P L D 1966 (W (PLP)

Raja Said Akbar Khan for Respondents. Date of hearing: 28th February 1966. This is a second appeal by the plaintiffs against the judgment and decree dated 12‑6‑56 of the Additional District Judge, Jhang in Civil Appeal No. 83 of 1955 whereby he reversed the judgment of the Senior Civil Judge, Jhang in Suit No. 382/54, whereby the learned Judge had decreed the plaintiffs' suit.

2. The plaintiffs had sued for a declaration that they are the owners of half of the land measuring 511 kanals 11 marlas situated in village Kot Murad at Chah Kotalewala and that the exchange effected by the defendants 1 to 5 with defendant No. 8 in respect of the entire land including the half share of the plaintiffs was of no effect in so far as the rights of the plaintiffs were concerned. Half of the aforesaid land was jointly owned and possessed by the plaintiffs Hidayat 'and Inayat, father of plaintiffs Nos. 2 to 4 on the one hand and Nurang, the predecessor‑in‑title of the defendants on the other. Nurang thus owned the other half of the land. The case of the plaintiffs is that Nurang with the aid of the Patwari of the village managed to obtain a mutation on 17‑4‑1902 whereby Hidayat and Inayat's names were removed from the record of rights and they were excluded on the ground of their being out of possession. When this fact was known Inayat and‑Hidayat declared that they were going to take proceedings against the said mutation, whereupon there was a Punchayat and Nurang persuaded Hidayat and Inayat not to go to Court and that he was prepared to enter into a written agreement admitting that the mutation was wrong and that Hidayat and Inayat would continue to get their shares of the produce of the land and they shall thus continue to be in A possession. It may be stated that it is an admitted position that the land was not cultivated by either of the parties and it was throughout under cultivation by tenants. Hidayat and Inayat were absentee landlords and it was suggested that it was for this reason that Nurang had been able to obtain an ex pane mutation entry effected in his favour excluding those two persons. Upon Nurang's assurance as stated above an agreement was executed by Nurang on 14‑5‑1902, that is less than a month after the said mutation in which Nurang admitted that the land in Chah Kotalewala village Kot Murad was a joint property of his, Hidayat and Inayat sons of Sher and that these two brothers and Nurang had been taking its produce half and half; that by mistake the mutation of the whole of the land had been entered in his name but since they are close relations they do not want the matter to go to Court. He then went on to add that he was thereby acknowledging in the presence of the witnesses that Hidayat and Inayat were the half owners of the land and they will continue to be so and that they will share the produce half and half. It was added that he (Nuran.g) and his heirs would always be bound by this iqrar nama. The scribe of this document was Habibullah who was examined in this case and it was executed by Nurang and was signed by three witnesses.

3. On 13‑5‑53 the defendants 1 to 5 for themselves and other defendants who were successors‑in‑interest of Nurang effected an exchange of suit land with the defendant No. 8 by mutation No. 387 dated 13‑5‑

53. It was then that the plaintiffs who included Hidayat and three sons of Inayat, brought the present suit on 3‑5‑53 claiming the reliefs as stated earlier.

4. The defendants in their written statement expressed their ignorance about the ownership of the defendants of the half share in the land in suit but they went on to add that they have never occupied that land or got its produce. They further expressed their ignorance in respect of the agreement and added that they had never acted upon it. It was further averred that the plaintiffs' suit was barred by time.

5. The plaintiffs examined as many as 9 witnesses, most of whom were from Kot Murad, the village where the laud in dispute was situated. They also proved the agreement by examining Habibullah, the scribe who at the time of giving evidence was aged about 105 years and Imam Bux, one of the witnesses who had attested the document, Exh. P/1. The scribe as well as the two attesting witnesses of this document, namely Imam Bux and Pahelwan, son of Shahadat were examined and they described the circumstances in which this document was executed by Nurang. They further stated that this agreement was acted upon and Inayat and Hidayat and thereafter Inayat's sons had been getting half the share of the produce of the land and thus continued to be in possession in accordance with Exh. P/1 Sultan P. W. 4 stated that he also belongs to Kot Murad and that his father and grandfather have been cultivating the suit land and the plaintiffs as well as the defendants have been getting its produce in equal shares. Muhammad, P. W. 5, who is a carpenter belongs to Kot Murad and he stated that he had been repairing the well in the suit land and the plaintiffs and the defendants had been getting the produce of the land in suit equally. P. W. 6, Waryam, P. W. 7 Mahmood and P. W. 8, all of whom belong to the same village have also deposed to the same effect. P. W. 9 Bahadur stated that he has lived for 9 years in Kot Murad and that the plaintiffs arid the defendants have been in possession of the suit land and had been getting the produce of it in equal share. As against all this evidence two of the defendants examined themselves in support of their stand in the written statement. They were not able to produce a single witness from the village Kot Murad to counter the evidence led by the plaintiffs of a large number of the witnesses of that village, many of them being very old men who proved the agreement, Exh. P/1 and the continued sharing of produce by the plaintiffs. They, however, relied mainly upon the entries in the Khasra Girdawari and Jamabandi, in which no doubt the name of Nurang had continued notwithstanding the agreement, Exh. P/1 and thereafter his successors‑in‑interest.

6. The learned Senior Civil Judge in a very carefully written judgment held that the plaintiffs were owners of half of the land in dispute. He further held that the iqrar nama, Exh. P/l, was executed by Nurang in the presence of the witnesses, who were examined and that it was throughout acted upon and the plaintiffs had continued to get their share of the produce and had been thus in joint possession. He further held that notwithstanding the entries in the revenue records the possession of the plaintiffs continued and that there had been no disclaimer by the other side. He cited a number of decisions in support of his conclusion that exclusive occupation by one co‑sharer of a portion of a joint property does not constitute an ouster of the other co‑sharers. He thus held that the plaintiffs were in possession, their cause of action arose when the exchange of land was effected in 1953 and the suit being governed by Article 120 of the Limitation Act was well within time.

7. In the appeal by the defendants the learned Additional District Judge held that the agreement, Exh. P/l, was proved and he believed the witnesses who had deposed in respect of the agreement arrived at between the parties and the execution and attestation of the document. He held that there was no reason why these witnesses should depose against the defendants and that in his opinion the agreement was executed by Nurang. He, however, went on to hold that mere admission on the part of Nurang did not create any right or title into the plaintiffs and if the possession of Inayat and Hidayat is not proved the plaintiffs would be out of Court. He then went on to observe that there was no documentary evidence on the record to show that Inayat or Hidayat were in possession of the land in dispute and according to the document the possession continued of Nurang even after his admission in Exh. P/l. He pointed out that Nurang and thereafter the defendants were recorded as owners in the Jamabandi which carries a presumption of correctness and that in the Khasra Girdawari also it is they who were mentioned and not the plaintiffs. He observed as to why the plaintiffs had not taken any steps to take actual possession of the land in dispute and as to why the agreement, Exh. P/1, was not produced before any Revenue Court so that the record could be corrected with regard to the mass of oral evidence he observed that in the first place he was not convinced by the evidence produced by the plaintiffs that they were in possession of the land in dispute and that the mere admission on the part of Nurang did not create the ownership of the plaintiffs. He then went on to record his conclusion that in his opinion the plaintiffs had not been able to rebut the presumption of the entry in the Jamabandi which was in favour of the defendants. Upon these con clusions he found that the plaintiffs had failed to prove their possession as well as their ownership with‑ respect to the land in dispute. On the question of limitation he held that if the plaintiffs are proved to be owners of half the land in dispute the suit would be within time. However, in view of his finding that the plaintiffs were not actually in possession of the suit land and as they had not proved that they were owners, the suit for declaration would not be maintainable and would be barred by time. He accordingly allowed the appeal and set aside the decree passed by the trial Court.

8. I have heard Mr. Ghias Muhammad for the appellants and Raja Said Akbar for the respondents and after having given my careful consideration have reached the irresistible conclusion that the judgment of the lower appellate Court cannot be sustained. There are certain patent facts and from which inescapable inference follows and which, have been ignored by learned Additional District Judge whose whole approach to the case, was determined by the presence of the revenue entries in favour of the defendants. That Inayat and Hidayat were co -sharers with Nurang in the land in dispute had not been specifically denied and indeed was shown by the mutation entry itself upon which the defendants had relied and by which the names of Hidayat and Inayat had been removed. 1n that mutation entry bearing No. 223 sanctioned on 2‑4‑1902 in columns 1 to 7 which were the copies of the previous Jamabandi it was shown that Inayat and Hidayat sons of Sher were owners of equal share in the suit land. No doubt, in the said mutation the names of Hidayat anal Inayat were removed as being absentees and thereafter the name of Nurang was entered as the sole owner. Accordingly entries in the Jamabandi were also made. If the matter had rested there, there can be no doubt that the learned District Judge's observation that the continued presence of the name of the defendants in the revenue records and the absence there from of the plaintiffs would almost be a decisive evidence against the latter. But the fact is that the matter did not rest there and within one month of this mutation entry an agreement was executed by Nurang in which he admitted that the mutation entry was wrong and that he fully acknowledged the half share of the two brothers Hidayat and Inayat and they had been in possession and that they shall continue to get the half share of the produce. The learned Additional District Judge has held this document to be proved and it must, therefore, follow that the mutation on the basis of which all subsequent entries in the Jamabandi followed was clearly rebutted by Exh. P/1 by which Nurang himself admitted that that entry was wrong and that it did not affect the rights of Hidayat and Inayat. After this admission there would have to be very strong evidence of ouster of Hidayat and Inayat. This ouster cannot be established merely or necessarily by the entries in the revenue records. They are certainly an important piece of evidence but like all other evidence they can be countered. There is no reason why after having taken strong exception to the mutation and having succeeded in obtaining the agreement from Nurang, the two brothers would then fail to take its advantage and forget all about it. Raja Said Akbar very forcefully argued as to why the entries in the revenue records were not altered as a result of this agreement. I agree that the proper thing to do would have been to have the entries corrected, but the mere absence of it does not destroy the admitted right of Hidayat and Inayat in the land in suit, in respect of which a hostile act, i.e., the exclusion of their name in the said mutation was promptly objected to by them and the wrong was redressed by an unqualified admission of Nurang in whose favour the entries had been created and who admitted that this had been wrongly done. When that mutation took place either Hidayat and Inayat should have challenged it in Court or obtain an agreement with Nurang as to the incorrectness of that mutation. If they were able to obtain it from Nurang they could legitimately rest content that the agreement would be honestly carried out and that they need not bother about any further proceedings before the Revenue Authorities. It is important to remember that both Hidayat and Inayat were absentee landlords and the land itself was not in cultivation by Nurang. Considering that it was being cultivated by the tenants the constructive possession would continue to be that of the two brothers and Nurang and‑if they got the produce of the land they would feel satisfied. Even the possession of Nurang, so long there was not an ouster or disclaimer and such disclaimer as was constituted by the mutation having been set at naught by Nurang himself, would still enure as joint possession of co‑sharers for the benefit of Hidayat and Inayat.

9. Raja Said Akbar naturally argued that the finding of the learned Additional District Judge that the plaintiffs who were not in possession was one of fact and should not be disturbed in second appeal. This is certainly a weighty argument but, as I have shown earlier in this judgment, the whole approach of the learned Additional District Judge was wrong. He took the revenue entries as sacrosanct and even though he had held that the agreement had been proved he still went onto hold that the presumption arising from the Jamabandi had not been rebutted by oral evidence. That approach was clearly wrong and it vitiates the finding on the question of possession. The learned Additional District Judge should have seen that the main basis of the defendants' case which lay in the mutation of 1902 had been effectively rebutted and displaced by the agreement Exh. P/1. That being so he had to assess the merits of the oral evidence on the question of possession and the sharing of the produce by the plaintiffs. This he has simply not done. All that he has said is that in view of the revenue entries he cannot accept the bald oral statement of the witnesses. It is somewhat interesting to note that though the learned Additional District Judge believed Habibullah and Imam Bux, P. Ws. 2 & 3, and observed that there was nothing on the record to show that these witnesses were in any way interested in the plaintiffs or inimical towards the defendants, but he overlooked the fact that these witnesses had not merely deposed to the agreement, Exh. P/l, which they had scribed and attested respectively but they had also stated in detail that thereafter the rights of Inayat and Hidayat were throughout honoured and they received their half share of the produce and continued to be thus in possession. Having believed these witnesses he should have given good reasons for discarding this part of the evidence. He has not even attempted it. I have myself gone through the oral evidence because the learned Additional District Judge had neither discussed it nor said a word against it except this that this was against the entries in the revenue records and thus it failed to rebut the presumption accruing from the former. As has been pointed out by the learned trial Judge the defendants were not able to get even a single witness from Kot Murad to support their case that they were in exclusive possession or that Hidayat and Inayat or the latter's sons have had nothing to do with the land. The evidence of the persons who had cultivated the land for generations was not even mentioned by the learned Additional District Judge. His whole attitude was settled because of the entries in the revenue records. But an adverse entry in the record‑of‑tights even if allowed to remain unchallenged does not necessarily provide irrebuttable evidence of the extinguishment of the right of the party against whom such entry had been made. It was so held in the case reported in Fateh Ali Shah v. Muhammad Bux (A I R 1928 Lah. 516). In fact, having regard to the provisions under which these records‑of‑right are maintained and corrected this position of law is indisputable. I am, therefore, of the opinion that since the learned Additional District Judge held against the plaintiffs on the question of possession only because the oral evidence could not be accepted in the face of the entries in these records and that that oral evidence had not succeeded in rebutting the entries and while reaching this conclusion he did not take into consideration the effect of the agreement, Exh. P/1 and did not deal with the oral evidence on merits, his finding .on the question of possession must be held to be vitiated. Upon the basis of that evidence and the agreement, Exh. P/1 and in the absence of any evidence of ouster or disclaimer I hold that the plaintiffs' right continued and was not extinguished either by mutation or by adverse possession and in so far as the plaintiff's were getting their share of produce they continued to be in possession. The, suit was, therefore, neither barred by Limitation.

10. In view of these findings I set aside the judgment and decree passed by the learned Additional District Judge in appeal and restore the judgment and decree passed by the trial Court: In the result the plaintiffs' suit is decreed with costs. K. M. A. Appeal accepted.