2001 PLP 1862 (YLR)

Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522; Muhammad Umran v. Malik Aman 1979 SCMR 481; Khanpur and others v. Muhammad Zarin PLD 1989 SC 485; AIR 1971 SC '996; AIR 1923 PC 118; Shamshad v. Mukammil Shah 1984 SCMR 912 and Mehrab Shah v. Shah Zaman 1985 SCMR 497 ref. PLD 1954 Lah. 365; AIR 1929 Cal.218 and AIR 1928 Lah. 896 distinguished. Syed Muhammad Kaleem Ahmad Khursheed for Appellants. Muhammad Nawaz for Respondents. Date of hearing: 17th May, 2001. On 29-5-1970, the plaintiffs/appellants, filed a suit for possession with regard to the land measuring 26 Kanals 16 Marlas (detailed in the plaint), against the respondents, claiming the respondents to be the tenants under them. This suit was contested by the respondents, who did not admit the tenancy, rather claimed that they were in adverse possession and their title has matured on account of lapse of requisite period of time. Issues were framed, the parties were put to trial and the learned Civil Judge, while giving findings on Issues Nos.6 and 8, held that though the appellants are the owners of the suit property, but by efflux of time, the respondents have established their adverse possession. Consequently, suit for possession was dismissed. Aggrieved, the appellants, preferred an appeal, but the findings of the trial Court on the said issue of adverse possession have been upheld. Consequently, the appellants have been non suited by both the Courts below.

2. The learned counsel for the appellants contends that in the written statement, the respondents have not taken up the plea of adverse possession, therefore, they were not entitled to plead the case beyond scope of their written statement. Thus, any evidence led by the appellants to prove their so-called adverse possession was inadmissible and was liable to be ignored by the Courts below. It is further contended that in paragraph No.2 of the written statement, the respondents in clear terms have stated that Shahu son of Balu their predecessor-in -interest was the tenant under the Central Government as a non-occupancy tenant and the Central Government was further shown to be the tenants under the appellants, thus on account of this admission, they cannot set up the plea of adverse possession. It is also submitted that as per the Revenue Record since 1924-25, the names of the appellants appear in the relevant jamanbandi in column of ownership and in the column of cultivation, Central Government as also the respondents are shown as tenants. Therefore, a tenant or a sub-tenant, who is in' permissive possession of the property, can never claim the maturity of title on the basis of adverse possession. In support of his contentions, the learned counsel for the appellants has relied upon the cases reported Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522, Muhammad Umran v. Malik Aman, etc. 1979 SCMR 481, Khanpur and others v. Muhammad Zarin, etc. PLD 1989 SC 485; AIR 1971 SC 996, 1923 Privy Council 118, Shamshad, etc. v. Mukammil Shah Etc. 1984 SCMR 912, Mehrab Shah v. Shah Zaman, etc. 1985 SCMR 497.

3. Conversely, learned counsel for the respondents contends that as per entry in the jamabandis, since 1924-25, respondents are in possession of the suit property without payment of any rent by considering themselves to be the owners of the suit property, therefore, they have matured their title through prescription as provided by section 28 of the Limitation Act, 1908. Support is drawn from the judgments reported as PLD 1954 Lahore 365, AIR 1929 Calcutta 218 and AIR 1928 Lahore 896.

4. I have heard learned counsel for the parties and perused the record. From the ratio of the judgments, cited by the learned counsel for the appellant, it is clear that a person who asserts a title on account of adverse possession, has to establish on record that his title was hostile, open, peaceful qua the actual owner of the property; an overt act by which, the true owner put to a notice that the person in possession is claiming title adverse to him; mere non-payment of rent by tenant for any length, of time, would not constitute adverse possession on his part, when admittedly, he was under the permissive possession. Particularly, the judgment which is most apt and relevant for the purpose of present controversy is reported as 1984 SCMR 912, holding that "dispute as to ownership of land

Entries in jamabandis showing petitioners holding land "Bila Lagan Basharah Malkan" such entries were not amenable to interpretation that petitioners themselves were owner, particularly when in the same jamabandis name of others were duly entered in column of owner, whereas names of petitioners or of their predecessor -in-interest, were shown in column of tenant:" In the instant case, as per jamabandi, since 1924-25, 1967-68; which have been brought on record, by both the sides, the names of the appellants, appear in the column of ownership while Central Government and the respondents or their predecessor are shown to be tenant, thus being tenants or sub tenants of the appellants, the respondents were in permissive possession of the suit property and it is settled law that tenant cannot set up a title adverse to the actual owner of the property until and unless either possession is surrendered and unauthorized re-entry is made , or by an overt act it is established that the tenant from a particular point of time his asserted and set up the title adverse to the actual owner and the period of 12 years has lapsed since then. In the instant case, there is no sufficient material brought on the record by respondent to discharge the strict burden of proof to establish the above factum, specially, when in, the relevant column of the jamabandi, the appellants are shown to be the owners and the Central Government or the respondents as tenant, therefore, any entry in such jamanbandi showing that the respondents are not paying "lagan" and consider themselves to be the owners of the property, by itself is not sufficient to constitute an adverse possession. The judgments cited by the learned counsel for the respondent are distinguishable on their own facts and are inapplicable. Learned Courts below have absolutely misconstrued the evidence on the record and have failed to apply the correct law, which is enunciated in the judgment reported Shamshad etc. v. Mukammal Shah etc. (1984 SCMR 912), therefore, not only that the judgments and decrees impugned are the result of amiss in properly reading of the evidence, but bad for proper application of law, thus, cannot be sustained. In the light of above, by allowing this petition, the judgments and decrees of the Courts below are set aside, with the result that the suit of the appellants against the respondents is decreed as prayed for. No order as to costs. Q.M.H./M.A.K./A-259/L Appeal allowed.