2015 PLP 301 (SCMR)

ANWAR ZAHEER JAMALI, J.

Through this appeal, with leave of the Court, the appellants have challenged the judgment dated 21-8-2001, in Civil Revision No.283 of 1991, passed by a learned single Judge in chambers of the Lahore High Court, Lahore, whereby the said civil revision, having been found without any force, was dismissed with costs and consequently the judgment of the first appellate Court dated 16-5-1991, challenged therein, was maintained.

2. Succinctly, the facts leading to this litigation are that on 25-9-1982, the respondents instituted a suit for declaration and permanent injunction in respect of agricultural land admeasuring 197.18 kanals, bearing six khasra numbers, as detailed in the title of the plaint, situated at Moza Parri Sikandaral, Tehsil Sohawa, District Jhelum (in short "the suit land") with the following prayer:--

3. The maintainability of the suit was challenged by the appellants on various legal grounds and also on the plea that they were in possession of the suit land through their ancestors since the year 1860 and thus their title over it had matured by way of adverse possession. After the framing of issues and recording of the parties' evidence, vide judgment dated 25-6-1987, the suit of the respondents was dismissed with the observation that the appellants were owners, as they have acquired ownership of the suit land by way of adverse possession. The respondents, being aggrieved by this judgment of the Civil Court, preferred a Civil Appeal No.61/112 of 1987/89, before the Court of Additional District Judge, Jhelum, which after due notice to the appellants was heard and allowed by the appellate Court vide its judgment dated 16-6-1991, with the result that the judgment of the trial Court dated 25-6-1987 was set aside and the suit of the respondents was decreed. Against this judgment of the appellate Court, the appellants invoked the revisional jurisdiction of the High Court through Civil Revision No.283 of 1991, which was dismissed by impugned judgment dated 21-8-2001.

4. Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for the appellants, after making reference to the leave granting order dated 30-4-2004, to show the formulations made therein, strongly contended that the judgments of the first appellate Court and the revisional Court against the appellants are result of misreading and non-reading of material pieces of evidence, which had conclusively established the ownership of the appellants over the suit land by way of adverse possession. He further contended that before the appellate Court by filing C.M.A. No.1788-L of 1996, which was allowed on 7-11-1996, the appellants have produced four additional documents to further strengthen their claim of ownership over the suit land by way of adverse possession, but these documents were not taken into account by the revisional Court and, thus, it is a fit case where the matter should be remanded to the revisional Court for rehearing of the revision petition and its disposal on merits, after taking into account all the documentary and oral evidence adduced by the parties to this litigation. He also made reference to the judgments in the cases of Haji Khan v. Aijaz Ali (PLD 1981 SC 302) and Mandan Gopal v. Maran Bepari (PLD 1969 SC 617) to add force to his submission that in a case where the judgment of the two Courts below are at variance, it was the duty of the revisional Court or the second appellate Court, as the case may be, to consider both the judgments in a judicious manner before recording its conclusion. He also contended that in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063), the cutoff date of 31-8-1991 laid down by the apex Court in the context of section 28 of the Limitation Act, 1908, has no bearing to the fate of this appeal, as the ownership of the appellants by way of adverse possession has matured much earlier to this cutoff date. In the end, making reference to copies of khasra gardawri placed on record, as an alternate plea, he contended that the long standing possession of the appellants over the suit and was an undisputed fact, therefore, even if their plea of adverse possession was not accepted, their status as tenant(s) over the suit land qua tenancy rights could not be denied. Thus, no relief can be granted to the respondents in their suit as they could only file a suit for possession against the appellant to deprive them of their possession over the suit land in a lawful manner.

5. Conversely, Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court for the respondents made reference to the six khasra numbers 3168/2, 3167/7-9, 3165/2-17, 3164/-, 3029/57-19 and 2989/8-3, relating to the suit land shown in the title of the plaint and argued that these khasra numbers were forming part of shamlat deh and the documents produced by the appellants in support of their claim of long standing possession do not relate to any of these khasra numbers and are, thus, of no relevance. He further argued that the concurrent findings of the first appellate Court and the revisional Court are the outcome of proper appreciation of documentary as well as oral evidence adduced by both the parties, thus, not open to any interference. Making reference to the judgment in the case of Maqbool Ahmed (supra), he argued that since the claim of adverse possession set up by the appellants had not matured in the form of a decree before the cutoff date i.e. 31-8-1951, having been discarded by the appellate Court vide its judgment dated 16-6-1991, technically and legally, the appellants have no defence to offer in this appeal against the claim of the respondents, who are admittedly owners of the khasra numbers forming the suit land. Dilating upon the concept of adverse possession, he argued that as per admitted documents available on record, the disputed khasra numbers of the suit land were barren and un-cultivatable, thus, exempted from lagan. Therefore, in respect of such land, the presumption of possession shall always be in favour of the owner of the land, which aspect of the case has been aptly taken into consideration by the appellate Court. He lastly contended that there are certain legal challenges to be met by a party claiming adverse possession, which have been formulated in the cases of Ghulam Haqani v. Zulekha (PLD 1953 Peshawar 65), Zainab Bibi v. Ibrahimji (PLD 1962 Kar. 209), Noorali Pirmuhammad Parsala v. Mrs. Patricia Dinshaw (PLD 1974 Kar. 235), Saleh Shah v. S.I.T.E. and others (1985 CLC 1259), Khair Muhammad v. Khuda Bakhsh (1976 SCMR 69), Muhammad Umran v. Malik Aman (1979 SCMR 481), Shamshad v. Mukammil Shah (1984 SCMR 912), but the claim of adverse possession set up by the appellants do not meet these conditionalities and standards, thus, on facts too, no case for adverse possession is made out in favour of the appellants.

6. We have carefully considered the submissions of both the learned Senior ASCs and perused the case record. Before proceeding further, to examine their contentions, it will be useful to summarize hereunder some portions of the judgments of the Civil Court, the appellate Court, and the revisional Court dealing with the claim of adverse possession of the appellants. The Court of Civil Judge, Jhelum in its judgment dated 25-6-1987, held that in an earlier round of litigation between the predecessors in interest of the parties, the claim of adverse possession stood established and the predecessors in interest of the appellants had become owners. It was further observed that the possession of the appellants had been established by the entries in the record of rights and those entries confirmed in the course of settlement (Bandobast) have a greater presumption of truth. The learned Civil Judge further held that due to the fact that the entries had been present for over 50 years, a presumption of consent on part of the respondents had also arisen as regards these entries on the record. Furthermore, it was observed that in light of the oral evidence, in particular that of P.W.3, it was clear that the appellants were residing on the Suit Land and used the same as pasture for their animals and had cultivated some of the numbers forming part of the Suit Land. Thus, the appellants acquired the right of ownership by adverse possession.

7. The appellate Court in its judgment dated 16-6-1991, rejected the claim of adverse possession setup by the appellants by observing that it is settled law that a claim of adverse possession can only be established if actual and physical possession is proved, while the appellants failed to produce any independent witnesses from the village to establish their claim. Furthermore, as regards the constructions of houses etc., it was observed that Exh.D-10, a copy of the register haq daran for the year 1980-81, shows that the Suit Land is Banjar Qadeem and that no residence is sanctioned on the Suit Land. Furthermore, the appellants were not paying lagan to the owners on the ground that the Suit Land is not being cultivated. Relying on other documents produced by the parties, it was observed that in 1940 the appellants were tenants-at-will and relying on the principle 'once a tenant, always a tenant' a tenant cannot deny the title of the landlord. As regards the previous round of litigation between the predecessors in interest of the parties, it was held that the same did not involve the Suit Land and was thus of no relevance. Finally, on the strength of the presumption that in uncultivated land ownership will follow the title, the appellate Court reversed the findings of the Civil Court as regards the appellants' claim for adverse possession.

8. The revisional Court in its concise but well-reasoned judgment turned down the plea of adverse possession setup by the appellants for the reasons that the documentary evidence pertaining to the earlier litigation and the orders passed therein could not be connected to the present dispute regarding the Suit Land and in fact, in an order dated 16-12-1857 one Bissan son of Nasirullah, caste Hajam, was appointed as a tenant. It was observed by learned Judge that the entire revenue record produced by the parties shows that the Suit Land was Banjar or Rokar. Thus, even if it was assumed that the appellants had acquired some ownership rights in the village and consequently some share in the Shamlat even then the entries recording them to be in possession are on the face of it illegal and void for the simple reason that the land is incapable of possession as it was not being cultivated and there was no evidence of any construction raised over it. Therefore, the civil revision was dismissed with costs.

9. It is admitted position from the record that the six khasra numbers of the suit land, admeasuring 197.18 kanals, are not under cultivation since long and in such circumstances the presumption of possession in favour of the owner is strong and could be rebutted only by some strong piece of evidence. In the documents produced by the appellants, there is no specific reference to the six khasra numbers shown in the title of the plaint, which form part of the Shamlat Deh and otherwise under the ownership of the respondents, thus, to say that on the basis of the documents placed on record, including those produced before the appellate Court, any case of adverse possession is established in favour of the appellants, is a mistaken view. In addition to it, the moment the appellants took the alternate plea of tenancy rights over the suit land, as argued by Raja Muhammad Ibrahim Satti, their whole case of adverse possession stood demolished, as these two pleas are mutually destructive and cut the very root of the case of the appellants as regards adverse possession, for which the criteria has been laid down in some of the cases cited at the bar by the learned Advocate Supreme Court for the respondents. This view of the matter is also fortified from the cases of Ghulam Qadir v. Ahmed Yar (PLD 1990 SC 1049) and Ghulam Mustafa v. Muhammad Yahya (2013 SCMR 684).

10. This being the position, we have no hesitation to hold that the concurrent findings of the appellate Court and the revisional Court recorded in favour of the respondents are the outcome of proper appreciation of evidence, which has dislodged the claim of adverse possession raised by the appellants. Apart from it, the judgment in the case of Maqbool Ahmed (supra), containing the cutoff date as 31-8-1991, is also fatal to the claim of the appellants, as vide judgment of the appellate Court dated 16-6-1991, the plea of adverse possession set up by them was rejected, thus, their title had not matured to hold the field after this cutoff date. This legal position is amplified from the cases Durrani v. Hamidullah Khan (2007 SCMR 480) and Jan Muhammad Khan v. Custodian of Evacuee Property, Lahore (PLD 2009 SC 501), which laid down that after the judgment in Maqbool Ahmed's case (supra), providing for the cutoff date as 31-8-1991, the pending claims of adverse possession could only bore fruit if the same had matured through a Court decree subsisting on the cutoff date. Besides, we are also in agreement with the submissions of Mr. Gulzrin Kiyani that when the suit land was in Shamlat Deh and uncultivated since long, mere plea of adverse possession setup by the appellant was of no avail. Even if the appellants had been in possession, still to establish their claim of adverse possession, they had to meet the criteria of open and hostile possession of the suit land against its owner and to his knowledge, which is totally lacking in the present case.

11. The upshot of above discussion is that this appeal, being devoid of merits, is dismissed. We may mention here that the other points/formulations recorded in the leave granting order are of not much relevance, therefore, the same need not be dealt with separately. MWA/M-58/SC Appeal dismissed.