1998 PLP 1760 (CLC)

(1) Whether the plaintiff and pro forma‑defendant are owners of the suit land? O.P.P. (2) Whether the suit land was destroyed by the canal water in 1955 and remained uncultivable till 6‑7 years before? O.P.P. (3) Whether defendant No. l and his brother Muhammad Alain, got illegal entries recorded in their favour in the Revenue Record which are illegal, inoperative against the plaintiff and pro forma‑defendant. O. P. P. (4) Whether the suit is within time? O.P.R (5) Whether the plaintiff has a cause of action? O.P.P. (6) Whether the defendants' adverse possession over the suit land has ripened into ownership by prescription? O. P. D. (7) Relief.

5. The plaintiff produced Munshi Muhammad Aziz, Patwari, Pervaiz Akhtar son of Fazal Ellahi, Allah Ditta son of Atta Muhammad, Muhammad Latif son of Sahid Dad and Abdul Rashid, plaintiff himself also appeared as witness. The plaintiff also produced documentary evidence, Exh.P.A., copy of Jamabandi for the year 1979‑80, Exh.P.B., copy of Khasra Girdawari for the years 1956‑58, Exh.P.C., copy of Khasra Girdawari for the years 1959‑

64. Copy of Jamabandi for the year 1971‑72 was also appended with the plaint but the same was not exhibited, while the defendant‑appellants produced Qamar Hussain Shah, Patwari, Inayatullah, Patwari, Muhammad Bashir son of Kaloo Khan, Sabir Hussain son of Muhammad Abdullah, Abdul Hakeem son of Muhammad Alain and Nek Alam, one of the defendants himself appeared as witness, including the documentary evidence, Exh. P. A. / 1, copy of Khasra Girdawari for the year 1987, Exh.P.A./2, copy of Khasra Girdawari for the year 1988, Exhs.P.A./3 and P.A./4, copy of Khasra Girdawari for the years 1984‑86, Exh.P.A./5, copy of Khasra Girdawari for the years 1982‑83, Exh.P.A./6, copy of Khasra Girdawari for the year 1980‑81, Exh.P.A./7, copy of Khasra Girdawari for the years 1977‑80, Exh.P.A./8, copy of Khasra Girdawari for the years 1968‑76, Exh.P.B., copy of Khasra Girdawari for the year 1988‑89, Exh.P.C. copy of Khasra Girdawari for the years 1959‑64, Exh.P.D., copy of Khasra Girdawari for the year 1960‑64, Exh.P.E. copy of Khasra Girdawari for the years 1964‑68, Exh.P.F., copy of Khasra Girdawari for the years 1997‑2001‑BK, Exh.P.H. copy of Khasra Girdawari 1993‑97‑Bk, Exh.D.X. copy of Roznamcha Waqiati, for the year 1964 and Exh.D.X./1, copy of Roznamcha Waqiati for the year 1996‑97, in support of their claim.

6. The Trial Court decided issue No.l, in favour of the plaintiff respondents and on its basis, decided issue No.3 also in their favour. However, issue No.2 framed in the subject of suit land having been destroyed by canal water in 1955 was decided against them. The issue on the subject of adverse possession for which the burden of proof was placed on the defendant appellants, was decided against them. Issues Nos.4 and 5 framed on the point of limitation and cause of action, were decided in favour of the plaintiff accordingly. The District Judge in appeal filed by the defendant‑appellants, agreed to the findings recorded by the Trial Court. It would be appropriate to analyses the orders recorded by the Trial Court as well as the first Appellate Court. The Sub‑Judge decided issue No. l struck on the point of ownership, on the basis of finding the plaintiff and pro forma‑defendant's names in the ownership column, in their favour. Similarly, issue No.3, on the basis of that resolution, was decided in their favour which was framed in relation to the entries recorded in favour of the defendants. The entry of ownership was held sufficient to hold the entries in favour of the defendants as illegal and inoperative. The issue on the subject of adverse possession was decided against the defendants, on the ground that one of the defendants, Nek Alain, in his statement as witness, stated that he was owner of the suit land and was in its possession in the above capacity. It was held that the witness was not in possession of the suit land, considering the same to be owned by anyone else, therefore, the adverse possession was not constituted. It appears from the findings recorded by the District Judge, Mirpur that the findings recorded by the Trial Court were agreed to by him on all the issues in the similar manner as those were held by the Trial Court. A critical examination reveals that both the subordinate Courts failed to apply their minds to the controversy involved between the parties and also failed to appreciate the evidence led by the parties in the light of law. It would be sufficient to mention that the plaintiff's claim of land having been destroyed by canal water since 1955, was not accepted by the Trial Court which as well as the First Appellate Court which appears to have been decided in view of the evidence led by the defendant‑appellants which all the way goes against the plaintiff in substantiating his point of view with regard to the entries recorded in favour of defendants. The learned trial Judge while deciding the relevant issues, held that since issue No. l framed on the subject of ownership was decided in favour of the plaintiff, therefore, the entries in favour of defendants were illegal. I believe that the Trial Court fell in error in deciding the matter in the light of law and the District Judge also committed the same illegality. Similarly, the issue of adverse possession was not decided keeping in view the evidence led in this regard and law applicable to the proposition. The Trial Court while deciding the relevant issue against the defendants, held that since one of the defendants stated to have possessed the suit land as owner, therefore, his possession cannot be held to be hostile. In my view, the Trial Court after deciding issue No.3, on the basis of issue No. 1, had no option but to decide the issue of adverse possession against the defendants as it had already held the entries being illegal and inoperative against the plaintiff's rights on account of their names appearing in the ownership column. It may be mentioned that so far as the entry of ownership of the plaintiff and pro forma‑defendant is concerned, the same was not disputed as defendants' claim is of hostile possession over the land belonging to the owners. Therefore, the pivitol issue to be determined first was the issue of adverse possession and that of limitation connected with it. Interestingly, the Trial Court as well as the First Appellate Court based all their findings on the resolution made in respect of issue No. l which was not the requirement of law and showed their ignorance about the law dealing with the adverse possession.

7. To appreciate the proposition, the guidance is sought from the resolutions made by the superior Courts in this regard. Reference may be made to Gulab and others v. Muhammad Yunus and others PLD 1983 SC (AI&K) 89, wherein it was observed:‑‑ "(12) Next we come to the question of adverse possession. The rule of adverse possession is based on the principle of 'might is right'. Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience, superior Courts of the State and Pakistan have considered it immoral for having its source of origin in brute force. The history of the concept is traced to premedical times. But with the passage of time and organisation of society into state of rule of law, it gained mandate of law to set at rest the status of long time possession, particularly in absence of claims of true owners of properties. The constituent conditions of adverse possession are that it must be actual, visible, exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If any one of the constituent conditions is lacking in evidence, the plea is outrightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession. (13) The other legal aspect of adverse possession is that whenever defendant attempts to defeat the plaintiff's suit for possession on the plea of adverse possession, onus of proof is placed on such defendant. Likewise, in a suit for possession where plaintiff acquires title in suit property when defendant is already in possession under a right, plaintiff is under an obligation to prove his title and nothing more. Defendant, who defends his possession on the ground of adverse possession or limitation, onus to prove that suit is beyond limitation, is on such defendant in the light of provisions of Article 144 of the Limitation Act. The Legislature very wisely incorporated, that defendant who was already in possession under a title or permissive possession, is best at knowledge as to how and when his possession became adverse. This leads to the conclusion that Article 144 envisages (i) commencement of limitation at the time when defendant's possession becomes adverse and (ii) that onus lies on defendant in order to defeat the suit as beyond time. " The proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in Munawar Hussain Shah's case PLD 1978 SC (AJ&K) 33, wherein it was observed as under:‑‑ ‑‑‑‑‑ Question of adverse possession entirely a question of fact‑‑ Possession must be actual, open and hostile and continuous for creating a possessorry title in holder of possession‑‑‑Mere non‑payment of rent or discontinuance of payment of rent‑‑‑Not sufficient for creating tide by adverse possession. ‑‑‑‑Proof, of‑‑‑Revenue Record showing plaintiff's possession in capacity of a tenant at will‑‑‑It is to be presumed that possession continued of same character until and unless there happens something to make it adverse‑‑‑Onus on tenant to show when and how his possession became adverse‑‑‑Time ceases to run against lawful owner in case of a break in adverse possession. "

8. In the present case, the defendants brought sufficient evidence on record, oral as well as documentary, as discussed above, which proved their possession as hostile continuously for more than 12 years. It may also be mentioned that the nature of the entry recorded in' favour of the defendents, certainly satisfied the standard set by the superior Courts while resolving the proposition. The possession found continuous for more than 12 years in hostile nature is also supported by oral evidence led in this regard. It was further supported by the plaintiff's claim in relation to land in dispute having been destroyed by the canal water since 1955 and the same rejected by the Trial Court as well as first Appellate Court which implies that defendant possession was continuous, particularly when the documentary evidence fully supported the same.

9. It is pertinent to mention that the citations referred to by Raja Muhammad Siddique Khan, the learned counsel for the respondents do not lay down a different law as settled by the Supreme Court of Azad Jammu and Kashmir, referred to above and in any case, do not advance the point of view argued by him. It will be useful to give a summary of the case‑law relied by him. The citation, PLD 1983 SC (AJ&K) 89, is the same case titled Gulab v. Muhammad Yunus quoted above. The other case 1991 SCMR 829 relied by the learned counsel for the respondents that the entry of Revenue Record, Tasawer Malkiet Khud" does not constitute any adverse possession, is not supportive to his arguments as it is held in that case that the entry is not sole proof of adverse possession and there can be no cavil to the proposition. Similarly, the ruling 1982 SCMR 663, is also not of any avail to him as it is held in that case that mere entries in the Revenue Record are not sufficient to establish adverse possession, but there must be something in very nature of possession and in act of person claiming adverse possession which may establish clearly that a title and interest hostile and adverse to owner, was alleged continuously and uninterruptedly. It follows that on the basis of above citation, the exception cannot be claimed keeping in view the facts involved herein. The case cited as 1984 CLC 1926, deals with a different proposition as in that case, the defendant firstly claimed to be a lawful allottee an later on, asserted to be in adverse possession. It was also held in that case that the defendant was a licensee who never denied the title of the owner, as such, the adverse possession was not constituted. The other authorities relied by the learned counsel are also consistent on the basic principles governing the adverse possession as held in the above referred cases of the Supreme Court.

10. The learned counsel for the appellants also argued on the strength of PLD 1988 AJ&K 1, that it was for the plaintiff to have approached the Court within 12 years under Article 142 of the Limitation Act. The counsel representing the respondents opposed the proposition and placed reliance on the case title Dewan Ali v. Jehandad Khan, decided by the Supreme Court of Azad Jammu and Kashmir on September 21, 1994. The proposition stands settled in the above referred citation that the cases in which the possession is sought on the basis of title, Article 144 of the Limitation Act will apply, meaning thereby that if the defendant does not prove his adverse possession, the suit for possession of the plaintiff would succeed. ' Therefore, the point is found to have no substance in it.

11. In view of the above discussion, both the judgments and decrees of the subordinate Courts are not maintainable which are hereby set aside, by accepting f the appeal. The other points, in the circumstances, are not required to be adverted to. H.B.T./149/AJ&K Appeal accepted