1989 PLP 1666 (CLC)

(2) Whether defendants 1 to 4 are in adverse possession of the suit property for more than 12 years? (3) Whether the plaintiff has got a cause of action? (4) Whether the suit is not within time? (5) Whether the suit is vague? (6) Whether plaintiff including co‑defendants are owners in possession of the suit property and mutation No.20517 attested on 14‑4‑1981 in the name of defendants 1 to 4 is wrong, against law, without jurisdiction, collusive based on fraud and as such ineffective upon the rights of the plaintiff and co‑defendants? (7) Whether the plaintiff is entitled to the issuance of injunction, as prayed for? (8) Whether the plaintiff is entitled to the possession of the suit property in case he is found out of possession? (9) To what relief or reliefs, if any, the plaintiff is entitled?

4. The learned trial Judge vide his order dated 28‑11‑1985 non‑suited the plaintiffs as a result of his findings on issues Nos. 2 and 4 holding that defendants 1 to 4 have matured their title by adverse possession and that the suit was barred by time.

5. On appeal by the plaintiffs, a learned Additional District Judge, Bannu, by his judgment and decree dated 13‑7‑1987, accepted the appeal and set aside the judgment and decree of the lower Court and left the parties to bear their own costs.

6. Mr. Muhammad Iqbal Khan Kundi, the learned counsel for the defendants‑petitioners before me canvassed three points for consideration in this revision. First contention of Mr. Muhammad lqbal is that the learned Additional District Judge has misread and misrepresented the evidence on record; secondly, that learned Court of Appeal below has erred in ignoring the entries of column of rent wherein the petitioners herein were recorded in possession of land without payment of rent, it should have held the petitioners having matured their title to the suit land; and thirdly, he contended that the learned Additional District Judge has illegally ignored the Arbitration Award Exh.D.W.l/2.

7. Mr. Khawaja Nawaz Khan, the learned counsel for the plaintiffs respondents, argued that merely because the defendants‑petitioners were recorded in the column of rent in possession of land without payment of rent did not constitute adverse possession particularly when they are recorded as tenants‑at‑will in the column of cultivation of Register 'Haqdaran‑e‑Zamin'. It was also contended that the Arbitration Award was rightly not relied upon by the Appellate Court, firstly, because this plea was not at all taken up in the written statement, secondly, that it is not shown to have been referred to the Arbitration with the consent of the plaintiffs‑respondents and, lastly, that it was bad for vagueness.

8. The contentions of Mr. Khawaja Nawaz Khan have substance. The question as to whether the entries in the column of cultivation are to prevail over the entries in the column of rent was considered by Late Mr. Faizullah Khan; J. in Shamsur Rehman v. Hukmat Khan PLD 1967 Peshawar 304 wherein his Lordship held that in a situation as in the instant case, where the entries in the columns of cultivation and rent are irreconcilable in the sense that in the former the person is entered as tenant‑at‑will while in the latter he is shown without payment of rent, the entries of the column of cultivation shall prevail. The proposition was aptly summed up thus:‑ "It is well‑established principle of law that to constitute adverse possession the burden of proof lies on the person setting up adverse possession that he was holding the property adversely to the rightful owner and when the entries are irreconcilable the person setting up adverse possession must fail. It is equally well‑established principle of law that non‑payment of rent for any length of time alone does not constitute adverse possession."

9. This view was later confirmed by the august Supreme Court in Mehrab Shah v. Shah Zaman 1985 SCMR

497. In decreeing the suit in Mehrab Shah's case, the learned trial Judge observed as under:‑ "The defendant primarily placed his reliance on the entries of column of Lagan. It is well‑settled now that the entries of the column of Lagan, otherwise not corroborated by any evidence, cannot take precedence over the entries of the column of cultivation."

10. This view also found favour with the learned District Judge in appeal and was concurred in by the Peshawar High Court. The august Supreme Court approved it in the following words:‑ "As in the Courts below, Mr. Naqashband relied on the fact that the case of the appellants was supported by the entries in the column of Lagan. But as we indicated earlier, we agree with the view taken by the trial Court that the entries in the column of cultivation take precedence over the entries in the column of Lagan, and, therefore, the burden was on Mehrab Shah to produce evidence in support of his defence. Now, instead of producing proper evidence, he abandoned the plea of adverse possession taken by him in his written statement and advanced a totally different plea, namely, that he had inherited the suit land from his father."

11. Respectfully re‑affirming this consistent view adopted by this Court which has been approved by the august Supreme Court, I hold that the entries of column of rent, otherwise not corroborated by any evidence cannot take A precedence over the entries of the column of cultivation. In the instant case the learned Additional District Judge had rejected the oral evidence produced by Noor Sahib Khan etc. and placed implicit reliance on the entries of the revenue record showing the plaintiffs‑respondents as owners while the defendants petitioners as tenants‑at‑will notwithstanding the entries of column of‑ rent recording them as in possession without payment of rent. There is yet another aspect of the case as well. The defendants‑petitioners instead of producing proper evidence in support of their plea of adverse possession impliedly abandoned the plea of adverse possession taken up by them in their written statement and advanced a totally different plea, namely, that they were owners of the land since their forefathers and that the land had also been declared as their property by virtue of the Award Exh.D.W.2/1 returned by the Arbitrators. Now these pleas being inconsistent cannot be pressed into service simultaneously.

12. It is an essential ingredient in a valid submission to arbitration that the agreement to arbitrate should be contained in a written document agreed by parties to the submission or by their agent or agents duly authorised in that behalf. In the instant case it is not at all established that the plaintiffs‑respondents had agreed to submit the dispute to the arbitration. The so‑called Arbitration Award in this case, therefore, without any arbitration agreement in writing between the parties will carry no weight and would have to be ignored altogether.

13. The impugned mutation was also entered and attested in flagrant violation of the provisions of section 45 of the West Pakistan Land Revenue Act, 1967 (Act XVII of 1967). It has been consistently laid down by the superior hierarchy of the Revenue Courts that an application for correction of revenue record which is contested and which on the face of it is not based on an "obvious clerical error or a patent fact" should be summarily rejected and the parties referred to a Civil Court. The impugned mutation was one for correction of entries by addition of names in the column of ownership which could only be effected by making entries in accordance with the facts `proved' or "admitted to have occurred". It is also now settled law that no disputed entry in the `Jamabandi' should be altered by a mutation whether on the ground of mistake or of fraud except on the basis of an "obvious clerical error or patent fact". In the present case the names of the petitioners were not figuring anywhere. Only in Rabi 1969, they are recorded for the first time in the Khasra Girdawari as tenants‑at‑will without payment of rent. On the basis of this entry the impugned mutation was entered and attested in contravention of the relevant provisions of the Act XVII of the 1967 which could not be sustained.

14. Lastly, the learned counsel feebly argued that the decision of the Collector rejecting the appeal filed by the respondents against the attestation of the impugned mutation was res judicata and relied on Shahadat v. Sarfraz Khan 1988 CLC 1414. The facts of the precedent are distinguishable. The question as to whether certain persons were or were not occupancy tenants within the contemplation of section 77(3) of the Punjab Tenancy Act (XVII of 1887) was determined by a Court of special jurisdiction and when it was re‑agitated before a civil Court it was held to be barred as res judicata. The decision on the plea whether the petitioners were co‑owners with the respondents by the Collector being without jurisdiction was certainly assailable in a Civil Court. This plea l besides having also not been raised in the written statement is not tenable on merits and stands repelled.

15. For the reasons given, no exception can be taken to the findings recorded by the learned Additional District Judge. There is no merit in this revision petition and the same is dismissed with costs. A.A./800/P Revision dismissed.