2002 PLP 3257 (YLR)

(1) Whether the plaintiffs have become owner of the suit‑land through adverse possession? OPP (2) Whether the plaintiffs are entitled to the decree as claimed and prayed for? OPP (3) Whether the present suit is bad for mis joinder and non‑joinder of necessary parties? OPP (4) Whether the suit has been incorrectly valued for the purposes of court‑fee and jurisdiction? If so, what is the correct valuation and its effect? OPD (5) Whether the suit is not maintainable in its present form in the light of preliminary objections Nos.3 and 4, of the written statement? OPD (6) Whether the plaint of the present suit is liable to be rejected under Order VII, rule 11, C.P.C.? OPD (7) Whether the plaintiffs are tenants on he suit‑land under the defendants? If so, its effect? OPD (8) Relief.

2. Evidence of the parties was recorded while the evidence of the petitioners was closed in terms of Order XVII, rule 3, C.P.C. The suit was dismissed vide a judgment and decree dated 4‑11‑1991. The first appeal filed by the petitioners was dismissed by the learned Additional Sessions Judge, Sheikhupura on 13‑5‑1993.

3. The learned counsel for the petitioners contends that both the learned Courts below have misread the evidence on record. According to the learned counsel notwithstanding the fact that the evidence of the petitioners was closed, the learned Courts below were bound to see as to whether a case for adverse possession has been made out on the basis of evidence on record. The respondents are represented by Mr. Tahir Qureshi, whose name stands duly listed in the Cause List for today. This case was called before the break when it was informed that the learned counsel is on his way. It was then called twice after the Division Bench cases but the learned counsel has not turned up. The respondents are accordingly proceeded ex parte.

4. I have gone trough the copies of the record appended with this civil revision. The P.W.1 is Mehr Din. He states that the respondents are in possession since their ancestors and no one has received a share produce from them. Rehmat Ali, P. W.2 has made a similar statement and so is the case with Muhammad Ali petitioner who appeared as P. W.4. So far as the documentary evidence is concerned Manzoor, Patwari. P.W.3 produced the Fard‑e‑Intekhab (Exh.P.1) from Jamabandi for the year 1915‑16 to 1984‑

85. In all these documents the respondents or their predecessor‑in‑interest have been recorded as owners while the petitioners or their predecessor‑in‑interest have been recorded as tenants paying either cash or share‑produce. Exh.P.2 Jamabandi for the year 1980‑81 shows the respondents as owners and the petitioners as tenants on payment of cash. This is the entire evidence in the case. The respondent, have not, all been able to show as to how they claim adversely to the petitioners who are admittedly the owners of the land while respondent, are recorded to be their tenants paying rent. Needless to state that by now it is Well‑settled that mere non‑payment of rent for any period of time would not render the possession of a tenant to be adverse. In this view of the matter, the reliance of the learned Courts below on the mere fact that the rent had not been paid or received is absolutely misplaced and this constitutes misreading of the evidence on record and oblivion of the correct legal position. Both the Court below have thus acted without jurisdiction while proceeding to hold the respondents to be owners of the land admittedly owned by the petitioners. The civil revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit of the respondent is dismissed with no order as to the costs. Q.M.H./M.A.K./A‑422/L. Revision allowed.