' SYED JAMSHED ALI, J.---This revision petition is directed against the judgment and decree of the learned District Judge, Bhakkar, whereby the judgment of the learned trial Court dated 9-3-1991 was reversed and the suit filed by the petitioners was dismissed. It arises out of the following circumstances.
2. On 29-6-1988 the petitioners filed a suit for declaration claiming title to the land measuring 98 Kanals, 14 Marlas on the ground that they entered possession of the land in dispute in 1952, brought it under cultivation with the permission of the "Malik-e-Aala" after paying the Abadkari fees Jhori {{URDU TEXT}} in accordance with the Shart Wajib-ul-Araz, they have been paying the Government dues but had never paid any share of produce to the owners and in the Revenue Record their possession is recorded as "Basharah Malkan". The suit was resisted on a number of grounds. It was averred that the petitioners were tenants under the respondents. Necessary issues were framed and the parties led evidence in support of their pleas.
3. The learned trial Court found that the petitioners had paid 'Jhori' vide receipt Exh.P.l to the owners namely Manzoor Hussain Shah and others in 1952 and according, to "Shart Wajib-ul-Araz", (Exh.P.2) any person, who brought the land under cultivation with the permission of the Malik-e-Aala after payment of Jhori became Malik-e-Adna and by virtue of Martial Law Regulation No:64 of 1959 he became the owner of the said land. The Jamabandis for the years 1975-76, Exh.P.6, 1986-87, Exh.P.7, 1968-69, Exh.P.9, 1956-57, Exh.P.10 and 1960-61, Exh.P.Ll were relied upon to reach the conclusion that the petitioners were in possession on account of "Nautor" {{URDU TEXT}}. The decision of the Civil Court dated 12-12-1972, according to which, suit filed by Ghulam Sabir Shah against the petitioners for possession was dismissed was also relied upon. The learned trial Court also noted Exh.P8, the payment of revenue for Kharif 1967. Accordingly, the suit was decreed on 9-3-1991.
4. The respondents filed an appeal. The learned District Judge noted that according to Jamabandies Exhs.D.l and P.9, the respondents were recorded as the owner of the suit-land and the petitioners were in possession of the lahd measuring 59 Kanals, 13 Marlas while another piece of and measuring 31 Kanals, 9 Marlas was in possession of one Noor and Bukhshoo sons of Elahi Budhsh. The Shart Wajib-ul-Araz, Exh.P.2 was also noted and it was observed that it related to "Shamlat" land which provided that there were two ctegories of owners i.e, the "Malik-e-Aala" or the "Malik-e-Adna" and that no evidence was produced on the record that the land in dispute was "Shamlat". The learned First Appellate Court further observed that entries in the Revenue Record favouring the petitioners as "Basharah Malkan Bawaja Nautor" did not convert the possession of the petitioners is adverse. The judgments of the Honourable Supreme Court in Said Amir and others v. Ashraf Khan and others (PLD 1986 SC 113) and Khanpur and others v. Muhammad Zarin and another (PLD 1989 SC 485) were relied upon. The learned First Appellate Court also noted that in accordance with the rule laid down in Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) claim of ownership on the basis of possession could not be sustained.
5. The learned counsel for the petitioners has relied on the reasoning of the learned trial Court particularly paragrah 22 of the MLR 64 of 1959 and the notification dated 3-3-1960 issued by the Land Commission under para 22 of MLR 64 of 1959, according to which, if a "Malik-e-Aala" had "Malik-e-Adna", under him, the Adna Malik became the full proprietor of the land and the entries in favour Of Malik-e-Aala had to be eliminated. According to him, the reasoning of the learned trial Court as to the status of the petitioners as "Adna Malakan" by virtue of payment of Jhori was not even considered by the'learned First Appellate Court.
6. On the other hand, the learned counsel for the respondents submits that according to the Revenue Record the petitioners were recorded as tenants under the respondents and, therefore, the conclusion of the learned First Appellate Court is perfectly justified. He maintains that even according to the averments of the plaint the possession of the petitioners was permissive and, therefore, it could not mature into title.
7. I have considered the submissions of the learned counsel for the parties. Since it was a judgment of variance, and the learned First Appellate Court had not discussed the entire evidence, I have examined it. In oral evidence including appellant No,3, three witnesses are examined. P.W.l stated that the petitioners had broken the land and had paid Rs,34 to Manzoor Hussain as "Jhori" and since then they were in possession of the disputed land, were paying the land revenue and at the time of "Nautor" by the petitioners, Manzoor Hussain was the owner of the disputed land. P.W.2 made a similar statement. He, however, also stated that according to his knowledge the respondents were either "Mamoonzad" or "Phupizad" of Manzoor Hussain Shah. He also admitted to be "Kami" of the petitioners. Ellahi Bakhsh, petitioner No,l appeared as P.W.3. In documentary evidence, the receipt of Jhori, (Exh.P.l), Sharat Wajib- ul-Araz (Exh.P.2), previous statement of Ghulam Rasool (Exh.P.3), judgment dated 12-12-1972 (Exh.P.4), *Khasra Girdawari for Kharif 1967 to Rabi 1988 (Exh.P.5), (Thus is in fact from Kharf 1978 to Rabi 1989), Jamabandi for 1976-77 (Exh.P.6), Jamabandi for 1986-87 (Exh.P.7), receipt for Land Revenue (Exh.P8) and Jamabandi 1968-69 (Exh.P.9), Jamabandi for 1956-57 (Exh.P.10) and Jamabandi for 1960-61 (Exh.P.l 1) were produced.
8. The respondents examined two witnesses in oral evidence D.W.l, stated that for the last 8/10 years petitioner No,l was the tenant under the respondents, who had stopped paying share.Of produce.
' Respondent No,l, appeared as D.W.2 and repudiated the claim of the petitioners Jamabandi for 1986-87 was produced as Exh.D.l and Khasra Girdawari was produced as Exh.D.2. Except Exh.D.2, all other documents are on the record of this revision petition.
9. The oral evidence is not of any significance because it at best establishes payment of "Jhori" to Manzoor Hussain or that no rent was paid by the petitioner. The documentary evidence has carefully been examined by me. Exh.P.l, the receipt for "Jhori" is dated 3-6-1952, executed by Manzoor Hussain Shah in token of receipt of Rs,34 from the petitioners. Previous statement of Ghulam Rasool Shah (Exh.P.3) was produced to prove Exh.P.l, Exh.P.2, the Sharat Wajib-ul-Araz provided that the first right of 'Nautor' vested in "Aala Malkan" and then in "Adna Malkan" and that {{URDU TEXT}} ' and partition of "Aala Malkiat" had already taken place. It also provided that a person who breaks the soil with the permission of "Aala Malkan", cannot be ejected and if "Jhori" was received he will become "Adna Malik". The entire case of the petitioners was based on this condition.,Exh.P.2 shows that "Aala and Adna Malikan" were in .Specific possession of Shamlat land and "Aala Malkiat" had already been partitioned. Exh.P.4, is the judgment dated 12-12-1972 in the suit for possession fifed by Ghulam Abid Shah, against the petitioners which was dismissed.
10. As far as the Jamabadis are concerned, the first is for the year 1956-57 (Exh.P.10). In the column of "Malik Aala" entry showing Jindawadi etc. Appear, the petitioners are recorded as Ghair Dakheel Kar in the column of cultivation while in the column of legan the entry is "Bashrah Malkan Bawaja Nautor". This pertains to Khata No,96. The next Jamabandi is for the year 1960-61 (Exh.P. 11). The column of "Malik-e-Aala" is blank because para. 22 of MLR 64 of 1969 directed deletion of the names of "Aala Malkan". However, in the column of ownership Allah Bakhsh etc. Have been mentioned. It pertains to Khata No, 108 Exh.P.9 is Jamabandi 1968-69 and pertains to Khata No,31. In the column of ownership the sole owner indicated is Ghulam Baqir Shah. In the Jamabandis for 1976-77 (Exh.P.6) and 1986-87 (Exh.P.7 and D.l) the respondents are recorded as owners while the petitioners have been recorded as "Qabzan" in the column of cultivation and in the column of Legan the entry is "Bashrah Malkan Bawaja Nautor". The Jamabandies. Exh.P, 6, Exh.P.7, Exh.P.9 Exh.P.10 and Exh.P. 11, do nQt establish that Manzoor Hussain was the "Aala Malik" of the disputed land. At least these do not establish that Manzoor Hussain was the exclusive "Malik-e-Aala", nnd the disputed land was the same for which 'Jhori' was received by Manzoor Hussain. In the Khasra Girdawari, Exh.P.5 (from Kharif 1978 to Rabi 1989), the respondents are recorded as owners and in the column of cultivation possession of the petitioners is recorded as "Bashrah Malkan Bawaja Nautore". It may be noted that "Nautore" creating tertain rights in accordance with Exh.P.2, could only be done with the consent of the "Aala Malik".
11. It may be noted that the petitioners lad not specially raised the plea that they had become owners by virtue of para. 22 of the MLR 64 of 1959. Determination of this plea required certain facts to be established i.e,, that the petitioners were holding the land as "Adna Malkan" on 3-3-1959 when MLR 64 of 1959 was promulgated and on the said date Manzoor Shah, to whom, Jhori was paid was the exclusive "Malik Aala" and the land was Shamlat. It is settled principle of law that decision of a case cannot be based as a plea of fact, which was not raised in the pleading. Even if the plea based on para. 22 read with the notification dated 3-3-1960 was considered, there is no evidence on the record that the "Jhori" was paid in 1952 to Manzoor Hussain Shah who was the "Aala Malik" of the land in the suit about which title was claimed by the petitioners. The receipt, Exh.P. 1,.Does not specify the area. It was also not established that the land in dispute was the same about which "Jhori" was paid. Unless the above said two vital facts were proved, the petitioner did not become "Malik Adna" within the scope of Sharat Wajib-ul-Araz. The petitioners claimed possession of the land in dispute since 1952 but no Jamabandi prior to the Jamabandi of 1956-57 was produced to show as to who was recorded as "Malik Aala" of the disputed land in 1952. Jamabandi is prepared after every four years, and I have a reason to believe that a Jamabandi should have been prepared for 1952-1953. In any case, the Jamabandi "Zer-e-Kar" preceding 1956-57 was withheld and no reason thereof is forthcoming from the record. Thus, neither the identity of "Aala Malik" was established to claim benefit of the Sharat Wajib-ul-Araz nor it was established that the disputed land was the same about which the petitioners had paid " Jhori It has not been explained that if a right to claim title stood vested in the petitioners on 3-3-1959, why they did not seek its enforcement and waited for about 29 years to bring the suit. It may also be noted that according to petitioner No,1, who appeared as P.W.3 there were 41 "Aala Malkan" when they had occupied the land and it was a joint property. This admission in fact clinches the matter that even if Manzoor Hussain Shah was one of the "Aala Malkan" he could not bind the other "Aala Malkan". The learned trial Court assumed that Manzoor Hussain was the sole "Aala Malik" to whom 'Jhori' was paid and the disputed land was the same, respondents w?Re the successors of Manzoor Hussain Shah. In the absence of any evidence to establish these facts, mere oral assertion of P.W.l and P.W.2 that Manzoor Hussain was the "Aala Malik" was^ not sufficient because their testimony was inconsistent with the deposition of P.W.3. In the Jambandis for 1976-1977 and 1986-87, the names of respondents appear in the column of ownership while the petitioners were shown as "Qabiz Bawaja Nautor".
Presumption of correctness is attached to the entries of Jamabandi and, to displace the title of the respondents clear and convincing evidence was required which is not there. Thus, learned trial Court, while giving effect to para. 22 of MLR 64 of 1959 was clearly in error.
12. In the absence of proof that the petitioners were "Adna Malkan" on 3-3-1959, the, only plea left to be examined was the effect of the entry "Bashah Malkan Bawaja Naujtor". The learned First Appellate Court rightly observed that this entry was not sufficient to defeat the till of the respondents. It may also be noted that no plea of adverse possession was either raised in the plaint.
14(sic). As far as reliance of the learned trial Court on Exh.P.4, is concerned, the respondents not being party, it was not binding on them.
15. For what lias been stated above, I see no merit in this revision petition, which is dismissed. No order as to costs.