IJAZ ANWAR, J.- Through the instant revision petition filed under Section 115 C.P.C, the petitioner has called in question the judgment and decree dated 31.5.2014, rendered by learned Additional District Judge-IV, D.I.Khan, whereby his appeal against the judgment and decree dated 31.3.2011, passed by learned Civil Judge-X, D.I.Khan, was dismissed.
2. Brief facts of the case leading to filing of instant revision petition, are that the petitioner/plaintiff filed a suit against the respondents/defendants, seeking declaration to the effect that as per Jamabandi for the year 1996-97, the status of respondent No.1 is occupancy tenant {{URDU TEXT}} of land bearing Khata No.104, Khatooni No.332, Khasra No.327, measuring 60 kanal and 12 marla, situated at Garah Abdullah, Tehsil Daraban Kalan, District D.I.Khan, while in Khasra Girdawari it has been mentioned as {{URDU TEXT}} which is totally wrong, against law, Sharia, void and liable to be cancelled and corrected. That the petitioner is owner of certain area of the land in question, therefore, the respondent No.1 is not entitled to claim ownership of entire 60 kanal and 12 marla land. He sought perpetual injunction to restrain the respondent No.1 from claiming ownership of whole land measuring 60 kanals 12 marlas and correction of entries in the revenue record.
3. After service of summons, the respondent No.1 put his appearance and submitted written statement. Out of divergent pleadings of the parties, issues were framed by the trial Court, whereafter, both the parties produced their respective evidence and after hearing arguments from both sides, the learned Civil Judge-X, D.I.Khan dismissed the suit of the petitioner vide judgment dated 31.3.2011, and appeal there-against filed by the petitioner also met the same fate vide impugned judgment dated 31.5.2014, passed by the learned Additional District Judge- V, D.I.Khan, hence, the instant revision petition.
4. Learned counsel for the petitioner argued that the main question in this case is regarding the entry in the revenue record pertaining to Khasra No.327, wherein the name of respondent No.1 has been recorded as {{URDU TEXT}}. He argued that the respondent No.1 is not giving any proceed to the petitioner, he referred to the statement of PW-1 Patwari Halqa who confirmed the ownership of the petitioner as 14 kanal 17 marls while that of respondent No.1 as only 02 marla in Khasra No.327, total consisting of 60 kanals 12 marls. Learned counsel argued that though oral statements of both the petitioner and respondents were recorded, however, since there is legal question regarding entry in the column of cultivation in respect of respondent, therefore, this Court has to decide it being pure question of law. Learned counsel in support of his case referred to the {{URDU TEXT}} and revenue record and contended that such entry after the judgment of Shariat Appellate Bench reported in 1991 SCMR 2063 has no legal value. The case of the respondent No.1 is based upon adverse possession for considerable longtime. Learned counsel argued that after the judgment of the apex Court no such right can be claimed as Section 28 of Limitation Act, 1908 has been held to be un-Islamic. He placed reliance on 1968 SCMR 131, PLJ 2013 SC (AJ&K) 324 , 2015 PLR 235 and 2010 CLC 318 .
5. As against this, learned counsel for respondent No.1 argued that such entry of {{URDU TEXT}} is permissible as per Chapter 7 of the Land Records Manual. He referred to issues No.7 & 8 of the impugned judgment, which according to him, both the Courts below have aptly explained the law point and facts of the case. Learned counsel referred to mutation No.241 attested on 08.7.1982 and mutation No.252 attested on 07.6.1982, transacted in the column of cultivation. He argued that such mutations were never challenged. He further argued that neither any fraud nor illegality has been committed by the respondent in the revenue record, therefore, the very suit of the petitioner is not maintainable. He admitted that the petitioner claimed right over the suit property on the basis of adverse possession, though, the apex Court declared Section 28 of the Limitation Act, 1908, as un-Islamic, however, the judgment cannot be given retrospective effect as in the judgment, the apex Court has given cutoff date of 31.8.1991, while the adverse possession of the respondent is matured much prior to the target date.
6. Arguments heard and record perused.
7. Perusal of the record reveals that the defence of the respondent No.1 before the Courts below was based upon adverse possession. Similarly, there are longstanding entries in the record of rights wherein the respondent No.1 was recorded as {{URDU TEXT}} as he has purchased possessory rights beside has uninterrupted possession on the basis of which he claims adverse possession as provided under Section 28 read with Article 144 of the Limitation Act (IX of 1908). The Shariat Appellate Bench of the august Supreme Court of Pakistan, in the case of Maqbool Ahmed Vs. Government of Pakistan (1991 SCMR 2063), has declared Section 28 of the Limitation Act, 1908, as repugnant to the Injunctions of Islam, insofar as it provides for extinguishment of the right in property and the determination of the period prescribed for instituting of a suit for possession of the said property. It was further held therein that the decision shall take effect from 31 August, 1991, and on that date Section 28 of the Limitation Act, 1908, shall cease to have effect. Regarding adverse possession, it was held that: {{URDU TEXT}}
8. The admitted position is that the petitioner is recorded owner of 14 Kanal 17 Marla , whereas respondent No.1 is owner of 02 Marla, while the entire land is measuring 60 Kanal 12 Marla, and that in the record of rights, the respondent No.1 is recorded as {{URDU TEXT}} During the course of arguments when the attention of the learned counsel for the respondent No.1 was drawn to the pronouncement of the judgment of the apex Court in Maqbool Ahmed's case (supra), he explained that admittedly the possession of the respondent No.1 was adverse and it was in the knowledge of the petitioner as the respondent No.1 never remained as tenant of the petitioner nor ever given any produce to him and by afflux of time he has matured his title over the suit property on the basis of adverse possession, much prior to the target date given in the judgment of the apex Court i.e. 31.8.1991.
9. This Court, in order to ascertain the effect of judgment in the case of Maqbool Ahmed, searched law on the point with a specific question where right claimed on the basis of adverse possession is matured prior to the target date, can be re-opened and that whether it will not be a past and closed transaction.
The relevant law on the subject was searched out, and I find that the apex Court has already thrashed out this question in detail. In the case of Muhammad Hussain and others Vs. Wahid Bakhsh through Legal Heirsst (2004 SCMR 1137), the apex Court refused leave to appeal on the ground that decree confirming the adverse possession was passed on 14.11.1970, and that the law laid down in Maqbool Ahmed Vs. Government of Pakistan (1991 SCMR 2063), is not attracted to the case. In the case of Durranai and 35 others Vs. Hamidullah Khan and 15 others (2007 SCMR 480), it was held that: "A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31.8.1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31-8 1991. A similar view has been taken by this Court in Muhammad Hussain' s case 2004 SCMR 1 137".
In the case of Jan Muhammad Shah and others Vs. Custodinan of Evacuee Property, Lahore and others (PLD 2009 Supreme Court 501), regarding the issue of adverse possession, the apex Court discussed Section 28 and Article 144 of the Limitation Act and its repugnancy to the Injunctions of Islam and held as under:- "There is another aspect of the case.
Predecessor-in-interest of the petitioners was claiming half of the land on account of adverse possession. All the forums, except Deputy Custodian, refused to recognize his plea. Litigation started from the date of passing of order dated 31.3.1949. The learned Shariat Appellate Bench of this Court in a case reported as Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063)" declared section 28 and Article 144 of the Limitation Act, 1908 repugnant to the injunctions of Islam in so far as, same provided for extinguishment of right in the property, and it was held that decision of this Court would take effect from 31 August, 1991, on which date petitioners' constitutional petition was pending. It was neither finally concluded at any stage nor any decree was passed favouring the petitioners to the effect that Pir Zaman Shah was in adverse possession of half of the land. Petitioners' constitutional petition was pending on the day, on which the judgment of Maqbool Ahmed (ibid) was to take effect, thus it cannot be pleaded that the case of petitioners qua adverse possession was a past and closed transaction. In view of case of Maqbool Ahmed (ibid), petitioners' plea of adverse possession has lost its efficacy, if there was any. Learned counsel for the petitioners, when confronted with the case of Maqbool Ahmed (ibid) stated that the said judgment cannot be applied retrospectively and thus it had no effect on the case of the petitioners. Suffice it to say that the said plea has little substance, as dictum laid down in the case of Maqbool Ahmed (ibid) would not affect only past and closed transactions, while in the case the matter of adverse possession was never treated as past and closed transaction. The predecessor-in-interest of the petitioners was never finally conclusively determined and held to be in adverse possession of the disputed land by any of the Courts. In view whereof, besides the reasoning advanced by the learned High Court for dismissal of petitioners' writ petition, we feel that the case of the petitioners is also hit by the case of Maqbool Ahmed (ibid) and the petitioners could not succeed on the plea of adverse possession".
This view of the apex Court was reiterate d recently in the case of Muhammad Afsar and others Vs. Rab Nawaz (Deceased) through L.Rs and others ( 2015 SCMR 301 ), wherein it was held that: "This being the position, we have no hesitation to hold that the concurrent findings of the appellate Court and the revisional Court recorded in favour of the respondents are the outcome of proper appreciation of evidence, which has dislodged the claim of adverse possession raised by the appellants. Apart from it, the judgment in the case of Maqbool Ahmed (supra), containing the cutoff date as 31-8-1991, is also fatal to the claim of the appellants, as vide judgment of the appellate Court dated 16-6-1991, the plea of adverse possession set up by them was rejected, thus, their title had not matured to hold the field after this cutoff date.
This legal position is amplified from the cases Durrani v. Hamidullah Khan (2007 SCMR 480) and Jan Muhammad Khan v. Custodian of Evacuee Property, Lahore (PLD 2009 SC 501), which laid down that after the judgment in Maqbool Ahmed's case (supra), providing for the cutoff date as 31-8 1991, the pending claims of adverse possession could only bore fruit if the same had matured through a Court decree subsisting on the cutoff date. Besides, we are also in agreement with the submissions of Mr. Gulzarin Kiyani that whenst the suit land was in Shamlat Deh and uncultivated since long, mere plea of adverse possession setup by the appellant was of no avail. Even if the appellants had been in possession, still to establish their claim of adverse possession, they had to meet the criteria of open and hostile possession of the suit land against its owner and to his knowledge, which is totally lacking in the present case".
10. Admittedly , the adverse possession of the respondent No.1 has not matured before the cutof f date i.e. 31.8.1991, as no decree has ever been passed in his favour to this effect, thus mere adverse possession over the suit property would not construed him to be its owner and at the most his status in the suit property would be that of tenant-at-will.
11. This Court is conscious of the fact that concurrent finding of fact recorded by Courts below should not be disturbed on mere reappraisal of evidence, however, in the instant case, a question of law and effect of judgment in Maqbool Ahmed case (supra) was involved, therefore, in the light of judgments of the superior Court, this Court find that both the judgments of Courts below are passed against the express pronouncements on the subject, thus, cannot face the test of judicious scrutiny.
12. For the reasons stated above, I allow this revision petition, set aside the impugned judgments and decrees of the two Courts below, resultantly the suit of the petitioner is decreed, as prayed for. No order as to cost.