1992 MLD 751 (PLP)

This civil revision by the defendants arises out of a civil suit filed against them by the plaintiffs as owners to recover Khas possession of a piece of land in dispute measuring 5 Kanals, 18 Marlas, comprised in Khasra Nos.1364, 1370 situated at Mohra Rupial in Tehsil Kahuta, District Rawalpindi. Plaint was presented to the Civil Judge of Kahuta on 22‑3‑1982. The suit was decreed in favour of the plaintiffs by the trial Court on 6‑2‑1988. An appeal filed against the decree of the trial Court was dismissed by the Additional District Judge on 1‑10‑1989. A civil revision filed in this Court‑‑Civil Revision No.477‑D of 1989, was allowed on 14‑3‑1990 by remanding the case to the lower Appellate Court for deciding it on merits. On 7‑11‑1991, the appeal was dismissed by the lower Appellate Court holding that adverse possession claimed on the land in dispute by the defendants was, not established for giving them ownership rights in it. Only point requiring determination in the revision petition is acquisition of ownership rights by prescription by the defendants‑petitioners. Ownership of the land in suit was not disputed. It was otherwise proved also by the entries in revenue records produced in evidence by the plaintiffs. Independent of it, by laying claim to transfer of title to them on the basis of adverse possession on the land in suit, the defendants must be deemed to have admitted the ownership rights of their opponents. So it is only to be ascertained, whether the plea of adverse possession raised in defence to resist the claim of the plaintiffs for physical possession of the land in suit has any real merit in it ? Courts below, as seen from the preceding paragraph of the judgment had found against the petitioners and held the plaintiffs entitled to possession of the land owned by them. In order to know as to how the land in suit came in the ownership of the plaintiffs, and, subsequently dealt with, in the revenue papers, a brief reference to the record is necessary. By Mutation No.459 sanctioned on 19‑7‑1928, Exh. P.1, Subedar Major Hayat Ullah Khan purchased 5 Kanals, 18 Marlas of land, in Khana Kasht from Prem Singh son of Ram Singh. Sale mutation was given effect to in following Jamabandi prepared for he year 1928‑29 Exh. P.2. Meanwhile, the original purchaser Hayat Ullah Khan seemed to have breathed his last and by mutation of inheritance sanctioned upon his decease, land owned by him was mutated in favour of his three surviving sons, namely, Fazal Khan, Habib Ullah Khan and Muhammad Jan. Exh. P.2, not only recorded the names of successors of Hayat Ullah Khan in Khana Kasht as Qabza Malikan, but showed the land then comprised in Khasra Nos.3986 (1 Kanal, 3 Marlas), 5364/3991 (4 Kanals, 15 Marlas) in their actual possession a Maqbooza Malikan. Jamabandis for the period intervening 1928‑29 to 1955‑56 were either lost or misplaced from the Record Office, as was indicated by the reports made on the applications Exh. P.5 to Exh. P.10 submitted by the plaintiffs. Therefore, extracts from the Jamabandis pertaining to the land in suit covered by this period could not be brought on file. Reasons for misplacement or loss of important land records could not be discovered so as to hold, whether it was some deliberate attempt to aid a party to the litigation or a mere negligent act of those charged with the safe custody of land records involving absence of any mens rea. Be that as it may, the Courts adjudicating the matter were denied the benefit of the value of entries existing in the revenue records relating to the land in suit. Only land record available on file after 1928‑29 is the Jamabandi for the year 1955‑56 marked Exh. P.3 In ownership column of the Jamabandi, the defendants are recorded as owners of the land of Khasra Nos.1364,1370 of which previous Khasra numbers were 3986 and 4364/39<)2/2. Against the existing Khasra numbers, the names of the plaintiffs were deleted altogether and substituted by those of the defendants. Naseeb Khan, one of the defendants was recorded in possession of these two Khasra numbers as a co‑sharer in Column No.4 of the Jamabandi. Substitution of names consequent upon deletion of the names of true owners of the land in suit was not easily explainable on present record and there was no material to assist in that direction. Learned counsel admitted that neither the plaintiffs had sold the land in suit to the defendants nor the land in suit was the ancestral property of the defendants. How then it came to them is a pure enigma of which learned counsel gave no clue. for solution. For alteration and change in land records, a procedure has been prescribed in the Land Revenue Act for the Revenue Officers to follow. In absence of an admitted or a proved fact or an order or a decree binding on the parties from the competent Court, alteration/change of the revenue entries was not a permissible act. Therefore, if existence of an entry was brought about illegally and that fact was proved, there was clear law that the previous entry lawfully made shall be deemed to exist because an entry subsisted till a new one was lawfully substituted for it. In support of this view, reference with advantage can be had to the case of Allah Dad v. Muhammad Ali and others PLD 1956 Lahore

245. Learned counsel for the petitioners had no serious cavil with this proposition of law and was constrained to willy‑nilly admit that the petitioners were brought in without a proper and legal basis for it. However, learned counsel laid much stress on the plea of adverse possession and by reference to the entries existing in the Jamabandis for the years 1955‑56 and 1978‑79 argued that it was adequately proved. It was submitted that since the plaintiffs were out of possession of the land in suit ever since 1955‑56 and the petitioners held it adversely to them, the ownership rights held by the plaintiffs were extinguished and after the expiry of twelve years' adverse possession came to vest in the petitioners. Learned counsel referred to Article 144 and section 28 of the Limitation Act in support of his statement. For pure purposes of academic interest, the statement of the learned counsel may have force, but when applied to cold facts of the present case, it lost much of its merits. As said elsewhere, the plaintiffs were shown in possession of the land in suit till 1928. Land records thereafter till 1955‑56 were not available. Presumption about the continuance of the state of affairs once shown to exist must aid the plaintiffs' case that they were in possession of the land in suit as its owners. It is correct that in 1955‑56, one of the petitioners was recorded in possession as a co- owner. How he entered upon possession and who gave him the possession of the land was not clear from the record. Plaintiffs' case was that the land was in their possession, sometimes actual and sometimes through their rent paying tenants and it was in Kharif 1980, when it was given to the petitioners on tenancy. Apart from the statement of one of the plaintiffs, Raja Bashir Ahmad P.W.4, plaintiffs gave evidence of three P.Ws., who supported them on their stand regarding ownership and possession of the land in suit. In defence, only Muhammad Akbar, one of the defendants and a petitioner here, entered the; witness box as D.W.1. It was stated by him that the land was in possession of the petitioners for the past fifty years as its owners. In cross‑examination, the witness stated that the land was inherited by them from their paternal grand father. He further stated that he was in service of Pakistan Army and had retired from it in 1974. Courts below gave credence to the plaintiffs' evidence in preference to that of the petitioners and relying upon it found that adverse possession on the land in suit was not established and the version of events given by the plaintiffs appeared to be true and more probable. Elements of adverse possession were lacking in the case. In the written statement, petitioners claimed that they held the land as owners for the past fifty years. In the evidence, as D.W.1 Muhammad Akbar stated that since the land was transferred to them from their paternal grand‑father and received through inheritance, he asserted that it was owned by them. Claiming ownership of the land and also its adverse possession were held irreconcilable pleas by the Supreme Court in Ghulam Qadir v. Ahmad Yar PLD 1990 Supreme Court 1049. Further, section 28 of the Limitation Act has been found un‑Islamic by Shariat Appellate Bench, Supreme Court of Pakistan, in Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2003. The decision of the Shariat Appellate Bench took effect from 31st August 1991, and since that date, section 28 of the Limitation Act stands obliterated from the Statute book. Deceit, deception, fraud, force or might as a source of claim to and right in property was against the ethos of Islamic principles. There was no clear evidence about unambiguous, open, and notorious disclaimer of the title of the true owners, in absence of which, possession of the petitioners on the land in suit given to them on tenancy could not be held adverse for giving them title to it. In this view of the matter, agreed findings recorded on the plea of adverse possession in the Courts below were not susceptible to a further review for interference in Revisional jurisdiction. Revision petition, accordingly, fails in limine. Original records summoned in connection with the hearing of the civil revision may be returned. A.A./W‑13/L Revision dismissed.