1993 PLP 2330 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This petition for leave to appeal by the legal representatives of a defendant, namely, Gul Muhammad in a suit for possession, is directed against the acceptance of the respondents' revision by the High Court, resulting in setting aside the judgment and decree of the First Appellate Court and restoration of that of the trial Court.

2. The suit related to land measuring 8 Kanals, 1 Marla, bearing Khasra ado. 2678, situate in village Tangi Barazai, Tehsil and District Charsadda. The deceased resisted the suit and claimed adverse' possession. This claim was founded on the entries in the Lagan column to the effect "Bila Lagan Bawaja nabza" of Jamabandi for the year 1941‑42 and followed in subsequent Jamabandis. The trial Court held that though the deceased occupied the land "Bila Lagan Bawaja Qabza", but as a tenant. It thus discarded the plea of adverse possession and decreed the suit. The First Appellate Court maintained that there was nothing in the revenue record to show that the deceased entered upon the land as a tenant on a payment of Batai. On the basis of the entry of "Bila Lagan Bawaja Qabza", the Appellate Court accepted the deceased's 'adverse possession over the suit land and dismissed the suit. However, in revision the High Court relying on Said Amir and others v. Ashraf Khan and others (PLD 1986 SC 113) observed: "

When there is conflict between the entries of cultivation column where the person in possession is shown as tenant‑at‑will and the rent column where the nature of his possession is shown "Bila lagan bawajan qabza" the entries of cultivation column have priority over the rent column inasmuch as mere non‑payment of rent cannot covert the permissive possession in to hostile one, on the well‑established principle of law that `once a tenant always a tenant' and so long as the tenant does not surrender possession to the owner and thereafter regain it in his own right his possession shall be deemed permissive for how long so over he continues in such possession. Consequently the possession of deceased defendant No.1 over part of the suit land cannot be considered as adverse to confer prescriptive title upon him. Additionally he has lost possession since long in view of the entries of the Khasra Girdawari supported by his own admission and in this view of the matter he ' cannot claim any right in the suit land at the moment."

3. We have heard the learned counsel for the parties and perused the record. As regards the petitioner's status, in the Jamabandis for the years 1951‑52, 1955‑56,1959‑60, 1963‑64, 1967‑68 and 1971‑72 the name of Gul Muhammad deceased appears in the, column relating to cultivation as "Ghair Dakhilkar" in half of the land on Northern side; though the entry as to "Bila Lagan Bawaja Qabza" exists in the Lagan column. The position in the other Jamabandis is almost the same. It is not disputed that in the revenue record the respondents‑plaintiffs are recorded as owner of the land.

4. We entirely agree with the view taken by the High Court. The entries in the Lagan column are to be read alongwith the entries in the cultivation column, wherein the status of the petitioners' predecessor‑in‑interest is shown as tenant‑at‑will. The entry "Bila Lagan Bawaja Qabza" by itself is not sufficient to infer that the possession is necessarily adverse to the real owners. Mere non payment of rent is not proof of acquisition of tide through adverse possession. The entry in question is, therefore, of no avail to the petitioner as evidence of adverse possession. See Lala v. Mst. Jante (1968 SCMR 131) and Muhammad and others v. Salehon (PLD 1955 Lah. 483).

5. The impugned judgment is in conformity with the rule laid down by this Court in Lala v. Mst. Jante and Said Amir v. Ashraf Khan. The First Appellate Court was wrong to interfere with the trial Court's judgment. There is no merit in this petition. The leave prayed for is declined and the petition dismissed. AA./G‑408/S Leave refused.