1988 PLP 1414 (CLC)

Daulat Ram v. Munshi Ram and others A I R 1932 Lah. 623; Rai Singh and another v. Man Singh and others A I R 1933 Lah. 738 and Jabed Ali Bupari v. Abdul Bari Bupari and others P L D 1969 Dacca 499 ref. (d) Adverse possession‑‑ ‑‑‑ Assertion of adverse possession not substantiated by evidence on record‑‑Bald statement of plaintiff (tenant), held, not sufficient to establish adverse possession due to alleged non‑payment of share of Batai. S.M. Rahat for Appellants. Raja Muhammad Muzaffar for Respondents. Date of hearing: 1st December, 1987. .The facts necessary for the disposal of this second appeal are that Shahadat and 5 others, the plaintiffs, now represented by their legal heirs instituted a suit against Sarfraz Khan and 4 others, the defendants, for declaration and permanent injunction to the effect that they were owners in possession of the land in dispute and that the respondents be restrained from interfering in their possession or rights in the land. The claim of ownership was based on the assertion that their ancestors had obtained land situated in Chah Jalalwala, Tehsil Chiniot, District Jhang, from the fore‑fathers of the respondents before the year 1878 as a taraddadgars' tenure and had sunk well therein, cleared the jungle and made the land cultivable. They further asserted that they had undertaken to give half of the share of produce to the owners and because of these terms the fore‑fathers of the plaintiffs gained special status of 'taraddadgars' of District Jhang and therefore, the owners happened to have entitlement only over fourth share of the produce of the land. It was added that in the aforesaid capacity the plaintiffs had been in possession of the disputed land since the time of their fore‑fathers till the year 1927 when the respondents acting in collusion with the Revenue Officers got the entries of non‑occupancy tenants in the revenue record entered which was obviously detrimental to the 'taraddadgars' interest of the plaintiffs. The plaintiffs further averred that they had resisted the effort of the respondents to eject them and had also stopped paying the share of produce to them and by these hostile acts their adverse possession had matured into ownership. In the alternative the plaintiffs pleaded that the 'teraddad gars' in the District of Jhang have been recognized as occupancy tenants and ultimately by virtue of the provisions contained in the Tenancy (Amendment) Act 1952, they were held and recognized as owners of the land.

2. The respondents‑defendants resisted the suit in their joint written statement by controverting the aforenoted assertions. The learned trial Court framed as many as six issues. The parties led oral as well as documentary evidence and ultimately the suit was dismissed vide judgment and decree dated 1‑3‑1965 of the learned Civil Judge, Chiniot. The first appeal of the appellants‑plaintiffs failed vide judgment and decree dated 4‑12‑1965 of the learned Additional District Judge, Jhang. This second appeal was then filed under section 100, C.P.C.

3. I have heard the learned counsel for the appellants‑plaintiffs and have also gone through the material on record. The finding returned by the learned Courts below that the appellants‑plaintiffs were non‑occupancy tenants is based on evidence on record and as such no reasonable exception can be taken to the said finding. It is evidence from the documents Exhs.P.4, P.5 and P.8 that the appellants‑plaintiffs even as 'taraddadagars' can claim only the status of non‑occupancy tenants. The learned Civil Judge in his judgment dated 1‑3‑1965 observed that according to Doies' Settlement Manual (paragraph 173) only those 'taraddadagars' were. occupancy tenants who had sunk the well. In the instant case the well was sunk by the owners of the land themselves and hence the case of the appellants/ plaintiffs was not covered by paragraph 173 (ibid). It is pertinent to note that under Act VII of 1952 the appellants‑plaintiffs were again not accepted as occupancy tenants and as such the Amending Act did not have the effect of improving their status.

4. The next finding recorded by the learned Courts below was that the order passed by the Collector holding the fore‑fathers of the appellants‑plaintiffs to be the non‑occupancy tenants only having been passed under section 77 (3)(d) of the Punjab Tenancy Act was not only valid in law but also operated as res judicata. The argument of the learned counsel for the appellants‑plaintiffs that as the aforesaid order was passed by a Revenue Court and not by Civil Court the suit was not barred by res judicata under section 11, C.P.C. has n merit. The decision of a Court of special jurisdiction (Revenue Court) will be res judicata in a Court of general jurisdiction (Civil Court) provided the decision of the Court of special jurisdiction was within the jurisdiction of that Court. The Revenue Court's decision is binding on the Civil Court if the same issue is raised again. The question of occupancy rights was admittedly raised in the proceedings culminating in the decision of the Collector and that very issue was raised before the Civil Court in the present suit. It is also admitted that the decision of the Collector remained unchallenged for all these years. Thus, such a final decision though rendered by a Revenue Court will be res judicata in the Civil Court. This was precisely held by the learned Civil Judge by relying on the rule laid down in Daulat Ram v. Munshi Ram and others A.I.R. 1932 Lahore 632 and Rai Singh and another v. Man Singh and others A I R 1933 Lah.

738. This principle was also noted in Jabed Ali Bepari v. Abdul Bari Bepari and others P L D 1969 Dacca

499. The afore‑noted two findings were sufficient to seal the fate of the suit of the appellants‑plaintiffs.

5. Learned counsel then argued that the appellants‑plaintiffs were able to establish their adverse possession. He was, however, not able to substantiate this assertion with reference to the evidence on record. Allah Bakhsh PWl in this respect stated that God knows what was the nature of the possession of the plaintiffs on the suit land. Shah Muhammad PW2 stated in examination‑in‑chief that "the entire produce of the land was being appropriated by the plaintiffs themselves. He in cross‑examination admitted that he used not be D present at the time of removal of the produce from the fields. Muhammad PW3 admitted that "the plaintiffs were tenants and that God only knows about the batai of the produce". This being the position the bald statement of Ali PW6, one of the plaintiffs, is obviously not sufficient to establish adverse possession due to alleged non‑payment of share of batai.

6. No other point was urged. For the reasons given above no exception can be taken to the concurrent findings recorded by the learned Courts below. There is no merit in this appeal and the same is dismissed with costs. S.Q./S‑169/L Appeal dismissed.