' ALI HUSSAIN QAZILBASH, J.--This appeal by leave is directed against the judgment of a learned Single Judge of the Peshawar High Court, dated 3-11-1982, whereby the decree in favour of the appellants was set aside.
2. Nasiruddin now represented by his legal representatives brought a suit for possession on the basis of title of land measuring 2 Kanals 2 Marlas bearing Khasra No,337, situate in village Dheri Baghbanan, Tehsil and District Peshawar. The averments in the plaint were that the appellants are the owners of the suit land and respondent Khan Muhammad now represented by his legal representatives being the tenants in possession thereof were regularly paying the share to the appellants but since an year before the institution of the, suit have stopped such payment without any reason; the perusal of the Revenue record revealed that the land in suit had wrongly been entered in their names on the basis of a fictitious exchange transaction. The suit was resisted by the respondents who denied the title of the appellants and their case was that they are in possession of the suit land since more than 35 years as owners and one Munawar Khan who was later on impleaded as respondent No,6 was in possession of the land under them as lessee.
3. The pleadings of the parties resulted in the framing of as many as five issues. The learned trial Court after recording the evidence produced by the parties held that the appellant are the owners of the suit land since the Settlement of '1929-30 till the current Jamabandi of 1964-65; that in the Jamabandi of 1937-38 for the first time in the column of lagan the respondents are shown as "bila lagan bawaja tabadala" on the basis of exchange Mutation No,222 entered on 1-2-1936 but then rejected on 26-12-1936. It was further held that since the exchange mutation was rejected it did not create any right in the respondents and the appellants would continue as owners whereas the respondents would be their tenants-at-will and thus decreed the suit of the appellants vide judgment, dated 21-7-1969. The appeal filed by the respondents was dismissed by the learned Additional District Judge, Peshawar, on 11-10-1971 concurring with the findings of the learned trial Court. The respondents then approached the High Court through a Regular Second Appeal where they succeeded in getting the reversal of the judgments of the Courts below through the impugned judgment on the ground that the suit filed by the appellants was beyond limitation.
4. Leave in this case was granted to consider the correctness and proprety of the findings of the learned Single Judge.
5. The learned counsel for the parties took us through the evidence and addressed us at length for and against the appeal. The entries in the Jamabandi right from 1929-30 till 1963-64 in respect of Khasra No,337 have been quoted in detail by all the three Courts and we need not repeat them. In almost all these Jamabandis the respondents have been shown as tenants-at-will over the suit Khasra number in the column of cultivation. In the column of lagan, however, they have been shown in possession of the suit land as `bila lagan bawaja tabadala' and it is on the basis of the entries in the column of lagan that the respondents' claim of the suit land as owners by adverse possession has been admitted by the High Court and thus non-suited the appellants.
6. The controversy in regard to the conflicting entries in the columns of cultivation and lagan now finally stands decided by this Court in the case Mehrab Shah v. Shah Zaman 1985 SCMR 497 and in the case Shad Muhammad v. Khan Poor PLD 1986 SC 91. In the latter judgment it has been held: "Entries in the column of lagan, otherwise not corroborated by any evidence cannot take precedence over the column of cultivation. The party relying on the lagan column as against the cultivation column would have to produce evidence in support of its plea. In the present case the respondents 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 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, * * * it was his burden to adduce such evidence. The reliance on similar entry in the Khasra Girdawari as in lagan column of Jamabandi, is of no avail to the respondent; because, it cannot be given preference to the abovereferred two columns of the Jamabandi. Similarly there is no force in the argument of the learned counsel of 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 contradicted otherwise. Firstly it is based on the entry in the lagan column which is contradicted by the cultivation column and secondly non-payment 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."
Since no evidence has been produced by the respondents in support of their case excepting the exchange mutation which was rejected as back as 26-12-1936, their possession had as. Such become permissive. They obviously are thus tenants under the appellants and they cannot claim ownership over the suit land either on the basis of exchange mutation which stood rejected or on the basis of adverse possession.
7. As a result the appeal is allowed, the judgment of the High Court dated 3-11-1982 is set aside with costs.