' MAULVI ANWARUL HAQ, J.---Civil Revision No,898 of 1990 was heard ex parte on 21-3-2001 and allowed vide judgment of even date.
2. C.M. No,2-C/03 was filed for restoration of the civil revision. C.M. No,3-C/03 prayed for interim relief while C.M. No,4-C/03 prays for condonation of delay in the filing of the said application.
Notices were issued. Vide order, dated 7-9-2007 I had called upon learned counsel for the parties to argue the main case on merits. The matter was being adjourned accordingly.
3. Learned counsel for the parties have addressed on merits. The learned counsel for the petitioners has reiterated the submissions already noted. Sardar Mohabbat Ali Dogar, Advocate/learned counsel for the respondents vehemently urges that since the findings recorded by the learned Courts below are concurrent, these cannot at all be interfered with in the civil revision. Further contention is that it stands proved on record that the respondents had been in possession of the suit-land for more than 25 years and the learned Courts below have correctly concluded that they have perfected their title by adverse possession.
4. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. According to the plaint, the petitioners are the owners of the land measuring 8 kanals, 16 marlas, comprising Khasra No,55/29. Out of this land, 9 marlas, described in para-1 of the plaint, were in occupation of the respondents as licensees. They constructed their own houses and took up residence. However, they again tried to take back the possession of the plot. A suit for injunction was filed. Stay order was issued but the respondents managed to take the possession of the land.
A Local Commissioner appointed in the said case reported the possession of the respondents and the stay was vacated..A decree for possession was accordingly prayed for. In the written statements, the plea taken was that the respondents are in possession before the independence of the country and that the land is either Shamlat or Abadi Deh. It was accordingly contended that they have become owners because of adverse possession for more than 12 years. In the same breath it was stated that the suit-land is evacuee property.
5. Both the learned Courts below have held with reference to the evidence on record that the petitioners are the owners of the suit-land. However, the learned trial Court found that the respondents are in possession since the last 25 years, they have become owners by adverse possession. The learned ADJ has upheld the said finding with reference to a report of the Local Commissioner Exh.D.2 who reported that the respondents are in possession since the last 25 years.
6. The petitioners are sons of Saleh Muhammad. They are duly recorded to be owners of land measuring 8 kanals 16 marlas comprising Khasra No,55/29 in the Register Haqdaran Zamin for the year 1984-85 (Exh.P.1.) as also in the revenue records produced by the petitioners themselves.
7. There is no manner of doubt in my mind that the land is privately owned and recorded to be so owned by the petitioners or their father Saleh Muhammad in the available record produced by both the parties. It is not the case of the respondents that they dispossessed the petitioners or their predecessor-in-interest or there is not even a plea much-less evidence of adverse possession as laid down consistently by the Superior Judiciary of the Sub-Continent. It is the pleaded case of the respondents that they are treating the land either to be evacuee o' Shamlat or Abadi Deh when it does not fall in any of the said category. Needless to state that adverse possession has to be proved as open and hostile with a declared denial of title of the real owner and to his knowledge.
The learned ADJ has simply observed that according to the said document Exh.D.2 the respondents are in possession since 25 years and the suit has been filed beyond the prescribed period of 12 years. However, he has opted to remain in complete oblivion as to the point of commencement of the said period of limitation, which of course, is a point of time when the possession of the defendant becomes adverse to the plaintiff. As noted by me above, there is neither any plea nor any evidence of the facts constituting adverse possession.
8. Apart from the afore-noted legal position, both the learned Courts below proceeded to rely on Exh.D.2. This, in fact, in an order in the suit for injunction vacating the stay order with reference to the report of a Local Commissioner who had stated that the respondents are in possession since the last 25 years. Needless to state that the said document could not have been relied upon at all for the simple reason that the report was neither proved in accordance with law in the said suit and, of course, not at all in the present suit. What to speak of examining the Local Commissioner who has given the report which is nothing but his opinion and to be proved like an opinion, the report itself was never produced. It will, of course be noted that the Local Commissioner had no jurisdiction to form or give the said opinion because his mandate was only to report the situation that existed on the spot with reference to his inspection of the same. This, of course, refers to the date of inspection.
9. I, therefore, do hold that after returning the finding of valid title in favour of the petitioners, the learned Courts below have acted without jurisdiction while denying the relief of possession on the said ground. The civil revision accordingly is allowed and the judgment, dated 4-12-1989 of the learned ADJ, Okara, and that of the learned trail Court, dated 9-4-1989 are set aside. The suit of the plaintiffs is decreed with costs throughout. The counsel fee is fixed at Rs,10,000. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.