P (PLP)

CORNELIUS, A. C. J.--‑This judgment will dispose of two civil appeals, namely, Regular First Appeals 68 and 69'of 1949, each of which is brought by the Provincial Government of the Punjab, which was the plaintiff in the Court of first instance, against the respondent Siraj Din in one case and respondents Rahim Bakhsh and others in the second case. The suits were brought for recovery of possession of land alleged to form part of the Old Fruit Market and Sabzi Mandi, outside Shahalmi Gate, Lahore. That against Siraj Din involved an area of 8 marlas and 28 square feet, said to be comprised in khasra No. 862‑A, as enumerated in the jamabandi of Lahore khas in the year 1941‑42 In the case against Rahim Bakhsh, 10 marlas and 28 square feet were involved, allegedly forming khasra number 860 in the same jamabandi. The case for the Province Was that the Fruit Market and Sabzi Mandi covered an area of 23 kanals, 10 marlas, and was the property of the Government, which in 1859 had been granted to one Muhammad Sultan, a transport contractor, as an enclosure for carriages, ekkas, bullocks etc. Muhammad Sultan was succeeded in 1876 by his nephew Siraj Din and one Malik Bassa. By some undefined process, between the years 1881 and 1889, the area came under use as an ekka‑stand as well as a fruit and vegetable market and it should further be noted that for the first time, while making this allegation, the Province averred that rent was paid by the occupants of the land to the Government. This is important, for Exhibit P. 2, which purports to be the original grant of the land to Muhammad Sultan contractor for use as an enclosure for carriages etc., does not mention any rental. It is further alleged that in 1889 the area was made over to the Municipal Committee of Lahore, which was in possession of this area and gave it on lease to different persons from time to time until the year 1936 when it was again resumed by the Provincial Government. Mention is also made in the plaint of certain proceedings lying between the then Government of India and the Jammu and Kashmir State, which claimed to hold a mortgage from the original grantee Muhammad Sultan, and it was alleged that the State had conceded the title of the plaintiff Province, but the documents produced, namely, Exhibits P. 5 and P. 6, show no more than that the Council of the Jammu and Kashmir State agreed to an amicable settlement with the Government. As to the encroachment or seizure by the defendants, it was alleged in each case that this took place "some time after 1918", and that the respective defendants had illegally built structures upon the area in their possession, and had refused to hand over possession despite notice. The cause of action was said to have arisen "after 191.8". It is evident from the frame of the suits that assuming that title in the suit lands did vest at one time in the Government, the Government had been for a long period extremely negligent in relation to these lands. On the other hand, the Sanad Sultani (Exhibit P. 2), on which the Province relied, and which is applicable to both cases, constitutes a grant without limit of time, and without reservation of rent or other conditions, and if it was reversed at any time, the burden was certainly upon the Province to establish why and in what form this was done. In the absence of such proof, the grant would take effect according to its tenor vide the Crown Grants Act, 18095. This initial and fundamental weakness in the case for the Province is followed by complete absence of evidence of an admissible nature to establish the various incidents affecting this land which are cited in the plaints. There is no admissible proof regarding the succession to Muhammad Sultan or the change of user in the period 1881 to 1839, or the entrustment to the Municipal Committee in 1889, nor has any proof been led by the plaintiff Government that it ever received ' rent from any person in respect of this land. The documents relating to the connection of the Jammu and Kashmir State with the property are very doubtfully admissible and that allegation, whatever its value might have been to the case of the Province, remains un-established. No proof whatsoever has been led to show management of the area by the Lahore Municipal Committee or of the recovery of rents from any occupant. Nor is there any proof regarding the time at which the structures alleged by the plaintiff Province to have been illegally constructed by the defendants in the two cases were commenced or completed. The impression gain6d is that such neglect could only be displayed by a person or authority which had severed his or its connection with the land, and strong support is provided for this view by the unconditional grant in favour of Muhammad Sultan in 1859. All the allegations of title and possession were categorically denied in both cases by the respective defendants. As regards his own structures, Siraj Din stated that these consisted of a mosque and the grave of a Saint as well as a wrestlers' akhara, and these had been in existence from a time preceding the Sikh rule in the Punjab, and had always been in the possession of Siraj Din and his predecessors. It was denied that the land in Siraj Din's possession was a part of the Old Fruit Market. In the other case also the defendants averred that the land bad belonged to their ancestors prior to 1859 and that their continuous possession had extended over 60 years. The main questions for decision in the two cases were whether the areas in suit were included in khasras numbers 862‑A and 860, respectively, whether the plaintiff Province was the owner of the areas in suit and whether the suit was within time. The learn ed Sub‑Judge of trial Court decided both suits by means of the same judgment, holding that in each case the suit land had been identified with the khasra number alleged by the plaintiff Province and, on the strength of this finding, he appears to have held that title vested in the Province; on the point of limitation, however, he has held in each case that the suit lay under Article 142 in the first Schedule of the Limitation Act, 1908, and the Government having failed to establish its possession within 60 years of the suit, its case was barred by time. In coming to the conclusion that the suit areas were comprised in khasras numbers 862‑A and 860, respectively of the 1941‑42 jamabandi, the learned Sub‑Judge has relied exclusively on the evidence of a local Commissioner Mr. Badar Din, who was appointed to take measurements and plot the disputed lands in relation to existing plains. On examination, the reports of the local Commissioner, which are dated the 27th February 1949 and the 10th April 1949, and are supported by a plan (Exhibit C. 1) do not appear to justify the reliance placed upon them by the learned Sub‑Judge, particularly when they are read in the light of the statement which he made in cross‑examination on the 12th April 1949, in answer to questions enquiring regarding the method employed by him in plotting the disputed areas. The Commissioner does not appear to have taken pains to plot, with the aid of the Nazul map or of the revenue map, the boundaries of the alleged Old Fruit Market, but confined himself to an attempt to plot khasras numbers 860 and 862‑A. Since it had been denied from the outset that these two numbers were included in the Old Fruit Market, this was an essential step, failure to take which greatly weakens the case for the plaintiff Province. But the Commissioner's own statement in cross‑examination reveals beyond all question that his map is not to be relied upon at all. In the top left band corner of his map he has indicated a small kotha, described as "Arzi kotha baqabza Ismail", and it might have been thought that this description was sufficient by itself to render this building a doubtful boundary mark. Nevertheless, the Commissioner states that he regarded it as a Pucca point and he says he did so because he presumed that the building had been constructed at the proper place. This was a plainly conjectural step, and the process is not rendered any more trust‑worthy by the further statement that he began measurement from a place 300 feet away, since the Commissioner was unable to say from what point he started those measurements. He made references to the shajra kishtwar but did not produce it before the Court, nor was it produced by the plaintiff Province for the purpose of indicating identity between any marked field in the shajra kishtwar and the plots here in dispute. Another person, namely, Abdul Karim Beg, Naib‑Tahsildar of Lahore, appears to have also taken a part in the attempts at demarcation of khasra No. 860 which is in dispute in Rahim Bakhsh's 'case. His evidence is at page 42 of the printed paper book, and contains the statement that with the exception of an area of 25 square feet, the land in Rahim Baksh's possession covers khasra No.

860. Admittedly, however, this witness, as appears from the cross‑examination, did not take the trouble to settle a Pucca point before he started his measurements, although under the instructions of the Revenue Department, it was his duty to do so. He says he relied on a pucea point shown to him by the defendants, but could not indicate what that pucca point was. Consequently, his evidence as well as his report and the attached plan must betaken to be conjectural, and therefore an unsound basis on which to decide the very strongly disputed point whether the field in question No. 860 covers the area in possession of Rahim Bakhsh. Moreover, Exhibit P. 10 which is an excerpt from the jamabandi relating to this field shows that the person in occupation in 1941, were famous unconnected with Rahim Bakhsh etc., defendants in the second case. In the other case, there seems to be no other witness on this point besides Mr. Badar Din. It is obvious that there has been default here in production of the best available evidence bearing on the central point in the case and, as the burden was plainly upon the Province, we consider that the decision should go Oil this point against the plaintiff, namely, that the plaintiff Province has failed to establish identity between khasra Nos. 862‑A and 860 on the one side and the areas in occupation of the several defendants, namely, Siraj Din and Rahim Bakhsh etc., on the other. Even, however, if such identity had been established, there is sufficient material upon the record to establish that the Province has never held an undisputed title in this land. Reference may be made here to an extract from the jamabandi of Lahore khas, which was produced by Ghulam Nabi, Muharrir\Patwari (P. W. 7), and is marked Exhibit P. W. 7/1. Its correctness has been duly established. This abstract contains entries for the years 1932‑33, 1936‑37, 1938‑39 and 1941‑

42. It relates to field No. 862 of the year 1941‑42, which appears to be part of a field which in : 1932‑33 was numbered 906 and measured over 26 kanals, being described as 'ghair mumkins abadi". The entry in the owner ship column is "abadi deh" and this is also the entry in the column of possession. In 1936‑37, three parts of this field appear which are numbers 3002/906, 3004/906 and 2989/906. The entry in the ownership column is "sarkar daulatmadar" and in the column of occupation, against the first part the entry is "Municipal Committee", against the second part the entry is mutilated but reads "mada wald quam .. sakin deh gh zir dakhilkar," while against the third part the entry is "Siraj, wald na ma'lum qaum Arain, Sakin deh, Mochi Gate, tanga wala, ghair dakhilkar": Against the part in. the possession of the Municipal Committee there is no entry in the rent column, but against the other two parts there is the entry "bila lagasa bawajah qabzah". Now, the Province has completely failed to show how in the four years between 1932 and 1936; regarding which records should certainly be available, the Province or the Crown became the owner of the land, in place of the shamilat which is the accepted proprietor of the "abadi deh" in an old settled village such as Lahore, khas, i.e., not a village created or set up by the Crown in an area such as a canal colony. There is no material to show that the Municipal Committee ever came into possession of any part of khasra No. 906, beyond this bare entry in the jamabandi, and further, it is admitted that the words "bila lagaya bawgjdh qabzah" always indicate a dispute as to title, and a denial of the claim of a pretended owner to payment of rent by the person in possession. Therefore, apart from the doubt resting on the Crown's title, as it appears from this entry of 1936‑37, arising from the failure to show how the Crown 'took the place of the shamilat of the village, it is also clear that from this very time, when the Crown first appears as owner, its' title is challenged by one occupant Siraj Din, who is no other than the defendant in the first suit. The entries of 1938-39 are slightly changed. In the column of possession, against No. 3002/906, in place of the Municipal Committee, the words "Sahib Deputy Commissioner Bahadur" appear, and again there is no reliable material to show ouster of the Municipal Committee at this period. A letter (Exhibit P. W. 8/12) has been produced, without further proof, which bears the date 20th February 1934, and is addressed by the Executive Officer of the Municipal Committee to the Deputy Commissioner, Lahore, forwarding a copy of resolution of the Municipal Committee and adding that possession of the Fruit Market had been made over to the Nazrul Daroga. No copy of the Committee's resolution has been placed on the record. As seen above, the plaintiff Province has failed to show that either of the two khasra numbers here in dispute‑ever formed part of the Fruit Market. It is also difficult to say why it was necessary to describe the Deputy Commissioner as being in possession of this land ; surely possession of the recorded malik, namely, "sarkar daulatmadar," would have been more appropriate. As to the other two parts, namely Nos. 3004/906 and 2989/906, the "sarkar" continues to be entered as the malik, but in the occupation column; the entries are "Sahib Deputy Commissioner Bahadur ma'rifat" in the one case "Manda" and in the other case "Siraj". Here again there is no material for showing on what ground the change in these entries is based. The entries in the rent column remain as before, and it seems obvious that the change in the occupation entries was made by way of regularization by some subordinate official, and does not indicate any change in actual circumstances. Therefore, the state of affairs that commences in 1936‑37, namely; that the Government became the malik in the revenue records, but from the outset its title to the land was challenged by the occupants continues‑in 1938‑

39. The entry in 1941‑42 indicates compression of the three fields, 3002/906, 3004/906 and 2989/906 into a single field 862, but the area of this field is only ten marlas against nearly twenty kanals which was the combined area of the three plots. However, the point does' not require to be disentangled in these appeals ; it will be sufficient to point out that in this year the "Provincial Government" replaced the "sarkar daulatmadar" in the ownership column and in the column of occupancy the "Sahib Deputy Commissioner" and "Manda" disappear altogether and the entry is simply "Siraj Din wald Bhaga, qaum Arain, sakin Mochi Gate, tanga wala, ghair dakhilkar", the rent column again showing that none was paid by reason of disputed ownership. In the second case the plaintiff Province produced only the entry from the jamabandi of 1941‑42 and that shows the Provincial Government as owner of khasra No. 860, and Elahi Bakhsh and Karim Bakhsh sons of Miran Bakhsh, as occupants, paying no rent by reason of disputed ownership. Neither party took the trouble to produce the entries from earlier records. Rahim Bakhsh admits having two brothers Elahi Bakhsh and Karim Bakhsh, but their father's name is Muhammad Bakhsh. It is obvious that these records do not at all sustain the claim of the plaintiff Province to have been the original proprietor of the suit lands. It is stated on the record that the facts with reference to khasra No. 860 were precisely the same as those for khasra No. 862‑A.' This was made clear by Mr. Charagh Din, counsel for the plaintiff Province, in a statement of the 9th October 1948, printed at page 48 of the paper book. As has been pointed out., the disputed lands appear to have been entered only eighteen years ago as "abadi deh" in the Government revenue records, and the transfer or acquisition to or by the Government remains entirely unproved. The document (Exhibit P. W. 7/1) contains indications that the later entries were probably, knot made under, proper authority; as is required by the Punjab Land Revenue Act:' for the purpose of founding the presumption of accuracy Reference may be made here to the introduction of the name of "Deputy Commissioner" in the entries for 1938‑39 which was subsequently, and equally without reason shown, eliminated. We consider that in these circumstances, we are fully justified in holding that the title of the Province in fields Nos. 860 and 862‑A has from the outset been, and still continues to be; not only doubtful in itself, but also subject to direct and express challenge. Consequently, even if the plaintiff Province had succeeded in showing that the suit lands were included in these two khasras numbers, that would not by itself have (justified any decree in favour of the plaintiff Province. The fact that the title of the Province has been the subject of dispute from the outset in 1936‑37 has a strong bearing on the question of limitation. The learned Subordinate judge has dealt with each case as one falling under Article 142 of the Limitation Act, 1908, 'namely, as a suit resting on allegations of possession and dispossession. There is no doubt that the averments in the plaint fully justified this conclusion. It had been contended in the course of the trial .on behalf of the plaintiff Province that the suit should have been dealt with as one falling under Article 144, i.e., the ordinary title suit against trespasser, and it was contended that the onus had been wrongly placed upon the Province; the learned Subordinate Judge rejected this prayer, which, however, has again been advanced before us by learned counsel for the appellants. The contention put forward is that once title of the Province in the suit land had been established, the burden was thrown upon the defendant to show that his possession had been adverse for a period of over twelve years. Now, this proposition might have been put forward with some force if a clear title in the, Province had been established, or even if there had been an attempt to establish such a title. It appears clearly, on the contrary, that being in possession of all the available documents, the Province had made no proper attempt to clear up the various doubts regarding its title in the land which appear in the clearest form from the documents produced by the Province itself, and further that such title as may beheld to have been established is: of intrinsically doubtful nature and has been challenged over a minimum period` of' some ten‑years prior to the institution of the suits. In this respect the case bears a marked similarity to one decided by the Privy Council as far back as the year 1888, and reported as Mohima Chander Mazoomdar v. Mohesh Chander Neoghi (I, L. R. 16 Cal;. Q. 473). That was a suit instituted in 1883, and the plaintiffs bad admitted their dispossession from the year 1875. (In the present case, the Punjab Province admits its dispossession at some time after 1918, indicating that the entries in the excerpt (Exhibit P. W. 7/1) may be too favourable to the Province). On the point of limitation and the onus of proof, the Judicial Committee observed as follows ;‑

"This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the defendants are admittedly in possession and a fortiori where as in this particular case, they had been in possession for a great number of years, and under a claim of title, it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that, in this case, the onus is thrown upon the plaintiffs to prove their, possession prior to thea time when they were admittedly dispossessed, and at some time within twelve years before the commencement of the suit, namely, for two or three years prior to the year 1875, or 1874, and that it does not lie upon the defendants to show that in fact the plaintiffs were so dispossessed." Here, on the revenue records the possession of the defendants has lasted for at least ten years before the suit, and the period may be much longer, as the defendant's witnesses in each case have stated, and it has been possession under a claim of title. Obviously, not only it is necessary for the plaintiff Province to establish its title, but also it is necessary for the success of the suits that it should be proved that the plaintiff Province was in possession at some time within sixty years prior to the institution of the suit. The proposition from the above cited judgment of the Privy Council is relevant to the general question as to whether the question of title can be raised or is an essential part of the contest in a suit lying under Article 1.42. On this point an elaborate argument has been addressed to us by Mr. Mahmud Ali for the respondents in the second appeal. He had cited a number of Full Bench decisions of various High Courts in support of the view that Article 142 is not restricted to suits based on the possessory title only, but may involve also enquiry into the ownership. Thus, in Bindhyachal Chand v. Ram Gharib Chand (A. I. R. 1934 All. 993, F.B.) Sulaiman, J., referring to Article 142 stated as follows:‑-- " There are no words in this Article which would confine its applicability to suits based on possessory title only, or confine it to plaintiffs who claim the property wholly and are not co- sharers or co‑owners with the defendants." A Full Bench of this Court in Behari Lal v. 1Varain Das (A. I. R. 1935 Lah. 475) considered the question and laid down that where a suit alleged possession and dispossession, Article 142 would clearly govern the case. At the same time it was observed that it was not correct to say that in all cases, Article 144 is to govern a case once the plaintiff has proved a title to the property. A judgment of a Full Bench of the Madras High Court, cited as Official Receiver v. Chava Govindaraju (A. I. R. 1940 Mad. p. 798) considered the question and laid down in clear terms that it was wrong to say that " a person who proves title in a suit for ejectment has a right to the decree‑ sought unless the defendant proves adverse possession for twelve years. The plaintiff is not entitled to succeed unless he shows in addition to title, that he had been in possession of the property within 12 years of the suit." Learned counsel for the Province relied exclusively on a Single Bench decision of this Court published as Punjab Province v. Asa Nand (A. I. R. 1941 Lah. p. 241). There the land in suit formed part of a public street in Multan City, and it appears that it was originally Nazul land vested in the Pro vincial Government. An encroachment by the principal defend ants was alleged, and the Municipal Committee in whom the land vested as a street was joined as a Pro forma defendant. The issues as framed required proof of the title of the Province as well as proof of the possession of the Province within sixty years prior to the suit. The learned Single judge expressed the opinion that the burden of the second issue should have been placed upon the defendant, i.e., to establish adverse possession over a period of sixty years. This view was based on the finding that having regard to the nature of the land, viz. : that it was a public street, possession of which must necessarily be open and notorious, the principle that possession follows title was, applic able. These special circumstances are not found in the present case. . Moreover, the plaint in that case was not laid on allegations of possession and dispossession as the present plaints expressly are. The conclusion of the learned Single judge was not, in our opinion, intended to be of general effect, and must be confined to the peculiar facts of the case before him. The present appeals appear to us to fall quite clearly under the general principles enunciated in the cases cited above, namely, the Privy Council case and the three Full Bench cases. We are satisfied that in the present cases it. was the duty of the plaintiff Province not only to establish its title in relation to the suit lands but also that it was in possession of such lands within sixty years of the institution of the suit and we are also satisfied that the plaintiff Province has completely failed to establish either its title or its possession. Consequently it appears to us that the two suits out of which these appeals arise were rightly dismissed and we hereby dismiss the appeals with costs. A. H. Appeals dismissed.