2006 PLP 905 (YLR)

JAWWAD S. KHAWAJA, J.--The case has been repeatedly called at intervals. None has appeared for Ghulam Qadir respondent/plaintiff. He is, therefore, proceeded against ex parte.

2. The petitioners/defendants impugn the appellate judgment and decree dated 14-7-1999, whereby the decree of the learned trial Court dated 15-10-1995 was set aside and a suit filed by the respondent/ plaintiff seeking possession of the suit-land measuring 7 Marlas was decreed.

3. The facts of this case are simple. The respondent Ghulam Qadir claims that he is owner of the suit-land and seeks possession on the ground that the petitioners are illegal occupants of the land. In para.3 of the plaint, which is relevant for the purpose of setting out the respondent/ plaintiff's case, it has not been stated as to how the petitioners took possession of the land and when this was done. It is, however, acknowledged that the petitioners are in possession and have constructed two rooms on it. The defence set up by the petitioners was that the land had been purchased by their great grandfather from the grandfather of the respondent almost one hundred years earlier for a total consideration of Rs.150. The petitioners also pleaded that the respondent's suit was time-barred and that even if the sale in favour of their grandfather was not proved, their title had matured on account of adverse possession.

4. The learned trial Court framed as many as 10 issues including that of limita?tion and title. Both parties led evidence.

5. The respondent/plaintiff appeared as his own sole witness. In his testimony, he admitted that the petitioners had constructed two houses on the property, but it was stated by the respondent/plaintiff that his father had given the property temporarily to the father of the petitioners. In his cross-examination, the respondent/ plaintiff expressed his ignorance as to when the petitioners or their predecessors had taken possession of the property and then also stated that it was possible that possession was taken one hundred years earlier. It is significant that he admitted that there was pacca construction made by the petitioners including a Havaili. While appearing as his own witness in rebuttal, he deposed that it was only a year or two before the suit that he came to know that the property belonged to him. He also produced the Jamabandi showing him as the owner of the property.

6. From the above testimony, it is clear, firstly, that the petitioners have been in possession for a long period of time and definitely much before the respondent/ plaintiff was born. It is true that the title to the suit-land, as reflected in the Revenue Record, continues in the name of the respondent/plaintiff. This circumstance, however, cannot be the sole determining factor in order to establish title. The Revenue Record does not create or confer title. If an earlier oral sale had been made, that sale will be valid notwithstanding the fact that it is not recorded in the revenue papers. It may here be noted that the land is located in a village where a registered conveyance was not necessary.

7. The important fact is that the petitioners are in possession and the respondent has not been able to give any proper explanation as to how they took possession. This fact itself goes towards establishing the claim of the petitioners that their forefather had purchased the property. Equally important is the fact that the petitioners have constructed Pacca houses on the land as admitted by the respondent/ plaintiff himself when he appeared as P.W.1. The purchase of the land by the great grandfather of the petitioners, as such, is established on the basis of preponderance of evidence and the material circumstance that the petitioners are in possession.

8. In addition to the above, it is also clear that the suit filed by the respondent/plaintiff was time-barred. At most, the provisions of Article 144 in the First Schedule to the Limitation Act would apply to the respondent's case. According to the said Article, the maximum period within which a suit for possession could have been filed by the respondent, was 12 years from the date he was dispossessed. In the present case, from the testimony of the respondent/plaintiff himself, it is more than clear that the petitioners are in occupation of the suit-land for a period much longer than 12 years.

9. In the above circumstances, I find that the learned appellate Court exercised its jurisdiction with material irregularity as it did not take note of the above circumstances and also did not advert to the reasoning followed by the learned trial Court. The appellate decree, as such, is not legally sustainable. It is set aside. The petitioners shall also be entitled to their costs. S.A.K./G-161/L?????????????????????????????????????????????????????????????????????????????????? Revision accepted.