1. Through the captioned appeal, judgment and decree of District Judge Rawalakot dated 22.06.2013 has been called in question, whereby, the learned District Judge while dealing with the appeal of the appellants herein has dismissed the same and judgment and decrees recorded and passed by the Civil Judge Rawalakot dated 30.09.1978 was ordered to be maintained.
2. Succinctly, the facts giving rise to the appeal in hand are that predecessor of the appellants herein filed a suit for declaration of entitlement on the basis of adverse possession regarding a piece of land comprising survey No. 154 (min) situate at village Kehna, Tehsil Rawalakot in the Court of Civil Judge Rawalakot claiming therein that the said piece of land was within the ownership of Shahjahan, the predecessor of the respondents herein but the same is within the possession of plaintiffs since Dogra regime and in the year 1956, defendants tried to obtain the possession but plaintiffs resisted, resultantly, defendants failed, thus the possession of plaintiffs being exceeding, 12 years has attained the status of ownership, hence, decree of declaration of entitlement be issued in favour of defendants accordingly.
3. One of the defendants, Muhammad Ishaq submitted cognovit, whereas Shahjahan and others resisted the suit and while submitting written statement refuted the claim of the plaintiffs with the assertion that suit land is within the possession of plaintiffs in a matter of exchange with the piece of land falling survey No. 269/186 measuring 06 kanal 18 marlas as both the parties exchanged their said pieces of land for the purpose of convenience in cultivation, so, the suit is liable to be dismissed.
4. Subsequently, the respondents herein Muhammad Anwar & others, the predecessor of the Shahjahan filed a suit for recovery of possession averring therein that a piece of land measuring 06 kanal 13 marlas falling in survey No. 154 was within ownership of Shahjahan, whereas, piece of land comprising survey No. 269/18, measuring 06 kanal 18 marla was under ownership of defendant No. 1 Muhammad Afsar Khan and both the said owners exchanged the said pieces of land for the purpose of convenience in cultivation, thus the piece of land falling under survey No. 154 is within the possession of defendants but defendants herein have claimed ownership on the basis of adverse possession, so, plaintiffs, being owners of suit land falling in survey No. 154 are entitled to be given the possession of said suit land, hence, the suit be decreed accordingly.
5. Defendants resisted the suit on legal and factual grounds as well and claimed that father of the plaintiffs Shahjahan, while exchanging the piece of land in question had perpetually handed over the possession before enforcement of law of transfer of property, thus the possession of defendants has attained the status of ownership in terms of law of adverse possession, hence, the suit is liable to be dismissed.
6. The learned trial Court initially, in the light of suit of appellants herein framed as many as 3 issues but on filing the subsequent suit, while consolidating both the suits, framed further two issues.
7. At the conclusion of proceedings, the learned trial Court dismissed the suit of predecessor of the appellants herein, whereas, the suit of respondents, herein, was ordered to be decreed vide consolidated judgment and decree dated 30.09.1978.
8. Aforesaid judgment and decrees were assailed before the District Judge Rawalakot, from where once the matter was remanded but the remand order was brought to Hon'ble apex Court but ultimately, the learned District Judge, while dealing with the appeal of the appellants herein disposed of the lis vide judgment and decree dated 22.06.2013.
9. Dissatisfied from the judgment and decree of learned District Judge, the appellants herein have assailed the same before this Court.
10. Arguments heard.
11. Leaned counsel appearing for the appellants herein after narrating the facts of the case submitted that matter of exchange of suit land, after elapsing a certain period of time stands equivalent to ownership but this aspect of the case has not been addressed by the learned Courts below. The learned counsel maintained that if appellants do not deserve for a decree of adverse possession, the respondents cannot be given possession of suit land as the suit for recovery of possession is hopelessly time barred. The learned counsel in this regard, though, verbally referred to certain case law but the said case law were not provided.
12. Conversely, the learned counsel representing the respondents herein, while defending the judgments impugned herein, argued with vehemence that appellants herein, in their pleadings took an inconsistent stance regarding ownership of the suit land, as admittedly, in their suit, they have raised a stance of ownership on the basis of adverse possession but in the rival suit, being defendants, they have admitted that suit land is within their possession due to exchange but in their evidence, different stance was raised and under law, evidence, beyond pleadings cannot be taken into consideration as ultimately, relief has to be awarded in the light of the claim agitated in the pleadings. The learned counsel maintained that appellants herein miserably failed to establish their stance of adverse possession as documentary and verbal evidence clearly speaks against the version of appellants herein and admittedly, the ingredients required for claiming adverse possession entirely lack in the matter in hand, rather the witnesses of appellants herein support the version of respondents herein. The learned counsel urged that in the matter in hand, no question of limitation of 12 years arises as admittedly, it is proved that possession over the suit land was permissive, therefore, the suit of respondents herein was within limitation. The learned counsel argued that no misreading or non-reading of evidence or any illegality in the judgment impugned herein has been pointed out, hence, the appeal in hand is liable to be dismissed with costs. The learned counsel referred to and relied upon the case law reported as [1992 SCR 87], [1992 SCR 286], [PLD 1987 AJ&K SC 33] and [1993 CLC 454]. In the said case law, the matter of concurrent findings, permission to parties beyond pleadings and ingredients of adverse possession have been discussed.
13. Having heard the arguments of both the parties, I have also gone through the record available at the file with utmost care and caution. The case law referred to and relied upon has also been examined.
14. From the perusal of record, it depicts that predecessor of appellants herein filed a suit for declaring him the owner of the suit land on the basis of law of adverse possession, whereas, respondents herein filed a suit for recovery of possession on the basis of ownership in the Court of civil Judge. In the rival suit, the predecessor of appellants "Afsar Khan" while filing his written statement conceded the matter of exchange of suit land but claimed that in the absence of law dealing with the transfer of property, the exchange stood rescinded, result of which, possession of Afsar Khan is termed equivalent to ownership on the basis of adverse possession, moreover, the question of limitation regarding suit of possession was raised.
15. Both the Courts below are unanimous that predecessor of appellants herein have failed to prove the stance of adverse possession, whereas, the matter of exchange stands proved and respondents herein are entitled to be awarded the relief of possession.
16. In the light of claims of the parties, the main question which needs resolution is as to whether appellants herein predecessor of appellants has succeeded to prove his stance of ownership on the basis of adverse possession or not and respondents herein are entitled to be awarded the relief of possession?
17. It is pertinent to point out here that in a matter of plea of adverse possession, the basic ingredients required to be proved are that possession must be hostile, continues- and notorious to the interests of true owners for at least 12 years. Admittedly, plea of adverse possession is based on brutal principle of "might is right" and a person claiming adverse possession must prove the said stance by leading tangible evidence and mere a peaceful possession for a length of time cannot be treated a possession as adverse to the real owner as hostility, continuity and its notoriousness must exceed to minimum period of 12 years.
18. Now, in the light of said "touch stone" I try to find out as to whether, the predecessor of appellants herein has succeeded to prove his stance of adverse possession or not.
19. A perusal of documentary and verbal evidence reveals that no single ingredient for constituting the possession of plaintiffs, adverse to the true owner is available as no witness claims the possession of plaintiffs, hostile, rather the statements of witnesses signify that possession is on account of exchange of different pieces of land of the parties. Similarly, documentary evidence speaks volume as the possession clearly appears to be recorded on the basis of exchange, so, it can safely be observed that predecessor of the appellants herein failed to prove his stance of adverse possession.
20. So far as the question of limitation regarding suit of recovery of possession is concerned, admittedly, in the matter in hand, the suit land is within the possession of appellants herein since their father and period of more than 12 years has been elapsed but the stance of respondents herein is not that they have been dispossessed or their possession has been discontinued, rather the simple claim is that suit land was within the possession of father of appellants herein under permission and license for the purpose of convenience in cultivation, in terms of exchange of land and now, the claim of defendants of adverse possession has forced the real owners to claim possession.
21. The said stance is proved by the respondents herein and the learned Civil Judge, while dealing with the question of limitation has rightly recorded his findings, hence, it can safely be observed that suit land was within the possession of father of appellants herein under the license and permission and appellants herein have claimed ownership, so, respondents herein have also withdrawn their permission and have filed suit for possession, hence, in view of claim of the respondents and evidence on the record, the suit of respondents stands filed within limitation.
22. In view of aforenarrated circumstances, it can safely be observed that both the Courts below, after evaluating the evidence of the parties have rightly recorded their findings quite in consonance with evidence and law. No misreading and non-reading of evidence or other legal infirmity in the judgments impugned herein has been pointed out, thus, concurrent findings of facts do not warrant any interference by this Court.
23. The crux of above discussion is that being devoid of Substance appeal in hand is dismissed with no order as to costs.