' This second appeal arises out of a suit filed by the appellant against the respondents for declaration that he is owner in possession of Shop No, 151, Block No, 4, Sargodha, alongwith its thereby adverse possession extending over a period of more than 12 years. Alongwith the suit a prayer for grant of permanent injunction restraining the respondents from interfering in the appellant's ownership and possession over the shop was also made.
2. Respondents Nos. 2 to 10 filed joint written statement wherein they asserted that the appellant occupied the shop as a tenant. Respondent No, 1, however, filed a separate written statement. The respondent resisted the suit and controverted the stand taken by the appellant.
3. The appellant examined three witnesses and also himself appeared in the witness-box as his own witness. The appellant while appearing as his own witness stated that the shop was lying vacant in the year 1954. He broke open the locks and occupied the same. Malik Fateh Muhammad, respondent and others, came to his shop and threatened him with dire consequences. Ghulam Mustqeem, P. W. 1, corroborated the testimony of the appellant and deposed that he occupied the shop by breaking its locks. Feroze Din, P. W. 2, also supported the appellant. The testimony of the third witness, namely, Muhammad Sabir, is not relevant for the purpose of adjudication of this appeal.
4. Respondents examined three witnesses and tendered in evidence a number of documents.
Abdul Hakeem, Tax Collector, Municipal Committee, who appeared as D. W. 1 stated that in the records of the Municipal Committee, Sargodha, the property in suit was owned by Brig. Gul Sher Khan Noon, respondent and others, and that the taxes were also paid by them. He deposed that the names of the tenants were not mentioned in the relevant record. The other witness was a record-keeper of the Post Office, who was summoned to prove the money order coupons (Exhs. D- 8 to D-13), whereby the respondents claimed that rent was remitted to them by the appellant. This witness stated that the money orders record for the year 1962, had been destroyed. Muhammad Boota, who appeared as D. W. 3, deposed that he was "kardar" of Malik Fateh Muhammad, respondent, and that the appellant was keeping the shop in dispute for the last 8/10 years as a tenant under the respondent. He stated that the appellant paid rent at rate of Rs, 40 per month and was defaulter for the last 2 years. As regards the documentary evidence, it consisted of the copies of the Assessm ent Register of the Municipal Committee, Sargodha for the years 1960-61, 1962-63 and 1967-68 Exhs. D-2, D-3 and D-4. The other documents consisted of copies of the Excise and Taxation Record for the years 1967-68 and 1972-73, which Exhs. As D-6 and D-5, respectively. Copy of the jamabandi for the year 1966-67 was produced as Exh. D-1 wherein respondents were recorded as owners in the relevant column relating to ownership.
5. The learned Civil Judge, by his judgment and decree dated 13-9-1975, decreed the suit in the appellant's favour. He held that the witnesses produced by the appellant were disinterested and independent persons, and that the respondents failed to rebut their evidence. He also held that the evidence produced by the respondents refuted their claim rather than to establish the same. He termed the evidence of D. W. 1 and D. W. 2 as insignificant and disbelieved the testimony of Muhammad Boota, D. W.
3. He also drew an adverse inference from the respondents' non-appearance in the witness-box.
As they did not produce any of their tenants who occupied their other shop as a witness, in the opinion of the learned Civil Judge, it amounted to withholding of the best evidence. Regarding copy of the jamabandi Exh. D-1, he observed that till such time, the appellant's title by adverse possession was declared by a Court, his name could not be incorporated in the revenue record, produced in evidence by the respondents. Regarding other documents he maintained, this record was prepared by the Committee for assessment purposes and had nothing to do with the claim of adverse possession.
6. From the cross-examination of Feroze Din, P. W. 2, the learned Civil Judge gathered that a suggestion was put to him which proved the appellant's case that he occupied the shop forcibly by breaking open the locks. It was primarily on these grounds that the suit was decreed in the appellant's favour.
7. In appeal filed by the respondents, the appellant raised an objection before the learned District Judge that the appeal was barred by time. For proper appreciation of this objection narration of certain facts appears essential. Precisely put these facts are; that the respondents appended a copy of the impugned judgment and, decree sheet with the memorandum of appeal but after the institution of the appeal, both these documents disappeared from the office of the learned District Judge. A police report was lodged with no outcome as yet. Thereafter, copies of the judgment and decree sheet were got prepared under the order of the learned District Judge and added to the appeal filed by the respondents. According to the respondents they applied for supply of copies on 17-9-1975, which were ready on 21-11-1975 and delivered to them on 25-11-1975. The appeal which was filed on 17-12-1975, was thus within time. On the other hand, the appellant contended that the copies were ready for delivery on 14-11-1975. In case the period of limitation is reckoned from 14-11- 1975, the appeal filed on 17-12-1975, is found barred by time. An entry existed in the C. D. II, Register as well as at the back of the application filed by the respondents in the copying agency, as to the dated of preparation of the copies. The appellant contended that the actual date at both the places was 14-11-1975, which by interpolation was changed to 21-11-1975, to save the appeal from being barred by time. On the other hand, in the submission of the respondents the interpolation was the result of collusion between the appellant and officials of the copying agency. The entries in the C. D. II, Register were in the hands of Waqar Hussain, clerk of the copying agency, who was examined by the learned District Judge as a Court witness. By his testimony as well as from other attending circumstances, the learned District Judge, came to the conclusion that the copies were prepared and were ready for delivery on 21-11-1975 and not on 14-11-1975.
8. On merits, the learned District Judge observed that Ghulam Mustaqeem, P. W. 1, and Feroze Din, P.
W. 2, were, chance witnesses. The appellant did not produce any shopkeeper or resident of the locality. He held that the shop was situate in the main bazar of Sargodha and that the respondents being of influential family of Sargodha, it was not believable that the appellant would break open the lock of a shop in the broad daylight and occupy it forcibly. He also referred to the documentary evidence led by the respondents and believing this evidence came to the conclusion that the appellant's claim of adverse possession was not proved. Accordingly, by his judgment dated 4- 51977, he accepted the respondent's appeal and dismissed the suit.
9. The learned counsel for the appellant argued that the statement of Waqar Ahmad, was not properly appreciated by the learned District Judge. His statement coupled with two documents in question fully establishes that the figure 14 was overwritten by the figure 21 in the C. D. II, Register, and similar interpolation was also made in the application. It was submitted that this record was tampered with by the respondents in connivance with the officials of the copying agency by using ink remover to cover the period of limitation.
10. As regards the merits of this case, the learned counsel argued that the findings of the learned District Judge that the respondents belonged to influential family and for that reason the occupation of the shop by the appellant by force was not believable, is an extraneous ground which vitiated the judgment. He further submitted that the assessment of the evidence made by the learned trial Court was wrongly ignored by the learned first appellate Court. According to the learned counsel, the following points taken note of by the learned trial Court were overlooked by the learned District Judge :-
(a) Being Friday the occupants of the shops in the locality were not supposed to have witnessed the occurrence of the forcible occupation of the shop;
(b) Suggestion made to Feroze Din by the respondents in cross examination.
(c) Defendants did not appear in the witness-box and failed to rebut the appellant's evidence.
(d) There was no evidence of creation of tenancy between the appellant and the respondents.
' It was submitted that the evidence of the witnesses produced by the appellant fitted in the circumstances of the case set up by him. They were believed by the learned trial Court but the learned first appellate Court, did not advance any cogent reason for not accepting their testimony.
He sought support for his these arguments from some of the observations made in Bhajraj v. Sita Ram and others (1).
11. As regards the appellant's claim that he acquired ownership of the shop in dispute, his learned counsel assailed the findings of the learned District Judge in this respect, and argued that he was never a tenant under the respondents but was openly in hostile possession for the last over 12 years, and referred to Jogendra Chandra Kapali Chaudhry v. Anjun Chandra Kapali (2), to reinforce his submission. He also cited Haji Muhammad Ramzan v. Mian Jamal Shah (3) for the proposition that the entries in the Excise and Taxation Register, were not relevant for proving the relationship of landlord an tenant between the parties.
12. In reply, the learned counsel appearing for the respondents argued that the entire case was examined by the learned trial Court from a wrong angle and the burden of proof was on the respondents, but he failed to discharge it. His submission was that it was a day-light occurrence and the persons residing or occupying the shops in the locality must have been aware of the factum of forcible occupation of the shop by the appellant, if such an occurrence really took place.
But the appellant instead of examining any witness from the locality of the main bazar, produced two other persons who were chance witnesses. They were, thus, rightly disbelieved by the learned District Judge. He urged that there was no cogent and reasonable evidence of the appellant's adverse and hostile possession said to have stretched over a period of 18 years. He controverted the submissions of the appellant's learned counsel and argued that the view taken by the learned trial Court was erroneous; the learned District Judge rightly disbelieved the evidence of the appellant and based his conclusion on correct appreciation of the material on the record, and the inherent circumstances of the case. He placed reliance on Madan Gopal v. Manam Bepari (4) and Mst. Goorhi v. Ghulam Hussain (5). As regards the tampering with the record of the Copying Agency he followed the line of reasoning adopted by the learned District Judge.
13. I have fully considered the arguments of the learned counsel for the parties and as the impugned judgment is that of the reversal of the trial Court's judgment, I have also thoroughly examined the original as well as Appellate Court's record. As regards the question of limitation, it is evident from this record that the application in the name of Malkani Zenib Begum daughter of Brig.
Gulsher Khan was entered in the C. D. II, Register of the Copying Agency at Serial No, 12284, on 17-9- 1975, and the endorsement to that effect was also made on the application Exh. C.
1. In this register, the relevant pages whereof, have been placed on the appellate file, the date of delivery has been tampered with by user of the ink remover.
(1) AIR 1936 P C 60 (2) PLD 1964 Dacca 498
(3) PLD 1967 Pesh. 380 (4) PLD 1969 SC 617 (5) 1978 SCMR 404 ' The date which reads as "21/11" was marked as B/3 by the learned District Judge. The figure "2" of the figure "21" seemingly remained undisturbed. Thus it was not a case of substitution of figure "14- 11.1975" by "21-11-1975", rather a crude effort was made to create a suspicion, by tampering with this entry. Against this entry a note marked D/3, has also been given by the Magistrate 1st Class who was the in-charge of the Copying Branch which runs as under :- "Seen. Date of preparation as twenty-five November 1975, and date of delivery as twenty-five, November 1975."
' The entries in C. D. II Register are in the hand of Waqar Hussain, who at the relevant time, was posted in the Copying Branch of the Deputy Commissioner's Office, Sargodha. While appearing as C. W. 1, in the Court of the learned District Judge, he denied the suggestion that the copies were ready for delivery on 17-11-1975. The evidence on the learned Ist Appellate Court's file fully proves that copies were prepared on 21-11-1975 and not on 17-11-1975. The view taken by the learned District Judge is, therefore, upheld. The learned counsel for the appellant could not point out any snag in the findings of the learned Ist Appellate Court to persuade me to hold otherwise. The appeal was thus within time.
14. The crucial point requiring determination in this appeal is as to the acquisition of title by the appellant by adverse possession. A heavy onus, thus, lay on him. The appellant's entire evidence on this issue consists of his own statement and that of his two witnesses, namely, Ghulam Mustaqeem, P. W. I and Feroze Din P. W.
2. Both of them neither resided nor did they run shops in the vicinity of the property in dispute. They hail from a different locality. They were primarily believed by the learned Civil Judge as he considered them independent and disinterested persons. The test for credibility of a witness as laid down by the Judicial Committee, in Bhojraj v. Sita Ram, referred to by the appellant's learned counsel is "The real tests are how consistent the story is with itself, how it stands the test of cross- examination and how far it fits in with the rest of the evidence and the circumstances of the case."
It is to be noticed that the appellant claims to be a trespasser who acquired ownership by prescription. In such like cases the oral evidence is to be accepted with care and caution as its infirm character is well known. The general rule to ascertain the veracity of a witness, in this respect is the test of consistency to find out if the deposition is consistent with the human conduct, usual course of events and the circumstances of the case. In my view the appellant's evidence does not withstand this test. The shop is situate in the Main Bazar of Sargodha City and the appellant claims to have broken open the locks in broad, daylight and occupied it forcibly. The property belongs to the family of late Nawab Sir Allah Bakhsh Tawana. No witness from the locality was produced by him on the plea that the occurrence took place on a Friday. Neither it was positively asserted by the appellant before the learned two Courts below, nor is there any evidence on the record, nor it is reasonable to believe that on that eventful Friday, the entire bazar was deserted and the occurrence could not have been evidenced by anyone in the locality. The submission made by the appellant's learned counsel in this respect in the second appeal does not deserve serious consideration. The neighboring shopkeepers and the residents of the locality were the best witnesses of which the instant case in its very nature is susceptible. This factor weighed with the learned 1st Appellate Court in considering the appellant's evidence as untrustworthy. The adverse inferences drawn against the appellant by the learned District Judge, from his failure to produce such best evidence, rest on a cardinal rule of evidence.
14. In the opinion of the learned trial Court the appellant's witness were independent and disinterested persons but these attributes, by no means, are the absolute criterion for assessing the credibility of a witness. I is the security of oral evidence in the light of the circumstances of a case, that the evidence may be treated worthy of credit. The story put forth by the appellant as to the forcible occupation of the shop by him and the towing of the same line by his two witnesses, is incompatible with the circumstances obtaining in the instant case. The appellant's oral evidence does not inspire confidence. It is well settled that incredible evidence can neither give any support to the other evidence nor can it be given any weight on its own turn. The appellant and his witnesses in this respect suffer from the same fallibility.
15. The forcible occupation of the shop in question by the appellant was disbelieved by the learned District Judge, also on the ground that the respondents belonged to an influential family of Sargodha, and that therefore, the appellant could not be believed to have embarked upon such a hazardous act. The observation regarding family status of the respondents was termed as extraneous matter by the learned counsel. This argument is without any substance. According to the precedent cited by the learned counsel himself, the evidence has to be tested in the light of the circumstances of the case. Obviously, therefore, reference to the family status of the respondents qua the forcible occupation of the shop, was a relevant factor.
16. For acquisition of title by prescription, the adverse possession' must not merely be a trespass, but for unmistakable ouster of the real owner, there should be some overt act, under such circumstances of notoriety which clearly posts him with the knowledge of invasion of his C rights. In order to infer the respondent's knowledge of the appellant's adverse possession, his learned counsel relied on the following observations made in Jagindra Chandra's case :- "What is the meaning of hostile to be brought to the knowledge of the person against whom hostile title is asserted ? Certainly, it does not mean that the person asserting hostile title and adverse possession should have notice of such assertion in writing or otherwise or by the beat of drum to the persons against whom such an assertion is made. If they asserted it and possessed it only and if the person affected thereby could know it if he cared to know, that is enough."
' The entire evidence of overt act mustered by the appellant is as to his claim of forcible occupation of the shop and non-payment of rent on the assertion of denial of respondent's title who on the other hand dub him as their tenant. The learned trial Court relied upon the deposition of P. W. 1 and P. W. 2 and discredited the testimony of Muhammad Boota, P. W. 3, who was "Kardar" of respondent No, 2 and stated that the appellant paid rent @ Rs, 40 per month. But it failed to note that both the witnesses produced by the appellant stated that he did not pay any rent to any one and occupied the shop as owner thereof. To negative the respondent's claim that the appellant was their tenant, the learned trial Court also referred to the suggestion put to Feroze Din P. W. 2 by the respondent's learned counsel during his cross-examination and held that it amounted to admission of the appellant's claim. This reasoning of the learned trial Court was adequately examined by the learned District Judge and I entirely agree with him that it is not possible to gather any such admission from the evidence of P. W. 2, as was sought to be spelt out by the learned trial Court. The objection of the appellant's learned counsel that the learned District Judge did not deal with this part of the learned trial Court's judgment, is thus, misconceived. Similarly, non-appearance of the respondents in the witness-box, in the circumstances of this case, is not fatal to their claim. The appellant's learned counsel's submission, on this point is also without any merit.
16-A. As regards the plea that there was no evidence of creation of tenancy and that in accordance with the ruling reported as Haji Muhammad Ramzan v. Mian lama Shah (1), the entries in the Taxation Register were not a relevant piece of evidence, it is to be seen, that it was for the appellant to prove the extinguishment of title of the respondents and creation of a new title in him by adverse possession. Weakness of the evidence of the D respondents cannot lend any support to the appellant who must succeed on the strength of his own case. Respondent's oral evidence, apart, in the assessm ent record of the Municipal Committee for the assessment years 1960-61, 1962-63 to 1967-68, Exhs. D. 2, D. 3 and D. 4, respectively. Nawab Allah Bux tiwana and respondent No, 2 are mentioned as owners of the shop. Similarly in the assessment record of Taxation Department, Exh. D. 5, (1972-73), Exh. D. 6 (1967-68), and Exh. 7 (1962-63), the appellant is recorded as a tenant and the respondents are shown as owners of the property. Though these documents do not constitute evidence of title ye this public record having been prepared by the public officers, in performance of their official duties, is presumptive evidence of its contents. Similarly, the entries in the Jamabandi Exh. P. 1, showing the respondents as landlord carries a presumption of correctness. These documents also demonstrate that the taxes in respect of the property in dispute were assessed in the name of the respondents and paid by them. One thing is, however, quite clear that the appellant's possession was not vivid enough in notoriety and publicity so as to receive recognition from the agencies who deal with this property. In these circumstances, the respondents had no reason to know that their title was eclipsed by the appellant and thus on this score too the essential element of adverse possession was lacking. Jogindra Chandra's case has no applicability to this case.
17. It is correct that the assessm ent of evidence by the learned trial Court has got to be given due weight. But the learned District Judge has fully considered the reasoning given by the learned trial Court and advanced cogent reasons for reversing its findings. I have found that the view taken by the learned trial Court was not in conformity with law. The findings of the learned District Judge are based on correct appreciation of material on the record and as per dictum laid down by the Supreme Court in Mst. Chooni v. Ghulain Hussain (2), no interference is called for with the judgment and decree under appeal and accordingly I affirm the same.
18. As a result of this discussion this Second Appeal is dismissed with costs.
(I) PLD 1967 Pesh. 380 (2) 1978 SCMR 404