1984 PLP 912 (SCMR)

M. S. H. QURAISHI, J.‑A suit brought by Mst. Kamalzai respondent and others for possession of the suit land was decreed by the trial Court, and though the decree was set aside in the petitioners' appeal the same was restored by the Peshawar High Court by its impugned order, dated 21‑3‑1984 passed in revision brought by the plaintiffs.

2. The suit land measuring 10 Kanals 6 Marlas comprised in Khasra No. 357 and situate in village Sikandrai, Tehsil Swabi, District Mardan, had originally been owned by Abdur Rehman. On his death, Mst. Pari Jan, his widow, succeeded to it on 5‑12‑1935 as a limited owner. On 9‑9‑1943 she mortgaged the land to Rehmat Shah, predecessor‑in‑interest of Mukammil Shah (respondent No. 1) and Mst. Zewar Jan (respondent No. 2). On her death, the property devolved on the plaintiffs Mst. Kamalzai and others and an entry to that effect was made by Mutation No. 5872, dated 17‑5‑1974. Mst. Kamalzai and others brought the suit against Mukammil Shah etc. challenging the mortgage of the property and seeking its possession. The petitioners, who asserted that they were in fact owners of the property through adverse possession, were impleaded in the suit at their own request as defendants 8 to 12 on 25‑9‑1975. Their plea, however, did not succeed as the finding was that they were only tenants‑at‑will and as such their possession could not be hostile to their landlord. The suit was accordingly decreed.

3. In appeal, the Additional District Judge, however, took the view that the suit land had been to possession of the predecessors‑in‑interest of the petitioners as "owners" which bad gone unrebutted and that the entries in the column of "1agan" made it evident that the petitioners were "owners" in possession of the suit land. He further held that the life estates having terminated in terms of section 3 of the Shariat Act 1962, customary rights could not create any obstacles in the way of the petitioners who had remained in possession of the suit land for more than twelve years having thereby per?fected their title over it by adverse possession.

4. The case of the petitioners that they and their predecessors‑in‑interest having been in possession of the land from along time without paying any rent had become owners by adverse possession was repelled by the High Court after a careful examination of the relevant revenue record. The High Court observed that they had been entered in the Jamabandis from 1926‑27 onward consistently as tenants‑at‑will and held that "the mere fact that a person who enters into possession of a land as a tenant is recorded as paying no rent would not make him owner of the suit land by any stretch of imagination. His status of being tenant‑at‑will will not be affected".

5. Learned counsel before us has urged that the entries in the Jamabandis showing the petitioners holding the land supported their claim. But there is no force in the contention because the said entries are not amenable to an interpretation that the petitioners themselves were the owners, particularly when in the same Jamabandis the name of Abdur Rehman and thereafter of Mst. Pari Jan is duly entered in the column of owner, whereas the names of the petitioners (or of their predecessors‑in-?interest) are shown in the column of tenant.

6. Learned counsel then took pains to urge that the question of title having already been decided in a rent suit by the Assistant Collector on 24‑3‑1946 and in a civil suit concluded by the appellate judgment of the Senior Civil Judge, Mardan, on 7‑5‑1984, the same had become res judicata and could not be re‑opened in the present suit. The revenue suit had been filed by Rehmat, the mortgagee, against the petitioners for recovery of produce and for possession, in which it which it had been held :‑ "I, therefore, hold that the plaintiff is not entitled to either mesne profits under section 14 of the Tenancy Act or to possession of this land for adverse possession of the defendants has ripened into title and the plaintiffs suit for possession in the civil Court would obviously fail." The civil suit had also been brought by Rehmat and was for possession. Only a copy of the appellate judgment, which is by no means a speaking one, has been produced. No copy of the pleadings of the parties or the judgment of the trial Court has been furnished so that the real nature of the dispute in the suit could be examined. Moreover, Mst. Pari Jan who was then recorded as owner was not a party to that suit. In any case, no plea of res judicata had been taken before the Courts below, with the result that the parties were not put to issue on such plea. No explanation has been furnished for not having taken the plea all this time. The plea, therefore, cannot be permitted to be raised now.

7. The petition has, thus, no merit and is accordingly dismissed. M. Z. M.????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.