' JAWWAD S. KHAWAJA, J . The appellants impugn the concurrent decrees of the learned trial Court dated 22-11-1999 and of the learned appellate Court dated 29-6-2005, whereby a declaratory suit filed by the appellants was dismissed and, at the same time, a suit for possession filed by the respondents was decreed.
2. The dispute between the parties relates to one acre of land which the appellants claim they became owners of by virtue of their possession of the same since 1947 when they settled in the said property after migrating from the area now forming part of India. The respondents, however, sought possession of the suit-land on the basis of some alleged allotment in their favour in 1962.
3. Learned counsel, firstly contends that no order of allotment was produced by the respondents on record to support their plea that the property had been transferred to them. Secondly, he contends that no allotment of the disputed land was possible in 1962 because Scheme VII itself provided that land, which was in the occupation of a person, could not be allotted after 1-1-1961.
4. Thirdly, learned counsel contends that even the respondents had acknowledged that the appellants were in occupation of the suit property prior to them.
5. Learned counsel for the respondents was not in a position to controvert the above submissions advanced on behalf of the appellants. He, firstly, argued that the appellants had set up contradictory pleas. They had prayed for a declaration that they had become owners by virtue of Settlement Scheme No,7, but in the alternate, had prayed, that their title had matured through adverse possession. These pleas are not contradictory, but are merely alternate pleas permissible by law. The appellants were entitled to assert their right on the basis of Scheme No,7 and failing that, to assert that they had become owners on account of their continuous possession of the suit property since 1947.
6. Learned counsel for the respondents then argued that the appellants had acknowledged that they had been cultivating the land of the respondents as tenants. On this basis, it was argued that the appellants could not have claimed title in the suit-land. This argument has been advanced on the basis of a confusion on the part of learned counsel of the respondents as to the evidence on record. Muhammad Sharif, one of the appellants, appeared a P.W.3 and deposed that after migration in 1947, they had come and occupied the suit-land. In his cross-examination, he acknowledged that some land had been allotted to the respondents which the appellants had cultivated as tenants for 2-3 years. It was this portion of the cross-examination which was emphasized by learned counsel for the respondents. He, however, has not kept in view the fact that the agricultural land, which was being cultivated by the appellants, was different from the suit property in which they were residing. The testimony of Mehndi Hassan (D.W.3), who is one of the respondents, is conclusive on this score. He distinguishes between the agricultural land and the residential area in occupation of the appellants. He admitted that from pre-partition days the disputed property had one well and two rooms thereon. He further admitted that there were 4-5 houses on the land and when he came to the village in 1963, there were 15-16 houses. He admitted that when he came to the village, the appellants were already living there.
7. In view of the clear-cut testimony of Mehndi Hassan (D.W.3), it is conclusively proved on the record that the appellants were in possession as migrants from India since 1947. They, therefore, became vested with titre by virtue of Scheme No,7. The testimony of P.W.3 that they were cultivating some land as tenants of the respondents, obviously can relate only to agricultural land and not to the residential property occupied by the appellants, which is subject-matter of the present litigation.
8. Unfortunately, the learned Courts below have seriously misread the evidence and have, thus, imputed to the appellants an admission that they were tenants of the respondents, without realizing that the tenancy was only in respect of agricultural land.
9. In view of the foregoing discussion, I find the impugned decrees to be a result of patently illegality in the exercise of jurisdiction. The said decrees are, therefore, set aside. As a consequence, the declaratory suit filed by the appellants is decreed as prayed for, while the suit for possession filed by the respondents is dismissed.
10. The appellants shall also be entitled to their costs throughout.