1993 PLP 454 (CLC)

‑‑‑‑ Possession as tenant‑at‑will‑‑‑Such tenant was entitled to effect improvements over the land in question without seeking permission of owners if same were effected out of bona fide belief‑‑‑Plaintiffs having pleaded adverse possession over the land in question had failed to establish the time when improvements in question were effected by them; nor that same were effected with the consent of owners of suit land and even no cost of improvement was pleaded by them in their plaint or proved by leading evidence‑‑‑Plaintiffs were thus, not entitled to receive any cost of improvements from owners. (g) Limitation Act (IX of 1908)‑‑‑ ‑‑‑‑Art. 144‑‑‑Adverse possession‑‑‑Record‑of‑rights‑‑‑Entries‑‑‑Correctness of entries in record‑of‑rights had not been challenged by plaintiffs in the plaint or in the written statement which was filed by them in the cross‑suit filed by owners‑‑‑Admitted position, in the light of such entries was that plaintiffs (tenants) were holding possession of land in question, with the consent of true owners‑‑‑Plaintiffs were, thus, not entitled to decree of adverse possession in their favour on basis of record. Ghulam Mustafa Mughal for Appellants. Syed Ejaz Ali Gilani for Respondents. The appellants have sought indulgence of this Court by filing this second civil appeal against the judgment and decree of District Judge, Muzaffarabad dated 7th of November, 1988, whereby while accepting the appeal of the plaintiff‑respondents, the suit filed by them was decreed in their favour by vacating the judgment and decree of the trial Court dated December 28,1986.

2. The dispute pertained to land comprising Survey Nos.7, measuring 4 Kanals and 6 Marlas, 252 measuring 9 Kanals and 8 Marlas, 10 measuring 1 Kanal and 12 Marlas and 11 measuring 24 Kanals and 12 Marlas, total measuring 40 Kanals and 1 Marla, situate in village Namal, Tehsil and District Muzaffarabad. The plaintiff‑respondents brought a suit for declaration and injunction in the Court of Additional Sub‑Judge, Muzaffarabad on 14th of November, 1983, alleging therein that the suit land was entered in the revenue papers in the name of one Mst. Uzma, widow of Mehraj Din, whereas it was firstly under the possession of the fathers of the plaintiffs and after their deaths, the plaintiffs are in peaceful possession and enjoyment of the same thus their possession has matured into ownership by prescription, extinguishing the title of the defendant‑appellants.

3. A counter‑suit for possession on the basis of 'title was brought on 14th of November, 1983 by the plaintiff‑defendants before the same Court. As the parties and suit land were common, the trial Court consolidated both the suits and vide judgment dated 28th of November, 1986 decreed the suit of the appellants for possession, subject to the payment of costs of improvements to the contesting respondents, and dismissed the cross‑suit of the plaintiff respondents.

4. The parties assailed the decree through separate appeals before the District Judge, Muzaffarabad. The appellants assailed the judgment and decree of the trial Court so far as the same pertained to the awarding of costs of improvements whereas the contesting respondents through appeal, challenged the order of dismissal of their suit. The learned District Judge vide common order appeal dated the 7th of November, 1988, while accepting the appeal of the respondents, decreed their suit in their favour with respect to the suit land by holding that their possession over the suit land for more than 12 years has matured into ownership whereas the suit of the appellants for possession in consequence of the decree passed in favour of the respondents was dismissed.

5. Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants argued that the respondents had not pleaded in the plaint as on what date, they denied the ownership rights of the defendant‑appellants, nor they have proved by leading evidence that their hostile possession over the suit land was in the knowledge of the owners of the land. Therefore, mere length of possession spreading over 12 years was not a sufficient ground to grant decree for adverse possession in their favour. He relied on cases reported as PLD 1988 SC (AJ&K) 33, PLD 1989 SC (AJ&K) 339 and 1990 CLC 155.

6. In PLD 1988 SC (AJ&K) 33, it has been opined that entry of adverse possession in Revenue Record does not mean that the appellants are in adverse possession nor mere length of possession and non‑payment of rent makes a tenant in adverse possession.

7. As against this, Syed Eijaz Ali Gilani, the learned counsel for the respondents argued that the possession of the appellants over the suit land for more than 12 years is proved beyond any shadow of doubt. He further exphasized that improvements effected by raising construction of houses over the suit land is also an admitted fact. Moreover, the respondents have proved that they were utilizing the produce of the suit land by treating themselves as its owners. Therefore, the decree based on adverse possession was rightly allowed by the learned District Judge in their favour. In the alternative, he submitted that the appellants have failed to prove that they were in possession of the suit land within 12 years, therefore, they are not entitled to the decree of possession for want of limitation. The plaintiff‑respondents have not pleaded as to how and when their possession has become adverse. They have averred in para. 3 of their suit as under:‑‑

8. The plea of adverse possession being devoid of any moral consideration is required to be pleaded and proved strictly by leading cogent and positive evidence in its support. In the present case, it has not been pleaded in the plaint that as to how the possession was obtained by the ancestors of the plaintiff‑respondents and from what date they refused to acknowledge the proprietary rights of the true owners nor is there any evidence on record to this effect. All that the witnesses of respondents have deposed is to the effect that since long the suit land was in possession of the respondents. No witness has disclosed in Court testimony as to who was the owner of the suit land. Morevoer, neither any one of them has stated as to how the plaintiff respondents obtained possession of the suit land. In this view of the matter, the basic ingredients for adverse possession have not been proved whereas they were required to prove that their possession was: ‑ (i) hostile; (ii) continuous; and (iii) notorious, to the interests of the true owners for more than 12 years. The learned counsel for the respondents referred to the statement of Rehmatullah, one of the appellants, which runs as under:‑‑ According to the learned counsel, this admission made by one of the appellants during his Court testimony, was sufficient to hold that plaintiff‑respondents occupied the land by force and retained their possession for more than 12 years. Therefore, in these circumstances, the learned District Judge was right in holding that due to the hostile possession of the respondents, the ownership rights of the appellants have extinguished their title, submitted the learned counsel.

9. Statement of a witness is to be read as a whole. The same witness, in the next breath has stated that he used to take `Ghana Batai' from the plaintiff respondents who accepted the appellants as owners of the suit land and continued in possession of the same as their tenants. Even otherwise, it is well settled law that a party can succeed on the strength of its own case and for that he has to plead the facts and circumstances and substantiate the same by leading confidence‑inspiring evidence. The plea of adverse possession is based on brutal principle of `might is right'. A person who sets up the plea of adverse possession against a true owner, therefore, is required to prove the same by leading tangible evidence. The plaintiff‑appellants have not produced any cogent and convincing evidence in support of their plea of adverse possession. No doubt one of the appellants, namely, Rahmatullah has admitted that respondents occupied the suit land by force during the lifetime of Mst. Uzma but he has also deposed that later on, the respondents used to pay the produce of land. Mere possession of any length of time, does not constitute adverse possession.

10. The plaintiff‑respondents have attached with their suit, the copies of record of right prertaining to the year 1968 (PA), 1999‑2000 BK (PB) and 1969 A.D., wherein their ancestors and later on they have been shown as tenants‑at will. In the copy of 'Khasra Girdawari' pertaining to the year 2001 Bk to 1962 A.D., the plaintiff‑respondents have been entered as tenant‑at‑will. In Exh.PE the copy of `Khasra Girdawari' for the years 1966 to 1975 A.D. the possession of the plaintiff‑respondents has been entered as that of tenants on. In the year 1974, they have been shown in possession on account of . In Exh. PE/1, pertaining to the years 1963 to 1965 A.D., they have been entered as tenants‑at‑will on payment of `Ghalla‑Batai'. These entries negate the stand which was pleaded by the plaintiff‑respondents in their suit. There is no dispute to the proposition that peaceful possession of any length of time would not render the nature of the possession as adverse to the true owners. The plaintiff‑respondents have failed to establish that their possession was hostile, notorious and continuous for more than 12 years against the true owners. The learned counsel for the respondents has placed reliance on a case reported as 1980 CLC 169 wherein it was held that in order to obtain a decree for possession the plaintiff must prove his possession over the suit land within 12 years. The learned counsel also relied on 1985 C.L.C. 619, wherein it is opined that a suit for recovery of possession must be filed within 12 years if the person in possession is holding the same against the interest of the true owners. The same principle has been reaffirmed in the case titled "Jogendra Chandra Kapali Chowdhury and another v. Arjun Chandra Kapah and others" (PLD 1964 Dacca 498). These cases are distinguishable on facts, as such are not applicable on the facts of the present case, where the suit for possession is filed on the basis of title and not on the factum of dispossession, Article 142 .of the Limitation Act in such circumstances is not applicable. In the present case, the suit for possession has not been filed by the appellants on the facturn of dispossession therefore, Article 142 of the Limitation Act is not attracted in this case. The trial Court, therefore, was right in granting decree for possession on the basis of title in favour of the appellants.

11. In foregoing paragraphs it has been observed that the respondents were holding the possession of the suit land as tenants‑at‑will. A tenant‑at‑will is entitled to effect improvements over the suit land without seeking permission of the owners if the same are effected out of bona fide belief. In the instant case, the plaintiff‑respondents have pleaded adverse possession over the suit land and they have failed to establish that at what time, the construction of houses was raised by them over the suit land. Even they have not proved that the improvements were effected by them with the consent of the owners of the suit land. Even no cost of construction was pleaded by them in their plaint or proved by leading evidence. In these circumstances, a very vague order was passed by the trial Court. The contesting respondents, in these circumstances, in my view. are not entitled to receive any cost of the improvements from the appellants.

11. The correctness of the entries recorded in the record of rights has not been challenged in the plaint or in the written statement which was filed by them in the cross‑suit. The admitted position, therefore, in the light of these entries seems to be that contesting respondents were holding possession of the suit land with the consent of the true owners. Therefore, the learned District Judge has wrongly granted decree for adverse possession in their favour.

13. In the light of what has been discussed above, while accepting the appeal, the decree passed by the learned District Judge, Muzaffarabad on 7th of November, 1988 is set aside and a decree for possession is passed in favour of the appellants. Keeping in view the peculiar circumstances of the case, no order as to costs. AA./543/H.C.A. Appeal accepted.