2002 PLP 2183 (YLR)

(4) Whether the plaintiffs are exclusive owners of the suit property and the entries in the Revenue Record for the year 1980‑81 showing otherwise, are against facts, law, void and inoperative? OPP (5) If issue above is proved otherwise, whether the plaintiffs are entitled for Khas possession of the land measuring 24 Kanals, 16 Marlas detailed in the plaint? OPP (6) Whether in the alternative the defendants are owners in possession of the suit‑land on the basis of adverse possession? OPD (7) Whether the suit of the plaintiffs is false, and frivolous, if so its effect? OPD (8) Relief.

4. Saad Ullah son of Fazal Ahmad, Riaz Ahmad son of Nawab Khan and one of the plaintiffs Ghama appeared as P.W.1 to P.W.3. Copy of the Register Haqdaran‑e -Zamine for the year 1968‑69, Exh.P.1. copy of Jamabandies for the year 1972‑73 Exh.P.2 1976‑77 Exh.P.3, 1980‑81 Exh.P.4, 1984‑85 Exh.P.5, copy of Khasra Girdawari for the year 1985‑86 (Kharif) Exh.P.6, copy of the Jamabandi for the year 1914‑15 was produced by the petitioners‑plaintiffs.

5. On the other hand, the defendants produced Allah Ditta, Akbar Ali and one of the defendants Fazal Ahmad. They have appeared as D.W.1 to D.W.3. Copy of Jamabandies for the years 1914‑15, 1920‑21, 1924‑25, 1928‑29, 1933‑34, 1937‑38, 1941 42, 1945‑46, 1952‑53, 1956‑57, 1966‑67, 1968‑69, 1972‑73, 1976‑77, 1980‑81, 1916 17, 1984‑85, Exh.D.1 to Exh.D.17, were produced as documentary evidence.

6. The learned Civil Judge on the basis of the documents Exh.P.1 to Exh.P.5 i.e. Jamabandies for the years 1968‑69 to 1984‑85 and also the documents produced by the defendants Exh.D.1 to Exh.D.17 (Jamabandies for the years 1914‑15 to 1984 85, observed that, "in the present case, the plaintiffs have been entered as true owners of the suit‑land and there is no dispute about it." He non‑suited the petitioner‑plaintiffs on the ground that the petitioners were never in possession of the suit‑land or they have not received any share of produce from the defendants during 12 years prior to the institution of the suit, thus the learned Civil Judge observed that the suit of the plaintiffs was barred by time and therefore, he recorded a finding on issue No. 1 against the plaintiffs petitioners and dismissed the suit on 23‑1‑1988. The appeal filed by the petitioners was also dismissed by the learned Additional District Judge by maintaining the finding on issue No. 1

7. The learned counsel for the petitioner vehemently argued that the finding of the learned Civil Judge on issue No.4 through which the plaintiff were declared as owners was recorded in favour of the petitioners who remained intact before the learned First Appellate Court and the finding was not challenged by the respondent defendants by filing the appeal or cross objection, therefore, there is no dispute about the fact that the petitioners are the owners of the suit‑land. He further contends that the finding of the learned Civil Judge as well as the learned First Appellate Court on issue No. 1 on the question of limitation is result of complete misreading of the documentary evidence, Jamabandies for the year 1968 1969 to 1984‑85 and 1914‑15 to 1984‑85 Exh.P.I to Exh.P.5 and Exh.D.I to Exh. D.

17. He has referred the Jamabandies for the year 1914‑15 to argue that the respondent‑defendants have been entered as Ghair Mourosi in column No.4 of the cultivation. Further contends that this entry remained as such in the Jamabandi for the year 1968‑

69. Further argued that the plea of ownership alongwith the adverse possession is mutually destructive and under the law respondents‑defendants could not take this plea of ownership and adverse possession. Reliance has been placed on the cases reported in PLD 1994 SC 353; PLD 1990 SC 1049, 1988 SCMR 1765, 1999 SCMR 996 and 1999 SCMR 1245.

8. On the other hand the learned counsel for the respondent has argued that merely because they have been mentioned as tenants in the Revenue Record is no ground to grant the decree in favour of the petitioner‑plaintiffs as the defendants respondents have been shown in possession in the Revenue Record and there is entry in the Revenue Record regarding "Ghair Mourosi". He has relied on the case reported in 1996 SCMR 1719.

9. The learned Civil Judge while deciding the issue No.4 regarding exclusive ownership of the plaintiffs has recorded a finding of fact in favour of the petitioners which has become final as the same has not been challenged by the respondent‑defendants by way of objection, therefore, the case 1996 SCMR 1719 is not applicable to the facts and circumstances of the present case because in above‑referred case the suit was decreed by the learned trial Court in favour of the plaintiffs. The same was dismissed in appeal filed by the plaintiffs‑petitioners.

10. Now I will advert to the remaining and only controvertial issue of limitation which is issue No.1. There is no dispute about the fact that in the Revenue Record the plaintiffs‑petitioners have been shown as owners of the disputed land, whereas the defendant No.3 shows as Ghair Mourosi in Column No.4 of the cultivation of the Jamabandi for the years 1914‑15 to 1984‑

85. This entry in the Jamabandi by itself is not sufficient to constitute adverse possession. Mere entry in the Revenue Record is not an assertion to hostile title. Similarly, the non‑payment of rent or mere entry in Jamabandi is not the evidence to hold that the respondents are in adverse possession. In case of Lala and another v. Jantay reported as 1968 SCMR 131, it has been ruled that, "The entry in Jamabandies 'Ba Sharah Malikan Bawajah Qabza' by itself is not sufficient to constitute adverse possession. Such an entry is not an unequivocal assertion of a hostile title and therefore, one has to interpret this entry in such particular case in the light of the facts and circumstances of that case. Under the provisions of section 36 of the Punjab Tenancy Act, 1887, it is necessary for a tenant asserting adverse title to a land originally taken possession of as a tenant to give notice to that effect to the landlord. In the absence of such notice the title of the tenant cannot become adverse. "

11. In book of Sir James M. Douie Fifth Edition, Malekan‑e‑Qabza has been defined as those owners of land who had purchased it without share of Shamlat to village. In case reported as Hakeem Shah and 16 others v. Swab and 17 others PLD 2002 SC 200, it has ruled that vendees who purchased with share of Shamlat in village are recorded in the, column of cultivation as Malekan Qabza and not as tenant. The appellants in case (supra) were described to be, therefore, it was ruled that entry as Seri Khas could be termed as. They have repudiated title of those recorded in the proprietary column and, therefore, they were wrongly adjudicated as liable to be dispossessed.

12. The Jamabandies for the year 1984 -85 and the evidence on the record Exh.D.1 to Exh.D.17 shows that the petitioners are the owners of the suit‑land and the respondents‑defendants are in possession as tenants. Mere entries does not change the status of the respondents‑defendants from tenants to the owners. It is established principle of law that if the land is held by a tenant under the paramount title of another person he shall continue to be tenant. In the case of Ghulam Qadir v. Ahmad Yar and others PLD 1990 SC 1049, it has been ruled by the Honourable Supreme Court that, it has been ruled by the Hon'ble Supreme Court that, "in our view when a party pleads it had a followed titled as in the present case, through purchase and subsequent inheritance as stated by the learned counsel it would be go impossible for such a party to succeed in the alternative on the plea that the possession being upon the hostile title had matured otherwise on account of fix of time through adverse possession."

13. No party can be allowed to set up simultaneously the pleas of ownership and adverse possession, because both the please are contradictory and mutually destructive.

14. In case of Farid Khan and 4 others v. Abdul Latif and 11 others PLD 1994 SC 354 on the question of ownership and adverse possession, it was ruled that, "defendant raising contradictory pleas in written statement i.e. plea of adverse possession and that of entitlement for improvement. Defendant could not substantiate such a plea by evidence. Plaintiffs' suit on the basis of ownership was decreed by all the Courts below."

15. Similar view was taken by the Supreme Court in the case of Khuda Bakhsh and others v. Murid and others 1999 SCMR 996, and while interpreting Article 144 of the Limitation Act, it was held as principle that pleas of lawful title and adverse possession in same case being contradictory pleas could not stand together.

16. The respondents‑defendant cannot be treated as owners of the disputed land because F they have contradictory pleas of ownership and the adverse possession. Reliance can be placed in the case of Ghulam Qadir v. Ahmad Yar and others PLD 1990 SC 1049, it has been held that, "When a party pleads that it had a valid title through purchase and subsequent inheritance, it would become impossible for such a party to succeed in the alternative on the plea that the possession being open and hostile, title had matured otherwise on account of influx of time through adverse possession.

17. In the case of Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765, it has been held that, "Petitioner claiming ownership of suit‑land on ground of its purchase and through adverse possession‑‑ Sale‑deed relied upon by him found to be spurious and finding on plea of adverse possession against him, held, was unexceptionable‑‑‑Held further, pleas of purchase and adverse possession could not stand together and clash was irreconsiable‑‑"

18. In the case of Khuda Bakhsh and others v. Mureed and others 1999 SCMR 996 it has also been held that, "pleas of lawful title and adverse possession in the same case being contradictory pleas could not stand together. " For what has been discussed above, the judgment and decree of the learned Civil Judge, Mandi Baha‑ud‑Din dated 23‑1‑1988 and that of the learned Additional District Judge, Gujrat dated 16‑2‑1991, is result of complete misreading of the Revenue document on the record and the mis‑interpretation of law, therefore, both the Courts below have committed material irregularity and illegality. The result is that the judgments cannot sustain and are set aside. Resultantly this revision petition is accepted. The suit filed by the petitioner plaintiff is decreed with costs. Revision allowed. Q.M.H./M.A.K./G‑187/L