P L D 1988 Peshawar 1 (PLP)

(5) Whether the suit is bad for non-joinder of necessary parties? (6) Whether Mst. Khadija was a life estate owner of the suit land, if so, its effects? (7) What is the effect of judgment in Suit No.460/1 decided on 31-5-1968, on the present suit? (8) Whether the plaintiffs are entitled 'to the decree prayed for? (9) Relief.

2. After recording such evidence as the parties wished to produce, the learned trial Judge answered issue No.l in favour of the petitioners and on issue No.2, he found that as the respondents are tenants, the question of title to the suit land by adverse possession would not arise. Issue No.3 was decided against the respondents for want of evidence. Issues Nos. 4 and 5 were also decided against them. On issue No.6 he held that as Mst. Khadija was a limited owner of the suit land, the petitioners being legal heirs of Habib Shah became entitled to inherit the suit land on her death. On issue No.7 he was of the view that the effect of decision dated 31-5-1969 in suit No.460/1 was that the petitioners became owners of the suit land. As a result of the above-mentioned finding, he decreed the suit of the petitioners in their favour vide judgment dated 20-2-1976. By this judgment, the respondents were aggrieved, therefore, they went in appeal to the District Court and a learned Additional District Judge who heard the appeal accepted the same and setting aside the judgment of the learned trial Judge dismissed the suit of the petitioners vide his judgment dated 6-12-1976. The learned Additional District Judge did not agree with the learned trial Judge that pursuant to the decision of suit No.460/1, the petitioners became owners of the suit land. He observed that after decree was passed in that suit in favour of the petitioners, the respondents filed appeal before the District Judge and during the pendency of the appeal, the petitioner withdrew the suit and thus the finding given in the said suit with respect to the ownership of the petitioners has got no effect on the present suit. He further held with reference to the entries in the revenue record that the respondents were tenants over the suit land without payment of rent and as they were in possession of the suit land in that capacity for over twelve years, they matured title to the suit land. He further observed that the petitioners were entitled to the possession of the suit land on 31-12-19.62 when the West Pakistan Muslim Personal Law (Shariat) Act, 1962, came in force. The present suit was filed by them after the period of limitation. Therefore, the respondents, according to the learned Additional District Judge, matured title to the suit land by adverse possession on the ground that "The possession of appellants was hostile, because they claimed to be in possession on account of sale."

3. The petitioners feeling aggrieved by the judgment of the learned Additional District Judge, therefore, they have challenged its legality in this revision application with a prayer that the same may be set aside and that of the learned Judge be restored.

4. The learned counsel for the parties first addressed arguments on the question whether in the facts and circumstances of the present case, the respondents can be said to have matured title to the suit land? Now according to the entries in the revenue record, the respondents are shown as tenants-at-will. Thus, the question would be whether the respondents, according to the entries in the revenue record, were throughout in advers6 possession of the suit land irrespective of the fact that they were recorded as tenants-at-will. The revenue record does not answer to this question in the affirmative. According to the evidence, produced by the parties on record, Mst. Khadija was in possession of the suit land as life estate owner after the death of her husband. She sold the suit land in the year 1928 to the respondents. Petitioner No.l filed suit for the cancellation of the sale mutation in favour of the respondents. She succeeded in her suit and consequently the suit land was returned to Mst. Khadija vide mutation No. 378 attested on 11-5-1932. The respondents were up able to bring on record in support of their version that exactly right from the cancellation of the sale mutation, they were in hostile possession. Now, it is a matter of revenue record that they were in possession of the suit land as tenants. This means that after the cancellation of the sale mutation in their favour, they became tenants over the suit land on payment of lagan to Mst. Khadija. In holding so, I am reinforced by the fact that the respondents were unable to show with reference to the revenue record that they were throughout in possession of the suit land without payment of lagan right from 1932 when the sale mutation in their favour was cancelled. As there is no such evidence on record on behalf of the respondents, legally they would be regarded as tenants even if they had withheld payment of lagan to the owner unless it could be shown that they had surrendered possession of the suit land to the owner and thereafter they came into hostile possession of the suit land. This being the position, the principle of ouster cannot be attracted to the present case in order to hold that the respondents have matured title to the suit land by adverse possession.

5. Even in support of his conclusion, the learned Additional District Judge, as would appear from his impugned judgment, did not find that the respondents were in hostile possession of the suit land right from 1932 when sale mutation in their favour was cancelled. He referred to the Jamabandis of the year long after the cancellation of the sale mutation in 1932. In this connection it will be relevant to reproduce the following passage contained in para 4 of his judgment. "Sale in favour of defendants was cancelled by mutation No.378 attested on 11-5-1932. For the first time, Khan Bahadur Muhammad Dilawar Khan, father of the appellant was recorded in possession as a tenant, but in the rent column his possession is as 'Bila Lagan Bawaja Baai'. The same entry is repeated in the subsequent jamabandis 1948-49, EX.P.W.1/6, 1952-53, Ex. P.W. 1/7 and 1956-57 Ex. P.W. 1/8. In the next jamabandi of 1964-65, Ex. P.W. 1/9 Abdul Hamid and Abdul Rahim appellants sons of Khan Bahadur Dilawar Khan are recorded as first tenant on account of sale. The position persists in the subsequent jamabandi of 1968-69, Ex. P.W. 1/10. Even in the Girdawari appellants are recorded in possession as tenants on account of sale." A look at this passage from the judgment of the learned Additional District Judge would show that the respondents came into hostile possession of the suit land from the year 1948-49. But as there is no evidence on record to show that before 1948-49, the respondents had ever surrendered possession of the suit land to Mst. Khadija, they cannot be said to have proved the element of ouster. As the learned Additional District Judge failed to advert to this aspect of the case, his finding that the respondents had matured title to the suit land against Mst. Khadija, cannot be sustained in law.

7. In support of his conclusion, the learned Additional Districtl judge also observed in the same para 4 of his judgment that "it is not the case of plaintiffs that defendants are or were their tenants". He overlooked that the petitioners filed the present suit for possession in 1975 when Mst. Khadija died. In other words, as until 1975 Mst. Khadija was in possession of the suit land; the respondents were her tenants and the appellants could not set up their case that the respondents were their tenants. In the circumstances, the petitioners were to bring suit for possession and as they did so, it is clear that their claim for possession was proper and no exception can possibly be taken against it.

8. In view of what has been discussed above, the respondents cannot be said to have matured title to the suit land by adverse possession until 1975 when Mst. Khadija died because, on their own showing, the respondents were tenants of Mst. Khadija over the suit land from 1932 when the sale mutation was cancelled and the suit land was reverted to Mst. Khadija. But according to the revenue record, they came into hostile possession either from 1949 or 1942. In other words, the respondents were unable to show ~with reference to the revenue record that they were in adverse possession over the suit land from 1932 to 1948 or 1942. From this it can, therefore, be safely concluded that they used to give to Mst. Khadija her share of produce as her tenants from 1932 to 1948 or 1942 when thereafter the entry "without payment of lagan on account of sale" was introduced in the revenue record. Thus as the respondents have not established the element of ouster in their favour against Mst. Khadija, legally they would be regarded as tenants of Mst. Khadija over the suit land and would have no right to claim adverse possession against her.

9. The learned Additional District Judge, in support of his finding, observed that on the enforcement of the West Pakistan Muslim Personal Law (Shariat) Act, 1962, the limited estate held by a female under custom stood terminated under section 3 of the Act, therefore, the petitioners should have filed a suit for possession within twelve years from 31-12-1962 when the said Act came into force. But as the petitioners filed the present suit after over twelve years from 1962, their suit is hit by limitation. In support of his finding, he referred to an authority of the Supreme Court in the case of Muhammad Ayub v. Member, Board of Revenue P L D 1973 S C

304. There can be no cavil with the proposition of law laid down in the cited authority. But in the facts and circumstances of the present case, this authority will not help the respondents. It is a matter of record that the parties were contesting civil proceedings in the civil Courts in respect of the suit land until 1968. This obviously shows that until 1968, the petitioners had not acquiesed in adverse possession of the respondents over the suit land. It may be observed that if a party claims adverse possession over the suit land, it will have to show to the satisfaction of the Court that the opponent party had lost his interest of ownership over the suit land for all that period of adverse possession. In the present case as the petitioners were contesting civil proceedings against the respondents until 1968, there can, therefore, be no escape from the conclusion that until 1968, they were interested in the suit land and for that matter, the limitation in the case would run from 1968 and as they have filed the present suit in 1975, it is well within time and as otherwise, they are, as legal heirs of late Habib Shah, entitled to inherit his property, the Court will have no option but to decree their suit for possession in their favour.

10. The learned counsel for the respondents, however, vehemently contended that his clients are in possession of the suit land on account of sale. According to him, were this not so, there would have been no entry in the column of lagan of the Jamabandis to this effect; "Bila Lagan Bawaja Baai". He further submitted that there was no bar against Mst. Khadija to sell the suit property, even if she was holding the same as life estate owner. The learned counsel was asked if he would support his stand in favour of his clients by any Law or proposition of Law or that he works on his imagination. He kept silent in this behalf. The learned counsel for the respondents was recalled that the sale of the suit land by Mst. Khadija in favour of his clients was challenged by respondent No.1 in civil suit, her suit was decreed and the sale mutation was cancelled. The learned counsel for the respondents was asked if cancellation of the sale mutation in favour, of his clients was not a right step, the moreso, as in law it has assumed finality against them. He had no satisfactory answer, nor indeed could he develop his stand on this score. His attention was drawn to the columns of Jamabandis. In the column of cultivation, the respondents are shown tenants while in the column of lagan they are shown without payment of lagan on account of sale. It is significant that the entries in these columns cannot be reconciled and are contradictory and destructive to each other. The reason in this behalf is not for to seek. If a person is in possession of the land on account of sale, how would it be that he can be shown a tenant in the column of cultivation. It is a settled law that in case of this nature the entries in the column of cultivation of the Jamabandi will take precedence over the entries in the column of Lagan. If any authority is needed in support of this proposition, reference may be made to the judgment of the Honourable Judges of our Supreme Court in the case of Said Amir and others v. Ashraf Khan and others reported in P L D 1986 Supreme Court

113. Thus, the contention of the learned counsel for the respondents that his clients are in possession of the suit land on account of sale falls to the ground on merit and in. law.

11. The upshot of the above discussion is that the respondents were tenants of Mst. Khadija over the suit land and as they have filed to establish the element of ouster against her, legally they would be regarded her tenants until 1975 and they cannot be allowed to claim adverse possession against her. As regards the petitioners, they are the heirs of Habib Shah and are entitled to inherit the suit land. They contested, civil proceedings against the respondents in the civil Court in respect of the suit land until 1968, which is reflective of the fact that until 1968, they wanted to get possession of the suit land and had lost no interest in the land. So as they brought the present suit within twelve years from the year 1968, they are entitled to the decree prayed for. The result is that I accept this revision application, Consequently, setting aside the impugned judgment of the learned Additional District Judge, I restore that of the trial Judge but on different grounds. No order as to costs. M. Y. H/553/P Petition accepted.