' NISAR HUSSAIN KHAN, J.--- Vide this single judgment, two C.Rs, bearing No, C.R.No,826 of 2002 and C.R.No,31 of 2003 are going to be disposed of.
2. The brief facts forming the background of these two petitions are that petitioners of both the Civil Revision filed Suit No,15/1 of 1990 in the Court of Civil Judge Swabi, seeking therein the decree for declaration to the effect that they are owner in possession of property measuring 30 kanals, 11 marlas, comprising Khasra Nos.82/1 to 254 and 85/1 to 254 Khata No,738/1059-1060 situated in Revenue Estate Topi Tehsil. Swabi, on the ground of being 'Seri Khor' and prescription of adverse possession. They also sought decree for recovery of possession from defendant No,4 along with perpetual injunction. The suit was contested by the defendants now respondents on variety of grounds, legal as well as factual. The parties adduced their evidence in support of their respective claims. On conclusion of trial, suit of plaintiffs/petitioners was decreed in their favour. Some of the defendants/respondents filed appeal against the judgment and decree of the trial court while remaining filed cross objection to the said appeal, in which they also sought the reversal of the decree. The learned appellate court, vide its consolidated judgment, accepted the appeal, set aside the judgment and decree of the trial court and consequently suit of petitioners was dismissed. Aggrieved by the judgment and decree of the appellate court, petitioners/plaintiffs have filed these two civil revisions, which are going to be disposed of by this common judgment.
3. Learned counsel for the petitioners/plaintiffs argued that predecessor of the petitioners are recorded as 'Seri Khor' in the Revenue Record since 1895-96 but later on this entry has been substituted by Ghair Dakhel Karan, in the year 1927-28; that this abrupt change of entry is not based on any legal ground or factual support of any evidence; so previous entry would be deemed to prevail till date; that the learned appellate court has misread this material evidence and thereby deduced a wrong conclusion and consequently dismissed, the suit of petitioners; learned counsel submitted that first settlement of the area was conducted in 1895-96 and the second one was in 1926-27. He pointed out that during consolidation proceedings the previous entry was corrected and(URDU TEXT)was substituted with(URDU TEXT)that there is no allegation that the plaintiffs/petitioners have relinquished their services of religious office. On the basis of these entries, learned counsel developed his arguments to stress that this long-standing entry in the Revenue Record without payment of any rent or share of produce to the owners is presumptive proof of their ownership. While the revenue hierarchy had wrongly incorporated the names of defendants/ respondents as owners. So in light of this evidence and judgment of Peshawar High Court in case titled: Azizur Rehman and another v. Atta Khan and 6 others (PLD 1976 Peshawar 60), the petitioners are entitled for the decree of ownership, being Seri Khor of the suit property. Learned counsel further argued that the petitioners are holding possession of the suit property, adversely to the respondents/defendants, since their forefathers. So on the basis of adverse possession they are also entitled for the same relief as it is established on the record that they did not pay any rent or share of produce to the respondents/ defendants.
4. Learned counsel for the respondents contended that plaintiffs/ petitioners are not in possession of suit property as per their own plaint, as they have sought recovery of possession from defendant No,4, who is also one of the co-owner in Shamilat-e-Deh, the suit property. They further submitted that part of the suit property was acquired for construction of Tarbela Dam, Award was announced on 7-7-1959 and the compensation whereof was received by respondents but the petitioners did not raise any such objection, at that time. Learned counsel submitted that plaintiffs are recorded as tenant at will in the Revenue Record, so they have got no right of ownership. They submitted that consolidation proceedings were conducted in the year 1957-58 as a result of which the suit property was recorded as ownership of 'Tal Painda Khel and Tal Pirakzai. Learned counsel pointed out that C.R.No,31 of 2003 is time-barred which is liable to be dismissed on this score alone.
5. I have heard learned counsel for the parties and scanned the record with their assistance.
6. Perusal' of the record reveals that suit property, as per Jamabandi of 1895-1896 Exh.P.W.3/1, was recorded as Shamilat and ownership of respondents in column of ownership while Noor-ud-Din son of Burhanuddin has been recorded as Seri Khor in column of cultivation. In column of Lagan there is an entry of exemption of payment of Lagan on the basis of Seri Khor. In subsequent Jamabandis of 1906-07 and 1910-11, the same entries -are repeated. In Jamabandi of 1914-15 Zaman Shah, Abdullah Shah and Qudrat Shah sons of Nasiruddin are recorded in column of cultivation as Seri Khor, which suggest that Nasiruddin might have died in the meantime. The same entry is repeated in 1925-26. In Jamabandi of 1927-28, when the settlement of the area was conducted, Zaman Shah etc, sons of Nasiruddin have been recorded as Ghair Dakhil Karan (tenant at will) in column of cultivation. While in column of Lagan there is an entry of Bila Lagan Bawaja-e- Seri. It appears from a document of consolidation, Exh.P.W.2/1 that Zaman Shah etc. Were recorded as Ghair Dakhel Karan Ba Tassawar-e-Milkayat and this entry was corrected on the basis of order of Assistant Registrar dated 3-1-1957, on the application of Zaman Shah and thereby substituted with Bila Lagan Bawaja-e-Seri. This correction of entry is reflective of the fact that Zaman Shah did not claim ownership of the suit property but he only tried to retain status of Seri Khor. Jamabandi of 1926-27 as Exh.P.W.1/1 reveals that Zaman Shah etc. Have been recorded as Ghair Dakhil Karan (tenant at will) and this entry is of the same year when the settlement of the village was concluded.
In column of the Lagan of the said Jamabandi, it is mentioned Bila Lagan Bawaja-e-Seri. It is settled law of the apex court that entry made in the Revenue Record during the settlement proceedings carries high degree of correctness which requires strong evidence to cast aspersion thereon and rebut the same. Because the entries during settlement are made at the spot after thorough inquiry and verification of the locals. Since 1926-27 till 1981-82, the latest Jamabandi, the same entries are repeated in the column of cultivation and column of Lagan. While Tal Painda Khel and Tal Pirakzai are recorded as owners in column of ownership. In light of comb-searching and thorough scrutiny of the Revenue Record, it is established that defendants/ respondents belong to Tal Painda Khel and Tal Pirakzai who are incorporated in column of ownership of the Revenue Record, since 1895-96 till date while the predecessor of the petitioners/ plaintiffs and thereafter the plaintiffs are recorded in column of cultivation as Dakhil Karan, while column of Lagan carries the consistent entries that they have not been paying rent or produce of the suit property, due to Seri Khor. It is settled law that when entries of column of Logan are irreconcilable with column cultivation, then later would prevail. Likewise entries of ownership column would prevail against column of cultivation.
7. Now the question is that what would be the status and implications of Seri Khor, who have been enjoying the possession of the suit property for more than a century, without payment of any rent or share of produce. The background of the Seri Khor is that village proprietary body used to reserve some part of the common property for Imam of the mosque for the religious services, to be rendered. In those old times, due to scarcity of cash and currency, the people, mainly, used to depend on barter system. It is a matter of common practice and knowledge that persons, who were employed for husbandry work, were paid in kind, specially in grain and not in cash. Likewise Imam of Mosque, apart from payment of grain and other kind, were given that piece of seri land which were reserved for Mosque to meet their needs of daily life, out of sheer respect, so that he may not feel deprived of the requirement of daily needs. That is why no rent or share of produce was received from him as from the other tenants: This produce of seri land was as remuneration of office of Imam and nothing more than that. This property was never meant to be bestowed upon a specific person but it was for the village Mosque and whosoever be the Imam therein, providing religious services. In case any Imam abandoned the abode or relinquished the office of Imamat due to any reason, it was never supposed that he would remain owner of that property, despite the relinquishment of the service of Imamat. Rather his successor was supposed to be inducted in possession of the said property with same rights and privileges which his predecessors used to enjoy thereon. Because Seri Khor are and used to be in permissive possession of the Seri land, so they cannot claim ownership of the property due to nonpayment of rent or share of produce for any length of time howlongsoever it may be.
8. Learned counsel for the petitioner also stressed that petitioner being in possession of the suit property as Seri Khor without payment of rent or share of produce are deemed to be as Malakan- e-Qabza, so be treated as such and therefore, entitled for the decree prayed for. This contention of the learned counsel is also not tenable because term of Malakan Qabza has got altogether a different connotation. Malakan-eQabza are those people, who purchased property from an owner but are not original owner of village Shamilat-e-Deh, so they being not part of the original proprietary body of the village, are known as Malakan-eQabza. While petitioners have got no such status or qualification, so they cannot claim as such. Normally customs or usages of the village are recorded in Wajib-ul-Arz of the village which may provide some right to anybody but the petitioners have not brought on record the same and might have purposely withheld because it would have not favoured the petitioners. In support of this proposition, judgment of Hon'ble Supreme Court, in case titled: Hakeem Shah and 16 others v. Sawab Khan and 17 others (PLD 2002 SC 200) can safely be relied upon.
9. So far as the claim of petitioners that they are entitled for decree of ownership due to prescription of adverse possession; suffice it to say that petitioners have been holding permissive possession of the suit property as they are recorded in column of cultivation as tenant at will and as per entry of column of Lagan they have not been paying rent due to enjoying the suit land as Seri. Mere non-payment of rent for any length of time on the part of the tenant does not constitute his possession as adverse to the owner. Specially, when non-payment of Lagan is clearly mentioned that is due to Seri which is also a permission and concession on the part of the owner.
So this permission and concession cannot entitle the plaintiffs/petitioners to claim ownership of the suit-land on the basis of adverse possession. A similar question arose before the Hon'ble Supreme Court and their Lordship in case titled: Muhammad Salim Shah and 80 others v. Aziz-ur- Rehman Shah and 43 others (PLD 2002 SC-280), by relying on (PLD 1990 SC-629) held as under:--- "In the instant case, as has been notified earlier, defendant/ respondents No,1 had stepped into the shoes of his father as Imam' of the village mosque and had notionally come to possess the'disputed land in lieu of services to be rendered by him. He could only enjoy the usufruct of the land which formed part of the village Shamilat, so long as he performed the duties of Imam of the mosque. In the terms of the entries of the column of Lagan and those of column of cultivation in the instant case which are inter se irreconcilable he could not have transferred the possessory right to respondents Nos.2 to 4. ....
' Another implication of these entries is that the proprietary body of the village notionally remained the owner of the land and that they can jointly evolve any formula to regulate the status thereof as they wish by their own concurrence."
' In another case titled: Mian Tayyib-ud-Din and others v. Muhammad Atiq through Legal Heirs and others (PLD 2004 SC 321), their Lordship observed as follows:--- "Apart from the fact that the respondents and their predecessorin-interest were in possession of the land as Ghair Dakheerlkar, they could not claim that their possession was adverse, since Atiq predecessor-in-interest of the respondents was performing the functions of Imam Masjid when the suit was filed in 1982 and before him his father Muhammad Faiq was Imam Masjid, therefore, the gift of usufruct would continue to be operative till Atiq continued to perform functions of Imam Masjid, as such even if the respondents remained in possession of the land as Ghair Dakheelkar for any length of period the same could not legally be claimed to be adverse."
Moreover, the plaintiffs/petitioners have raised two inconsistent pleas of seri khors and adverse possessions in their plaint which are irreconcilable and self-destructive inter se. The possession as Seri Khor is admittedly a permissive possession which can never be termed as adverse to the proprietary body of owner of the village. Beside that petitioners are estopped under Article-115 Qanun-e-Shahadat Order to deny the title of landlord/owners.
10. Learned counsel for the petitioners have referred judgment of Hon'ble Supreme Court rendered in Civil Appeal No,37-P of 2010 decided on 26-5-2011 in support of his arguments. Perusal of referred judgment reveals that it was based on altogether different facts, wherein, ownership of the village owners was shrouded in mystery. The excerpt of the judgment of the High Court reproduced in the referred judgment, reflects that entry of their ownership was made for the first time in periodical record of 1974-75 without any document of title deed. So in that view of the matter, their Lordship did not interfere with the findings recorded by the High Court. So the said case is distinguishable, on the point of facts. Because, in the instant case, respondents are consistently recorded as owners, since 1895-1896, till date.
11. As per averment of the plaint petitioners have sought recovery of possession from defendant No,4, who is also co-owner in the suit land, so admittedly the possession of suit land is not with the petitioners while appearing as P.W.4 Muhammad Rafique plaintiff No,1 stated in his cross- examination that neither he nor his elders rendered any services to the owners of both the talks i,e, Tal Pirakzai and Painda Khel. When both these admissions are taken in juxtaposition, the position which evolves is ,that presumably the petitioners were dispossessed after relinquishment of services of Imamat.
12. So in light of the above discussion, no misreading or non-reading of evidence, any illegality or material irregularity has been pointed out which may warrant interference in findings of the learned appellate court which is based on sound reasons and proper appraisal of evidence. Hence these petitions being devoid of merits are hereby dismissed.