2002 PLP 145 (MLD)

‑‑‑‑ Possession of land by co‑sharer cannot be considered as adverse possession against other co‑sharers, rather they will be deemed to be in possession of land through their such co‑sharer. (d) Adverse possession‑‑‑ ‑‑‑‑ Possession by tenant for a long period without payment of rent to landowners would not by itself mean that he was in adverse possession of land for such period against owners thereof. Muhammad Anwar v. Sardar Khan and others 2000 YLR 401 ref. Sardar M. Naseem Khan for Petitioners. Tehmina Razzak Bhatti for Respondents. Date of hearing: 1st June, 2001. Civil Revisions Nos.44‑D. of 1986 and 43‑D/1986 are being disposed of through this judgment as common questions of law and facts are involved in both the petitions.

2. The property in dispute is land measuring 15 Marlas comprising of Khasra No.49, situated in village Mankiala Brahaman, Tehsil Gujjar Khan.

3. The petitioners/plaintiffs are successors/legal heirs of one Nawazish Ali and they instituted a Suit No.512 (subject‑matter of Civil Revision No.44‑D/1986) for declaration and permanent injunction on 27‑9‑1973 against the respondents/defendants in the Civil Court at Gujjar Khan. The suit was contested by the respondents., Issues were framed and after recording the evidence, the learned Civil Judge, Gujjar Khan, vide his judgment and decree dated 10‑3‑1980 dismissed the suit. The petitioners' appeal has been dismissed by the Additional District Judge, Rawalpindi on 21‑7‑1985. Hence, Revision Petition No.44‑D of 1986.

4. During the tendency of the petitioners' suit, on 20‑9‑1975 the respondent/defendant No.1 Muhammad 1qbal son of Dadan also instituted a Suit No.523 (subject‑matter of Civil Revision No.43‑D/1986) for possession of the land in dispute before the same Court. Both the suits were not consolidated and proceeded separately. The cross suit filed by respondent No.1 was contested by the petitioners through their written statement. The issues were framed and the evidence was also recorded separately and the learned Civil Judge, Gujjar Khan, vide his judgment dated 9‑3‑1980 decreed the suit of respondent No.1 in his favour and against the petitioners who are defendants in the said suit. The petitioners' appeal against the said decree was also dismissed by the Additional District Judge, Rawalpindi on 21‑7‑1985. Hence, Civil Revision No.43‑D of 1986.

5. The relevant facts as ascertained through the documentary evidence produced by the parties, which is almost same in both the suits, are that the land in dispute was originally owned by one Muhammad Taj. On his death, it was transferred through Mutation No. 49 dated 24‑I1‑1961 (Exh.D.5) to Nawazish Ali (the predecessor of the petitioners) and Pahalwan, 1/6th share as collaterals of Muhammad Taj, Mst. Mirza Noor, 1/6th share as mother of Muhammad Taj and Mst. Anwar Jan and Mst. Akbar Jan, 2/3rd share as sisters of Muhammad Taj Mst. Mirza Noor, the mother of Muhammad Taj, sold her whole share in the land in dispute alongwith some other property through registered sale‑deed dated 18‑12‑1962 to her daughter Mst. Akbar Jan. This is further evidenced in Mutation No.56 attested on 14‑11‑1963 (Exh. D.6). The petitioners, predecessor Nawazish Ali and his brother Pahalwan, collaterals of Muhammad Taj who became owners of 1 /6th share in the suit land on the death of Muhammad Taj sold whole of their share through Mutation No.71 dated 27‑7‑1968 (Exh. D.2) to defendant No.2 Ali Akbar son of Nizam Din. Thus, in July, 1968 the petitioners predecessor Nawazish Ali and his brother Pahalwan ceased to be the owner of any share in the suit land and at that time it was owned by Mst. Afsar Jan and Mst. Akbar Jan, 5/6th shares and Ali Akbar, the vendee from Nawazish Ali and Pahalwan, 1/6th share. All these three owners of the suit land sold the suit land to defendant No.l Muhammad Iqbal son of Dadan, the decree holder, vide Mutation No.86 dated 27‑4‑1973 (Exh. D.7). It is thus clear that the petitioners predecessor Nawazish Ali was no more owner of any share in the suit land and the whole of the suit land stood sold to defendant No. l Muhammad Iqbal through the abovesaid Mutation No.86 dated 27‑4‑1973 (Extt.D.7). The petitioners are, however, claiming the ownership of the suit land on the basis of certain entries in favour of their predecessor Nawazish Ali in the record of rights pertaining the years 1939‑40 to 1964‑65 (Exh.P.2 to Exh.P.5) and in the alternative the petitioners are claiming their ownership on the basis of the maturity of title of Nawazish Ali due to his alleged adverse possession for more than 12 years. The former right on the basis of entries in the record of rights is based upon the fact that throughout this period in the record of rights from 1939 onwards Nawazish Ali the predecessor of the petitioners is shown to be the tenant of the suit land and in the column No.8 of Lagan/Rent, it is entered as meaning that he was not paying any rent to the owners due to his ownership. It is argued by the learned counsel for the petitioners that these long standing entries show that from 1939 onwards. the petitioners predecessor Nawazish Ali till his death on 19‑4‑1969, was treated as owner of the suit land and was not paying any rent to the landowners and thus he being owner, to the exclusion of the other owners, the other owners had no right to sell the, land in dispute to defendant No. l Muhammad Iqbal son of Dadan through disputed Mutation No.86 dated 27‑4‑1973 (Exh.D.7), consequently no rights were transferred in favour of the defendant No. 1 on the basis of the above mutation and after the death of Nawazish Ali, the petitioners became owners. of the suit land and the Courts below acted illegally in dismissing the petitioners suit and in decreeing the suit of respondent/defendant No. 1 in his favour. The contention from the petitioners side and the arguments of the learned counsel for the petitioners in this regard have no force. The careful perusal of the record of rights for the period from 1939‑40 .to 1964‑65 (Exh. P.2 to Exh. ‑ P.5) would show that in the column No.4 of cultivation, the petitioners' predecessor Nawazish Ali was shown as tenant‑at‑will of the owners. It is to be kept in mind that throughout this period Nawazish Ali was also a co‑owner alongwith other owners in the land in dispute till he sold his share to defendant No.2 Ali Akbar son of Nizam Din through Mutation No.71 dated 27‑7‑1968 (Exh. D.2) and to the extent of the share of the other owners he was cultivating the land in depute as their tenant and the entry of in column No.8 of the record of rights merely shows that he was not paying any rent as he was also a co‑owner. It does not establish his ownership of the whole of the suit land to the exclusion of the other shareholders. It may I also be mentioned here that even during the lifetime of Muhammad Taj the petitioners predecessor Nawazish Ali was co‑sharer in the Khata, though not an owner in the disputed Khasra number and was a co‑owner in the village Shamlat land. Even otherwise if there is a conflict between the entry in the column of "Lagan" with the entry in the column of ownership, the entry in the column of ownership contradicting entry in E the column of "Lagan" in the absence of any additional evidence, would give rise to presumption in favour of original owners as entered in the column of ownership, as held in Shafaullah and 13 other v. Saifur Rehman and 7 others (PLD 1991 Supreme Court 1106). In the said case also entry its the column of Lagan was which conflicted with the entry in column of ownership. The presumption is, therefore, in favour of the entries in the column of ownership and on the basis of the entries in the column of ownership the petitioners have failed to prove the ownership of their predecessor Nawazish Ali in regard to the land in dispute because the petitioners are merely relying on the above entry in the column of "Lagan" and no other additional evidence as held by the Hon'ble Supreme Court, has been produced by the petitioners in support of the entry in column of "Lagan". It may also be mentioned that if for any reason Nawazish Ali had become the owner of the suit land from 1939 onwards, this fact would have been mentioned in some independent order ox proceedings and in the column of ownership as well. The petitioners plea of adverse possession of Nawazish Ali has also no force, Muhammad Taj, the predecessor‑in‑interest of Nawazish I Ali died on 22‑12‑1960 and on his death, Nawazish Ali and others (Mutation No.49 dated 24‑11‑1961 Exh.D.5) became ovivners of the suit land. Nawazish Ali was a co‑owner in the suit land to the extent of 1/12 share. His possession of the suit land was, therefore, merely a possession of a co‑sharer and the other co‑owners will be deemed to be in possession of the‑suit land through him and his possession cannot) considered as adverse possession as against his other co‑sharers. Furthermore, the possession of land by a tenant for a long period without payment of rent to landowners by itself would not show that he was in adverse possession of the land for the said period against the owners of the land. The learned counsel for the respondents in this regard has correctly placed reliance on Muhammad Anwar v. Sardar Khan and others (2000 YLR 401).

6. The upshot of the above discussions is that these revision petitions have no merit and are accordingly dismissed, leaving the parties (1 to bear their own costs. S.A.K./M.A.K./A‑297/L Petitions dismissed.