Said Rehman and others have filed this civil revision against Aziz Muhammad and others as the petitioners are aggrieved from the judgment and decree of the learned Additional District Judge- IV, Mardan dated 15.11.2005 whereby Civil Appeal No, 43/13 filed by the petitioners against the judgment and decree of Malik Amjad Rahim Civil Judge, Mardan in Suit No, 908/1 decided on 31.1.2004, was dismissed and the judgment and decree of the learned Civil Judge was maintained.
2. Briefly narrated the facts of the case are that the plaintiffs-respondents brought a suit for possession regarding land measuring 56 kanals 01 marla comprising numbers Khasra 1654, 627, Khata No, 38/98-99 as per Jamabandi for the years 1979-80 situated in the revenue estate of village Barat-Khel Babuzai, Tehsil and District Mardan. It was averred in the plaint that the plaintiffs- respondents have become owners through a declaratory decree vide Suit No, 156/1 decided on 14.3.1993. was further averred that Fazal-ur-Rehman and Abdur Rehman, predecessors of the defendants-petitioners were cultivating the land as tenants on payment of half share of produce who died and consequently the defendants-petitioners were cultivating the suit land being the successors of Fazal-ur-Rehman and Abdur Rehman deceased, thus, statutory tenancy came into existence between the parties. That latter on the defendants-petitioners repudiated the title of the plaintiffs-respondents and thus, their possession over the suit land is without any justification and so they are bound to hand over the possession to the plaintiffs-respondents.
3. On summoning of the defendants-petitioners, they submitted detailed written statement wherein they, inter-alia, contended that the suit land has become their ownership as they are in possession of the same without payment of any share to the plaintiffs-respondents and the entry is Bila Lagan ba-tasawar-e-milkiat. The pleadings of the parties were reduced to the following issues:--
1. Whether the plaintiffs have got a cause of action?
2 . Whether the suit is within time?
3. Whether the suit is incompetent in its present form?
4. Whether the plaintiffs are estopped by their own conduct to bring the present suit?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the suit is not in accordance with law reforms?
7. Whether this Court has got jurisdiction?
8. Whether the suit is bad for the purpose of Court fee?
9. Whether the defendants have made improvements over the suit property. If so to what extent and its effect?
10.Whether the defendants are owners in possession of the suit property through adverse possession for more than 12 years?
11. Whether the plaintiffs are entitled to the decree for possession as prayed for?
12.Relief.
4. The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing counsel for the parties and perusing the data available on record, vide judgment and decree in Suit No, 908/1 decided on 31.3.2004, granted a decree for possession in favour of the plaintiffs-respondents against the defendants-petitioners. The defendants- petitioners filed an appeal before the learned District Judge, Mardan which was entrusted for disposal to learned Additional District Judge-IV, Mardan who, after perusing the record and hearing the learned counsel for the parties, vide Civil Appeal No, 13/13 of 2005 decided on 15.11.2005, dismissed the appeal and maintained the judgment and decree of the trial Court. Hence, the instant revision petition by Said Rehman and others defendants-petitioners.
5. Mr. Maazullah Khan Barkandi, learned counsel for the petitioners argued that the respondents had previously brought a suit Bearing No, 156/1 decided on 14.3.1993 titled Zabita Khan and others Vs. Aziz Muhammad and others for declaration of land measuring 63 kanals 06 marlas comprising so many numbers Khasra which was decreed in their favour by Muhammad Bashir Khan, Civil Judge, Mardan, but, the present petitioners were not party to that litigation and hence, this cannot, be a basis for claiming the possession of the disputed numbers Khasra. It was also argued that the petitioners had matured their title by prescription as they are recorded as such in the revenue record from 1925-26 till date as Bila Lagan batasawar-e-milkiat. It was next submitted that the petitioners have conducted improvements in the suit land in case of dispossession, they are entitled to the cost of improvements.
6. Mr. Gul Muhammad, attorney for the respondents submitted that the petitioners and their predecessor-in-interest was the tenant of the suit land and they used to pay the share, of produce, but, a few years prior to institution of the suit, they stopped the payment of share of produce and on inspection of the record, it transpired that they had entered their names in the column of Lagan to be Bila Lagan on account of ownership. It was also submitted that while recording the statement of Aziz-ur-Rehman petitioner, he had not uttered a single word regarding the alleged improvements conducted by him on the suit land and thus, it was prayed that the revision is liable to be dismissed.
7. I have given my anxious consideration to the facts as well as legal position involved in this case.
8. Perusal of the record reveals that the petitioners are entered as tenants in the revenue record.
However, in the column of Lagan they have been entered as Bila Lagan on account of ownership.
This is a settled principle of law that when there is a conflict between. Lagan column and column of cultivation, the column of cultivation will prevail.
In the column of cultivation the petitioners are entered as tenants and once a person enters the suit land as tenant, he cannot repudiate the title of the true owner unless and until express ouster is proved on the record. The conflict between entry in the column of cultivation and that of column of Lagan has to be independently proved as held in Shad Muhammad. Vs. Khan Poor (PLD 1996 SC 91), Said Amir and others. Vs. Ashraf Khan and others (PLD 1986 SC 113), Hakim Shah and 16 others. Vs. Sawab Khan and 17 others (PLD 2002 SC 200) and Dilawar Shah and others Vs. Janat Gut and others (PLD 2004 SC 59). Furthermore, the plea of adverse possession has also been declared to be un-Islamic in view of the judgment rendered in the case of Maqbool Ahmad. Vs. Govt: of Pakistan by the appellate Bench of Apex Court reported in 1991 SCM R 2063.
9. The plea that the decree in the earlier round of litigation was not binding on the petitioners as they were not party to that litigation is also without substance because that suit was only for declaration and with respect to the entire ownership comprising so many numbers Khasra between the co-sharers interse and in this case, as the petitioners were holding the land as tenants of the respondents and the petitioners repudiated the title of the respondents and asserted their own title, thus, the respondents were well within their right to sue for possession.
10. The claim of improvement of the petitioners is without any 'substance as perusal of the statement of Aziz-ur-Rehman petitioner while appearing as DW-4 would reveal that he has not uttered a single word regarding the improvements. Furthermore, no evidence was brought regarding improvements on the record of the case.
11. The judgments and decrees of the two Courts below are based on sound reasoning and are in accordance with the well established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the petitioners.
12. Resultantly, there is no force in the instant revision petition which is dismissed with no order as to costs.