1968 SCMR 131 (PLP)

HAMOODUR RAHMAN, J.-This is a certificated appeal from the judgment and decree of a Division Bench of the High Court of West Pakistan in a regular first appeal. I he certificate was granted under sections 109 and 110 of the Code of Civil Procedure read with Order XLV, rules I and 2 read with the provisions of the abrogated Constitution on the 5th of March 1962, on the sole ground that the value of the subject-matter in dispute in the appeal was in excess of Rs. 20,

000. The appeal in the High Court itself arose out of a suit, instituted by the respondent Mst. Jante on the 29th of September 1953, for possession of 174 Kanals and 3 Marlas of land in the area of Daffar, Tehsil Phalia, District Gujrat. She claimed to recover possession of these lands on the basis that the present appellants were in unlawful possession thereof and were denying her title. The appellants contested the suit and the only plea raised by them in their writt statement was that they had acquired title to these lands y adverse possession as owners for more than 12 years. The e was only one issue raised in the suit, namely, "whether the defendants are in adverse possession of the suit lands for more than 12 years and with what effect?" Since the onus of proving this issue was on the defendants they adduced evidence first. The defendants' evidence disclosed that the lands originally formed part of the shamilat of the village but subsequently when there was a partition of the shamilat sometimes in 1938 Ali and Karma, the predecessors-in interest of the present appellants, who were then in possession of the land, refused to make over possession to Qutub, the father of Mst. Jante. The witnesses for the defendants claimed that Ali and Karma remained in possession of the land considering it as their own and since their death the appellants had been so possessing the said lands. The defendants also filed certain jamabandis (Exhs. P. 1 to P. 4) in support of their claim. These Jamabandis unfortunately showed that in 1915-16 Ali and Karma are shown as tenants of these lands paying batai at the rate of 1/3rd of the produce in respect of some khatas and paying cash rent in respect of some others. In the Jamabandi (Exh. D. 2) for the year 1939-40 Ghulam, the son of Karma, was, however, shown as a "non-occupancy tenant" paying rent "at proprietor's rate due to possession". Similarly Jamabandis for 1943-44 (Exh. D. 3) and for the years 1953-54 (Exh. D. 4) also showed the appellants as non-occupancy tenants paying rent at proprietor's rate on account of possession. The plaintiff's evidence on the'other hand, was that she had actually obtained possession of the lands on partition and settled it with Muhammad .Hayat and Ata Muhammad by a lease deed (Exh. P. W. 1/1) not printed on the record. Muhammad Hayat, one of the tenants, himself and the local Lambardar were examined to establish this. The plaintiff herself also gave evidence and maintained that she had taken over possession by ploughing the lands and then remained in possession of these lands by getting batai" until her title was denied a week before the institution of the suit. After partition she claimed that Gullu and Lala, the appellants, cultivated the land and gave her batai. This was also supported by the Patwari of the halqa who corroborated that actual physical possession was delivered to Mst. Jante at the spot. On this evidence the trial Court gave a partial decree with respect to Kbasra Nos. 458 to 462, 464, 467 and 468, but refused a decree with regard to other Khasra Nos. as the appellants were found to have been in possession thereof for more than 12 years. In coming to this conclusion the Jamabandis were relied upon and it was held that since the appellants' possession was described in column 5 of the Jamabandis of 1939-40, 1943-44 and 1953.54 as "ghair maurousi" and column 9 showed that they only paid' rent at the rate of the proprietor's share of the revenue and cess "Ba Sharah Malikan Bawaja Kabza" this led to the "irresistible conclusion" that the defendants had been in possession of the fields, in respect of which the decree was granted, for more than 12 years adversely to the plaintiff. Against this decree both sides preferred appeals to the High Court, which beard these appeals analogously. The High Court took the view that since in the Jamabandis for the year 1915-16 (Exh. D. 1) Karma and Ali, the predecessors-in-interest of the present appellants, had been shown as tenants paying "batai" they must have entered the land as tenants. Hence their heirs and successors-in-interest could not now set up an adverse title merely on the basis of the entries in some of the subsequent Jamabandis. Furthermore, the High Court was of the view that the Civil Judge was wrong in holding that the entry in column No. 9 of the Jamabandis recording that the occupancy tenant as holding "Ba Sharah Malikan Bawajah Kabza" was by itself sufficient to constitute adverse possession, for, mere non-payment of rent by a tenant or even repudiation of a tenancy would not constitute adverse possession unless the repudiation had been accepted by the landlord. It was argued before the High Court that since it was not the plaintiff's case in her plaint that the predecessors-in-interest of the defendants had originally entered into possession of the land as tenants she could not now be allowed to set up such a case. The High Court, however, repelled this contention, since, it had now been established from unimpeachable documents produced by the defendants themselves that their predecessors in-interest had initially entered into possession as tenants. The plaintiff could, it was held, take advantage of any conclusion that could legitimately be drawn from this evidence, even though she had herself not raised the point or specifically alleged it in her plaint. The appeal of Mst. Jante was, accordingly, accepted and that of the present appellants dismissed with costs. Hence the defendants have now come up on appeal to this Court. It has been strenuously urged on their behalf that the plaintiff should not have been allowed to set up a new case at the appellate stage which had not been made out in the plaint and that the entries in the Jamabandis themselves recording the defendants from years 1939-40 onwards as occupancy tenants paying rent "Ba Sharah Malikan Bawajah Kabza" should have by themselves been held to be sufficient to lead to the inference that they were holding adversely to the owner of the land. The first contention is clearly untenable. The onus oft proving adverse possession was clearly upon the defendants and, if their own evidence disclosed that their possession at itsr inception was as tenants it is they who must fail. There can, inl such circumstances, be no question of the plaintiff setting up a new case which was not pleaded in the plaint. She sued them as trespassers but they claimed that they had acquired title by adverse possession. If they fail to establish this title they remain' trespassers, as alleged in the plaint. This is not a new case, for the plaintiff cannot in the circumstances be charged with having shifted her stand. As for the second contention the-learned counsel for the appellants has sought to find support for it from certain observations in the case of Sohawa Singh v. Kesar Singh and others (A I R 1932 Lah. 586) to the effect that "the entry in the record-of-rights to the effect that the tenant claimed an adverse title was sufficient proof of that fact and also notice of such a claim to the landlord." Since the record-of-rights in Punjab was publicly attested in the presence of the people of the village an eatery in it would, it is said, be sufficient to raise a presumption that the landlord had notice of the adverse claim at least from the date of such attestation. In the case cited the entry in the record-of-rights in the column of ownership showed the predecessors-in-interest of the persons claiming title by adverse possession as "Ghair Dakhalkar" and in the revenue column the entry was "no rent because of assertion of ownership". These entries were found consistently from the years 1911-12 to 1924-25 and on the basis of these entries the trial Court had held that the claim of adverse possession had been proved but the High Court in appeal took a contrary view. One of the learned -Judges, namely, Currie, J. stated in his separate judgment that "in a case such as the present the words 'owing to assertion of ownership' (bawaja taswar malkiyat khud) merely represent an assertion made by the man who was already in possession as an explanation of the fact that he merely paid revenue and cesses" and that such an entry would not of itself suffice to afford a starting point for adverse possession." The main ground, however, upon which the appeal was allowed was that even assuming that adverse title was first asserted in 1911-12 it had not, matured till the date of the institution of suit as it had not been exercised for at least 12 years. The second learned Judge, Bhide, J. also observed with regard to the entry in the column of revenue that "the mere fact that the tenant paid no rent beyond land revenue and cesses cannot, by itself, be held to be sufficient to establish that the tenant's possession was adverse to the landlord. The low rent may have been fixed owing to relationship or some such reason." These observations do not support the wide contention of the learned counsel. The next case relied upon by the learned counsel for the appellants is the case of Mst. Bhag Bhari, etc. v. Mst. Bhagan and another (PLD 1954 Lah. 356) decided by Kaikaus, J. sitting singly. Here also the entry in the cultivation column of the record of rights was "Ghair Maurusi" and the entry in the column of rent was "Nakdi-ba-Sharah Malikan Bila _Malikana". The learned Judge observed that these "entries, as they stand, are consistent with the position of the plaintiffs as well as that of the defendants. It cannot be denied that by itself the entry 'Ghair Maurusi' does not necessarily imply that the person so described is a tenant. The Patwari uses these words for every person who is in possession without any right or title. The entries in the cultivation column are always to be read along with the entries in the rent column as pointed in 1928 Lah.

147. Here the entry' in the lagan column is Islakdi-ba-Sharah Malikan Bila Malikana' The difficulty in interpretation in the present case arises out of the fact that the Patwari would b using this expression in a case where a tenant is paying only land revenue as well as in a case where a person's possession is without any right or title. There is no doubt that generally when a person is in possession on an assertion of hostile title or unlawfully the Patwari will use some such expression as 'Ha Tasawar Malikiat Khud, Bawajah Qabza,' etc., but the use of such expressions is not necessary and it does sometimes happen that even in the case of a person in adverse possession the Patwari uses only the words which have been used in the present case . . . The real question which is to be decided in cases like the present is not whether non-payment of rent puts an end to the tenancy but what is the interpretation of the entry in the revenue records. As I have said above, the present entry is consistent with the defendants being tenants as well as being in possession on their own behalf. The proper approach, therefore, in such cases is to consider the other circumstances of the case in order to determine the interpretation of the entry." Having said this the learned Judge then went on to examine the facts and circumstances of that case and ultimately came to the conclusion that the defendants in that suit had not succeeded in proving their adverse possession, notwithstanding the entries in the Jamabandis quoted above. In the case of Muhammad v. Salehon (P L D 1955 Lah. 483) which has also been referred to by the learned counsel, another Division Bench of the Lahore High Court approved of the dictum laid down by Currie and Bhide, JJ. in the case of Sohawa Singh v. Kesar Singh and others. In none of these cases, it will thus be seen, has it been laid Aown that such an entry in the revenue records is by itself efficient to lead to the inference that the possession is necessarily adverse. We are in agreement with the views expressed in the case of' Mst. Bhag Bhari v. Mst. Bhagan and another and approve of the same. Such an entry, as therein pointed out, is not an unequivocal assertion of a hostile title and, therefore, one has to interpret this entry in each particular case in the light of the facts and circumstances of that case. The facts and circumstances of the present case are that the lands, which were originally shamilat lands, were subsequently partitioned. Initially the predecessors-in-interest of the present appellants had entered into possession of these lands as tenants paying only `batai' but subsequently after the partition their heirs ceased to pay any further rent to the persons to whom the lands were allotted on partition. In these facts can it be said that the entry per se indicated that they were denying the title of the owner and claiming to hold the land adversely to him? We think not, for, we agree with the High-COurt that there is nothing on the record to show that they ever openly and to the knowledge of the proprietor asserted a hostile title. Learned counsel for the respondent has also relied on the 54 B e decisions to draw the inference that adverse title has not been established, as also upon the provisions of section 36 of the Punjab Tenancy Act, 1887. According to him, by reason of the provisions of this section, it is necessary for a tenant asserting adverse title to a land originally taken possession of as a tenant to give notice of that fact to the landlord. In the absence of such a notice the title of the tenant cannot become adverse. We think that there is substance in this contention, for, if possession of a person claiming adverse title was at its inception as a tenant then some notice is necessary to indicate that the tenant had repudiated that position or resiled from it. The mere non-payment of rent does not alter the nature of the tenancy. The tenant must show that he had done something more to deny the landlord's title, for, the law assumes that a tenancy of land once entered upon continues until determined in one of the ways provided for by statutory enactment. In such case, therefore, clear and unequivocal evidence of the assertion of a hostile title is necessary. Mere non-payment of rent or a mere entry in the Jamabandi showing that rent was being paid at the rate of the proprietor's share of the revenue and cesses is not such clear evidence, for, the entry is equally capable of being explained on other grounds consistently with the subsistence of the relation ship of landlord and tenant. It may well be that the rate of rent is fixed at such a low rate due to relationship with the landlord or due to the fact that the tenant has brought under cultivation virgin shamilat land, as in the present case, by incurring heavy expenditure. For these reasons we are of the view that this appeal must fail and, accordingly, dismiss the same with costs. Appeal dismissed.