P L D 1953 Peshawar 65 (PLP)

MUHAMMAD SHAFI, J.‑ Khasra No. 411/2, measuring 55 kanals admittedly belonged to Mst. Zulekha and four others, the plaintiffs in this case. Khasra No. 544, which is situated quite adjacent to ft, admittedly belongs to Ghulam Haqani, and Zakarullah defend ants Nos. 1 and 2 in the case. On 1st October 1945, Mst. Zulekha etc. instituted a suit against Ghulam Haqani and his brother Zakarullah for the possession of 26 kanals 9 marlas out of 55 kanals, bearing Khasra No. 411/2alleging that it had been illegally possessed by the defend ants since some time. The defendants while admitting that the property in dispute was in their possession, resisted the suit on several grounds inter alia that they were in adverse possession of it, and that they had made considerable improvement on this property by construct ing a building thereon, and they were entitled to compensation therefor in case a decree for its possession was granted to the plaintiffs. The learned trial Judge granted the decree prayed for in favour of the plaintiffs. An appeal against this order was dismissed by the learned Senior Sub‑Judge, Mardan. The defendants have come up in revision to this Court. It is not denied by the learned counsel appearing for the parties that it is not a case in which the defendants have internation ally possessed the land which they know to belong to the plaintiffs. It is a case in which the defendants have been found by demarcation proceedings carried on by Hazrat Jamal girdawar and Firdaus patwari to be in possession of 26 kanals 9 marlas of land, forming part of Khasra No. 411/2, which all the time they have believed to constitute part of Khasra No. 544, belonging to them. Under that impression they have not only possessed this land, but have also constructed some building on a small part of it. The following three questions have been argued before me :‑

1. That it has not been established by any reliable evidence that the defendants are in fact in possession of 26 kanals 9 marlas of land, belonging to the plaintiffs.

2. That whatever land is in possession of the defendants they have completed their title to it by the expiry of the statutory period of twelve years, and

3. That the defendants are entitled to get compensation for the building, which they have constructed on the land before a decree for its possession is granted in favour of the plaintiffs. So far as the first point is concerned my attention has been drawn to the report of a Commissioner Kazi Fasihuddin appointed as such in the case. In the report he said that the defendants had only encroached upon 10 kanala 10 marlas of land belonging to the plaintiffs. The learned trial Court has ignored this report, on the grounds that it is of no consequence, in view of the fact that the defendants themselves admitted that they were in possession of 26 kanals 9 marlas of land involved in the suit. The learned lower appellate Court has made no reference to this report at all. Kazi Fasihuddin appeared in the witness‑box. He was neither examined nor cross‑examined on the question of the encroachment. Hazrat Jamal and Firdaus were examined by the learned trial Court on 3rd June 1946, and both of them stated that they had carried on the demarcation proceedings and had found that the defendants had actually encroached upon 26 kanals 9 marlas of land. The learned counsel for the defendants has not been able to point out to me as to why the evidence of these two witnesses be not believed. The evidence of these two witnesses coupled with the fact that the defendants them selves admitted in their written statements that they were in possession of 26 kanals 9 marlas of the suit land, I think is conclusive on the point. As regards the second point, I agree with the two Courts below that there is no question of the defendants having adversely possessed the land in dispute. It is a cardinal principle of law that in order to constitute the adverse possession, the possession required must be adequate in continuity, in publicity and in extent The expression "adverse" means hostile, i.e., which is in denial of the title of the true owner. In the case now before me the defendants never occupied the property in denial to the title of the true owners ; on the other hand they held it under a mistake, believing that they were entitled to it. Under the circumstances, a in my view, such a possession cannot be said to be adverse, because there is no intention to hold the land adversely to anyone. In such a possession the elements, that the possession of the wrong‑doer must be in denial of the title of the true owner, and that it must be adequate in continuity, in publicity and in extent, must be regarded as completely missing. Apart from that, the suit having been brought on 1st October 1945, the defendants had to show that they were continually in possession of the land in dispute adversely to the plaintiffs from 1st October 1933. The property in dispute‑since the very beginning has been entered in the revenue papers as banjar qadim. It requires no authority to support the view that in the case of the barren land the possession of the property must be considered continually to bell that of the real owners until and unless it is proved otherwise. There is no evidence on this record to show that the building which the defendants have constructed over a part of this land was prior to 1933. In short there is no evidence worth the name on which it can be found that the defendants have been in continuous possession of this land for the statutory period of 12 years. On the material now before me I cannot come to any other conclusion but that the defendants have not been able to establish that they have become owners of the suit land by efflux of time. This takes me to the third point which is with regard to the improvements. There is no evidence on the record to show as to how much improvements were effected by the defendants. It is true that normally a wrong‑doer cannot claim any compensation for the improvements made by him, but where a person has taken possession of certain land by mistake, believing that land to be his own, and builds on it or improves the land in my view an equity c arises in his favour, which entitled him to claim compensation for the improvements. This will be on the well‑known principle, on which section 51 of the Transfer of Property Act is based, namely, that a man cannot enrich himself at the expense of another. As has already been stated, there is no material on this record from which I can judge as to what improvements have the defendants effected on the property. I consequently accept the revision petition, and modify the decrees of the two Courts below to this extent only that the plaintiffs shall be entitled to get the possession of the property in suit subject to their paying the compensation, which shall be assessed by the appointment of a Commissioner competent to assess such value in the execution proceedings. In view of the difficult questions involved in the case, I think the parties should be left to bear their own costs throughout. Orders announced. A. H. Decree modified.