P L D 1964 W (PLP)

(a) Adverse possession‑

Co‑sharer holds land on behalf o/' all when there is specific act of adverse possession. (b) Substituted Service‑

Not ordinarily to be directed unless effort has been made to affect service personally or through agent. (c) Revision‑

Appeal dismissed as time‑barred‑‑Revision still can be entertained if circumstance of case justify condonation of delay. The brief facts relating to this revision‑petition are as follows :‑ The petitioner's father Muhammad Abdullah Khan purchased in 1931 a considerable share in the holding of Ghulam Muhammad, the predecessor‑in‑interest of the respondents. The land is situated in village Ali Akbar Sanghi, district Rahim Yar Khan. A mutation was entered and sanctioned after the approval of the Deputy Commissioner had been obtained under the Alienation of Lands Act. This permission was necessary as the vendee Muhammad Abdullah belonged to Sheikhupura district in the old Punjab and was thus not a member of a notified agricultural tribe in the State. Twenty‑three years later in 1954 an application was made on behalf of respondents Nos.1 to 9, who are the successors‑in‑interest of the vendor Ghulam Muhammad that Muhammad Abdullah Khan was Ghair Qabiz, i.e. was not in possession of the land and permission should be given by the Collector to have an entry made in the revenue records in their favour. The Collector accorded permission and the present mutation in Dispute No. 38' was entered. Muhammad Abdullah Khan had in the meanwhile died and had been succeeded amongst others, by his sons one of whom is the petitioner. Substituted service was effected on him by the issue of a proclamation in a local newspaper `Kainat' of 13ahawalpur. The petitioner did not attend the proceedings and the mutation was sanctioned ex parte with the result that Muhammad Abdullah Khan's name was removed from the Revenue Records and in its place respondents Nos. 1 to 9 were brought in. An appeal was preferred to the Collector on 19‑11‑1959 but it was dismissed as time‑barred. The Collector also held in addition that in fact the petitioner was not in possession. A revision petition filed with the Additional Commissioner has met the same fate. A second revision has now been filed. Two main points have been taken up before me. Firstly that there had been no entry regarding Ghair Qabiz which could justify the substitution of names, secondly that the holding was joint and there had been no tangible act of adverse possession by the respondents which could justify the substitution of names. The respondents case is that since 1931 they were shown in cultivating possession of a major part of the holding and in fact the petitioner was not in possession of the property. A reference has been made in the order passed by the officers below to paragraphs 7.25 of the Land Records Manual which is based on paragraph 281 of the Settlement Manual. These instructions relate to cases where entries of Ghair Hazir or Ghair Qabiz have been in existence and the right holder who has been entered as such has not been heard of for seven years or the entries have been in existence for more than twelve years. Neither of these two conditions are satisfied in the present case. It is, further, laid (town that new entries of Ghair Hazir or Ghair Qabiz are ordinarily to be made. In this particular case there were no grounds for peaking even an entry of Ghair Qabiz because it was a joint holding and the other joint holder, i.e., respondents Nos.1 to 9 had not by any specific act asserted their rights of adverse possession. My attention has been invited by the learned counsel for the respondents to a ruling given by King F. C. in Mst. Hayat Bibi v. Jalal Din and others (P L D 1950 Pb. (Rev.) 999). It was held in that case that even though the impugned order was illegal the F. C. had refused to interfere on the ground that he did not consider interference to be just. In that case Mst. Hayat Bibi, a widow, had remarried and an entry was made in favour of the collaterals who were in possession. Prima facie it was a case of disputed custom. The present case is entirely different as the names of the co‑sharers in a joint holding have been removed on the ground that they are not in possession of their share without any overt act to justify adverse possession qua the other shareholders. The presumption is that a co‑sharer holds the land the on behalf of all unless there is a specific act of adverse possession. Another point raised on behalf of the respondents is that the appeal was time‑barred and for that reason interference in revision would not be justified. The facts of the case indicated that the petitioner was not duly served and a reasonable effort had not been made to affect service on the successors of Muhammad Abdullah Khan as required in accordance with the provisions of section 20 of the Land Revenue Act. Substituted service should not ordinarily be directed unless an effort has been made to affect service personally or failing that through a recognised agent or one an adult male member of the family. Even a registered notice, acknowledgement due, was not issued and the Revenue Officer straightaway directed that as the petitioners are residents of Sheikhupura district they cannot, therefore, be served in the ordinary way and directed issue of a proclamation in a local newspaper. These circumstances are enough to justify condonation and interference in the case. As a result of the above discussion I would accept the Revision petition set aside the order passed and direct that the old entries should be restored. K. M. A.????????? Petition accepted.