' JAWWAD S. KHAWAJA, J.-The petitioners-defendants impugn the concurrent decrees of the learned trial -Court dated 28-11-1987 and of the learned appellate Court dated 13-4-2000, whereby a declaratory suit filed by respondents Nos.l to 10 has been decreed. The respondents- plaintiffs claimed they were owners of the suit land which is comprised of an open plot () measuring 2 Kanals situated in the town of Kunjah, Tehsil and District Gujrat. An alternate plea raised by them was that even if they were not owners of the suit land they had acquired prescriptive title in it through adverse possession. The suit land is adjacent to the Dargah of Shah Shuja. The respondents-plaintiffs are the majawars of the Dargah.
2. The position established on record is that the respondents-plaintiffs have not been able to produce any document or other evidence to prove that they are owners of the suit land. It, therefore, follows that they are not entitled to the declaration sought by them on the ground of ownership of the land.
3. It now needs to be seen if the respondents-plaintiffs have acquired title in the suit land through adverse possession. At the very outset, it may be stated that title, asserted on the basis of adverse possession, is not to be presumed and nor is it to be accepted without very strong proof. The plea of adverse possession (before it was declared violative of Islamic injunctions) was primarily meant to provide a defence against a suit for possession filed by a legal owner. As a result of the decision of the Honourable Supreme Court in the case titled Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063), the title of the legal owner is not extinguished on account of adverse possession.
However, in the present - ease, it was asserted by 'the respondents-plaintiffs that their right in the suit property had matured much before the aforesaid judgment.
4. It is established from the record and has also been held by the learned Courts below that neither the respondents- plaintiffs nor the petitioners-defendants have been able to establish title in the suit land. This determination is correct and was not questioned by either party when the petition was argued. On the contrary, there is overwhelming evidence and unanimous testimony of the witnesses examined by both sides that the suit land is being used since long as a bus stand. It is clear to me that neither party can lay any claim to the suit property, firstly, because they do not have title to the same and, secondly, because it is obviously property available to the community as a whole and cannot be appropriated by either party. In this respect, the suit property is akin to res universitatis.
5. Unfortunately, the learned Courts below have not taken note of the above circumstances and have, in fact, proceeded on a misunderstanding of the law relating to adverse possession. In order to prove their title on the basis of adverse possession, it was necessary for the respondents to, firstly, identify the lawful owner of the property and then to show that their possession was openly hostile and adverse to. Such legal owner. In their suit, the respondents-plaintiffs have neither identified. The lawful owner nor have they claimed that they themselves were in actual 'physical possession of the disputed land. The plaint expressly stipulates that the land being claimed by the respondents-plaintiffs is open land {{URDU TEXT}} Any claim of exclusive possession of such land, particularly when the land is not walled off but is being utilized for a communal purpose, must be considered with a lot of skepticism. Such claim should not accept where there is uncontrovertible proof in its support.
6. If it is assumed that there is no identifiable owner in whom title of the suit property is vested, it must be held in the circumstances of this case that the property vests in the entire community and is available for communal use. This conclusion finds support from the testimony of the witnesses produced by both sides, who, as noted above, have confirmed that the suit land is, in fact, being used for a communal purpose viz. a bus stand.
7. In the context noted above, I now take up for consideration the material on. Record. The respondents-plaintiffs have produced a number of documents purporting to be lease agreements with individuals to show that the forebears of the respondents were exercising domination over the land by letting it out and receiving rent from the lessees. The first difficulty for the plaintiffs, however, arises because they have not been able to prove that the small parcels of land which were let out under the aforesaid agreements were part of the suit land. At this juncture the following excerpt from the judgment of the learned trial Court can usefully be reproduced:- "At this stage of arguments, it was finally admitted by both the parties that both the parties have failed to produce on record the Khasra No. Or any other sign of demarcation declared by the revenue record in order to locate the disputed land. It is also admitted that the plaintiffs have failed 'to produce any document on record in order to prove that they purchased this property from any person. The plaintiffs have placed on record certain rent notes which are 30 years old in order to establish that property in question remained in possession of certain persons as tenants under the present plaintiffs."
8. The learned trial Court considered the rent agreements referred to in the preceding paragraph, but the same, I am afraid, have been misread. The Court has firstly taken note of Exh.P.4 which is a rent agreement dated 7-4-1943 executed by one Muhammad-ud-Din. In this agreement the area purportedly let has not been specified. The learned trial Court has also referred to Exh.P.5 which is a rent agreement dated 18-8-1949 executed by one Ghulam Muhammad in respect of an area measuring 36' x 12'; Exh.P.6, which is a rent agreement. Dated 16-9-1949 executed by Fateh Ali in respect of three Marlas and Exh.P.7 dated 18-8-1949 executed by Rahim Bakhsh in respect of an area measuring 24' x 16'. Likewise Exh,P.9, Exh.P.10 and Exh.P.Ll have also been adverted to. A number of these agreements purport to be for parking tongas.
9. After considering the above documents the learned Court hag concluded that the description of the land therein matches the description of the land being claimed by the respondents-plaintiffs.
This conclusion, however, is not in accordance with the admission of the parties, recorded by the Court itself. Moreover, the testimony of Barkat Ali (P.W.5) who was 80 years old when he recorded his testimony on 4-11-1984 is contrary to the aforesaid conclusion. This witness testified that the Kunjah Municipality had raised a building on the land which used to be a tonga stand. He also, stated that he had leased some land from the elders of the respondents for parking his tonga.
Secondly he deposed that the land which he had taken on lease was bounded on the north by shops and a bazaar. Out of these shops, two, according to him, were owned by respondents- plaintiffs and the bazaar was to the north of the shops. He further stated that the doors of the shops opened onto the bazaar. For reasons appearing below, this testimony is relevant and goes against the respondents.
10. The testimony of Manzur Hussain (P.W.2) and Taj Din (P.W.3) is also relevant for the purpose of showing that the case' set up by the respondents-plaintiffs has not been proved. P.W.2 deposed that there were Khokhas and also permanently constructed shops on the suit land. Likewise P.W.3 stated in his cross- examination that there were 5 shops on the suit land out of which one was being used by the respondents-plaintiffs for their own business and the others had been given on rent. It is obvious from the statements of these witnesses that they are referring to property other than the suit land because the respondents, in their plaint, have asserted a claim in respect of unconstructed open land. Farzand Ali (plaintiff) appeared as P.W.4 and tried to clarify that the shops on the land were actually Khokhas. This plea, however, cannot be accepted because the other witnesses were fully aware of the distinction between shops and Khokhas.
11. The testimony of the P.Ws. Considered above read in the context of the admission of the parties noted in the judgment of the learned trial Court, reproduced above, leave me in no doubt that the land claimed by the respondents- plaintiffs through this suit has not been identified through evidence. The rent agreements, referred to above, do not prove the case of the respondents- plaintiffs.
12. At this stage, it may also be noted that the northern boundary of the parcels of land mentioned in the aforesaid lease agreements is consistently mentioned as a bazaar. The testimony of P.W.5 Barkat Ali, however, shows that there are now shops abutting on the bazaar. This fact indicates that the land (or at least a part thereof), which, was covered by the lease agreements is now under shops. This witness has also categorically stated that the space which was used as a tonga stand has now been built upon by the Town Municipality. This fact, apart from undermining the authenticity of the claim made by the respondents-plaintiffs, also supports the observation made above that the open area in dispute is communal property along with an adjacent area which previously was being used as a tonga stand, but is now under a building raised by the municipality.
13. Another circumstance which detracts from the correctness of the claim of the respondents- plaintiffs is the testimony of Ch. Mubarik Ahmad, Advocate (D.W.l) who inspected the site as a local commission appointed by the Court. He did not take measurements to demarcate and identify the suit land but stated that there were five wooden Khokhas on the land. Upon inquiry from the Khokhawalas, they stated that they did not pay rent to any person. The respondents-plaintiffs have also not been able to show as to how and when the purported rent agreements referred to above come to an end and under what circumstances the wooden Khokhas were placed on the land.
Since the respondents were plaintiffs in the case, it was their duty to prove their own physical possession over the suit land. For reasons considered above, they have not been able to do so. On the other hand, the small parcels of land measuring one to three Marlas, which are mentioned in the rent agreements produced by the respondents-plaintiffs appear to have been built upon by the municipality and also partly by the respondents-plaintiffs.
14. .In view of the foregoing discussion, the only conclusion which can safely be drawn is that the respondents- plaintiffs have not been able to prove their case. Unfortunately the learned Courts below have not taken note of the circumstances of the case and have proceeded on erroneous premised and also on a misreading of the evidence. After due consideration of the same. I am not left in any doubt that both, the respondents- plaintiffs and the petiticfners-defendants have no title in or exclusive right to the suit land.
15. In view of the . Foregoing discussion, the decrees of the learned Courts below, though concurrent, are not legally sustainable. The same are, therefore, set aside and as a consequence, the suit filed by the respondents-plaintiffs is dismissed.