1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against the judgment dated 21-11-1979 of the Peshawar High Court ; whereby a Civil Revision arising out of a land throughout in appellants/plaintiffs favour was, allowed and suit was dismissed by conceding to the respondents/defendants maturity of title through adverse possession.
2. ' The relevant facts at this stage, not controverted and set up in the petition are that the appellants filed a suit on 7-11-1973 against defendant-respondents for possession in respect of the suit land. It was stated in the plaint that the plaintiffs and defendants-respondents 21 to 50 are the owners of the suit land and defendant-respondents 1 to 20 are in possession of the same as tenants-at-will under the plaintiffs and respondents 21 to 50; that for two months the said defendants- respondents stopped payment of the share of produce to the plaintiffs and defendants 21 to 50 and they also denied the title of the plaintiffs pertaining to the suit land. That defendants- respondents 1 to 17 resisted the suit of the appellants which gave rise to the following, amongst others, issues :
(1) Whether the plaintiffs and defendants 21 to 50 are the owners of the suit land and defendants 1 to 20 are in its possession unlawfully ?
(2) Whether the plaintiffs have got a cause of action ?
(3) Whether the suit is within time ?
(4) Whether defendants 1 to 17 have matured their title to the suit land by adverse possession for over 12 years ?
3. ' That the learned trial Judge discussed issues 1, 2 and 4 together and held "the predecessor-in- interest of the plaintiffs and defendants were cousins inter se. In Jamabandi for the year 1925-26, Exh. P. W. 1/1, in column of cultivation the names of Khan Mir, Baz Mir son of Bazrat Mir, predecessor- in-interest of the plaintiffs are recorded as Dakhilkar under section 8 of Act 16 of 1887. One Barkat is recorded as owner in the ownership Column. The rent column is blank. The same entry is repeated in Jamabandi for the year 1931/32, Exh. P. W. 1/2. In Jamabandi for the year 1935/36, Exh. P. W. 1/3, the names of predecessor-in-interest of the plaintiffs are recorded in cultivation column as Dakhilkaran. In the same column for the first time the names of Ashrif Khan, Salarzai, Faqir son of Gula Mir, predecessor-in-interest of the defendants are recorded as Ghair Dakhil Karan. In rent column the entry in Bila Lagan Bawaja Dakhil Kaari. Defendants entered upon the suit land as Ghair Dakhil Karan i. e. As tenant at will. In subsequent Jamabandis 1939/40, 1943/44, 1950/51 (Exh. P. W.
4. 1/4 to Exh. P. W. 1/6) these entries were repeated in regard to column of ownership, cultivation and Rent column. By the operation of tenancy laws of 1950, "Dakhilkars" became owners In the jamabandi for the year 1958/59 (Exh. P. W. 1/8) entry regarding ownership column remain the same. In cultivation column defendants are recorded as Hissadaran while the rent column is blank.
5. This entry is repeated in jamabandis for the year 1962-63 Exh. P. W. 1/9. In Jamabandi for the year 1966/67, Exh. P. W. 1/10 in cultivation column predecessor-in-interest of the defendants are shown as Ghair Dakhilkaran while in rent column the entry is as "Bila Lagan" Ba-Tassawar Hissadari". The learned trial Judge found that in the year 1935/36 for the first time Ashraf Khan etc. Defendants were shown in cultivation column as Ghair Dakhilkars. They were tenants and as such could not claim adverse possession against the true owner. The suit was subsequently decreed on 20-2-76 leaving the parties to bear their own costs. That defendants-respondents I to 20 filed an appeal in the Court of District Judge Mardan and in the grounds of appeal the jurisdiction of the Civil Court was questioned though the point had not been raised in the written statement. This objection was repelled by the learned District Judge and the remaining two grounds urged in support of the appeal regarding the plea of adverse possession and the Bar of limitation also did not find favour with the first appellate Court and the appeal was dismissed on 12-5-76 after considering the evidence in great detail. The defendant-respondents I to 20, still not being satisfied by the concurrent findings of the two Courts below, preferred a Revision Petition in the Peshawar High Court on the grounds that the appellants' suit was barred by time and respondents 1 to 20 were in adverse possession of the suit land for more than 12 years. In the alternative the contesting respondents had claimed compensation for alleged improvement of the suit land.
6. ' The learned Judge of Peshawar High Court referred to a ruling of the Peshawar High Court reported as shad Muhammad v. Khanpur (1) and held (relying on this overruled case) as follows :- "The overall effect of sections 39, 44 and 52 of the Land Revenue Act and section 35 of the Evidence Act will be to raise a rebuttable presumption for all the relevant entries in the Jamabandi. If a person is given as owner and another a tenant their relationship shall have to be referred to the column of Lagan. If no rent is payable right from the very beginning mere presumption of tenancy or naming of relationship as tenancy, will not by itself be sufficient to raise another presumption under section 116 of the Evidence Act."
7. ' The learned Judge of the Peshawar High Court thereafter further held : "It is not proved that possession of the defendants was under an agreement and so the entry right from its inception was adverse to the interest of the owners".
(1) P I. D 1979 Pesh, 93 ' It was lastly held that the concurrent findings of the two Courts below would not be immune from being challenged in a Revision Petition. The petition was consequently accepted and the suit of the appellants was dismissed.
8. ' Leave to appeal was granted in order to examine the following contentions : "That the learned Single Judge has fallen into an error in setting aside the concurrent finding of facts of the two Courts below; that the entries in the revenue record right from 1925-26 have not been correctly interpreted by the learned Judge; the first entry of the contesting respondents over the suit land was in the capacity of A tenants-at-will and they were estopped to set up the plea of adverse possession against the landlords ; that the learned Judge has also incorrectly interpreted sections 39, 44 and 52 of the. West Pakistan Land Revenue Act, 1967 and section 35 of the Evidence Act."
9. ' Two questions arise now for determination. One, whether the learned Judge in the High Court was right in giving preference to some entries in the Lagan Column of the Jamabandi over those in the cultivation and ownership columns ; and two, whether the concurrent findings of fact on question of adverse possession have rightly been upset in the impugned judgment.
10. ' It has been recently observed by this Court in line with a string of authority in Shad Muhammad v.
11. Khanpoor (1), decided on 25th November, 1984 overruling the High Court decision reported in PLD 1979 Pesh. 93, that "In this case the respondent relied on the Lagan column entry to the effect that the appellant was not paying rent, on account of a mortgage. This stands contradicted by the cultivation column where he is mentioned as tenant ; as also, indirectly by the ownership column of the Jamabandi where other persons are mentioned as mortgagees but not the appellant. The explanation of the learned counsel for the respondent is that although the mortgage in favour of the appellant, indicated obliquely in the Lagan column, had taken place, the mutation was not yet sanctioned when the relevant Jamabandi was prepared. But he failed to produce any evidence to support this.
12. It was his burden, as held in Mehrab Shah's case, to adduce such evidence. The reliance of similar entry in the Khasra Girdwari as in Lagan column of Jamabandi, is of no avail to the respondent because it cannot be given preference over the above referred two columns of the Jamabandi.
13. Similarly there is no force in the argument of the learned counsel for the respondent that Lagan column does not show payment of any Lagan therefore the appellant even if mentioned as tenant in the cultivation column was not a 'tenant' as defined in the relevant law which required payment of rent unless contracted otherwise. Firstly it is based on the entry in the Lagar: column which is contradicted by the cultivation column and secondly nonpayment of rent as shown in the Lagan column by itself would not change the character as tenant of the appellant if shown so in the cultivation column."
14. ' It will be of advantage for comparative study to mention here the cases cited by the learned counsel for the respondent which in his view, one way