1994 PLP 1847 (CLC)

This judgment will dispose of these eight Civil Revision Petitions (C.R.655‑D‑79, C.R. No. 664/13‑79, 665/13‑1979, C.R. No. 666/13‑79, C.R.No. 667/13‑79, C.R. No. 668/13‑79, C.R. No. 669/13‑79 and C.R.No.670/D‑79) as the question of fact and law involved in all these revision petitions are one and the same.

2. The petitioners in all these petitions filed eight separate suits for possession of the land subject‑matter of each suit that they were owners of the land in question and the respondents‑defendants were tenants there under, but they have refused to pay them the rent and as such have rendered themselves liable to be dispossessed. Their case was that they were allotted the same land in lieu of their verified claims and being owners were entitled to regain the possession of the land. The respondents‑defendants contested each suit on the ground that they were in adverse possession of the land for more than 12 years and that the suit of the revision petitioners to recover the ,possession was barred by time. They also raised other objections as to the valuation of the suits for the purpose of court‑fee and jurisdiction and also that the Civil Court had no jurisdiction to try the suits. In all these suits the issues framed were as under:‑‑ (1) Whether this Court has no jurisdiction? OPD (2) Whether the suit is time-barred? OPD. (3) Whether the plaintiffs are owners of the suit land? OPP. (4)' Whether the defendants have become the owners of suit land by virtue of adverse possession for a period of more than 12 years? OPD. (5) Whether the suit has been wrongly valued for the purposes of court fee and jurisdiction? If so, what is the correct valuation? OPD. (6) Relief. Except issue No. 1, all other issues were decided against the petitioners and in favour of the respondents‑defendants and the suits were dismissed by the learned trial Court holding that the defendants‑respondents have become owners of the land in question through adverse possession and +he suits of the petitioners were barred by time. Before proceeding further, it is pertinent to note the facts which are beyond controversy. These are that the land in question was owned by Hindus who migrated to India in 1947 on the establishment of Pakistan. The defendants‑respondents were cultivating the land in question and for the first time in the Jamabandi for the year 1946‑47, the entry in the column of Lagan got recorded reads as under:‑‑ However, in the column of ownership the names of the evacuee owners continued to be recorded throughout after the partition. The defendants -respondents did not claim any declaration of their alleged prescriptive title from the Custodian under the evacuee laws. The evacuee land then came to vest in the Central Government by virtue of Notification dated 15‑4‑1959 under section 3 of the Displaced Persons (Land Settlement) Act, 1958. The land which was so recorded as owned by evacuees so vesting in the Central Government was then allotted to the petitioners‑plaintiffs on 2b‑10‑1963. It is to be noted that the law treats the tenants in occupation of the land as tenants of the allottee. The land came to vest in the allottees in the year 1964 under the provisions contained in the Displaced Persons (Land Settlement) Act, 1958. The present suits were then filed against these respondents‑defendants on 5th of December, 1974. In the background of these uncontrovcrted facts the claim of adverse possession raised by the defendants requires to be scrutinised and determined.

4. Learned counsel for the respondents Mr. Ashgar Ali, in Civil Revision No. 668/D/79 candidly and fairly stated that in view of latest pronouncement A of the Supreme Court in the case of Shafaullah and 13 others v. Saifur Rehman and 7 others PLD 1991 SC 1106, the claim of acquiring prescriptive title through adverse possession cannot be sustained. The observation recorded in this judgment may be quoted for reference:‑‑ "It is not that easy a matter as the learned counsel thought. The entry in the column of Lagan relied upon by the learned counsel is of no help to the petitioners; as admittedly the entry in the column of ownership contradicted the entry in the column of Lagan. There is no additional evidence to show that the presumption thus found in favour of the owners on account of the entry, had to be ignored. Additionally there are no circumstances in this case to show that for the said period of 12 years in fact and in reality the possession of the petitioners was as hostile, as open and as dishonest as is required in cases like the present one. See Mirza Ghulam Hussain v. Ch. Iqbal Ahmad PLD 1991 SC

290. So long as the evacuees remained in Pakistan and till 1947 there in no indication that the petitioners dared to raise any claim of ownership in their face and presence. If this alone was the basis of the petitioners' second suit which, as already held, was not at all competent, it was incumbent upon them to implead the evacuees as a party. If a suit would have been filed before 1947‑‑ undoubtedly the petitioners would have lost it. And after the partition the combined reading of all the laws relating to evacuees and evacuee property, had the effect of almost repeating law relating to adverse possession; if not otherwise, at least by intendment. This proposition was approved in Mal Shah v. The Custodian PLD 1981 SC

262. There are many other cases to the same effect also which a counsel like the one appearing before us could have cited, if he desires to do so. Thus, neither there was any question of the petitioners having matured title before partition against the evacuees nor after partition against the Custodian and/or the Central Government:' It is to be noted that except for the entry of got recorded for the first time in the Jamabandi for the year 1946‑47, no other evidence was produced to show that these respondents had claimed 'adverse possession in the presence of the evacuee owners. In the Jamabandi for the year 1946‑47, this entry could not have been recorded in view of the provisions contained in the rehabilitation laws. Be that as it may, no adverse possession can be claimed against the evacuee property. As against the allottees, the petitioners‑plaintiffs, the 'adverse possession cannot be claimed as they have filed the suits within 12 years of the alleged claim of hostile title, if any. The afore-noted factual and legal position was not considered by both the learned Courts below. The judgments of both the Courts below are not sustainable and are, therefore, set aside, with the result that each suit filed by the plaintiffs is hereby decreed with costs throughout. The revision petitions therefore, succeed and are accepted with costs. AA./D‑37/L Revision accepted.