P L D 1964 (W (PLP)

WAHIDUDDIN AHMED, J.

‑In this Second Appeal the dispute between the .parties is in respect of an unsurveyed piece of agricultural land bearing No. 139, cultivated on rain water (Barani) in Deh Kubi, Taluka Kotri, District Dadu. In Suit No. 22 of 1953, respondents alleged that the land in dispute belonged to their ancestors Rai Bahadur Vishindas, which on partition in the year 1920 under a decree of the civil Court fell to the share of their father and two uncles. In the year, 1928, there was a further partition in the joint family and the land in dispute along with some other lands came to the respondents share. They alleged that since then the land in dispute stood in their name in the Record of Rights and remained in their possession.

2. It appears that in the year 1941, the Revenue Authorities mutated the land in dispute in the Record of Rights in the name of the appellants on the ground that they were the heirs of one Gul. However, in 1945 the Mukhtiarkar Kotri at the instance of the respondents set aside the order of his predecessor and mutated it in their favour. Thereupon, the appellants preferred an appeal to the Deputy Collector, Sehwan, who accepted the appeal and upheld the order of the Mukhtiarkar passed in their favour in the year 1941. Respondents' revision application was dismissed by the Provincial Government on 2nd April, 1953. In pursuance of the order of the Deputy Collector the land was re‑entered in the name of the appellants and its possession was delivered to them. This led the respondents to file the above‑mentioned suit. They alleged that the land in dispute belonged to their ancestors and claimed it as rightful owners Further in the alternative they pleaded that the right, interest and title of Gul, if any, to the land in dispute was extinguished by adverse possession of the respondents and their ancestors since the days of Rai Bahadur Vishindas within the meaning of section 28 of the Limitation Act. On these allegations they claimed a declaration that they are the owners of the land in dispute and their names should be entered in the Record of Rights. They further prayed for the ejectment of the appellants, besides mesne profits from Kharif 1953‑54, onwards from the land in dispute.

3. The appellants resisted the suit and denied the title of the respondents and their ancestors. Their case is that the land in dispute belonged to one Gul their grand‑father, who was its rightful owner and relied on the entries in their favour in the Revenue Records. They denied the alleged partition, and the possession of the respondents and their ancestors and asserted that they have always been in continuous possession of the land in dispute since the days of their grand‑father.

4. The learned Subordinate Judge, Kotri by judgment dated 17th April, 1958, held that the respondents have failed to prove their ownership of the land in dispute and rejected their prayers for declaration and getting the Record of Rights changed in their name. He, however, granted them a decree for possession against the appellants on the ground that their possession was superior to that of the appellants. No mesne profits were awarded. Thereupon, the appellants preferred Civil Appeal No. 18 of 1958, in the District Court, Dadu. The learned District Judge, by judgment dated 30th November, 1959, dismissed the appeal and upheld the findings of the learned Subordinate Court on all the points raised before him. The appellants have challenged these findings in this Second Appeal before us.

5. Before considering the contentions of the parties it may be mentioned that there is a concurrent finding of fact by both the Courts below that respondents have failed to establish that they or their ancestors were the lawful owners and had valid title in respect of the land in dispute. The learned counsel for the respondents has not challenged this concurrent finding of fact in supporting the judgment of both the Courts below. We would, therefore, proceed to dispose of this appeal on the assumption and finding that the respondents have no proprietary title to the land in dispute.

6. Mr. S. B. Hassan Zaidi, the learned counsel for the appellants has strongly contended before us that the finding of the learned Courts below on the question of the possession of the respondents in respect of the land in dispute is not based on proper appreciation of the oral and documentary evidence produced by the parties. He further contended that the learned District Judge, Dadu did not apply his mind to the facts of the case on the question under consideration and disposed of this important aspect of the case on wholly unsatisfactory and perfunctory grounds. On the other hand Mr. Persi Ramchandani the learned counsel for the respondents contended that there being a concurrent finding of fact it is not open to this Court in Second Appeal to disturb it merely on the ground that the learned Subordinate Courts have taken an erroneous view of the facts involved in the matter. It is now a well‑established rule of law that the High Court in Second Appeal has no jurisdiction to upset the finding of fact arrived at by the lower Courts in spite of the fact that it may not agree with that finding. But this rule will not be applied to those cases in which the High Court on examination of the evidence which the lower Courts used for arriving at the finding of fact, comes to the conclusion that the evidence was entirely misread in lower Courts. In such case the finding of fact cannot claim immunity from being disturbed by the High Court and it is competent and has jurisdiction to give a finding on the question of fact that arise in a matter before it.

7. There is yet another difficulty in the way of the respondents. The learned District Judge who was expected to apply his own mind on the question of the possessory title of the respondents failed to do so. He dealt with the question in a most perfunctory manner. The following extract of his judgment will bear it out :‑ "Whether the plaintiff or the defendants are in possession of the property in suit and when each party was in possession ? On this issue, the parties had only led oral evidence. In addition, the plaintiffs had produced land‑assessment bills Exh: 73, 74 and

76. These documents show that they were issued in the name of the plaintiffs Nos. 1 and

2. When there was no other evidence, before the Court excepting oral evidence, documentary evidence led by the plaintiffs was to be preferred, hence the lower Court was correct in holding that the possession was with the plaintiff's and that they were subsequently driven away and ousted from the possession, hence the finding of the lower Court on this issue was correct". It would thus be noticed that the learned First Appellate Court had based its decision only on the land assessment bills (Exhs. 73, 74 and 76). He did not discuss the other material evidence produced by the parties nor did he independently apply his mind to the finding of fact challenged in the appeal. The law on the point needs no elaborate elucidation. In Bashirullah v. Mst. Sardar Begum (P L D 1954 Lah. 614), a Division Bench of Lahore High Court made the following pertinent observations "It is not enough for the Court of appeal to say that the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub‑Judge I am also of the opinion that the plaintiff did give her consent. The evidence that was led ought to have been discussed and an independent mind brought to beat on the issue". Kayani, J. as he then was further observed :‑ "Even if the Court of appeal professes to have examined the evidence but it does not appear from the judgment that it has done so, a mere statement that upon an examination of the evidence it agrees with the conclusions of the trial Judge would not convince the Court of Second Appeal that the evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal. It is only when the Court of Second Appeal is thus convinced that it will regard the finding of fact by the District Judge as conclusive." It is, therefore, quite obvious that the failure of the First Appellant Court to approach the question of facts in this manner cannot make his finding on a particular point a conclusive finding o fact so as to deprive the High Court of reaching its independent conclusion after an appraisal of the evidence led by the parties. Judging the conclusion of the learned District Judge in this light it is perfectly clear to us that the learned District Judge did not apply his mind to the evidence adduced by the parties and made no attempt to arrive at any independent conclusion on the appreciation of the evidence. Therefore, it is not one of those cases in which the finding of the learned District Judge on the question under consideration can be considered to be of a conclu sive nature on the question of fact agitated in the Second Appeal.

8. Besides as would presently appear neither the learned Subordinate Court nor the District Judge appreciated the most important aspect of the case involved in this matter. It must have been noticed that the appellants claimed the land in dispute through Gul their grand‑father. It was on this basis that the land in dispute was mutated in their favour in the year 1941. There is no evidence whatsoever to establish that from 1930 to 1941 the respondents were at any time in possession of the land in dispute. There is also no documentary evidence to establish that the respondents were in possession of the land in dispute from 1941 till 1945 when the Record of Rights was changed by the Mukhtiarkar Kotri in their favour. On 2nd April, 1945 the Mukhtiarkar Kotri changed the Record of Rights in their favour for the following reason :‑ "So to say it (party No. 2) has been in possession and appropriation for more than 12 years. In Record of Rights the khata is continuing according to the possession and appropriation. It is, therefore, ordered that khata of that survey number be entered in names of Seth Sukhdev and Seth Lachmandas towards rightful possession". But after a thorough enquiry this order was set aside by the Deputy Collector, Sehwan by Order No. 1248, dated 12th July, 1961, vide Exh.

135. It will be useful to reproduce the conclusion of the learned officer in respect of the land in dispute :‑ "In 1886‑87 the area of unassessed Survey No. 139 Deh Kubi Topa Kachi Taluka Kotri was 699‑30 acres in 1906‑1907. Gul son of Ghulam Hussain Khumar, Seth Lachmandas and others had their rights in the said Survey Number and were cultivating it according to their shares and Gul's share was limited to 80 acres. Gul died leaving the legitimate heirs viz. Vikio (the appellant) and Ismail the grand‑son. Out of this area 80 acres, 17‑0 acres was reported to have been put to auction in satisfaction of Government arrears and the mutation of the remaining area was made in the name of the appellant (Vikio) and Mohammad Ismail in the year 1941‑42 by the then Mukhtiarkar Mr. Ochiram". In the said order it is further observed that since then the appellant remained in undisturbed possession until 1944‑45 when the successor of the Mukhtiarkar Kotri reversed the entry and mutated the area of the land in dispute in favour of the respondents.

9. Neither the learned Subordinate Court nor the learned District Judge has considered this aspect of the case. They did not care to find out what was the extent of the area of the unsurveyed number in question and whether the documentary evidence produced by the respondents was of such a nature which could displace the presumption of the correctness of the revenue record in favour of the appellants. With the aid of the learned counsel for the parties we have referred to Exhs. 72, 73 and 74 on which the learned District Judge has placed reliance in support of the respondents' case. Exh. 72 is Deh Form No. IX of the year 1927‑

28. It shows that out of Survey No. 139, acres 49‑22 was cultivated under Khata No. 23 which stood in the name of Seth Sukhdev son of Odhadas Hindu. Exh. 73 is also Deh Form No. IX, which shows that in the period to which it relates unsurvey No. 139 was not cultivated. It is stated towards the end of this document that "regarding Survey No. 139 another bill will be supplied" which of course was not brought on the record. Exh. 74, according to the appellants, is for the year 1930‑31 and. according to the respondents it refers to the year 1920‑21, which will not make any material difference. In this document also nothing is mentioned about unsurvey No.

139. Considering the above‑mentioned documents, it is, therefore, difficult to appreciate on what reasoning the learned District Judge has held that the respondents "khas" possession was satisfactorily proved. He failed to consider that the unsurveyed number consisted of about 221 acres and the appellants were only claiming out of it 67 acres. The documents relied upon by him are not of such a nature on which no other explanation could be possible. He should have given due weight to the order of the Deputy Collector and examined the evidence for finding out whether it in any way rebutted the finding arrived at in it. Unfortunately both the Courts paid no attention to this important document.

10. In this state of the record we have, with the assistance of the learned counsel for the parties, considered at length both the oral and documentary evidence produced by the parties. Except the land assessment bills no documentary evidence has been produced by the respondents in support of their case that they were in possession of the land in dispute since the time of their grand‑father Rai Bahadur Vishindas. The land assessment bills produced by the respondents are Exhs. 67, 68, 69, 70, 71, 72, 73 and

74. These documents relate to the period beginning from the year 1920‑21 to 1930‑

31. In‑ Exh. 67 nothing appears, about unsurvey No.

139. In Exh. 68, only 17 acres are stated to have been cultivated out of unsurvey No. 139 in the khata of Seth Herchand Rai. This is for the year 1922‑

23. Exh. 69 also relates to the year 1922‑

23. In this out of unsurvey No. 139 acres 2‑12 are mentioned to have been cultivated in the khatu of Seth Herchand Rai. In Exh. 70, out of unsurvey No. 139, acres 19‑14 are mentioned to have been cultivated. This is for the year 1924‑

25. In the note something appears under question mark in respect of unsurvey No. 139 but this portion is torn. Exh. 71 is also for the year 1924‑

25. Out of unsurvey No. 139, acres 1‑28 are stated to have been cultivated. We have already discussed the entries in Exhs. 72, 73 and

74. Reading these documents as a whole, even if these are accepted as genuine and good, they only establish that from 1920‑21 to 1927‑28 some portion of unsurvey No. 139 was cultivated by the ancestors of the respondents. On this evidence it cannot be said that the respondents had acquired any possessory title in respect of the entire unsurvey number 139, a portion of which was admittedly with the ancestors of the appellants as disclosed in the order of the Deputy Collector, Sehwan.

11. Mr. Zaidi, the learned counsel for the appellants has urged that the documents Exh. 67 to 74 are of no evidentiary value because they have not been produced through official source and are not supported by any revenue records maintained by the Revenue Authorities. This contention is not without force. These documents were only produced by P. W. 1 Lachmandas and there is no independent evidence to show that they were issued under the signatures of the Tapedar of the area concerned. Respondents had examined Hussain Bux Tapedar but these documents were not put to him. On the other hand this witness admitted in cross‑examination that "in 1941 the record was mutated from the name of Gul Mohammad son of Ghulam Hussain to the name of Vikio and Ismail". He further admitted that "the entry previous to 1941 stood in the name of Gul son of Ghulam Hussain, who was Khuman by caste". The other Revenue Officer produced by the respondent is Ali Nawaz (Exh. 127), who only produced records for the year 1949‑50 to 1956‑57 and did not depose any fact in respect of the documents produced by the respondents referred to above or in respect of the revenue records prior to the said period.

12. In addition to the documentary evidence referred to above respondents examined P. W. 1 Lachmandas, P. W. 2 Watio, P. W. 3 Mohammad, P. W. 4, Haji Khan in support of their case that they were in possession of the property in dispute from the beginning till 1945. P. W. 1 is one of the respondents and of course in the absence of other independent evidence much reliance cannot be placed on his oral statement in support of his case. P. W. 2, Watio is admittedly the hari of the respondent and is an interested witness. P. W. 3 Muhammad is the Kamdar of the respondents and much reliance, in the absence of any corroborative evidence, cannot be placed on his statement. P. W. 5, Haji Khan is a Kamdar and Hari of the respondents and is an interested witness. Thus the oral evidence produced by the respondents is of an interested nature. It will be noticed neither the Haris mentioned in the land assessment Bills have come forward to support their case nor have they produced any Zamindar or Haris of the adjoining lands. In our opinion the evidence produced by the respondents is of a most unsatisfactory nature. There is no documentary evidence to establish that after 1928 they cultivated any portion of unsurvey No. 139 and were in its possession. They obtained the possession of the land in dispute in the year 1945 from the appellants after the change of the mutation in the Revenue Records ; therefore, this is not one of those cases in which it can be said that the respondents have been in continuous possession and for that reason had possessory title to the land in dispute. The possession of the respondents after 1945 till their eviction in 1951 on the decision of the Deputy Collector was a disputed one and cannot confer any right and title on them so as to allow them to retain the possession of the property in dispute.

13. In support of his contention that the person dispossessed could succeed even on his past possession, Mr. Persi Ramchandani, the learned counsel for the respondents has referred us to Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi Teli (A I R 1937 Nag. 281), and Bodha Ganderi v. Ashloke Singh (A I R 1927 Pat. 1), which are distinguishable. In the first case Vivian Bose, J. observed as under :‑ A person who enters into peaceful possession of land claiming it as his own although he might not have any title to the land, can sue another person who has forcibly ousted him of possession and who has no better title to the land, because the first person, although he might not have any legal title, had at least possessory title and had commenced to prescribe for a legal title. Peaceful entry is the very essence of possessory title. In the judgment however, the learned Judge has referred to the other salient rule which is followed in such cases, namely that when the plaintiff has never been in actual possession or having had possession has been peaceably dispossessed or dispossessed by lawful process, or when the defendant has been placed in possession by the rightful owner either under a good or an imperfect title; the above‑mentioned principle would not be applicable. In the Nagpur case the dispute was in respect of a small strip of land measuring 1, lying between the two houses of the parties. The piece of land was in peaceful possession of the plaintiff for a long time from which he was dispossessed. It was found that none of the parties had title to it. In that context it was held that as between a trespasser who enters peaceably and another who wrongfully dispossess him, the title of the former is superior because at is prior m time and peaceful as opposed to forcible one. In the present case the position is entirely different. There is no evidence on the record that the respondents were in possession of the property in the year 1941‑

42. On the other hand, the Revenue Record relied upon by the Deputy Collector shows that the fore‑fathers of the appellants were in possession prior to 1941 when the change was effected in the Revenue Records in favour of the appellants. According to the Revenue Records the land in dispute was entered in the name of Gut. Out of 80 acres in his possession, 17 acres were sold for the recovery of the Government Revenues and the rest was mutated in favour of the appellants, who continued to remain in possession till 1945. It cannot, therefore, be said that the respondents were dispossessed from peaceful possession of the property so as to bring their case within the rule recognised in the Nagpur case. In the Patna case also the same principle was applied and is not helpful to the respondents. In this connection following passage in Salmond Jurisprudence (Eighth Edition) at page 293 may be referred :‑ "The possessor of a thing may be presumed to be the owner of it, and may put all other claimants to proof of their title . . . . . Even in respect of property already owned, the wrongful possession of it is a good title for the wrongdoer, as against all the world except the true owner. Possession is of such efficacy, also, that a possessor may in many cases confer a good title on, another, even though he has none himself . . . . . A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself." It is quite clear on this statement of law that the possession of a wrongful possessor has no value whatsoever against an earlier possessor or the true owner. Govindbhai Lallubhai Patel v. Dahyabhai Nathabhai Patel (A I R 1936 Bom. 201), it was held on a review of the case law that where a person who has lost possession, sues, to recover it, he cannot rest upon his prior possession alone, unless it was such so as to amount to prima facie evidence of title. It is open in a case, which is not under section 9 of Special Relief Act to the defendant who is in possession at the date o the suit to disprove the plaintiff's title. If the plaintiff's title is disproved he cannot succeed on the possession only. It would be thus quite obvious that the possession obtained by the respondents in the year 1945 could be of no help to them against the rights of the appellants.

14. After careful consideration of both the oral and documentary evidence produced by the parties, we are satisfied that the learned Subordinate Court's finding that the respondent had acquired possessory title to the land in dispute is not based on any reliable evidence whatsoever. The learned Subordinate Court and the learned District Judge failed to appreciate that unsurvey No. 139 consists of a very large area. The appellants are claiming out of it only 80 acres. According to the decision of the Deputy Collector this area of land stood in the name of their ancestors for a long time in .the Revenue Record. According to this decision they were in possession of the land in dispute since before 1941. In 1941 the Revenue Records were changed in the appellants name. In law an entry in the Record of Rights cannot be the foundation of title but is good evidence of possession. But if these documents are considered with the oral evidence produced by the appellants, they do establish that they were in possession of the land in dispute much before 1941. D. W. Umed Ali Khan and D. W. Faiz Mohammad are owner of the adjoining lands and there is no ground to disbelieve their statement that appellant and their ancestors were in possession of the land in dispute. The respondents, however, failed to rebut this important evidence by any reliable documentary or oral evidence. They alleged in the suit that the land belonged to Rai Bahadur Vishindas joint family, which was partitioned first in the year 1920 under a decree of the civil Court and then privately in the year 1928. There is no document to prove the first partition. In Exh. 170 which relates to private partition of 1928 unsurvey No. 139, does not find any place and is not mentioned in it. This document is fatal to the respondents' case that in 1928 they were in possession of the land in dispute. Mr. Persi Ramchandani contended that the Revenue Record if produced would have established respondents superior possession. The blame however, for non‑production of the Revenue Record prior to 1928 is solely on the respondents. The Revenue Officers in their statement clearly stated the office in which the records were available and no attempt was made to summon them from there. In these circumstances on the evidence produced on the record there is not the slightest doubt that the respondents neither have been able to make out a case of adverse possession for more than 12 years nor proved that the land in dispute was in their possession immediately before 1941. Therefore, it cannot be held that they have acquired any possessory title in respect of the land in dispute or their possession is superior to the appellants. In our view the respondents have failed to establish the basis of their claim. The finding of both the Courts below is, therefore, set aside.

15. We would, therefore, allow the appeal with costs. K. B. A. Appeal accepted.