' ABDUL MAJEED MALLICK, J. -This appeal by leave arises out of the judgment of the High Court dated 26th December, 1978, whereby findings of the subordinate Courts were set aside and plaintiffs' suit was decreed.
2. Sardar Mahanni Khan, who expired in mid of the suit proceedings and was succeeded by present plaintiffs, brought a suit for declaration and perpetual injunction, on 19th July, 1962, to the effect that suit land, 99 kanals 11 marlas, situate in village Salmia, Tehsil Hattian, was part of the forest land. It was broken and brought under plough by his father in 1942 Bk. Thereafter, he constructed houses and raised fruit trees over it. His possession being more than 60 years matured into adverse possession. Therefore, the Government and forest authorities be restrained from taking any action to dispossess plaintiffs from the suit land. A claim for improvement was also made. The trial Court disallowed the main 'diets' but accepted the claim of improvement and held that plaintiffs shall be entitled to.Rs, 3,000, as costs of improvement. The finding was upheld by the District Judge. But in second appeal to the High Court the judgments of the subordinate Courts were reversed, and decree of adverse possession was granted.
3. Mr. Muhammad Akram Khan, the learned Advocate-General, raised a preliminary objection and urged that the learned Chief Justice of the High Court was not competent to interfere in concurrent findings of facts. In our view this objection is not sustainable. For it, as is evident from the record on appeal before the High Court the learned Chief Justice felt persuaded to record additional evidence to enable him to pronounce the judgment. Consequently statement of Mu shi Ghulam Hussain, Patwari, was recorded and decision was givenn by making reliance on a pencil entry made in the Aks Latha (copy of map of the estate). This map was prepared at the time of the last settle men in 1986-87 Bk. Munshi Ghulam Hussain had already appeared as' witness of the defendant. A comparative study of his testimony, recorde in the High Court, discloses that it is identical to his previous evidence. There is no material difference worth mentioning. But the fact remains that the learned Chief Justice based his finding on the appraisal of subsequent evidence.
Technically this doe not bring the case strictly within the scope of concurrent finding o facts.
4. It is uncontroverted that suit land is the forest land ; as such at the time of its occupation it belonged to the Government. Consequently Government or the forest authorities were competent to take action or dispossess the plaintiffs at any time but within sixty years from the date of commencement of such occupation. Article 149 of the Limitation Act allows the Government to bring an action within sixty year when the period of limitation begins to run or right to sue accrues.
On this premises of the rule of limitation, contemplated under Article 149, the Governments right to the property remains in existence till the statutory period of 60 years is not elapsed. Thus, when plaintiff sues the Government and claims acquisition of title in the land by adverse possession, in order to succeed, he must prove that he has been in possession of such land for more than sixty years. On the other hand the well-known conditions which constitute adverse possession are to be proved by the same standard of evidence as it is required in any other case of adverse possession.
The nature of the claim of adverse possession being devoid of equitable and moral consideration, Courts have always insisted o strict and cogent evidence as proof in support of the plea of adverse possession.
5. According to the pleading of the plaintiffs the suit land was occupied and brought under cultivation by their ancestors in 1942 Bk. Their possession was alleged to be continuous and visible.
In support of this p'ea plaintiffs produced oral and documentary evidence. The documentary evidence consists of copy of the map of the estate, prepared at the time of the last settlement of 1986-87 Bk. `Aks Latha' bears a pencil entry showing demarcation of the boundaries of the suit land.
According to Ghulam Hussain Patwari pencil entry was made as the `nautore' was not sanctioned by the Government. He expressed his inability to say whether land, shown with pencil marks was so shown at the time of settlement or after the settlement. Munshi AR Akbar Patwari, produced by the plaintiffs, stated in reply to a question, in cross-examination, that pencil entry in `Aks latha' was a pointer to the fact that `nautore' was made after the settlement. In case dand was brought under plough prior to the settlement, it would have been entered in the `Aks Latha' with ink. This is the only evidence which pertains to the record of rights. In order to appreciate the interpretation of this evidence, as made by the learned Chief Justice, we propose to reproduce the relevant part of the impugned judgment as under: "This Patwari as well as those examined earlier, have stated that the broken land about which the plaintiffs claim adverse possession, is shown in Aks Latha but that it is shown with a pencil and not with ink. This is very important. Now, there is no evidence at all from the Government side as to when was this pencil marking carried out. This document remains in possession of the Revenue Department and therefore unless it is shown, the custody being theirs, that any entry made in the said parchment was made at any time after the time when it was prepared, the benefit of the entry as well as the presumption of any such must got to the plaintiffs because, it may be emphasised again, it is not in their custody. The Patwari has stated that if any entry is made at the time of Settlement, it is made in ink and since this entry is not in ink but is in pencil, it must be taken to have been made after the Settlement had taken place. I think this approach is wholly incorrect because, firstly, no such rule was cited in the Court, and, secondly, there is no evidence that this pencil entry was made at any time after the Settlement itself. What appears to be the correct position is that pencil entries have to be differentiated from the ink entries in that the ink entries are boundaries recognized by the Settlement authorities and pencil entries merely constitute a reproduction of the de facto position but not recognized by the Settlement authorities or so. How else can the de facto and the de juro lining be differentiated from one another ? We have an instance in the case of mutations. Suppose 'A' purchases land through a registered sale-deed and enters into possession.
So long as a mutation is not sanctioned in his favour, the Settlement record does not recognize him as a vendee but enters his name as a 'tenant-al-will-Ghair Mauroosi'.
' Thus the oldest record available from the Revenue department shows that this land was broken prior to 1986 Settlement. This is consistent with the claim as well as the evidence of the plaintiffs that it had been broken long before that Settlement."
6. It is quite clear from the aforesaid finding that pencil entry has been stretched so much so as to hold that it was incorporated at the time of the last settlement. When map of the estate was prepared. Consequently, the land was shown to have been broken long before the settlement.
Despite the fact that the relevant entry was not directly in issue nor its importance was realised by the parties, at any stage of the trial, so that evidence could be led to explain as to when or under what circumstances it was made ; yet even if we are prepared to go alongwith the learned Chief Justice and agree to hold that the land was occupied and brought under cultivation prior to the settlement, the responsibility of onus of proof placed upon the plaintiffs does not end there.
Plaintiffs are under an obligation to prove their sixty years of possession through cogent and positive proof. The last settlement was made in 1986-87 Bk.. And the suit was instituted on 19th July, 1962, i,e, 4th Sawan 2019 Bk. The intervening period is essentially shorter than the requisitive. This just to point out that pencil entry, made in the Aks Lath; by itself is not sufficient to lead to a definite time relating to start of the possession. In the circumstances we have to look for some other evidence in order to arrive at a correct conclusion. The other evidence on the record is th oral evidence and a file prepared by the Revenue Authorities on the application of Sardar Mahanni Khan. The contents of application on Sardar Mahanni Khan, moved in 1955 and 1956 and statements of the villagers recorded in that behalf, by Tehsildar, are of no help to the plaintiffs.
Likewise the oral testimony is self-destructive. For instance, Swariya P.W. Stated that suit land was brought under plough by Sardar Mahanni Khan and his brothers on the issuance of a proclamation b Maharaja whereby State land was allowed to be brought under cultivation. Alif Din plaintiff, deposed that such a proclamation was made by Maharaja Hari Singh. It is well known that Hari Singh was crowned in 1925 A. D. Despite the fact that no such proclamation is shown to have been made, one thing that becomes clear is the disputed time o the beginning of the possession of plaintiffs. Oral evidence, therefore, cannot be stretched to hold sixty years possession of the plaintiffs.. It wa perhaps for this reason that the learned Chief Justice very wisely avoide appreciation of oral evidence. But we cannot escape the result of th appraisement of this evidence, already made by the subordinate Courts. The conclusion obviously is that plaintiffs have failed to prove their sixth years possession of the suit land at the time of institution of the suit.
7. Our attention was invited to the human aspect of the case and it was pointed out that plaintiffs have no other source of their livelihood. In case they are uprooted, they shall have to face misery and disastrous results. It is true that apart from being destitute, a long time attachment with rand and its environment, though illegal and wrongful in character, by itself.Attracts sympathetic consideration. But the fact remains that the system of administration of justice, prevailing in the State, enjoins upon the Courts to decide cases strictly according to law. It is for this reason that we felt constrained to hold that plaintiffs failed to prove that their possession of the suit land was for more than sixty years. In free Islamic State, like ours, a heavy responsibility is cast upon the Government, but not upon the Courts of law, to provide adequate means of livelihood to the citizens. The State land which in fact belongs to Almighty God{{URDU TEXT}}may be allowed to exploitation for the benefit of humanity as a whole, so that people have a realisation of difference between slavery and freedom. Plaintiffs who have been cultivating and residing over the suit land for many years, although less than the requisite statutory period, if felt advised, may approach the Government to obtain its legal sanction under law. Their difficulty can be resolved only in that manner.
' In view of the above discussion, we accept the appeal, set aside the finding of the High Court and restore the judgment of the trial Court. We make no order as to costs.