ABDUL SHAKOOR PARACHA, J.--- This Civil Revision impugns the judgment dated 17.10.1995, passed by Addl. District Judge-I, Bhakkar dismissing the appeal of petitioner filed against the judgment and decree dated 3.12.1991 of the learned Civil Judge Bhakkar, whereby a declaratory suit on the basis of adverse possession instituted by the respondents/plaintiffs was decreed.
2. Brief facts of the case are that respondents Nos. 1, 2& 3 herein plaintiffs namely Muhammad Khan, Faiz Muhammad, Mst. Kalsoom Bibi, respondents Nos. 4- to 6 Atta Muhammad, Ameer Muhammad and Ameer Mae, Mst. Chabae, Mst.
Allah Wasaee, Zafar Khan, Mst. Ghulam Sakina sons and daughters of Ghulam Muhammad respondents Nos. 5 and 6 filed a suit against Mst. Sahibzadi and 19 others for declaration to the effect that they have become owners. In possession of the land measuring 88-K situated in Chak No. 10/TDA Bhakkar by virtue of adverse possession and that the petitioners/defendants have got no concern whatsoever with the same. They also prayed for permanent injunction to restrain the petitioners/defendants to "interfere in their possession. It was contended that Khan Muhammad son of Sheran caste Jat Khemta was ancestor of the plaintiffs/respondents and had been coming in possession of the suit land for the last 45 years as Ghair Dakhil-Kar. After his death the plaintiffs/respondents become owners due to adverse possession being in continuous possession of the suit land for the last more than 12 years as Ghair Dakheel Kar Bashrah Lagan. They have neither paid any share of produce to anyone nor any land revenue to the Government. They were in possession which was open, hostile and in the knowledge of the petitioners/defendants who never objected to it thus the plaintiffs/respondents have perfected their title over the suit land due to the adverse possession. Respondents/plaintiffs further sought the cancellation of the decree dated 16.3.1991 in civil suit titled as Sher Muhammad vs. Muhammad Jameel, etc. And Mutation No. 103, dated 18.7.1991 being illegal and void. The above-said decree was obtained by Muhammad Jameel defendant No. 20 (plaintiff No. 1) during the pendency of suit. It was contended that this alienation was result of collusiveness and inoperative qua the rights of the plaintiffs being hit by the principle of lis-pendens.
3. The suit was contested by the petitioners/defendants by filing the written statement. Certain preliminary objections were raised regarding the jurisdiction of the Court, cause of action and maintainability of the suit. On merits, it was contended that defendants/respondents are not the owners of the suit land. They were tenant under the petitioners/defendants.
4. From divergent pleadings of the parties, Trial Court proceeded to frame the issues. Parties led their evidence. While deciding issue No. 8 regarding the "adverse possession" learned Civil Judge recorded the findings that, "adverse possession is proved beyond any doubt and issue is decided in favour of plaintiffs/respondents and against the defendants/petitioners." It was further observed that "none of the defendants have appeared in witness-box in support of their claim, therefore, adverse possession has become crystal clear." -Under issue No. 9, the Court observed that "after discussion and findings on Issue No. 8 above, this issue needs no further discussion, hence it was decided in favour of the plaintiffs/respondents and against the defendants/petitioners." Further it was observed that, "plaintiffs/respondents have got property rights in the light of M.L.R. 1959 on the basis of their adverse possession." The suit was decreed vide judgment dated 3.12.1991. Aggrieved from the decree, petitioners/defendants filed an appeal. On the question of adverse possession, the Appellate Court held that the plaintiffs/respondents have got the proprietary rights in the light of M.L.R. 1959 and further that plaintiffs/respondents through oral as well as documentary evidence have proved that neither they nor their predecessor-in-interest Khan Muhammad son of Sheran held the suit land as tenant keeping in view the definition of word "tenant" as laid down in PLD 1978 Revenue 61. They never paid any share of produce. Their possession has been continuously, open and hostile in total denial of the rights of the true owners. True owners were in clear knowledge of the possession of the plaintiffs/respondents. They never tried to disturb it. Even during the trial none on the true owners entered into witness-box. The predecessor-in-interest of the plaintiffs/respondents brought the suit land under cultivation through Nature in presence of the true owners who have knowledge of this fact did not take any step. The Appellate Court also relied on the statement of Raza Muhammad appellant No. 20 before the competent authority, a copy of which is Ex. P. 4 and observed that it is significant pointer towards the case as pleaded by plaintiffs/respondents. All the ingredients to claim adverse to claim adverse possession have been fully proved by the plaintiffs/respondents. However, on issue No. 9 learned Addl. District Judge proceeded to observe that; "this issue needs no discussion, since the plaintiffs/respondents have succeeded to establish their title over the suit land by virtue of adverse possession". By maintaining the findings recorded by the learned Civil Judge on issue No. 8 (adverse possession) the appeal was dismissed on 17.10.1995, hence this revision petition.
5. During the pendency of this revision petition, respondents/plaintiffs moved an application (C.M. No. 2/C/2004) seeking for production of attested copies of Jamabandi for the year 1945-46 of Mauza Darya Khan as additional evidence. This application has -been allowed through a separate order of even date.
6. Learned counsel for the petitioners/defendants contends that section 28 of the Limitation Act (Act No. IX of 1908) provides the extinguish of rights in property which has been declared repugnant to the Injunctions of Islam, therefore, the suit of the plaintiffs/respondents could have not been decreed on the plea of adverse possession. Reliance is placed on the case reported as Maqbool Ahmad vs. Government of Pakistan (1991 SCM R 2063). That plea of ownership in the light of M.L.R.
1959 and adverse possession were mutually destructive and could not stand together. To substantiate his arguments, learned counsel for petitioners/defendants relied on the case of Mira Khan vs. Ghulam Frooq and others (1988 SCM R 1765). Further that it was the duty of the plaintiffs/respondents to show the continuous and un-interrupted adverse possession for prescribed period of 12 years, mere entry in the revenue record that person or his predecessor-in- interest was tenant and not paying the Lagan or Batai owing to assertion of ownership does not in law means open, advert act and hostile of adverse possession against the true owners. Reliance has been placed on case reported as Allah Ditta vs. Jan Muhammad (1976 SCM R 69) and that nonappearance of any defendant as witness was not fatal to the case of the petitioners/defendants.
7. On the other hand, learned counsel for respondents/plaintiffs contends that the suit was instituted on 10.12.1984. Order of Honourable Supreme Court in case of Maqbool Ahmad vs. Government of Pakistan (1991 SCM R 2063) had to take effect from. 31.8.1991, therefore, law laid down in case of Maqbool Ahmad Supra (1991 SCM R 2063) was not applicable to the facts and circumstances of this case. Reliance has been placed on the case of Abdur Rehman and 12 others vs. Muhammad Akram and 79 others (1999 SCM R 100). The plaintiffs/respondents has proved the continuous and un-interrupted adverse possession for a prescribed period of 12 years and that the rights of the petitioners/respondents as "Ala Malikaan" were abolished under para-64, of M.L.R. 196, therefore, petitioners/defendants claim of ownership was not sustainable. Plea - of adverse possession and that plaintiffs/respondents being Adna Malik had become owners under Para-22 of the M.L.R. 1959 are not mutually destructive; that the respondents/defendants had continuous and un-interrupted adverse possession and question whether pleas of adverse possession and ownership were mutually destructive would depend on the circumstances of each case and determination whereof depend on the evidence to be brought on record. There is no misreading or non-reading of evidence, therefore, concurrent findings of facts recorded by the competent Court of law in favour of the plaintiffs/respondehts cannot be disturbed in exercise of revisional jurisdiction of this Court.
8. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. Section 28 of the Limitation Act 1908 (Act No. IX of 1908) insofar as same provided for extinguishment of right in the property at the determination of period prescribed for instituting a suit for possession of property has been declared repugnant to the Injunctions of Islam with effect from 31.8.1991. The present suit was filed by the respondents/plaintiffs on 10.12.1984, therefore, law laid down in case Maqbool Ahmad (Supra) (1991 SCM R 2063) was not applicable to the facts and circumstances of the present case as per law laid down in case of Abdur Rehman and 12 others vs. Muhammad Akram and 79 others (1991 SCMR 100). In normal circumstances, pleas of purchase and adverse possession could not stand together and clash was irreconcilable as held in case of Mira Khan vs. Ghulam Farooq and others (1988 SCM R 1765). Further the question of adverse possession came up for interpretation before the Hon'ble Supreme. Court in case of Ch. Muhammad Aslam Khan through Legal Heirs and others vs. Malik Sher and others (1994 SCM R 1637) and the Honourable Supreme Court ruled that, "question as to whether plea of adverse possession was destructive of the plea of ownership, would depend upon the circumstances of each case and determination whereof would depend on the basis of evidence to be brought on the record."
9. The respondents/plaintiffs have taken the stand that they are owners in possession of the suit land on account of entries as Basharah Malikan Bawajah Nautor in the revenue record. Jama- bandi for the year 1945-46 shows that Khan Muhammad son of Sheran Caste Jatt Khemta predecessor of the plaintiffs/respondents has been entered as Dakheel Kar in cultivation column No. 4. Muhammad Zaman and Ameer Muhammad are shown as owners in ,column of ownership of Khewat No. 146 Khatooni No. 141 measuring 32-K, 7-M and their entries are as "Basharh Malikan Bawajah Nautor" in column No. 8 against this land, land has been restored in favour of the plaintiffs/respondents which is not in dispute because Raza Muhammad 'defendant No. 11 made statement Ex. P. 4 before the Thal Development Authority. The suit land has been shown in possession of Abdul Rehman Khan. In column of cultivation measuring 208-K, 9-M, no entry as Basharah Malikan Bawajah Nautor is existing against this Khatooni. Similar is the position with the Jama-bandi for the year 1945-46 Ex. P. 13 which has been produced as additional evidence by the respondents/plaintiffs. Respondents/plaintiffs were not able to cultivate the suit land through Nautor nor they acquired ownership rights under Para-22 of M.L.R. 1959 nor there is any entry regarding Ghair Dakhil Kar Basharah Malikan. They have no right to seek declaration and possession. It is well-settled principle of law that entries of column of Lagan otherwise not corroborated by any evidence cannot take precedence over column of cultivation. Party relying on Lagan column as against cultivation column would have to produce evidence in support of its plea as held in case reported as Shad Muhammad vs. Khan Poor (PLD 1986 S.C. 91). Ex. P. 3 and Ex. P. 10, show that the land was owned by in Development Authority, whereas the land remained in possession of the petitioners. Khasra Girdawries Ex.P.5 to P.12 show the possession of the petitioners/defendants over the suit land: Khan Muhammad son of Sheran predecessor-in-interest of the respondents/plaintiffs was given 18-K of land because there was entries as Basharah Malikan Bawajah Nautor against Khatooni No. 141 measuring 32-K, 7-M whereas the suit land measuririg 88-K was reverted to the present petitioners/defendants through Fard Taqseem Ex. P. 11.
Mere entries in the revenue record that the respondents/ plaintiffs or his predecessor-in-interest were tenant and still not paying Lagan or Batai owing to assertions of the ownership does not in law mean to open, overt act, and hostile to adverse possession against true owners as per law laid down in case of Khair Muhammad vs. Khuda Bakhsh and 2 others (1976 SCM R 69). Otherwise plea of ownership of adverse possession would not stand together as held in case of Mira Khan vs. Ghulam Farooq and others (1988 SCM R 1765). The findings of both the Courts below on issue No. 8 that respondents/plaintiffs have become owners due to adverse possession are result of misreading and non-reading of jama-bandi for the year 1945-46, Ex. P. 13, Khasra Girdawries Ex. P. 5 to P. 12, and the record of Thal Development Authority Ex. P. 3 to P.
10. Non-appearance of any of the petitioners/defendants as-witness is not fatal to their case because it is for the plaintiffs/respondents to prove that they had been coming possession of the suit land for more than 12 years, which was open, hostile and in the knowledge of the petitioners/defendants, which fact has not been proved by them.
10. Both the Courts below have decided issue No. 9 by observing that the respondents/plaintiffs have got the proprietary rights in the light of M.L.R.
1959 on the basis of their adverse possession which is not correct. Respondents/plaintiffs have not filed any cross-objections against the findings of both the Courts below on which issue No. .9 but to do the complete justice this Court can in exercise of jurisdiction under Order XXXIX, Rule 31, CPC pass any decree and make any order which ought to have been passed. The power under Order XXXIX, Rule 31, CPC can even be exercised in revision. See case of The Great Eastern Shipping Co.
Ltd. Vs. S. Muhammad Samiullah Saheb & Co. And another (AIR 1959 Madras 367).
Plaintiffs/respondents were tenants as Dakhil Kar under the defendants/petitioners regarding the suit land and there is no entries of Basharah Malikan Bawajah Nautor in the column No. 10 of the revenue record nor there was any evidence that the plaintiffs/respondents were in continuous and uninterrupted in adverse possession for a period of 12 years nor they have got proprietary rights under MLR 1959. Therefore, they had neither become owner on the basis of adverse possession or the plea of ownership is available to them, therefore, Civil Court fell in error to record the findings of adverse possession on issue No. 8 in favour of the respondents /plaintiffs The appeal of the petitioners/defendants nas also been illegally dismissed, by the first Appellate Court. Judgments of both the Courts below are result of misreading of revenue record and misinterpretation of the law of adverse possession and MLR 1959. This being so, this revision is allowed. The judgments of Trial Court dated 3.12.1991 as well as first Appellate Court dated 17.10.1995 are set aside. The suit of the respondents/plaintiffs for declaration and permanent injunction is dismissed with costs.