' This judgment will dispose of R. S. As. Nos, 833, 834 and 835 of 1976,
2. All these appeals arise out of different orders passed by Mr, Z. A. K. Yousafi, District Judge; Mianwali. Dated 18th January, 1975, by which he set aside the decrees passed in favour of the plaintiffs-appellants by the learned trial Court in R. S. As. Nos, 833 and 835 of 1976 and dismissed the appeal of the plaintiff-appellant in R. S. A. No, 834 of 1976.
3. The plaintiffs/appellants filed three suits against the respondent/ respondents in each case claiming that they were Ala Maas while the defendants were tenant/tenants in the property in dispute but they had denied their tenancy and withheld the payment of rent. In this view of the matter, it had become necessary to file suits for possession.
4. The defendants-respondents on the other hand, pleaded that they had brought the land under cultivation after breaking the waste and as such had obta;ned the right of Adna Malkiat. In view of para. 22 of Martial Law Regulation No, 64 (Land Reforms Regulation, 1959) they had become absolute owners of the property in their possession. It was also alleged that, in any case, the defendants had become owners by adverse possession.
5. The learned trial Court framed a number of issues including the issue about ownership of the plaintiffs as well as about the right of ownership if any, of the defendants or about their adverse possession.
6. Only documentary evidence was produced on behalf of the defendants. On behalf of the plaintiffs, in addition to the documentary evidence Amir Hussain Shah one of the plaintiffs appeared as a witness. He made a brief statement in support of his own right of ownership, but his cross-examination is not at all material in any of the cases because nothing could be brought in favour of the defendants-respondents.
7. The learned trial Court found the issue about the ownership of the plaintiffs in their favour in two of the suits out of which R. S. A. Nos, 833 and 835 of 1976 have arisen and the other issues against the respondents in those cases with the result that the suits were decreed in favour of the plaintiffs.
The suit out of which R. S. A. No, 834 of 1976 has arisen was dismissed on the ground that the defendants possessed Adna Malkiat rights and consequently were absolute owners of the property in dispute in that case.-
8. The learned District Judge dismissed the plaintiffs' appeal in that case but he allowed the defendants' appeals in the other cases. He held that the Jamabandi did not incorporate the name of the plaintiff in Column No,
3. He noticed that there were some references to some mutations sanctioned in the names of the plaintiffs in the Jamabandis but the right of ownership could be proved only by production of Jamabandis in which their names appeared in the ownership column. He further held that the defendants in these cases had become owners of the property under Martial Law Regulation No,
64. In R. S. A. No, 834 of 1976, the District Judge also decided the issue of adverse possession in favour of the defendants/respondents.
9. I have gone through the entire record. There is no evidence in either of the suits about the possession of the defendants in any of the property in dispute on 3rd March, 1959, when Martial Law Regulation No, 64 was enforced. The possession of the defendants in the suit out A of which R.S.A.
No, 833 of 1976 arises has been proved to date back to the year 1963. In the suit of which R. S. A. No, 835 of 1976 has arisen the possession is proved by Khasra Girdawari Exh. D. 1 to date back to the year 1962. In R. S. A. No, 834 of 1976, however, the possession of the defendants is proved to start from Kharif 1959 although the Khasra Girdawari Exh. D. I also pertains to the period Rabi 1959. In these circumstances, in that case to the defendants/respondents are not proved to be in possession of any portion of the property in dispute on the 3rd March B 1959. The defendants cannot, therefore, claim any right on the basis on para. 22 of Martial Law Regulation No,
64. That para would apply only to persons who held the land as Adna Maliks on that date.
10. Moreover, in none of these cases, neither Wajibul Arz nor any evidence has been produced to show the respective rights of the Ala Maliks and Adna Maliks. The finding of the learned District Judge is, therefore, erroneous.
11 I had taken a similar view in Ghulam Haider v. Ghulam Raza Shah etc. R. S. A. No, 764 of 1967, decided on 20th November. 1978, that persons who are not Adna Minks on the crucial date (3rd March 1959), cannot take the benefit of para. 22 of Martial Law Regulation No,
64. I had further held in that case that the Ala Maliks would be treated Adna Maliks for the purpose of that Regulation if no other Adna Malkiyat right has intervened before its enforcement.
12. Before parting with this case I may also notice that there is absolutely no evidence in support of the plea of adverse possession. There is also no documentary evidence in this support. The only documentary evidence which proves that the defendants have been in possession of the property in their possession since Kharif 1959, is in the suit out of which R. S. A. No, 834 of 1976 has arisen but it is clear that the suit filed before Kharif 1971, was filed within 12 years. Moreover, there is no evidence except a bare entry in the Khasra Girdawari that the possession is on account of some claim of Adna Malkiat or that the defendants had been in possession of the property from any date more than 12 years before the institution of the suit and that during such period they had been openly challenging the right of ownership of the plaintiff.
13. The only question that remains for consideration is whether there is sufficient evidence to prove the ownership of the plaintiffs. It is clear from Exh. P. 2, a copy of the Jamabandi pertaining to the year 1943-44 that certain mutations have been effected in the names of the plaintiffs by which they have obtained the ownership of the property. There is no evidence that any other Jamabandi has been prepared since 1943-44. The learned counsel for the appellant argued in all these cases that in fact no other Jamabandi had been prepared and even the defendants have produced the Jamabandis pertaining to the year 1943;44. This being the D last Jamabandi the question of ownership can be decided on its basis. The petitioners are undoubtedly owners of the land in dispute.
14. The learned District Judge also ignored the oral evidence which was given in support of the plea of ownership of the plaintiffs. There is no rebuttal on the record. In these circumstances, the learned District Judge has not only erred in law in ignoring the Jamabandis for the year 1943-44 but also in ignoring the other evidence on the record. It may be stated that in the Khasra Girdawaris which are relied upon by the defendants in the suit out of which R. S. A. No, 834 of 1976 arises the. Names of Amir Hussain Shah etc., plaintiffs, appear in the column regarding possession through their tenants.
This was a further evidence in support of the plea of the plaintiffs.
15. I, therefore, reverse the finding of the learned District Judge in all the cases. Similarly, I reverse the findings of the learned trial Court in the suit out of which R. S. A. No, 834 of 1976 has arisen about ownership of the suit land by the operation of Martial Law Regulation No, 64.
16. I allow all the appeals with costs, set aside the judgment and decree of the learned District Judge and also set aside the judgment and decree of the learned trial Court in the suit out of which R. S. A. No, 834 of 1976 his arisen. The result in that all the suits shall stand decreed in favour of the plaintiffs.