2000 PLP 1468 (CLC)

This is a civil revision against the judgment and decree of the learned lower Appellate Court, dated 13‑7‑1992 whereby the finding of the learned trial Court vide judgment and decree, dated 16‑2‑1989 has been. reversed.

2. Briefly stated, the respondents/plaintiffs brought a suit for possession of the land comprising Khasra No.23, Khatoni No.28 measuring 34 Kanals entered in the Register Haqdaran Zamin for the year 1983 situated in Chak No.195/TDA, Tehsil Bhakkar on the averment that petitioner/defendant is in occupation of the suit land and since one month, he has refused the ownership of the plaintiffs and thereby his possession in the land since one month is illegal and that when asked to hand over the possession of the land to the plaintiffs, he refused. Plaintiffs Nos.4 to 7 are minors their real uncle who is looking after the interest of the minors and also natural guardian and having no interest adverse, has been appointed guardian ad litem.

3. The suit was resisted by the petitioner/defendant on the grounds that the plaintiffs were not in possession during the last 12 years over the suit land and that the suit was time‑barred and that the possession of the petitioner/defendant on the suit land as since over 40 years and he has been recorded as " bi) " in the Revenue Record and that his possession is adverse to the knowledge of the plaintiffs since over 40 years.

4. The learned Civil Judge‑ framed the following issues: (i) Whether the plaintiffs are owners of the disputed land? OPP. (ii) Whether the defendant has become owner of the disputed land on account of adverse possession for more than 12 years? OPD (iii) Whether the suit is within limitation? OPP (iv) Whether the plaintiffs have got locus standi to institute the present suit? OPP (v) Relief.

5. Both the parties led their respective evidence and after hearing the arguments, the learned Civil Judge decided issues Nos.1, 2 and 4 in favour of the respondents and dismissed the suit vide judgment and decree, dated 16‑2‑1989.

6. An appeal was preferred by the plaintiff which was accepted by the learned District Judge, Bhakkar vide judgment and decree, dated 13‑7‑1992 with the observation that undisputedly the plaintiffs were owners of the land in dispute and that the respondent‑defendant was entered in the Revenue Record as ten4nt from 1924 onwards even if he was paying and that the adverse claim was created only in the year 1983‑84 when the entry was made in the record of rights as well as in the periodical record against the plaintiffs/appellants (respondents in the Revision petition) and that as the suit was instituted within two years from such entry, it cannot be said that it was time‑barred. 7.The petitioner/defendant has assailed . the appellate order, dated 13‑7‑1992 by way of this revision petition.

8. Arguments have been heard at length from both sides and record perused with the able assistance of the learned counsel for the parties.

9. The learned counsel for the revision petitioner has contended that the suit land was Banjar which has been made‑ culturable by the petitioner's forefather and the petitioner (defendant) was, therefore, entitled to its proprietary rights and became owner of the property having been made and that any right of the respondents/plaintiffs was, herefore, finished and the suit was liable to be dismissed.

10. On the other hand, the learned counsel for the respondents has submitted that the entry in column No.3 of the Jamabandi relates to ownership and in Jamabandi for the year 1983, the respondents Ramzan etc. are shown in the said column as owners and that column No.4 relates to the possession and in the said column, the petitioner is shown as the occupant and that column No.8 relates to the rent (Lagan) paid by the cultivator with its rate and demand and in the said column, it is mentioned that the rate (at which the occupant is leaking payment of rent is same as that of owners on account of having broken the land and that the learned District Judge has very correctly decided all the issues.

11. Register Haqdaran Zamin is one of the most important documents of the record of rights as well as periodical record as prescribed by A section 39(2) of the Punjab Land Revenue Act, 1967 and Rule 72(i) of the Punjab Land Revenue Rules, 1968. It is Form No.(XXXIV). It is complied by the Patwari, checked by Kanugo, Naib‑Tehsildar, Tehsildar andlA supervised by Collector. It contains the following information:‑‑‑ It has got 10 columns and is called Jamabandi. Column No.

1. It relates to No. Khewat Malik. The words "Khewat"and "Khata" are the Vernacular equivalent of term "holding", defined in clause (10) of section 4 of the West Pakistan Land Revenue Act, 1967, as a share or portion of an estate held by one landowner or jointly by two or more land owners. The No. Khewat Malik (Khatedar) is the No. given to an owner's holding. The Khewat holdings are arranged in the following order:‑‑ (a) Owners' holdings in the order in which their names are given in the Genealogical Tree (Shajra Nasab). The individual holding of owners are arranged prior to their joint holdings. (b) A mortgagee in actual possession and paying land revenue is given a Khewat number except as provided in Item (vi) of the sub‑para. (5). (c) If there is any common (Shamilat) land belonging to all the owners of the Patti, Taraf, Khel or Jum, it is entered in a separate Khewat after the Khewat of the individual and joint owner of that Patti, Taraf, Khel or Jum. Similarly, common (Shamilat) land belonging to all the owners of the estate is entered in a separate Khewat after I the Khewat of the individual and joint owners of the estate. (d) After the Khewat of common (Shamilat) land, the land owned by Municipal Committee or Town Committee, etc., District Council, Provincial Government and Central Government should be entered. (e) The Khewat of Abadi Deh (land which is occupied as inhabited site of a Town or village) is entered at the end. No. Khewat in last Register Haqdaran Zamin is entered in a red ink below the figure for new Khewat number. Column No.2. It relates to the_No. Khatauni cultivator (Kashitkar) is the No. of the holding of the tenant or of the person responsible for the cultivation. (ii) The Khatauni holdings within each Khewat is arranged in the following order: (a) The holding, if any, cultivated by the landowner himself (Khud Kasht). (b) The holding, if any, cultivated by the landowner through tenant‑at will. (c) The holding of occupancy tenant, if any,. cultivated by the occupancy tenant himself. (d) The holdings, if any, cultivated by the occupancy tenant through tenant‑at‑will. (iii) If a tenant holds land under one owner part in occupancy right and part as a tenant‑at‑will, the whole is entered as a single holdings, the fields held under each tenure, and; if necessary, their rent is p separately detailed. . (iv) Where there are several tenancy holdings under one proprietor the tenants in their several classes are entered in alphabetical order. Column No.3 (Name of owner with description): The term "landowner" has been defined in clause (13) of section 4 of the Land Revenue Act. In an estate, where the common (Shamilat) land exists, the owner who has no share in common land is shown as Malik Kabza and the person who has _ no land but has a right in the common land is shown as right holder in common land (Haqdar Shan‑flat). Column No.4 (Name of cultivator with description). The status of a cultivator are as follows:‑‑ (i) Cultivating Owners; (ii) Occupancy tenants under the Tenancy Act; (iii) Tenants under the Colonization of Government Lands Act; (iv) Tenants for a fixed term exceeding one year; (v) Tenants‑at‑will; (vi) Other cultivators; (vii)' Partners in cultivation; (viii) Field workers. The status of the Cultivating owners may be of five kinds:‑‑ (a) If the land is cultivated by the sole owner or owners jointly, the entry is made as self‑cultivation (Khud Kasht/Khud Abad). (b) if one of the owners alone is in cultivation, the entry is made Kasht Flan Hissadar. (c) If the land is uncultivated and is in the possession of an owner or owners, the words Maqbooza Malik/Maqbooza Malikan or Maqbooza Flan Hissadar is entered. (d) If some land is cultivated by the owner or owners and some' uncultivated is also in his or their possession, separate Khatuhi fort cultivated and uncultivated area is not formed and an entry of Khud Kasht as Maqbooza Malik/Malikan is made. (e) If a person cultivates certain survey/Khasra Nos. partly as co‑sharer F (Hissadar) and also pays due rent of the same land to other co sharer, the entry is made "A". co‑sharer himself (Bazatehi) 1/3rd and on behalf of "B" co‑sharer 2/3rd. (Bazatehi 1/3rd and Hissadar 2/3rd)'. . The occupancy Tenant under the Tenancy Act is shown in the Jamabandi in the following three manners:‑‑ (a) Where a tenant having right to occupancy legally exists, he , is recorded as Muzaria Mouroosi, Buzgar Dakhilkar, Muqarraridar or Mouroosi Hari etc. according to the local usage alongwith the relevant provisions of the Tenancy Act. (b) Where the section of the Tenancy Act applicable has been omitted, the deficiency is not supplied without a mutation. (c) The entries of this column show‑, (i) Whether the land is cultivated by the occupancy tenant himself; (ii) Whether .the land is cultivated by a Muzaria or Hari of the occupancy tenant; (iii) Whether the land has been leased out to a tenant and is cultivated by that tenant or by a Muzaria or Hari of the tenant. The tenant under the Colonization of the Government Land Act:‑‑ (a) He is recorded as Grantee, lessee.' Muzaria Lathband or Hari Lathband as the case may be according to the local usage. (b) Where the statements of conditions of tenancies have been issued by the Government under section 10 of the Colonization of Government Land Act, 1912 and published in the Government's notification, the name, parentage, caste, residence and status of the tenant are all mentioned. Tenants for a fixed term exceeding one year, they are mentioned asil Pattedar Miadi. Tenants‑at‑will is recorded as Muzaria Tab Marzi. The words _Ghair Mauroosi, Ghair Dakhilkar or Muzaria Ghair Mustaqil imply the relationship of landlord and tenant. If the fact of adverse possession by the cultivator is not disputed, the person in possession is recorded as Qabiz. Such entry is not made without a mutation duly attested by a Revenue Officer. Where on the one hand, the owner claims the cultivator to be his tenant, and on the other hand, the cultivator claims his possession independent of the owner and adverse to him, in such a case, the Patwari is to enter a mutation of dispute of rights of tenancy/possession (Tenazia Haquq Kashit/Qabza) and put up to the Revenue Officer who will decide it on the spot in the presence of the parties and the village community as per instructions on the subject of treatment of rights of absentee or out of possession. Partners in cultivation:‑‑ Adhjogias Siris, Lachhains, Halis, Adhalis, Sirriria Hari, Dehqan and such other partners in cultivation are not tenants within the meaning of clause (26) of section 4 of the Land Revenue Act, 1967, and do not possess the right of excluding the landlord from interfereing in the cultivation under the law relating to tenancy. The entry regarding them is made as Khud Kasht Flan Hissadar Ba‑Shirakat Falan Siri etc. Field Workers (Kama) whose status is that of mere labourers receiving fixed wages in cash or in kind, should not find a place in the Register Haqdaran Zamin. Column No.5 Survey/Khasra No. and name, if any:‑‑ The terms "Survey Number" or "Khasra Number" as defined in clause (25) of section 4 of the Land Revenue Act means a portion of land of which the area is separately entered under an indicative number in the record of right. Column No.6 Area and soil classification of each number and total Khatuni cultivator and Khewat Malik. Column No.7 Source of irrigation including name of well, Rajbah etc. Column No.8 Rent paid by cultivator, rate and demand. The term "rent" means whatever is payable to a landlord in money or, kind by a tenant on account of use or occupation of land by him. It is called (Lagan). This definition is given in clause (21) of section 4 of the Land Revenue Act. Rent (Lagan) is of five kinds‑.‑‑ (a) A definite share of the crop (Lagan Batai); (b) Cash rent for particular crops which cannot conveniently be divided, at a fixed rate per Kanal or area etc. (Lagan Zabti); (c) Cash rents paid , on land irrespective of the crop grown upon it (Lagan Naqdi); (d) Lump grain rents or rents consisting of a fixed amount of grain in the spring and a fixed amount of money in the autumn harvest (Lagan Chakota); and (e)A definite share of crops in addition to some cash at certain rate per Kanal or per Acre. Column No.9. Demand with details of Revenue and cesses. The entry where the land revenue is fixed is called "Mustaqil" and where it is in the form of prescribed rates, it is called "Ghair Mustaqil". Column No.10 Remarks including the name of Lambardar and rate of Land Revenue.

12. In the case of Shah Muhammad v. Khan Poor PLD 1986 SC 91, where leave to appeal was granted to examine conflict of authority in Shamsur Rehman v. Hukumat Khan and another PLD 1967 Pesh. 304, Shad Muhammad v. Khanpur PLD 1979 Pesh. 93 on question whether in case of conflict entry in column of cultivation of Jamabandi should not be given preference over Lagan column, the Honourable Supreme Court observed:‑‑ "The point of law on which leave was granted stands resolved in the unreported judgment of this Court in Mehrab Shah (through, his Legal Heirs) v. Shah Zaman and others (Civil Appeal No.52‑P of 1972 decided on 20‑4‑1980). The view that entries of the column of Lagan, otherwise not corroborated by any evidence cannot take precedence over the column of cultivation, was upheld. It was also held that the party relying on the Lagan column as against the cultivation column would have to produce evidence in support of its plea."

13. In the case of Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113, where leave to appeal was granted in order to examine the following contentions:‑‑ ‑ (i) That High Court had fallen into an error in setting aside concurrent finding of facts of two Courts below; (ii) That entries in Revenue Record, right from 1925‑26, had not been correctly interpreted by High Court; (iii) That first entry of contesting respondents over suit land was in capacity of tenants‑at‑will and they were estopped to set up plea of adverse possession against landlords; and (iv) That High Court had also incorrectly interpreted sections 39, 44 and 52, West Pakistan Land Revenue Act, 1967 and section 35, Evidence Act, 1872. " The Honourable Supreme Court observed:‑‑ "Two questions arise now for determination. One, whether the learned Judge in the High Court was right in giving preference to some entries in the Lagan Column of the Jamabandi over those in the cultivation and ownership columns; and two, whether the concurrent findings ‑of fact on question of adverse possession have rightly been upset in the impugned judgment. It has been recently observed by this Court in line with a string of authority in Shad Muhammad v. Khanpoor PLD 1986 SC 91, decided on 25th November, 1984 overruling the High Court decision reported in PLD 1979 Pesh. 93, that‑‑ 'In this case the respondent relied on the Lagan column entry to the effect that the appellant was not paying rent, on account of a mortgage. This stands contradicted by the cultivation column where he is mentioned as tenant; as also, indirectly by the ownership column of the Jamabandi where other persons are mentioned as mortgagees but not the appellant. The explanation of the learned counsel for the respondent is that although the mortgage in favour of the appellant, indicated obliquely in the Lagan column, had taken place, the mutation was not yet sanctioned when the relevant Jamabandi was prepared. But he failed to produce any evidence to support this. It was his burden, as held in Mehrab Shah's case, to adduce such evidence. The reliance of similar entry in the Khasra Girdawri as in Lagan column of Jamabandi, is of no avail to the respondent because it cannot be given preference over the above referred two columns of the Jamabandi. Similarly, there is no force in the argument of the learned counsel for the respondent that Lagan column does not show payment of any Lagan, therefore, the appellant even if mentioned as tenant in the cultivation column was not a 'tenant' as defined in the relevant law which required payment of rent unless contracted otherwise. Firstly, it is based on the entry in the Lagan column which is contradicted by the cultivation column and secondly non‑payment of rent as shown in the Lagan column by itself would not change the character as tenant of the appellant if shown so in the cultivation column." It will be of advantage for comparative study to mention here the cases cited by the learned counsel for the respondent which in his view, one way or the other, can go against his contentions on the legal question involved in this case. They are Lala v. Mst. Jante 1968 SCMR 131, Ahmad Khan v. Rasul Shah PLD 1975 SC 311, Khair Muhammad v. Khuda Bakhsh 1976 SCMR 69, Munawar Hussain Shah v. Mst. Bilora Bi PLD 1978 SC (AJ&K) 33, Bashir Ahmad v. Mushtaq Ahmad 1982 SCMR 663, Sohawa Singh v. Kesar Singh AIR 1932 Lah. 586, Mst. Bagh Bhari v. Mst. Bhagan PLD 1954 Lah. 356, Muhammad v. Salehon PLD 1955 Lah. 483, Hayat v. Muhammad Sadiq PLD 1956 (W.P.) Lah. 195, Mst. Jindo v. Custodian of Evacuee Property, West Pakistan, Lahore PLD 1964 (W.P.) Lah. 351, Wasan v. Hassan PLD 1977 Lah. 429, Umar Said v. Faiz Muhammad Khan PLD 1961 (W. P.) Pesh. 110, Shamsur Rehman v. Hqkumat Khan PLD 1967 Pesh. 304, Shad Muhammad v. Khanpur PLD 1986 SC 91 The office has also taken out three more cases viz. Shamshad and others v. Mukammil‑Shah and others 1984 SCMR 912, Mehrab Shah through his Legal Heirs v. Shah Zairian and others 1985 SCMR 497, Fazal Ghani v. Khitab Gul 1968 SCMR 1040(2) for reference sake. In the present case, the respondents are at most of the relevant places mentioned as Ghair Dakhilkaran. The patchy entry in the Lagan column of their being Hissadaran or the Lagan column having been left blank is of no help to the respondents. They were clearly tenants at will and could not be held to be is adverse possession. The concurrent findings of the learned Courts below could not justifiably be set aside by the High Court in its revisional jurisdiction. The impugned judgment is set aside. This appeal is, thus, allowed but the parties will bear their own costs. Before closing this judgment two more points made by the learned counsel for the respondents need to be mentioned, as his alternative arguments. Firstly, he argued that the ancestors of both the parties were brothers inter se, therefore, it should be held with the help of "Hissadari" entries that the appellants were given this land as a share from the ancestral land. This runs contrary to the pleadings, the issues, the Jamabandi entries and the case set up by the appellants at various stages including in the deposition of the respondent defendant Abdul Ghani D.W.1. Moreover, a co‑sharer could not claim adverse possession in the circumstances like those of the present case. Secondly, as was done in the case of Shad Muhammad, learned counsel prayed that this case may also be remanded to afford opportunity to the respondents to adduce more evidence. This will open field for purgery in the circumstances of this case. The plea is thus, untenable. "

14. In the case of Khanan and 2 others v. Fateh Sher through Ahmad and 15 others 1993 SCMR 1578, the Honourable Supreme Court observed:‑‑ "With the coming into force of the Regulation any decree passed in favour of plaintiffs on the basis of their Aala Malkiyat could not be executed and would be rendered absolutely ineffective."

15. In the case of Ghulam Hussain and 6 others v. Rab Nawaz Khan and another 1993 CLC 1053, where the defence plea of adverse possession was based on entry in record of rights wherein plaintiffs were recorded as owners while defendants were shown as "Qabiz Ba Shara Malikan Bawaja Nautore". First such entry related to the year 1981‑82 and the suit filed by the plaintiffs an 1985 was declared clearly in time and it was observed that the term "Qabiz" denoted assertion of adverse possession and same could not have been entered in record of rights without a mutation attested for such purpose of Revenue Officer and that entry "Qabiz" ‑was, therefore, unauthorized and carried little evidentiary value and that the elements of adverse possession were wanting in the case and that neither possession of defendants as "Qabiz Ba Shara Malikan Bawaja Nautore" constituted adverse nor had it ripened into their ownership rights for extinguishment of rights of true owners of property in question.

16. In the case of Shams had and others v. Mukammil Shah and others 1984 SCMR 912, where the dispute was as to ownership of land and the entries in the Jamabandies showed holding of land by the petitioners . The Honourable Supreme Court held that such entries were not amenable to interpretation that the petitioners themselves were the owners particularly when in the same Jamabandi name of others were duly entered in the column of owner, whereas the names of the petitioners (or of their predecessor‑in‑interest) were shown in the column of tenant.

17. In the case of Malik Ghulam Haider and others v. Haider and others PLD 1951 Lah. 92, it was observed that according to the conditions of Wajib‑ul‑Arz, mere breaking up of the land for purposes of Barani cultivation, apart from the restriction imposed by the Sindh Sagar Doab Colonization Act, conferred no right on the cultivator to acquire Adna Malkiat. The position, therefore, is that no matter what they did to the land in question, the Asna Maliks could neither acquire Adna Malkiat nor any occupancy tenancy, in the portions broken up by them. They did not even become tenants‑at‑will. This class of cultivator was in possession without any right and was, thus, liable to ejectment from the Shamilat land.

18. In the light of the above instructions and judicial precedents, mere entry of Gullu son of Ahmad as Qabiz in column No.4 of Register Haqdaran Zamin for the year 1983 and the entry in column No.8 cannot make him owner of the land on account of adverse possession as in the column of ownership, the name of Ramzan son of Shah Nawaz etc. is intact and there is no mutation attested for such purpose by the Revenue Officer and that entry of Qabiz was, therefore, unauthorized and carried little evidentiary value and, therefore, the elements of adverse possession were wanting in the case and that the possession of Gullu son of Ahmad as could not ripe into ownership rights for extinguishment of rights of true owners of property in question. The judgment and decree passed by the learned Additional District Judge is, therefore, unexceptionable‑and the same is upheld. Resultantly, the revision petition is dismissed with no order as to costs: Q.M.H./M.A.K./G‑14/L Revision dismissed