P L D 1960 (W (PLP)

KAIKAUS, J.‑

This Letters Patent Appeal arises out of a suit for a permanent injunction relating to an alleged encroachment on a public way. Plaintiff in the‑suit is one Nazeer Ahmad who had filed this suit on behalf of himself and other inhabitants of village Shadi Dhamial, Tahsil and District Rawalpindi. The defendants are Muhammad Gulzar, Abuzar and Muhammad Manzur. The allegation is that a small lane which was connecting two streets has been included by the defendants in their courtyard and a door on one end of the lane and wall on the other end of the lane has been built. The relief claimed was an injunction for demolition of the wall and the door constructed by the defendants. The defendants denied the existence of any public way and alleged that the place in dispute was part of their courtyard. The only issue framed on the merits was Whether the disputed site marked ABCD on the plan Exh. C/1 is a public way existing since the days of the earliest Settlement and the plaintiff as also the other inhabitants of the village have a right of way over it ? The plaintiff made his own statement and produced four other witnesses in support of the allegation that the place in dispute was a public way. He, at the same time, produced a copy of the Khasra Abadi of the village of the year 1860. In this copy there was a way connecting two other streets and it was alleged that the place in dispute Was identical with the 'way shown in the Khasra Abadi. The witnesses for the plaintiff stated that they owned houses near the public way in dispute and they tried to connect themselves with the owners of the adjoining houses as mentioned in the Khasra and Shajra Abadi of 1860. The trial Court came to the conclusion that the place in dispute was identical with that shown in the Khasra Abadi of 1860 and, relying upon the plan as well as the evidence produced, decreed the suit. On appeal, the learned Senior Sub‑Judge came to the conclusion that the identity of the place in dispute with the lane shown in the Khasra Abadi, of 1860 was not established. As already stated, four witnesses had been produced by the plaintiff. Out of these, two, i.e. Muhammad Akbar and Jamal Din, were from the proprietary body. The learned Judge said that the pedigree table of these witnesses was available and he would not accept that they were in fact the descendants of the persons who owned houses adjoining the lane as shown in the Khasra Abadi of 1860 unless their pedigree‑tables were produced. The two other witnesses, Altaf Ali and Mahbub were not proprietors and their 'pedigree‑tables could not be produced, but the learned Senior Sub Judge said that he could not take their oral word. for being the descendants of the persons who lived in houses adjoining the lane as shown in the Khasra Abadi of 1860. In this way (he learned Senior Sub‑Judge rejected the whole of the evidence as to the identity of the place in dispute. This was the only point he discussed in the judgment, and finding the identity not estab lished, he accepted the appeal and dismissed the suit.

2. Against the decree of the Senior Sub‑Judge, an appeal was filed in the High Court. The learned Single Judge came to the conclusion that the finding of fact of the learned Senior Civil Judge was vitiated by his ignoring some evidence. The learned Single Judge himself came to the conclusion that the identity of the place in dispute with the lane shown in the Khasra Abadi of 1860 was established. Accepting the statements of the witnesses as to the existence of a public way, corroborated as they were by the Khasra Abadi of 1860, he allowed the appeal and decreed the plaintiff's suit. This is a Letters Patent Appeal by the defendants.

3. The first point urged on behalf of the appellants is that the Khasra and Shajra Abadi of the year 1860 are not legally admissible in evidence. Learned counsel says not only are they not part of the record of rights but they .do not fall under section 35 of the Evidence Act. It may be conceded at once that they are not part of any record of rights which may have been prepared in accordance with any law. They were prepared in the A year 1860 when there was no Land Revenue Act, the first Land Revenue Act having come into force in the year 1860. The point to consider is whether the documents do not even fall under section 35 of the Evidence Act. It will be convenient to reproduce here section 35 :‑ "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant, in the discharge of his official duty, or by any other persons in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." It will be observed that in accordance with this section an entry in any public or other official book, register or record is relevant if it was made by a public servant in the discharge of his official duty. That these Khasra and Shajra Abadi were prepared by public ser vants cannot be denied. They were prepared by revenue officials. If they were prepared in the discharge of their official duly, then they would fall under section 35, and it would be official duty if they were prepared under the orders of the Government. As already stated, there was no Land Revenue Act in force in the year 1860 and all revenue records were prepared under the direction of the Execute the Government. Settlements were being carried out just under the orders of the Executive Government without the existence of any particular enactment making a provision for them. The Settlements were needed for assessment of land revenue and for other collateral purposes. Learned counsel for the appellants cannot contend that unless there was a particular enactment under which the records were prepared, they would not fall under section

35. He only contends that there is no proof of the Government having ever issued any instructions that any Khasra and Shajra Abadi be prepared. The Patwaris and Qanungos, he says, may have been preparing these Shajra and Khasras on their own and in that case the preparation of these records would not be in the discharge of their official duty. So, the acceptance of the contention of learned counsel depends upon whether we can assume that the Khasra and Shajras were prepared without any directions to that effect from the Govern ment. Learned counsel says it is for the party who wants evidence to be accepted to prove all the facts necessary to show that the evidence is admissible, and, therefore, the respondents should established positively that directions had been issued by the Government relating to the preparation of the Shajra and Khasra Abadi. While we accept that it is for the party leading evidence to establish that the evidence is admissible, we do not agree that in this case there is any need for the respondents to lead evidence as to the issue of such directions because we can presume the existence of such directions under section 114 of the Evidence Act. These Shajras and Khasras were prepared in respect t of every village in the whole of the Punjab. It is impossible to accept that in the case of all the innumerable villages accidentally the Patwaris and Girdawars took into their heads to prepare Khasras and Shajras Abadi without any instructions from the Government, and if one looks at these Shajras and Khasras Abadi, it will be found that while they were prepared by the Patwaris and Girdawars, they bear signatures of higher officials also, i.e. the f Settlement Officer or some Assistant Settlement Officer or a Superintendent. Ordinarily a subordinate official will not under take a work of this nature unless he has received instructions to this effect, and when we see that Shajra and Khasra Abadi were prepared for every village in the Punjab, we can safely presume that this was done under the orders of the Government. Learned counsel for the appellants has relied on Mahtab Din v. Kasar Singh (A I R 1928 Lah.640) where a learned Judge of the Lahore High Court had not accepted that a Khasra or Shajra was an official record. With all respect, we are not prepared to agree with this view.

4. The second point raised on behalf of the appellants is that the learned Single Judge ha I no jurisdiction to set aside the finding of fact of the learned Senior Sub‑Judge who had held that the identity of the place in dispute was not proved. The learned Single Judge, we find, had disregarded the finding of fact on the ground that certain evidence led by the plaintiff had been ignored. After going through the record, we are unable to hold that any evidence had been ignored. However, there is one defect in the approach of the learned Senior Sub‑Judge which is patent on the record. The learned Senior Sub‑Judge appears to have considered that the only question he was called upon to decide was the identity of the place in dispute with the lane shown in the. Khasra Abadi of 1860. This assumption was unjustified. Substantially the case of the plaintiff was that the defendants had encroached upon a public way. Although in the plaint it had been alleged that the public way was one shown in a Settlement and this was even mentioned in the issue as framed, still it could not be said that the case of the plaintiffs rested entirely on the proof of the identity of land. The case put forward was one of the existence of a public way. The plaintiff had produced evidence not only with respect to the identity of the place in dispute with the land shown in the Khasra Abadi of .1860 but also as to the place in dispute being a public way. .Everyone of his witnesses had said that the place in dispute was a public way. The witnesses generally stated that since they attained the age of discretion, the place in dispute had been used as a public way. If these statements were accepted, it was not even necessary for the Court to give a finding as to the identity of the place in dispute. It is to be. remembered that we are dealing with a case of shamilat. The whole of the abadi of every village is by presumption shamilat. That is not a proposition, for which we need quote any authority, for it is well established. That part of ‑the abadi which is in the exclusive possession of any co‑sharer in the shamilat has to remain in his possession but any pact not in exclusive possession of any co‑sharer is subject to use by all. If at any time, a piece of land in the abadi has been left for use as a land it cannot be appropriated by any particular co‑sharer. In this view of the matter it was not necessary for the plaintiff's to prove the existence of a way for a long time. The learned Senior Sub‑Judge, even if he rejected the identity of the place in dispute with the land shown in the Khasra Abadi of 1860, should have considered whether on the evidence he was not prepared to hold that a public way existed in the place in dispute. We are of the opinion that the finding or the learned Senior Sub‑Judge as to fact was vitiated by his failure to consider the existence of a public way.

5. We have ourselves considered the evidence. We do not find it necessary to go into the details because it has been accepted by the learned Single Judge, but we may say that there does not appear to be any particular reason why .a false case should have been brought by the plaintiff alleging the courtyard of the defen dants to be a public way. No reason for bringing a false case has been suggested in the cross‑examination of the plaintiff's witnesses. This appeal is dismissed but there is no order as to costs of this appeal. Costs before the learned Single Judge and the lower Courts stand as directed by the learned Single Judge. K.M.A. Appeal dismissed.