1983 PLP 1029 (CLC)

(2) In case issue No. 1 is not proved, whether the defendants are entitled to the possession of the land in suit ? (3) Whether some improvements were effected over the land in suit by the plaintiff and to what extent to which in case of dispossession, he would be entitled ? O. P. P. (4) Relief. (5) Whether the suit of the plaintiffs is within limitation ? O. P. P. There is no evidence worth the name on issue No. 3 and so it shall stand determined, as it was determined by the Courts below. Issue Nos. 1 and 5 relate to the point of limitation and so they are taken together for disposal. To obtain a decree for adverse possession a statutory period of 12 years is required to be taken into account on the lapse of which a suit can be taken to the Court of law. And for the purposes of obtaining possession of im movable property by its owner, the period of limitation prescribed is also 12 years from the date of dispossession or from the date the adverse claim is made by the possessor. The plaintiff‑appellant .led the evidence of Said Akbar, Ahmed Khan, Behram Khan, Muhammad Rafique, Munshi Gul Hussain Patwari and Muhammad Asbraf. Muhammad Azad, attorney who is his son was also examined as a witness in support of his suit. The plea of the owners of the land in suit is that the land in suit was given to the defendant on 'Ghala Batai'. They have not disclosed as to when it was so delivered to the plaintiff‑appellant by them. However, they have alleged that till 1975, `Ghala Batai' was being paid. to them and it was in the year 1976 that refusal of payment was made them whereafter they have approached the Court soon in that very year. The claim of adverse possession by way of prescription was set up by the possessor. He has asserted not to have made any payment of `Ghala Batai or of land revenue to the owners. As a matter of fact, according to him, nothing for the land of plaintiffs‑respondents in his possession was paid to them and so the land in his possession was deemed to . have been in his ownership himself. All the witnesses of the plaintiff‑appellant have deposed that he had been in possession of the land in suit for more than 12 years at the time of the institution of the suits. According to them, nothing out of the produce of the land in suit was paid by the appellant to the owners. ` However, Behram Khan said that the land revenue was being paid to the owners by the appellant. But this is not the case of the owners them selves. Their plea is in respect of `Ghala Batai' alone and not of land revenue in any shape and so payment of land revenue deposed to by any of the witnesses of the plaintiff without knowledge (knowledge is not claimed means nothing. Again,' his witnesses say that no dispute ever arose between the parties over the possession of the suit land. By dispute they appear to have meant 'Fight' handers and it was not seen by any of them as no such flight between the parties ever arose over the possession of the land in suit in their presence. It is just a case of no knowledge on their part in respect of any dispute whatsoever. The witnesses produced by the defendants‑respondents namely Muhammad Sharif, Muhammad Roshan, Muhammad Fj4z and‑ Muhammad Ashraf Khan stated about payment of some amount to the owners by the appellant. One of the witnesses namely Muhammad Fiaz has even deposed that grass and produce of the land were also. paid to the owners three years . back only once in his presence. This period clearly dates back to 1977 as he made his statement before the Court to this effect on 2nd June, 1980. This cannot be true because attorney of the defendants‑respondents has clearly stated that nothing of the sort was paid to them after 1967. While going through the statements of the witnesses of the respondents we find that they are contradictory ones and every witness belies logically the other one in respect of the payment .of rent or land revenue, as the case may be. No case can be set up beyond the pleadings. The land revenue was not asserted by the respondents in their pleadings having been paid somewhere before the institution of the suit and no case to the stand contra ry taken to the allegations contained in the plaint or given in the written statement by the respondents can legally be pleaded. The statements oil both the attorneys of the parties who were examined on behalf of the parties] when looked at, while taking their effect alongwith the statement of `Patwari'1A make the point involved crystal clear that possession of the plaintiff appellants by way of adverse possession stands proved by the evidence, documentary as well as oral which testifies the entries with regard to the nature of posses sion of the plaintiff‑appellant vide Muhammad Azad's statement an attorney whose evidence as a witness fully supports the contents of the entries from `Kharif' 1963 till the institution of the suits which (entries) were to the effect that plaintiff's possession over the land in suit has been going on with out payment of rent or land revenue, as the case may be, by way of ad verseness. The `Patwari' testified the certified copies Exhs. PD, P E and P F of the Khasra Girdawaris' which contain the entries indicating the adverse possession. After 'Kharif' 1963, the nature of possession is indicated by way of ‑Khat‑e‑Chaleepa'.. No question to `Patwari' was posed by the res pondents in his cross‑examination to the effect that these entries were not genuinely made. Therefore, these entries showing adverse possession of the plaintiff‑appellant over the land in suit cannot be lightly brushed aside. The Additional District Judge who has believed the contradictory evidence on the point involved on behalf of the respondents on basis of which no finding could be given in favour of the respondents and the Sub‑Judge who has tried the cases even failed to read the documentary evidence in view of the statement made by the `Patwari'. According to the attorney of the respon dents the amount of Rs. 80 was paid to them by the plaintiff‑appellant in the year 1963 as an amount of consideration of contract on which the land was given to the latter on strength of which the land in suit was cultivated by the appellant whereas this amount is shown as rent and land revenue by Muhammad Fiaz and Muhammad Roshan. Allegedly, some instrument was also written by Roshan Khan a witness of the respondents which bore the names of Muhammad Ashraf and Muhammad Fiaz as witnesses when the parties struck their hands to contract in respect of the land in suit for three years namely 1964, 1965 and 1966. But according to Ahmed Khan and Roshan Khan, there was none else present except Akhmir Khan, Roshan Khan. the scribe himself and Muhammad Ashraf Khan a witness but according to Muhammad Fiaz, he was also a marginal witness and he could not be as such. Muhammad Sharif was also stated by him to have been present there when that instrument was written by Muhammad Roshan Khan in respect of the payment of Rs. 80 the amount which was classified as land revenue by Roshan Khan and as amount of consideration of contract depose while appearing as a witness anything with regard to the instrument executed. No such instrument was tried to be brought before the Court, if existing in possession of someone. As a matter of fact, this thing never happened. According to this Chowkidar a witness of the respondents, the lard revenue of the land in sdit amounted to Rs. 1.50 per annum. This amount of Rs. 80 was allegedly paid for three years which was an amount of contract which is not believable as such. If this amount could be treated having been paid as land revenue, it could be deemed having been paid for more than 50 years to come and then there could be no question for refusal of payment of land revenue (Maliya) thereby entitling the defendants who are also plaintiffs in their suit, to bring a suit, as no cause of action could have accrued to them on this score. Both the Courts below relied upon the contradictory evidence of the defendants‑respondents whose suit could not be decreed on the basis of such evidence. The plaintiff's possession over the land in suit had admittedly been for more than 24 years at the time of institution of the suits vide Muhammad Sharif's statement, The nature of possession of the plaintiff‑appellant over the suit is fully described in `Khasra Girdawaris' since `Kharif' 1963 till the institution of, the suits which make it clear that possession of the plaintiff over the land in suit has been continuous, exclusive and adverse thereby creating a right flow ownership to him by way of prescription and there is no rebuttal to it. That being so, this is accepted thereby dismissing the suit of the plain tiffs‑respondents and decreeing the suit of the plaintiff‑appellant with costs as prayed by him.