1. ANWARUL HAQ, J.---This petition for special leave to appeal has arisen out of a suit instituted by the petitioner, Muhammad Hakim, for a declaration that he was the owner in possession of land comprising one-fourth share of the respondent, Sher Alam, in Khasra No. 2822, situate in village Shamat Pur, tehsil and district Mardan.
2. The petitioner claimed that originally the entire Khasra number, measuring 24 kanals and 5 marlas, was owned by one Muhammad Afzal Khan and two brothers, Sher Afgan and Sher Alam, the first mentioned having one-half share, and the two brothers having one-fourth share each. By two separate sale deeds the petitioner purchased one-half share belonging to Muhammad Afzal, and the remaining one-half from Sher Afgan, specifying the area sold by Sher Afgan as 12 kanals. In other words, he claimed that Sher Afgan sold to the petitioner not only his own share but also the share of his brother Sher Alam. In pursuance of the registered sale deed a mutation was attested in the revenue records. This was challenged in appeal by the res--pondent but the appeal was withdrawn on 18-11-19`4 as a result of a compromise between the parties.
3. However, 13 years later, in 1967, the respondent brought a suit against the petitioner for the recovery of share of produce in respect of his one-fourth share in the land. During the pendency of this revenue suit, the petitioner filed his suit for declaration on 3-3-1970. Besides, basing his claim on the alleged sale from the respondent's brother, Sher Afgan, the petitioner also claimed adverse possession for more than 12 years. The suit was decreed by the learned Civil Judge, Mardan, holding that the petitioner had perfected his title by adverse possession. On appeal by the respondent, this decree was reversed by the Additional District Judge, Mardan, and the petitioner's suit was dismissed. The petitioner then filed a second appeal in the Peshawar High Court which was dismissed by the learned Chief Justice on the 20th of November 1972. Placing reliance on an admission said to have been made by the petitioner before the revenue Court to the effect that he had no intention of asserting any claim as to possession of the respondent's share in the property.
4. It is submitted by the learned counsel, appearing for the petitioner, that the first appellate Court as well as the High Court have fallen in error in making use of the previous statement of the petitioner without complying with the requirements of section 145 of the Evidence Act, inasmuch as the petitioner was not confronted with that particular portion of the statement in which he had disowned any intention of asserting adverse possession over land falling to the share of the respondent. In support of this contention our attention has been drawn to Sikandar Hayat v. Fazal Karim (PLD 1971 SC 730).
5. It is also contented, relying on Sher Muhammad Nawab Khan v. Mst. Aimna Bibi (AIR 1937 Pesh. 49,) that the mere fact that a mutation of sale with regard to the share in dispute was attested in favour of the petitioner, was enough to show- that he was in adverse possession for over 12 years.
6. We regret we see no merit in these submissions. We find that the contention with reference to the non-observance of the procedure embodied in section 145 of the Evidence Act was not raised before the High Court, although the learned Additional District Judge had placed reliance on the previous statement of the petitioner, which he had made before the revenue Court. In these circumstances, we see no compelling reason to permit the petitioner to raise this point at this late stage, even though it may be question of law.
7. As regards the second contention, we find that the authority relied upon by the learned counsel does not support him. In that case there was not-merely an entry in the revenue records, but there was also an assertion of the rights of ownership by the transferee for the prescribed period. Now, in the present case, apart from the previous statement of the petitioner to the effect that he had no intention of possessing land falling to the share of the respondent, there is no evidence to show any overt and hostile act on the part of the petitioner, such as would establish adverse possession. The mere entry in the revenue records would not, therefore, support the plea of adverse possession. It is well-settled that adverse possession must be open, overt and hostile, to the knowledge of the true owner, if the person alleging such possession is to perfect his title by prescription.
8. For the foregoing reasons we see no merit in this petition, which is accordingly dismissed.