Muhammad Azam Khan, C.J.--This appeal with leave of the Court arises out of a judgment of the High Court dated 26.11,2004, whereby appeal filed by the appellants has been dismissed.
2. Facts necessary for disposal of the appeal are that Isamdad Khan filed a suit for possession in respect of suit land in the Court of Sub Judge Dhirkot on 26.2.1992 while Abdul Khan filed a declaratory suit on the ground of adverse possession in the same Court on 17.3.1992.
The trial Court consolidated both the suits and through consolidated judgment dated 30.10.1999 decreed the suit filed by Isamdad while the suit filed by. Abdul Khan was dismissed. On appeal the Additional District Judge Kahuta Camp Dhirkot vide judgment dated 27.9.2002 accepted the appeal decreed the suit filed by Abdul Khan and dismissed the suit filed by Isamdad. Feeling aggrieved Isamdad filed an appeal in the High Court. A learned single Judge in the High Court dismissed the appeal vide impugned judgment dated 26.11.2004.
3. Syed Nazir Hussain Shah Kazmi, advocate, counsel for the appellants, raised first contention that the judgment of the High Court is against law. The decree in favour of the respondents, who are legal heirs of Abdul Khan, was passed by the District Judge on 27.9.2002. He argued that Section 28 and Article 144 of the 1st Schedule of the Limitation Act were omitted vide Ordinance No, LW of 1996, dated 7.12.1996. On 27.9.2002 there was no law in existence, therefore, the decree cannot be passed on the ground of adverse possession. He further argued that the judgment of the High Court is against the law and the record. The plaintiffs-appellants proved from cogent and reliable evidence that defendants-respondents took possession of the land 5/6 years before institution of suit with their permission. They are tenants at will. Their possession on the land is as tenants. The first appellate Court as well as the High Court have drawn incorrect conclusions from evidence and declared the possession of respondents as adverse only on the basis of entries in the record. The entries in the record only show possession of the plaintiffs. It is not shown as .adverse. The suit of the plaintiffs-appellants, herein, was for possession. They have only to show title and they have successfully proved their title. They were entitled for possession of the land. He referred to the case reported as Abdul Karim vs. Muhammad Ibrahim [1976 SCM R 79], Gulab & 6 others vs. M. "Younis & 7 others [PLD 1983 SC (AJ&K) 89] and Tasawar Hussain Shah alias Tasweer Hussain Shah vs. Muhammad Yousaf & 7 others [PLD 2001 SC (AJ&K) 27]
4. Sardar Atta Elahi Abbasi, advocate, counsel for the respondents, while replying the objection, submitted that a right for claiming adverse possession in favour of respondent Abdul Khan had already been accrued, prior to amendment in law. The rights which have been accrued to a party, cannot be taken away by amendment. The learned counsel referred to and relied upon the cases reported as Muhammad Hussain vs. Muniza Bi [1996 SCR 243] and Zafar lqbal vs. Abdul Aziz & another [1997 SCR 258] and Akhtar Khan & 9 others vs. Sawar Khan & 12 others [PLJ 2003 SC (AJ&K)
184]. The learned, counsel defended the judgment of the High Court and that of the District Judge.
He argued that the respondents-defendants successfully proved their possession as adverse in the land from the evidence on the record.
Their possession in the land is from Dogra regime. Initially the father of Abdul Khan and later on Abdul Khan, himself, was in possession of the land. The parties reside near to each other. The respondents have constructed the house and have made improvement over the land at a cost of over a million rupees. Their possession is open and hostile. He further argued that in the suit filed by the respondents, the appellants have not denied the contents of para 2, which relates to the adverse possession.
The case reported as Muhammad Hussain vs. Muniza Bi [1996 SCR 243] deals with the amendment of Section 14 of the Right of Prior Purchase Act whereby a new class having right of prior purchase under Islam has been created by deleting the old. It was observed that the suit filed before the amendment of law shall continue to by governed by old law.
The case reported as Zafar Iqbal vs. Abdul Aziz & another [1997 SCR 258] deals with the allotments made under Section 18 of the Administration of Evacuee Property Act, 1957, and delay in filing appeal. The case is not relevant for the purpose of deciding this appeal.
The case reported as Akhtar Khan & 9 others vs. Sarwar Khan & 12 others [PLJ 2003 SC (AJ&K) 184] referred to by the counsel for the respondents, deals with the application of Articles 142 and 144 of the Limitation Act. For the purpose of proposition in hand, it is not relevant.
5. We have heard the learned counsel for the parties and perused the record. It is celebrated principle of law that rights accrued to a party before amendment of law cannot be taken away.
The substantial law is always prospective unless contrary intention appears from it. Section 56(c) of the AJ&K Interim Constitution Act, 1974 deals with repeal of law. It will be useful to reproduce the said section, which reads as under:-- "56-C. Effect of repeal of laws.--Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Act, the repeal shall not, except as otherwise provided in this Act,-- (a)
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (c)
(d)
The plain reading of sub-section (c) of Section 56 of the AJ&K Interim Constitution Act, 1974 makes it clear that the repeal shall not, except as otherwise provided in this Act, affect any right, privilege, obligation or liability acquired, accrued or incurred under law. The rights accrued to a person under law cannot be destroyed by subsequent amendment of law. In a recent judgment of this Court recorded in the case reported as Nizam Din & another vs. Custodian & 15 others [2011 SCR 390], wherein it has been held by this Court as under:- "The repeal will not affect the rights, liability accrued to a party and the same shall continue in spite of repeal. All proceedings can be taken- or continued which could have been taken or continued, if the repealing Act did not come into force."
Similarly in the case reported as Fazal Dad vs. Mst Sakina Bibi & another [1997 SCR 178] this Court has laid down as under:-- "5 We have given our due consideration to the arguments raised at the Bar. There is no quarrel with the proposition that the law of limitation is a procedural law and generally it is given retrospective effect even if it is not so provided by the statute itself. However, there is one exception to it; if such retrospectively takes away, destroys or nullifies the vested rights of a litigant, the old law of limitation would govern the matter and new statute or provision of law introduced by an amendment or otherwise, would not affect the vested rights of a litigant."
6. Section 6 of the General Clauses Act is relevant for the purpose of interpretation, which is reproduced as under:-- "6 Effect of repeal.--Where this Act, or any Central. Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (a)
(b)
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d)
(e)
The above reproduced sub-section (c) of Section 6 of the General Clauses Act postulates that repeal of law will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It shall continue in force as the law has not been repealed.
The proposition in hand is repeal of Section 28 and Section 144 of the Limitation Act, which were deleted through an Ordinance on 7.12.1996. Section 28 and Article 144 of the Limitation Act were deleted on 7.12.1996 and 'decree in favour of the respondents was passd on 27.9.2002. The background of deletion of Section 28 and Article 144 is that the Shariat Appellate "Bench of the Supreme Court of Pakistan in case reported as Maqbool Ahmed vs. Hakoomat-e-Pakistan [1991 SCM R 2063],. declared Section 28 and Article 144 of the Limitation Act as unIslamic. It was observed at page 2068 of the report as under:-- {{URUD TEXT}} The Court declared the law as un-lslamic and the date for amending the same was fixed as 31.8.1991. In the light of said judgment, the law was also amended in Azad Jammu & Kashmir and Section 28 and Article 144 of the Limitation Act were omitted.
7. It is well settled principle of law that procedural law operates retrospectively even if such law doesn't specifically envisages so. The law of limitation is a procedural law and it takes effect retrospectively. There is an exception to it that if the rights vested in a party are taken away or destroyed by amendment, the operation of law shall not be retrospective, it shall be prospective.
The proposition came under consideration of this Court in the case reported as Muhammad Yousaf & 3 others vs. Fazal Dad & 12 others [1999 SCR 184] whereby while interpreting amendment of Section 14 of the Right of Prior Purchase Act, where the period of limitation for filing a suit for pre- emption was curtailed from one year to four months and the suit filed on the basis of old law before the amendment in the Limitation Act was declared to be validly instituted. It was observed as under:-- ".... the period of limitation of four months provided through amendment would govern the matter whether the sale-deed was executed prior to the amendment or after the same provided the period of four months or any part of it remains to be expired and can be utilized for filing a suit of pre-emption. However, in case where the whole period of four months for the institution of the suit has expired or in case where there remains no breathing space, i,e, reasonable time for instituting a pre-emption suit, the unamended law-would govern the matter."
In the case reported as Government of Rajasthan & another us. Sangram. Singh & others AIR 1962 Rajasthan 43, it was observed as under:-- "12. On a survey of the authorities referred to above, I am of the view that it is not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It is a well settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may be taken to be equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a Court of law. The law may be taken to be more accurately stated in the following passage in Corpus Juris quoted in the `Interpretation of Statutes' by Bindra--1961, Thrid Edition, on page 586: "While it has been said that statutes relating to remedies or procedure may be given a retroactive operation, a more accurate statement of the principle intending is that, unless expressly prohibited by statute, and in the absence of directions to the contrary, or unless in doing so some contract obligation is violated or some vested right divested, statutes merely affecting the remedy or law of procedure apply to actions, thereafter, whether the right of action accrued before or after the change in the law. The Legislature has full control over the mode, time and manner of prosecuting suits, and whenever, upon consideration of an entire statute relating to those matters, it appears to have been the legislative intent, to make it retroactive, it will be given this effect..."
To this, I may further add that in case the remedy to enforce a vested right is altogether barred on the date when the new law comes into force without providing any breathing time to a litigant, that remedy must continue to be governed by the old law of limitation, I may, however, point out that the Legislature has full powers to make a law retrospective so as to destroy a right or a remedy altogether but this must be expressly laid down or this result must flow by necessary implication. A Court of law is not justified in drawing such inference merely from the fact that the new enactment deals mainly with procedure."
In the case reported as Muhammad Hussain vs. Muniza Bi [1996 SCR 243] after going through the century old case law it was observed by this Court as under:-- "It is evident from the above authorities that if a contrary intention does not appear in the relevant statute, the suits which were pending at the time of amendment of Section 14 of the Prior Purchase Act would be governed by unamended provisions which were in force at the time of the institution of the suit and not in view of the amended law."
Similarly in the case reported as Allah Rakha etc vs. Additional Deputy Commissioner (G), Lahore & others [1980 CLC 1386] it was observed as under: "....It is now well-settled that when a law is altered or repealed during the pendency of an action, the rights of the 'parties are decided according to law as it existed when the action was initiated and not the law that existed at the time of the judgment or order."
In the case reported. as Mian ud-Din & 6 others vs. The Chief Settlement & Rehabilitation Commissioner & 2 others [PLD 1971 Supreme Court 252] while dealing with the repeal of enactment it was observed at page 309 as under:-- "... This submission overlooks the well-settled legal principle that the substantive rights vesting in any one under the repealed enactment are not lost or affected in the least by the repealing enactment. This is clearly provided in clause 6 of the General Clauses Act, 1897. Even the proceedings pending on the date of repeal stand protected by the said Act. Thus, there is no substance in the above contention of the learned counsel."
Again, in the same report at page 306 it was observed as under:-- "... It is well settled that when the law is altered during the pendency of 'an action, the rights of the parties are decided according to the law as it existed when the action was begun and. not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400,,is as follows:-- "It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments. unless in expressed terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action."
There is a long line of authorities in support of this proposition of law. It is not necessary to refer to all these decisions, for I think it would be sufficient to quote some passages from a recent judgment of this Court in a Adnan Afzal vs. Sher Afzal (ii), which was delivered by my lord the Chief Justice. These passages which clearly restate the well-settled legal principles run thus.
"The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Ltd. Vs. Irving 1905 AC 369 is that, 'if the matter in question be a matter of procedure only, the provisions world be retrospective. `On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the act', then 'in according with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either 'by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of in re: Joseph Suche & Co. Limited (1875) 1 Ch. D 48, where it was observed that as 'a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."
With regard to matters of procedure it was observed in the same judgment as follows:-- Nevertheless, it must be pointed out that if in this process (i,e,, in giving retrospective effect to new law relating to matters of procedure) any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then, the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute."
8. The deletion of Section 28 and Article 144 of the Limitation Act will not affect the suits filed in the Court. The suit shall continue to be governed by the law which was in existence at the time of filing the suit.
9. For determining the purpose that what right vests in favour of the rival plaintiff, who seeks decree on the ground of adverse possession, we have to go through the provisions of Section 28 of the Limitation Act. It will be useful to reproduce original Section 28 of the Limitation Act, which reads as under:-- "28.Extinguishment of right to property.--At the determination of the period thereby limited to any person for' instituting a suit for possession of any property, his right to such property shall be extinguished." A plain reading of Section 28 of the Limitation Act shows that if a suit for possession of immovable property is filed after the period of limitation, his right to such property shall be extinguished. Under Article 144 of the Limitation Act, the limitation for filing suit 'for possession of immovable property is 12 years, if adverse possession of a party is proved. The right of plaintiff is to be extinguished but Section 28 was amended in the year 1992 through amending Act No, X of 1992, promulgated on 24.6.1992, whereby Section 28 has been amended. For resolving the controversy h is necessary to reproduced to amendment:- "1. Short title and commencement.--(1) This Act may be called the Limitation (Amendment) Act, 1992.
2.
3.
4 5
6. Amendment of Section 28, Act IX of 1908.--In the said Act, in Section 28,--
(a) for the word "Exting uishment" the word "Bar" and for the word "extinguished" the word "barred" shall be substituted.
(b) after Section 28, the full stop at the end shall be substituted by a colon and thereafter the following proviso shall be-added, namely:-- "Provided that if the defendant is the owner of the property and he admits the claims of the plaintiff in the Court, then the Court shall decide the case according to this admission."
A perusal of the amendment shows that in the existing section in the heading of Section instead of word "extinguishment', word "bar" has been replaced and at the end of the section, instead of word "extinguished", word "barred" has been used. The word "extinguishment" indicates a total alienation of a right of a person in the property. In the existing section while entering the word "extinguished", the intention of the Legislature was clear that if a suit for possession of immovable property is filed beyond the period of limitation prescribed for the purpose, which was under Article 144 of the 1st Schedule of Limitation Act, the right shall be extinguished. Through amendment brought in the year 1992 the word 'extinguished" has been replaced by the word "barred". Under the unamended Section 28 if a suit for possession was filed beyond the period of limitation, the right of the owner in the property shall extinguished but after the amendment the right of an owner of the property is not extinguished, only remedy for filing the suit for possession beyond the period of limitation is barred and title of the owner remains intact. There is a chain of authorities on the point. In the case reported as Jokhu Bhunja vs. Sitla Baksh Singh & others [AIR 1930 Allahabad 416], while dealing with the extinguishment of right and bar, it was observed as under:-- "The defendant-mortgagee is really founding on this stipulation and is entitled to insist on payment of what is due to him under the second deed. No question of limitation can arise as against the defendant seeking to enforce a clause occurring in the deed which he is setting up in his deference. Apart from this, a mortgagee's remedy under a deed of simple mortgage may be barred if he omits to bring a suit within 12 years from the accrual of the cause of action but his right is not extinguished."
In the case reported as Mahomed Raza Ahmed & another vs. Zahoor Ahmed & others [AIR 1930 Allahabad 858], it was observed as under:-- "...The rule is now well settled that lapse of 'limitation, apart from S. 28, Limitation Act, bars only the remedy and does not extinguish the title of the claimant. This being so, the subsisting right of plaintiff I must prevail and entitle him to separate possession of what is now in joint possession of himself and other co-sharers."
Similarly in the case reported as Abdul Alim & another vs. Abdul Hamid [AIR 1930 Allahabad 866] it was observed as under: "....In personal actions, the law of limitation bars the remedy but not the right. Where the action for possession of the office is statute barred, right to a particular wakf, property is not necessarily extinguished under S.28, Limitation Act, which is limited to suits for "possession of property." But a person in adverse possession of property claiming to hold it as mutawalli does not prescribe for more than a mutawalli's right in such property and may acquire to that extent, the status of a mutawalli. The right to office and the right to possession of property are distinct jural concepts. The distinction has been kept in view in the explanation to S.9, Civil P.C. The scheme of the Limitation Act tends to show that the framers of the Act were not oblivious of this distinction. In Rajah of Venkatagiri v. Isakapatti Subiah (1) it was held that where a suit was barred in so far as it was for a declaration of rights to the lands, that bar affected only the remedy, or relief by way of declaration and did not extinguish the right and title of the true owner of the property (416 and 417)."
In the case reported as The District Board, Banaras vs. Churhu Rai & another [1956 Allahabad 680 (AIR V 43 C 223 Nov.), it was observed as under:-- "....If some of the reliefs become time barred, there is no reason why the other reliefs should not be granted. For each relief there is separate period of limitation and the extinction of right to claim one relief doesn't necessarily involve the extinction of the right to claim another relief.
The case is different where immovable property is involved and a right to claim possession becomes time barred. In that event the title to the property itself is extinguished by virtue of S. 28 of the Limitation Act. But in the case of movable property the right to sue itself is extinguished but the title doesn't cease to exist. In this view of the matter it is possible to decree the claim for compensation while holding that the claim for declaration is time barred."
In the case reported as Ahmad Khan vs. Rasa' Shah & others [PLD 1975 Supreme Court 311] the Supreme Court of Pakistan, while drawing distinction between extinguishment of right and bar of a remedy, observed as under:-- II This is the effect of Section 28 of the Limitation Act, 1908, which after the effect of the period prescribed by the Act, "for the possession of any property" extinguishes the right of the owner in that property. This is different from merely barring the right for the enforcement of right as in the case of a mere "chose in action" as distinguished from 'right in property."
10. From survey of the case law referred to above, it is crystal clear that under the old Section if a suit for possession of immovable property was filed beyond the period of limitation, the said right of the owner shall be extinguished, after the amendment brought in the Limitation Act in the year 1992. The words "extinguished" and "extinguishment" have been changed into the words "barred" and "bar". After the period of limitation a suit for possession of immovable property beyond the period of limitation is barred but the ownership rights of the owner shall remain intact in the property.
11. Through the amendment of 1992, a proviso has been attached to Section 28. A perusal of the proviso shows that in the light of deletion of word "extinguishment" and insertion of word "bar", an exception has been created that if an owner of property admits the claim of a person who is in possession of the property, then a decree of ownership can be passed in his favour. We may, observe here that the effect of proviso is that it creates an exception to the main section since in the original section the ownership rights of the owner remain in-tact F after period of limitation prescribed to file suit for possession of immovable property, the decree on the ground of adverse possession can only be passed if the defendant-owner admits the claim of the person, who claims decree on the ground of adverse possession. Otherwise the decree in favour of a person claiming adverse possession cannot be passed.
12. Now we advert to the merits of the case. Abdul Khan, predecessor-in-interest of the respondents sought a declaratory decree on the ground of adverse possession and also sought a decree of perpetual injunction. The appellants in the written statement refuted the claim. The suit by Abdul Khan was filed on 17.3.1992, prior to the amendment of Section 28, brought on 24.6.1992, therefore, this suit shall continue and unamended section, whereby the right of owner is extinguished, shall apply.
13. We have considered the record of the case, in the light of argument of the counsel for the parties. In the suit filed by the appellants they claim that defendants are in possession of the land for the last 5/6 years with their permission. They are relatives. The suit was filed on 26.2.1992. In the written statement they alleged that they are in possession of land since Dograregime against the will of predecessor of the plaintiffs, openly and as owners. They have never allowed the forefathers of the plaintiffs to enter into the land. They are in possession of the land as owners and have raised improvements with heavy cost of hundreds of thousands of rupees. The respondents filed a counter suit on 17.3.1992 only after a period of 21 days of filing of suit by the plaintiffs-appellants, herein, whereby they sought declaratory decree on the ground of adverse possession, which has matured into ownership being more than 12 years.
14. Before proceeding further we may observe that the law of adverse possession is based on the doctrine of 'might is right'. Mere entries in the revenue record are not sufficient to prove the possession' of a party as adverse against real owners. The party must prove that his possession over the suit land is actual, open, exclusive, continuous, hostile and adverse to the knowledge of real owners and they have not admitted them as owners of the land openly. Our said view is fortified from the cases reported as Khair Muhammad vs. Khuda Bakhsh & 2 others [1976 SCM R 69], Gulab & 6 others vs. Muhammad Younis & 7 others [PLD 1983 SC (AJ&K) 89] and Tasawar Hussain Shah alias Tasweer Hussain Shah vs. Muhammad Yousaf & 7 others [PLD 2001 SC (AJ&K) 27].
In the case reported as Khair Muhammad vs. Khuda Bakhsh & 2 others [1976 SCM R 69] it was observed as under:-- "On the merits of the case, we find that the learned Judge has rightly held that the mere entry of the petitioner or his predecessor-in-interest as a tenant-at-will not paying any Lagan or Batai owing to assertion of ownership did not, in law, amount to an open and overt act of hostile or adverse possession against the true owners.
We are also in agreement with the High Court that in any case, in order to succeed in a claim based on adverse possession, the plaintiff has to show that he has been in continuous and uninterrupted adverse possession for the prescribed period of twelve years."
In the case reported as Gulab & 6 others vs. Muhammad Younas & 7 others [PLD 1983 SC (AJ&K) 891 it was observed as under: "12. Next we come to the question of adverse possession. The rule of adverse possession is based on the principle of "might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State and Pakistan have considered it immoral for having its source of organ in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organization of society into state of rule of law, it .gained mandate of law to set at rest the status of long time possessions, particularly in absence of claims of true owners of properties. The constituent conditions of adverse possession are that it must be actual, visible, exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If anyone of the constituent conditions is lacking in evidence, the plea is outrightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession."
In the case reported as Tasawar Hussain Shah alias Tasweer Hussain Shah vs. Muhammad Yousaf & 7 ethers [PLD 2001 SC (AJ&K) 271 it has been observed as under:-- "...It is well settled principle of law that costs of improvements can be awarded only if it is shown that the same were made on the land to which the concerned. party has title and were made in good faith."
15. We have to peruse the evidence, documentary as well oral. To prove his title, the plaintiffs, Isamdad & others, produced documentary evidence, record of rights pertaining to the year 1997 BK (annexure DJ) where Anaytullah, father of Isamdad, is shown in possession of half of the land and Gumani father of Abdul Khan, is shown in possession of half of the land. The record of rights pertaining to the year 1981 BK (annexure DK), there is same entry in the record of rights pertaining to the year 1989, BK, father of Abdul Khan, Gumani is shown in possession of half of the land. In the column of possession there is entry of {{URUD TEXT}}but the Court has recorded a note that the word 64{{URUD TEXT}}entered with lead pencil in the original record. In the record of rights pertaining to the years 1983 BK (annexure DM), 1997 BK (annexure DN), 2001 BK (annexure DO) and 1952 BK (annexure D1), Anayatullah is shown as owner and Abdul Khan in possession of half of the land. In khasragirdawari pertaining to the year 1951 to 1964 (annexure DD, DF, DG and DI), Anaytullah Khan is shown in possession of the land of half share and Abdul Khan is shown in possession of half of the land.
16. There is also khasragirdawari pertaining to Rabi 1978 to Kharif 1980 BK and 2002 to 2004 BK (annexure DP & DQ), where Anaytullah is shown as cultivator of half of the land while Gumani Khan, father of Abdul Khan is shown as owner of the half of the land.
17. From perusal of the documentary evidence it is evident that the respondents are in continuous possession of half of the total land since 1977 BK, which comes to 1920 AD and possession, of the respondents is proved to be continuous.
18. Now we come to the oral evidence. Isamdad & others produced Gui Nawaz, Latif, Sabir, Muhammad Hussain and Resham, one of the plaintiffs, as their witnesses, who stated that the defendants-respondents, herein, are in possession of 12/13 kanal of the land. The witnesses stated that they have seen the land. It is in possession of the Defendant No, 1 for 8/9 years. In cross- examination all the witnesses admitted that the parties reside at one place. They also admitted that the defendants have made improvements with expenditures of hundreds of thousands of rupees. The witnesses further stated that Defendant No, 2 has distributed the said land within his sons. Sabir, witness, also admitted that the plaintiffs never went to the land. Muhammad Hussain, witness, admitted in the cross-examination that he has never seen the plaintiffs in possession of the land. Resham Jan, one of the plaintiffs, had admitted in the cross-examination that it is correct that the land was handed over to the father of Defendant No, 2 by his father before he acquired the senses. His statement was recorded on 15.5.1997 and he stated his age to be 50 years. He admits the possession on the land of around 15 years in 1997 and version of the plaintiffs-appellants, herein, that possession of the land to was handed over to the defendants 5/6 years prior to filing of suit by appellants. The defendants also produced Muhammad Rasheed, Muhammad Akhreeq, Raheem Dad Khan and Office Qanoon-go Bagh, who proved khasragirdawari. Raja Muhammad Qasim, advocate, who was appointed the Commission, also appeared as witness and proved the report in respect of improvements in the land. The statement of Abdul Khan, one of the plaintiffs, was also recorded. Raheem Dad, witness, is of 60 years of age. Muhammad Rasheed is of 55 years of age. Muhammad Akhreeq is of 50 years of age. All of them stated that they have seen Abdul Khan and his father in possession of the land. They have not admitted the ownership of the plaintiffs.
19. From the whole evidence the possession of the respondents is shown to be continuous, open and hostile. They have not admitted the rights of appellants. It is settled proposition of law that mere entry of possession in the revenue record is not sufficient to prove adverse possession.
Something more is required for proving the same. It has come on the record that the parties reside at the same place. Survey No, 222, which is in dispute, is half in the possession of appellants and. half in the possession of respondents, meaning thereby that the land is also adjacent. The Commission appointed by the Court has brought on record that an improvement amounting to Rs,2,30,033/75 in the shape of house, which is of Rs,49,108/-, construction of retaining walls and expenses of making the land arable comes to Rs,18,956/- and fruit trees and other trees are valued Rs,1,61,969/75. It is proved from this report that the house is constructed at the place and it was in presence of plaintiffs, The land has been made arable. The retaining walls have been constructed in the land and fruit and other trees have been planted in the land. For the sake of arguments we may say that apart from the fruit trees, the other trees are naturally grown but the fruit trees are proved to be planted by the defendants. All this shows that the defendants rival plaintiffs- respondents, herein, were in possession of the land openly and their possession in the land is proved hostile against the appellants. They have successfully proved their hostile possession. The judgment of the High Court and that of the Additional District Judge are perfectly legal.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.