P L D 1981 SIC 262 (PLP)

KARAM ELAHEE CHAUHAN, J.‑The appellants filed an application under section 22 of the Pakistan (Administration of Evacuee Property) Act X11 of 1957 (hereinafter called' the Act) on 30:9‑1961, for a declaration that they were owners in adverse possession of the agricultural land described more fully in the aforesaid petition, and that the same was not evacuee property for the reason hereinbefore mentioned and also for the reason that as it had not been treated as evacuee property before 1‑1‑1937, therefore, it could not be no treated thereafter and consequently its [allotments to (private) respon dents herein made in year . 1960‑61 were illegal and ineffective against them. '

2. The petition was allowed by 'the learned Deputy Custodian vide his order dated 27‑11‑1961, on the ground of adverse possession and the case was sent up by him to the learned Custodian for confirmation under the rules. The later, however, did not‑ confirm the aforesaid order, and rather accepted the appeal of the allottees/respondents and remanded the case for fresh decision to the learned Deputy Custodian. E. P. after properly taking into consideration the relevant revenue record.

3. After remand the learned Deputy Custodian, E. P. went through the relevant revenue record and held that the claim of any matured adverse pos session had not been proved and for that reason dismissed the petition on 17‑12‑1962. 4, The appellants filed an appeal but without any success it was dismissed by the learned Custodian on 10‑5‑1963.

5. At that stage the appellants filed a constitutional petition being W. P. 508/63 which also met the same fate and was dismissed by the High Court on 20‑11‑1966. A review petition against the same was dismissed by the High Court on 17‑12‑1966.

6. The appellants have now come up :in appeal to this Court by special leave which was granted on 27‑3‑1967 to consider the plea of adverse posses sion and the point regarding or treatment or non‑treatment of the land in dispute as evacuee property and its consequent effect on the claim of the appellants.

7. We have beard the learned counsel for the parties and have also gone through the record in the paper book. Learned counsel for the appel lants tried to argue that the adverse possession of his clients over the land in dispute stood fully matured before the year 1947, and therefore, their title as such had been perfected and the evacuee interest of the evacuee owners therein had been lost by prescription. We must say that on this point there are con current findings of the Deputy Custodian, the Custodian and the High Court against the appellants. An laid down by this Court in Muhammad Husain Munir and others v. Sikandar and others (PLD1974S,C139) the High Court in its constitutional jurisdiction under Article 98 of the relevant constitution could not have upset the aforesaid findings. Nevertheless the High Court did go into this matter and found that (a) the continuity of adverse claim (if any) stood legally broken when the evacuee owners in execution of a decree of a civil Court obtained constructive/symbolic possession from the appellants and for this purpose they relied upon Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD1966SC612), where it was laid down that "as against a judgment‑debtor symbolic possession is as good as actual possession". Learned counsel has not been able to cite any law contrary thereto. However, it was argued that despite the aforesaid appel lants remained in adverse possession from year 1936 onward, but it is to be noticed, that thereafter the adverse possession did not materialise for 12 continuous years in as much as in the year 1946 the evacuee owners again filed a civil suit on the basis of their title. It was during the pendency of that suit that they left Pakistan and became evacuee which shows that at the time of the "Partition of the Sub‑Continent" the appellants had not completed their adverse possession. It is not disputed that after the "Partition,' the appellants could not have prescripted against the Custodian according to‑ the relevant law on the subject. Even otherwise, it is well settled that institution of a civil suit within the requisite period of prescription breaks the continuity of the adverse possession. The High court has further held that the relevant entries in the revenue record about the cultivating possession of the suit land were which means that the factum of cultivation was disputed. This, it was rightly held by the High Court, 10s not tantamount to adverse possession and rather showed that even the very factum of any alleged cultivation by the appellants was not fully established but was a disputed matter in its own place. This type or state of affairs can hardly be a proof of any clear or matured adverse possession, because as laid down in Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Aft. Bhagjogna Kuer and others (A I R 1937 P C 69) in order to succeed on such a plea adverse possession should have "all the qualities of adequacy, continuity and exclusiveness" to displace the owners' title. In this case all these ingredients. as has been shown above, are, lacking. The result is that the learned counsel has not been able to make out any case of acquisition of possessory title by prescription on the plea of adverse posses sion as raised by him, therefore, the aforesaid claim of his clients fails and is hereby repelled.

8. The learned counsel then argued that irrespective of the aforesaid state of affairs, as the land in dispute had not been treated or allotted to the private respondents as evacuee property before 1‑1‑1957, therefore, under section 3 of the Act, it could not have been so treated or allotted later on. The plea has no merit. The protection of section 3 is not available to such agricultural land which was a "hidden evacuee property" and the occupant whereof never informed the Custodian. under the relevant provisions of the aforesaid Act about the factum and nature of his possession. See Qutab Ali v. Custodian, Evacuee Property and others PLD1964SC58.

9. The result is that this appeal has no merit and is dismissed hereby with no order as to costs. s. A. H. Appeal dismissed.