P L D 1954 Lahore 356 (PLP)

KAIKAUS, J.‑This judgment will dispose of Regular Second Appeals Nos. 230 and 231 of 1951. They are both cases in which proprietors to whom Shamilat was allotted on partition filed suits for possession against persons who `were already in possession of the land. On account of similarity of questions involved both the suits were tried together by the learned Sub‑Judge and on appeal also they were dealt with by one judgment. The suits were decreed by the trial Court. On appeal both the suits were dismissed and these appeals have been filed by the plaintiffs. The case for the plaintiffs in both cases is simple. They were the owners of the land which had been allotted to them on partition in 1938, before that the land being Shamilat of village Soda, Tehsil Khushab. The defendants were alleged to be unlawfully in possession. The defendants took pleas which will become apparent from the following issues which were framed:‑

1. Are not the plaintiffs the owners of the land in suit ?

2. Whether the plaintiffs have remained in possession of the suit land within 12 years before the date of the suit ?

3. If not, what is its effect or the suit ?

4. Have the defendants acquired adverse title in the land in dispute by prescription?

5. Have the defendants acquired occupancy rights in the land ?

6. Has the Civil Court jurisdiction to entertain and decide the plea in issue No. 5 ?

7. Relief Ownership of plaintiffs was held proved by the unrebutted entry in the record of rights and the finding has not been challenged before me on behalf of defendant‑respondents. The important question to be decided in both cases was the nature of defendants' possession. Entries in revenue records showed that up to 1922‑23 the land was in the possession of the owners of the Shamilat. From 1926‑27 the defendants or their predecessors‑in‑interest were shown in cultivating possession of the land. The entry in the cultivation column was ghair maurusi and in the column of rent nakdi‑ba sharah malikan bila malikana. This entry continued from 1926 up to the dates of the suits. It had been argued before the learned trial judge that the defendants were tenants. On a con sideration of the entries as well as other circumstances to which I will refer later the trial Court came to the conclusion that the original status of the defendants was in fact that of tenants. On appeal the learned Senior Sub‑Judge refused to hold that the defendants were tenants mainly on the ground that no such allegation had been made in the plaint. On second appeal the cases were at first argued before Cornelius J. He was of opinion that under the circumstances it will not be proper to debar the plaintiffs from arguing that the defendants were in fact tenants and he allowed the plaintiffs by his order dated 14th of July 1952 to amend the plaints so as to include the allegation that the defendants were tenants of the plaintiffs. In accordance with that order both the plaints have now been amended and in both there is an allegation that the original status of the defendants was that of tenants although at the time of the suits they are stated to be in possession without right. New written statements have been filed in both cases. From them only one additional issue has arisen and that is whether the Civil Court has no jurisdiction to try the suit. It will be observed that in issue No. 6 there was a reference to the question of jurisdiction but that related only to the decision of the question of occupancy rights and not to the whole suit. So far as the allegation about the defendants being tenants is concerned it does not require to be incorpo rated in any new issue for it is covered by the issues already framed. The necessity for the amendment in this respect arose only because without such an allegation it was not considered proper to allow the plaintiffs to urge that the possession of the defendants was permissive in origin. The parties have stated before me that they do not want to lead any further evidence. The decision of the case so far as the pleas of limitation and adverse possession are concerned depends upon whether under the circumstances it is proved that the defendants were originally tenants. The plaintiffs rely upon the entry as ghair maurusi which has consistently existed from 1926 up to the dates of the suits. Learned counsel for the plaintiff appellants urges that a presumption should be raised that their status is that of tenants. The entry in the rent column nakdi ba‑sharah malikan bila malikana is according to him of no help to the defendants because it is open to the parties to agree that only land revenue should be paid as rent. There are two other circumstances on which he places reliance. One is that in the wajib‑ul‑arzes of this village which have been exhibited as p. 3 and p. 4 and relate to the Settlements of 1891‑92 and 1913‑14 it is stated that all persons who not being owners of the Shamilat were cultivating the Shamilat did so with express permission and license of the proprietors and were paying only land revenue as rent. The second circumstance relied upon is that the defendants themselves took the plea that they were occupancy tenants which according to the learned counsel shows that there is no intention on their part to assert adverse possession as owners. In support of the argument that as the words ghair maurusi is entered in the cultivation column the presumption is that the defendants are tenants, learned counsel for the appellants has cited 1932 Lah. 586 1936 Lah. 741, 1936 Lah. 461 and 1930 Lah.

991. On the other hand, for the proposition that the entry ghair maurusi in the cultivation column does not necessarily refer to a tenant, learned counsel for the respondents has cited 107 I C 779 and 1936 A I R

804. In my opinion, the entries, as they stand, are consistent with the position of the plaintiffs as well as that of the defendants. It cannot be denied that by itself the entry 'ghair maurusi' does not necessarily imply that the person so described is a tenant. The Patwari uses these words for every person who is in possession without any right or title. The A entries in the cultivation column are always to he read along with the entries in the rent column as pointed out in 1928 Lah.

147. Here the entry in the lagan column is nakdi‑ba‑sharah malikan bila malikana. The difficulty in interpretation in the present case arises out of the fact that the Patwari would be using this expression in a case where a tenant is paying only land revenue as well as in a case where a person's possession is without any right or title. There is no doubt that generally when a person is in possession on an assertion of hostile title or unlawfully the Patwari will use some such expression as batasawar malkiat khud, bawajah gabza etc., but the use of such expressions is not necessary and it does sometimes happen that even in the case of a person in adverse possession the Patwari uses only the words which have been used in the present case. The authorities cited are not very helpful and I will refer only to three of them. In 1932 Lah. 586 it will appear from the bottom of page 586 and the top of page 590 that in the rent column the word tenant had been used. It had been stated in the column of rent that the `tenant' was paying no rent beyond the land revenue and cesses. That is not the case here. 1936 Lah. 741 does not make clear as to what exactly was the entry in the column of rent. It simply says "the entries do not show payment of any rent". The case proceeded on the assumption that the defendants were in fact tenants but had not been paying rent and it was held that non‑payment of rent did not amount to adverse possession. In 1936 Lah. 461 the entry in the column of rent was "the same amount is paid as rent as is paid by the landlords as land revenue". That would show that there was a relationship of landlord and tenant between the parties. It makes no difference that the amount of rent is the same as land revenue and cesses. The learned judge who decided the case recognized that entry as ghair maurusi does not necessarily imply tenancy but held that in the case before him there was something more than that entry. We sometimes find an argument similar to that used in 1936 Lah. 741 being employed in other cases namely that non-payment of rent does not put an end to the tenancy. To that argument there can be no objection at all but the real question which is to be decided in cases like the present is not whether non‑payment of rent puts an end to the tenancy but what is the interpretation of the entry in the revenue records. As I have said above the present entry is consistent with the defendants being tenants as welt as being in possession on their own behalf. The proper approach therefore: in such cases is to consider the other circumstances of the case in order to determine the interpretation of the entry. Here the land which was the subject‑matter of dispute was Shamilat land. The defendants are non‑proprietors. There is an entry in the wajib‑ul‑arz that non‑proprietors may take the Shamilat and cultivate it and they would only have to pay land revenue, The village had a huge Shamilat which the proprietors wanted to be broken up and cultivated. They gave a general permission to the non‑proprietors to cultivate the Shamilat on payment only of the land revenue. If under these circum stances a non‑proprietor entered into possession and began paying land revenue what would be the presumption? It would be that he availed of the general permission. Of course the defendants could plead special circumstances alleging possession by force or against the will of the proprietors. No such case is made out on behalf of the defendants. On the other hand, they are pleading acquisition of occupancy rights. One may also consider the fact that tea take possession by permission or agreement is the normal course in which posses sion is taken. If it was taken unlawfully there would ordinarily be sonic particular event connected with it. The learned District Judge has excluded the wajib‑ul‑arz from consideration on the ground that it represents a unilateral act of the proprietors and is not binding on the nor- proprietors. There is no doubt that it is not binding on them, Entries in a wajib‑ul‑arz may be of two kinds. They may be statements of local custom or usage or they may be recitals off agreements. As statements of custom or usage they are strong evidence of the existence of such custom nr usage but they have only an evidentiary value. Agreements incorporated in the wajib‑ul‑arz are however binding but only on the parties to the agreements, and even in such cases it is open to a party to‑prove that in fact no such agreement was entered into though the task' would be difficult. In the present case the defendants not being parties to the wajib‑ul‑arz are not bound by it but the circumstance that the proprietors has: agreed to grant this general permission is itself a relevant fact I have no hesitation in holding that in the present case it will h‑ a proper inference from the entry that the defendants originally entered into possession as tenants. There is no material on the record which may rebut the inference raises by this entry. I would, therefore, hold that the suit is within limitation and that the defendants have not proved their adverse possession. Two other points are to be considered. The first is whether the Civil Court has no jurisdiction to try these suits. The basis of this plea is that the defendants being tenants they can only be dispossessed through a Revenue Court. It is not however the case of the plaintiffs that the defendants were at the date of the suits tenants. The allegation is that they were originally non‑occupancy tenants. They have repudiated their status as tenants. It was open to the plaintiffs to accept this and the plaintiffs have accepted it. The result is that at the time when the suit is filed the defendants are not tenants of the plaintiffs. There is a statement in the plaint that the present possession of the defendants is unlawful. As held in 236 P L R 1911 a stilt is under these circumstances cognizable by a Civil Court. The next question to be decided is whether, even if the whole suit be cognizable by the Civil Court, the decision as to acquisition of occupancy rights is a matter within the special Jurisdiction of the Revenue Court so that under the proviso to section 77 of the Punjab Tenancy Act the suit should be sent to the Collector. It is not necessary to discuss this matter at length for the present case is directly covered by the Full Bench decision in 1942 Lah.

217. It was held in that case that the Civil Court is not debarred from deciding the question of acquisition of occupancy rights when the relationship of landlord and tenant between the parties to the suit is not admitted. In the present case such relationship is not admitted and the Civil Court has jurisdiction to try the suit. On the merits there is nothing in the plea of acquisition of occupancy rights. The defendants have been in possession only since 1926 and there is no provision of law which would under the circumstances confer occupancy rights on them. In fact the point has not been pressed before me. Both the appeals are accepted and the suits decreed but the parties are left to bear their own costs throughout. A. H. Appeals accepted.