1983 PLP 2961 (CLC)

Date of hearing : 17th May, 1982 . In this case, the suit was filed by the petitioner‑plaintiffs, for a declara tion that declaratory decree obtained by Ghulam Rasul, respondent‑defendant No. 1 on 5th July, 1973, against respondents‑defendants 2 to 4 of being the owner of Ihata No. 55, situated in Chak No. I1!SB, Tehsil Bhalwal, District Sargodha was collusive, unjust, without jurisdiction and inoperative against the right of petitioners. It was alleged in the plaint that the petitioners were in possession of the land in question for the last 20 years and had perfected their title by prescription. Respondent‑defendant Ghulam Rasool filed a written statement controverting the averments made in the suit. The issues relevant for the purpose of this revision which were framed by the Civil Judge were Issues Nos. 5 and

6. They read as below (5). Whether the decree dated 5th July, 1973 passed by the Court of Mailk Dost Muhammad,‑ Civil Judge, Sargodha, titled Ghulam Rasool v. Syed Ijaz Hussain and others is void, ultra vires in effective and inoperative and liable to be set aside on the reason given in the plaint ? O.P.P. (6) Whether the plaintiffs have become owners of the property in dis pute due to adverse possession for more than 12 years ? O, P. P. The Civil Judge relied upon the red ink entry in certified copy of Sakdi Jamabandi of the year 1967‑68 produced by the petitioners-tenant td the effect that the plot in question had been stated to be ‑in possession of the petitioners for the last 20 years. He also relied upon some oral evidence to the effect that petitioners‑plaintiffs had not vacated and were in possession for more than last twenty years. It was admitted in evidence that Syed Sardar Shah, predecessor of respondents Nos. 2 to 4 was the owner of land in the village and had given plaintiffs‑petitioners land for cultivation as tenants and had also given them this residential Ihata. However, the Civil Judge held that no doubt the petitioner‑plaintiffs were the tenants of Sardar Shah so far as the agricultural land was concerned, but they were not his tenants in the Ihata in question. On that ground he held that the petitioners had been in adverse possession of the Ihata in question, for more than 20 years and decreed the suit of the petitioners. 2. .In appeal, the learned District Judge found both on the basis of evidence of Ahmad Hussain Patwari who appeared as P. W. 2 and Akhtar Hayat Patwari whose statement had been recorded by the Civil Judge in the course of hearing of the petition for temporary injunction that such red ink entry was not permissible under the revenue law nor was the same available on the original Jamabandi which was produced in the Court and that some one had on his own, made the interpolation in the said Jamabandi produced as R.W./l. He further found that the next Sakni Jamabandi of the year 1971‑72, which had been exhibited on record as P.W. 2/2 but which the Civil Judge had totally excluded from consideration did not show that the petitioners were in possession of the said land. Relying upon the statement of said Patwari P.W. 2, he observed that in the subsequent Jamabandi no change of possession having been shown, possession was to be presumed of the person who owned the property as recorded in the revenue papers. He also relied on the further statement of Akhtar Hayat Patwari that no change of possession having been entered in the subsequent Jamabandi, the red ink entry in Jamabandi marked as R.W. I should be given no credence, He came to the conclusion that claim of plaint that they had openly deejay the title of owners and had adversely possessed the premises for more than 20‑ years before the institution of the suit is in the nature of a mere assertion and has no documentary proof and no reliable oral evidence even in support. He observed that it is customary in villages to provide an abode to a tenant and mere occupation of certain house by such a person would not transfer any title to him. He held further that the petitioners had been let into premises by the owners as licensees in their capacity as tenants of agricultural land under the owners and, therefore, the petitioners as tenants could not set up title and the respondents 2 to 4, heirs of original owner Sardar Shah were at liberty and had rightly sold the said Ihata in‑ favour of respondent No.

1. In consequence of this, he allowed the appeal with costs and set aside the judgment and decree of the Civil Judge.

3. In this revision against the said judgment and decree of the District Judge, Sargodha, learned counsel for the petitioners has raised the following contentions ; (a) That the red ink entry in the Sakni Jamabandi of the year 1967‑68 produced as Exh. R.W. 1 prepared by Patwari on 6th June, 1972 showing that the petitioners were stated to be in possession for more than 20 years of the disputed 1hata owned by respondents 2 to 4 which established the adverse possession of the petitioners was a valid piece of evidence and should have been believed. (b) That the observation of the learned District Judge that the peti tioners‑plaintiffs had been let into possession of this Ihata by owners as licensees in their capacity as tenants of agricultural land under the owners is a mere conjecture and surmise without any evi dence on the record and possession of petitioners had perfected into title by adverse possession.

4. Record had been called for in this case to check the correctness or otherwise of said pleas. The record has been received and perused by me with the assistance of the learned counsel for the petitioners as well as Mr. C.M. Latif Rawn, Advocate counsel for respondents who had, on notice, appeared to oppose the confirmation of status quo order earlier passed by this Court. I have considered the said points in the light of the record but I am afraid that after having seen the record, I find myself unable to subs cribe to any one of these two points.

5. The finding of the District Judge that the said red ink entry in certified copy of the Sakni Jamabandi of the year 1967‑68 was only an inter polation made by somebody is a finding of fact which is duly supported by evidence on the record. The original Sakni Jamabandi of 1967‑68 which had been brought by D.W. 1 Ahmed Hussain Patwari did not show any such entry in it and, therefore, on the face of it, the copy was not in accordance with Jamabandi and was incorrect. Furthermore, the later Jamabandi of Sakni of 1971‑72 did not show possession of any other, person on the Ihata in question and the presumption was that respondents 2 to 4, recorded in said Jamabandi to be the owners of said Ihata were in possession of the said Ihata in 1971‑

72. The said later Jamabandi, therefore, completely negated the truth of said red ink entry. The said entry, therefore, was not reliable and had rightly been excluded from consideration. There was no jurisdic tional defect in the act of District Judge in not relying upon this red ink entry in deciding the question as to whether petitioners had been able to prove their adverse possession for. 13 years on the land in question or not question, the finding that the petitioners were by the original landlord Sardar Shah for residence as the tenants of Sardar Shah on the agricultural land, is not a surmise or conjec ture. It is duly supported by evidence on record. Apart from evidence of D.W. 2 Fazal Ahmad, witnesses of petitioner‑plaintiffs themselves stated so. Anwar Khan P.W. 1 stated in examination‑in‑chief that Sardar Shah was owner of this Ihata and stated in cross‑examination that petitioner‑plaintiffs are tenants of respondents, 2 to 4 and that previously they were the tenants of Sardar Shah, father of respondents 2 to

4. He admitted in crystal clear words that the said Ihata had been given by Sardar Shah to petitioners plaintif3's for their residence for the reason that they were his tenants. He explained that in the area containing the village in question (the custom is that) when agricultural land is given to tenants the land owners provide them with a place for residence in the village. Though Sabir Khan as P.W. 2 had stated in cross‑examination that the petitioners‑plaintiffs had come in posses sion of the Ihata before they became his tenants, earlier to that during the course of the same cross‑examination he had stated he did not remember whether petitioners‑plaintiffs were tenants of Sardar Shah at the time when Sardar Shah had given them Ihata in question. Furthermore, if 1hata had been given to them earlier, it was not explained why Sardar Shah had given them this Ihata. It is not claimed to have been given to them on rent. The said witness, however, admitted that when owners give agricultural land to a tenant, they, give place of residence also to the tenant if the latter has none available in the village. From these pieces of evidence read together, in the absence of any explanation as to why this Ihata was given to them by Sardar Shah before their becoming the tenants, the inference is clear that they were let into possession only when they became his tenants. Similar i5 the evidence of Fateh Khan P.. W.

3. He admitted that in the area of the village in question there is a custom that when an owner gives land to a tenant, he also provides a house to a tenant for residence. The remarks made in regard to P.W. 2 apply with equal force to this witness as well. The obser vation of District Judge that petitioners‑plaintiffs became tenants of Sardar Shah and had been let into possession of lhata by Sardar Shah in their capacity as tenants so as to provide them with residence in the village there fore, does not suffer from any jurisdictional error as it was based both on positive as well as presumptive evidence on record.

7. Furthermore, it is clear from admissions made by the above men tioned witnesses of petitioners‑plaintiffs, that possession of petitioners in the Ihata in question was permissive. Under the Customary Law of the Punjab, the petitioners‑plaintiffs could continue to enjoy the possession of 1hata fort use for their residence as long as they continued to serve a member of the proprietary body who had given them this Ihata or his heirs. Referee in this connection is invited to observation made by learned Chief Justice, Mr. Justice Manzur Qudir in case of Malik emir Muhammad Khan Nawab of Kalabagh v. The Custodian, West Pakistan. and another P L D 1963 Lab. 189 at page 199 to the effect that tenant‑families which under custom are" allowed to reside on the land, at no stage acquire a right to reside on the land, but are given an immunity from being evicted by the landlord as long, as they continue to serve him. It is clear, therefore, that petitioners‑plaintiffs, were m possession of Ihata as mere licensees. No claim of adverse possession, could be founded upon such facts. P.W. 2 Sabir Khan and P. W. R Fatchl Khan had stated in their cross‑examination that respondents 2 to ‑1 had sold the agricultural land under the tenancy of petitioners also. It is, therefore, clear that the petitioners, had ceased to serve the said member of proprietary body or his heirs after the sale by them of said land and could not continue to remain in possession of said Ihata.

8. Over and above all, the only evidence given by petitioners‑plaintiff's to prove their adverse possession is that after having been let into possession they had continued to remain in possession and had refused to vacate the; Ihata when they were asked once or twice to do so. They have given no evidence to show that they had ever set up title over the Ihata in question adverse to the owners. They have not established any overt act on their part giving a notice or even indicating to the owner Sardar Shah and later his heirs respondents 2 to 4 that petitioner‑plaintiffs are denying their title over the said plot. The said evidence does not disclose that their claim to the Ihata was open, overt anal hostile to the owners. The evidence does not establish ouster of the owners and is not sufficient to establish adverse possession of petitioners‑plaintiffs. The finding of the learned District Judge that petitioners‑plaintiffs had not been able to prove their adverse possession for the relevant period also does not suffer from any jurisdictional defect. M. A. K. Petition dismissed.