P L D 2002 Lahore 48 (PLP)

3. Issues were framed and the parties led their evidence. In the first instance the trial Court dismissed the suit on 26‑11‑1977. Upon appeal the First Appellate Court accepted the appeal, added Issue No. 8‑A and remanded the case for fresh decision. The issues framed including additional issue are as under:‑‑ ISSUES: (1) Whether the plaintiffs' suit is within time? OPP (2) Whether the plaintiffs or their predecessors had become the owners of the suit land under an agreement, dated September, 1933? OPP (3) Whether the said agreement is fictitious, forged and not clear in its terms? OPD (4) Whether the plaintiffs are estopped to sue through their present form? OPD (5) Whether the plaintiffs' suit is not maintainable in its present form? OPD (6) Whether the plaint does not disclose a cause of action? (7) Whether the Civil Court at Rahimyar Khan has not the territorial jurisdiction to try the suit? OPD (8) What is the right valuation of the suit for the purpose of the court fee in jurisdiction? OPP (8‑A) Whether the plaintiffs have become owners through adverse possession for a period exceeding 12 years? (9) Relief.

4. The learned trial Court found that the suit was not within time; that the plaintiffs have not proved the execution of the Adhlapi agreement and that no adverse possession was established. Resultantly, vide judgment and decree dated 14‑5‑1983 the learned trial Court dismissed the suit. The petitioners filed an appeal against the said judgment end decree which was dismissed by the District Judge; Rahimyar Khan, vide judgment and decree dated 20‑2‑1985.

5. In the Civil Revision Sheikh Najam Ali, Advocate, learned counsel appearing in support of the petition has contended that the Adhlapi agreement Exh. P. 1 has been duly proved on the record through reliable evidence. It was contended that the Adhlapi agreement was an old and ancient document executed on 13‑9‑1933. He relied upon Article 100 of Qanun‑e‑Shahadat Order, 1984 to contend that a 30 years old document carries a presumption of truth. He argued that when such document is produced from the proper custody, have been acted upon and are supported by possession presumption can rightly be drawn in favour of genuineness of such documents. To support his submission the learned counsel placed reliance upon Ghulam Muhammad and others v. Mehtab Baig and others 1983 SCMR 849, Khadim Hussain etc v. Mst. Sarwar Jan etc. 1999 MLD 824 and Muhammad Hanif and 16 others v. Muhammad Latif Khan 2001 MLD 493 SC (AJ&K).

6. He next contended that Exh. P.1 was brought on the record without any objection to the document at the trial stage. According to him objection to admissibility or mode of proof should have been taken before the document is exhibited and admitted on the record and that such objection cannot be taken subsequently. For this proposition reliance has been placed upon the case of Ghulam Muhammad v. Mehtab Baig (supra).

7. The learned counsel for the petitioner further criticised the concurrent findings of the lower Courts inasmuch as it was held that in case of inconsistency the entries of the record of rights shall prevail upon the entries in the copy of the Khasra Gardawari. In this context reliance was placed upon the case of Inayat Ullah v. Muhammad Aslam Khan and 2 others 1975 SCMR 314 to contend that probative value attached to entries in Jamabandi depends upon facts of each case and is not absolute. Regarding the evidentiary value of the entries of Khasra Gardawari, he supported the same with the rule laid down in Muhammad Aslam v. Khudadad 1982 SCMR 511, wherein, it was found that the entries of Khasra Gardawari shown to have been made by officials charged with duty in matter shall be presumed to be regular and correct.

8. The learned counsel for the petitioner also maintained that a concurrent finding of fact by the Courts below would not be sacrosanct and the revisional jurisdiction of this Court is liable to be exercised as according to him, the findings of fact by the Courts below were perverse, arbitrary and fanciful. He drew support from the case of Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568, wherein, misreading of evidence by the lower Courts was found to be a good ground for upsetting concurrent findings in revisional jurisdiction. Upon the question of limitation it was contended that the petitioners had, in their suit, also prayed for correction of entries in the Revenue Record and as such the limitation for the suit would be six years under Article 120 of the Limitation Act, 1908 from the time the opposite‑party openly challenged the plaintiff's title to the property. He also contended that every fresh attack on the plaintiff's title or a fresh denial of his right will give him a cause of action. Reliance was placed on Ghulam Farid v. Muhammad Aslam Khan and 26 others 2000 MLD 1737.

9. It was lastly contended that the petitioners had successfully made out a cause of adverse possession and that the findings of the learned lower Courts in this respect was erroneous. According to him even if possession of the petitioners is not found valid under the Adhlapi, their possession would nevertheless has matured through adverse possession.

10. On the other hand, the learned counsel for the respondent has strongly supported the concurrent findings of the lower Courts. He maintained that the agreement of Adhlapi was not proved on the record. According to him in the face of a complete denial of the execution of the said agreement it was incumbent upon the petitioners to have proved the same by producing the strongest possible evidence. No presumption of correctness can be attached to the said agreement on the basis of it being a 30 years old document. He contended that assuming without conceding that any such agreement was validly executed there is no evidence on the record to show that the petitioners fulfilled the terms and conditions of the said agreement. The possession of the petitioners has been shown in the record of rights as that of a tenant. The entry in Khawa Gardawari Exh. P.11 showing the petitioners in possession under Adhlapi rights is inconsistent with the record of rights and according to law such entry in the Khasra Gardawari must yield to the entries in the record of rights. He further stated that the petitioners have failed to prove any adverse possession. In any case such an assertion is totally incompatible with .the case of the petitioners made out under the Adhlapi agreement.

11. Arguments of the learned counsel for the parties have been heard and record perused.

12. The Adhlapi is form of tenure under which proprietary rights are acquired in land, through agreements whether oral or written, by reclamation A or expenditure of capital in sinking a well. The relevant extract from para. 173 of the Punjab Settlement Manual is reproduced below:‑‑ "The Adhlapi tenure of the South‑Western Punjab must be noticed. A man who sinks a well in land which does not belong to him with the owner's permission becomes proprietor of half the land which it commands. He very commonly cultivates or arranges for the cultivation of the whole of the land, takes half the proprietor's share of the produce, and pays half the land revenue. Whether he has a right of occupancy in the half of the land which he does not own appears to be doubtful, and it has been held that in cases of dispute either party may enforce partition ... ... ... ... ... .. ... .. ... .. . Of course, the customary incidents of any land tenure can always be defeated by the express provisions of a written contract, and new tenures in these days generally created by deed. "

13. Again, in the Gazetteer of D.G.Khan District the Adhlapi has been described as one of the forms of land tenure prevalent in that district. The relevant portion reads: "This is very common form. The proprietor of a well estate not possessing a well gives half of his land in proprietary rights to an outsider who sinks a well, and thereupon acquires the proprietary, right of half the well, and of land attached to it."

14. From the above description of Adhlapi it would clearly follow that conferment of proprietary rights have to be proved like any other contract. When denied its execution must be proved by the best possible evidence. The evidence of the four witnesses produced by the petitioners is not sufficient to prove the execution of the disputed agreement and it has been rightly held so by the lower Courts. The production of agreement as Exh. P.1 through the statement of P.W.2 and the statement of the petitioner himself appearing as PWA is not at all sufficient to discharge the onus of proving the said document On the other hand, it is noticed that the Adhlapi agreement was specifically denied in the written statement and was termed as false and fictitious. Throughout the evidence of the respondent', the existence of the alleged agreement was strongly denied. There is nothing on the record which would indicate the acceptance of the Adhlapi agreement by the respondent. The case of Ghulam Muhammad and others v. Mehtab Baig and others 1983 SCMR 849 cited by the petitioner to contend that a document exhibited without objection would relieve the party relying upon it from its formal proof is not attracted in the circumstances of the case in hand. In that case dispute related to a family settlement which contained certain undisputed facts inter se the parties and which was brought on the record as Exh. P.l without objection. This was acted upon and reflected in the first document prepared at the time of the settlement in the year 1857 which was produced as Exh. P.2. Exh. P.1 and Exh. P.2 in that case tallied with each other. In the present case neither the agreement of Adhlapi was admitted by the respondent owner nor the trial Court or the First Appellate Court relied upon L the same. In such circumstances, even if no objection to admissibility of a document is taken, the Court has power to examine its evidentiary value. Abdul Karim v. Mst. Kohi Noor Begum and others 1981 CLC 1055 is also supportive, of this proposition.

15. The next submission of the learned counsel for the petitioner that the Adhlapi agreement being 30 years old document is per se admissible in p evidence and must be relied upon is not correct. Before any presumption of truth can be attached to such a document, it has to be satisfactorily demonstrated that such a document has been acted upon and is supported by possession. It should also be shown that the document has been produced from proper custody where it should have been and that it was in consequence of this document that possession was given. From the evidence on the record these conditions have not been fulfilled and as such no presumption can be drawn in favour of the document in question.

16. It is also noticed that there is inconsistency regarding the nature of possession of the petitioner over the property in question. While the petitioner is shown to be in possession as Adhlapidar in same entries of the Khasra Gardawari, the names of the predecessors of the petitioners is not shown in the record of rights. In case there is a conflict between the entries in the Khasra Gardawari and the entries in the record of rights, the latter IE shall prevail. The rule laid down in the case of Muhammad Aslam v. Khudadad (supra) that the entries of Khasra Gardawari do not have the same degree and statutory force as exists for the entries of Annual Revenue Record, is respectfully followed.

17. The petitioners have also failed to prove the fulfilment of the terms and conditions of the alleged Adhlapi agreement. It has not been proved on the record if the well was sunk, if at all and that it was done within five years as stipulated in the agreement. The nature of conferment of proprietary rights under Adhlapi arrangements depends upon the fulfilment of the conditions of the contract. The Adhlapi tenure, even if proved would not mature into title till the condition contained therein is not fulfilled. An Adhlapi tenure does not amount to a sale and is clearly distinguishable from the incidents of a sale. At best it is an executory contract. Law laid down in Allah Rakhia and others v. Ahmad AIR 1923 Lahore 70 is adhered to.

18. The next submission of the learned counsel for the petitioners that they have succeeded in proving adverse possession is also not well‑founded. Besides the restraints of the present principles of law regarding the validity of adverse possession, the acceptance of the title of Abdul Ghafoor by the petitioners and their induction as alleged Adhlapidars would defeat their G claim of adverse possession. Moreover, the entries in the Revenue Record show the petitioners have failed to prove adverse possession over the land in question.

19. Although it is correct that the rule of non‑interference in the concurrent findings of fact of the lower Courts is not an inflexible rule of administration of justice yet such an inference must be declined when the findings of the lower Courts do not suffer from any misreading or non‑reading of evidence and are based upon appreciation of evidence on the record.

20. The upshot of the above discussion is that there is no merit in this Civil Revision which is hereby dismissed leaving the parties to bear their own costs. Q. M. H. /M. A. K./G‑114/L Revision dismissed.