentioned here that learned Local Commissioner visited the suit land along with Patwari Halqa. The suit land was measured by Patwari Halqa in presence of the parties and respectables of the locality. Local Commissioner recorded statements of the witnesses present at the spot as well. Report filed by the Local Commissioner is supported by revenue record as well. The suit land under survey No.178 measures 150 kanals in the revenue record. However, in the recent settlement, this number khasra has been divided into 04 different survey numbers like 634, 639, 642/1 and

643. The Local Commissioner has reported that land under survey number (new) 642/1 measuring 04 kanals 13 marlas and khasra No.643, measuring 10 marlas is found in possession of the appellant/ plaintiff. So, total land found in possession of the appellant/plaintiff is 5 kanals 3 marlas. Local Commissioner has further reported about the developments raised by the appellant/plaintiff which comes to Rs.3,88,500 as per his estimation.

9. As stated earlier, an essential ingredient of adverse possession is that the plaintiff should have a continuous and hostile possession on the suit land. Record of the trial Court shows that the appellant/plaintiff has been ejected from the suit land on 26-5-1996. The fact of ejectment has been endorsed in the revenue record with red ink as well. It is worth mentioning that the appellant/plaintiff claims that proceedings of his ejectment from the suit land are fake and fictitious, however, evidence led on behalf of the respondents/defendants shows that the appellant/ plaintiff was in fact dispossessed from the suit land. Abdul Qadeer Naib Sadar Qanun-Go, as witness, has verified that the appellant/plaintiff has been ejected from the suit land measuring 04 kanals 12 marlas on 26-5-1996. The fact is further substantiated by a revision petition filed by appellant herein before Collector District Bagh filed on 26-6-1996. However, learned Collector District Bagh dismissed the revision petition filed before him for the reason that matter is already subjudice before the civil Court. Muhammad Rasheed Khan one of the defendants has stated as witness in the following words:-- The aforementioned statement of the witness amply verifies that the appellant/plaintiff has been dispossessed from the suit land on an initiation of inhabitants of the locality. The appellant/plaintiff filed his suit before the trial Court on 5-6-1996 i.e. after his ejectment from the suit land. So, it can safely be concluded that the appellant/plaintiff was not in continuous possession of the suit land at the time of institution of the suit. The suit of the appellant/plaintiff, thus, lacks an essential ingredient of adverse possession. Any further discussion on the point is, therefore, avoided in view of the aforementioned situation.

10. Now, the question arises that as to whether the appellant/plaintiff is entitled to any remedy or not? It reflects from the record that after his ejectment from the suit land to the extent of 04 kanals 13 marlas, the appellant/plaintiff has regained possession of the suit land. Latest situation regarding possession on the suit land reveals out of the report submitted by the Local Commissioner. It may be reiterated here that learned Local Commissioner made a spot inspection with the help of Patwari concerned and the land in question was measured by the Patwari in presence of the parties and respectables of the locality. The report Exh.CA shows that appellant/plaintiff is in possession of 02 new survey Nos.642/1 and 643 of old number khasra

178. The appellant is stated to be found in possession of the land measuring 05 kanals 03 marlas in total. The suit land is admittedly shamilat-deh land and has been recorded as such in the revenue record. A copy of Misl-e-Haqeat for the year 1995-96 of village Bathara Tehsil Dhirkot further reveals that Manawar Khan was a co-sharer in survey Nos.172 and

173. The appellant/plaintiff claims that possession of the suit land had been delivered to him by Manawar Khan who happened to be his father-in-law, therefore, title of the appellant towards his share in shamilat deh land has to be ascertained by the revenue authorities. However, as a principle of law, a co-sharer cannot be dispossessed from the shamilat deh land until it is partitioned by the revenue authorities by metes and bounds. This view finds support from 2001 CLC

920. The cited case titled "Fojdar Khan and another v. Azad Govt. and 04 others" amply explains the situation. Relevant extract of the case would be useful for proper appreciation of the matter, which is as under:-- "Thus, there is no dispute between the parties that the land which is in possession of the appellants is `shamilat deh' land. There is hardly any quarrel with the proposition that all the owners in the estate are co- sharers in the `shamilat deh' land. Thus, a co-sharer in 'shamilat deh' land who is in possession of the same in excess of his fractional share cannot be ejected therefrom without the partition of the same by metes and bound. A reference may be made to the cases reported as Ahmed Miaji v. Eakhub Ali Munshi [PLD 1961 Dacca 259], Muhammad Muzaffar Khan v. Muhammad Yusuf Khan [PLD 1959 SC (Pak.) 9], Feroze v. Sher [PLD 1985 SC 254] and Muhammad Zubair v. Syed Zakir Hussain Shah [1996 CLC 275] in support of aforesaid view." Upshot of the above discussion is that appellant/ plaintiff could not prove his title to the suit land on the basis of adverse possession. However, he is found in possession of the suit land to the extent of new khasra number 642/1 measuring 04 kanals 13 marlas and khasra No.643, 10 marlas, total measuring 05 kanals 03 marlas in village Bathara Tehsil Dhirkot. Right of the appellant towards Shamilat Deh has to be ascertained by the revenue authorities. The appellant/plaintiff cannot be ejected from the land unless it is partitioned by the revenue authorities by metes and bounds. Suit of the appellant/plaintiff is, therefore, decreed in the tone that the appellant/plaintiff shall not be dispossessed from the land measuring 05 kanals 03 marlas until it is partitioned in accordance with law. The appeal is disposed of in the manners indicated above. ZC/36/HC(AJ&K) Order accordingly.