Through this revision petition S. Shahjehan Shah petitioner has called in question the judgment and decree dated 20-2-1984 passed by the learned Additional District Judge, Mansehra, whereby he accepted the appeal of Ali Mardan Shah alias Mastana Shah and others defendants-respondents and by setting aside the judgment and decree dated 25-9-1982, passed by the Civil Judge, Mansehra, dismissed the suit of the plaintiff-petitioner, holding the defendant-- respondent No.l as owner of the suit land measuring 14 kanals 12 marlas bearing khasra numbers 521 and 528 situate in the area of Shah Kot through purchase from Said Jalal Shah father of plaintiff-petitioner and the entries of the revenue papers as 'Bila Lagan Bawajja Beh' in the name of defendant-respondents as correct.
2. The background of the case is that S. Jalal Shah was owner of the suit land as per entries of the Jamabandis, (Exh.P.W.1/1) which was mutated in the name of Provincial Government vide their order conveyed to the revenue staff through letter number 3004-R-A/111.F.96, dated 3-11-1953 and in the subsequent jamabandi for the year 1953-54, copy Exh.P.W.1/D1, Provincial Government was recorded as owner in the ownership column while S. Jalal Shah was recorded as tenant-at-will through Mastana Shah respondent No-1 as sub tenant without payment of any.Rent on account of purchase, as per entries of the column of rent. However, vide Mutation No.26 attested on 18-4-1960 the land reverted to S. Jalal Shah petitioner whose name, once again, was incorporated in the subsequent jamabandi for 1968-69, copy Exh.D.W.l/2, in the ownership column and Ali Mardan Shah alias Mastana Shah defendant-respondent No.l as tenant-at-will in column of cultivation without payment of any rent on account of purchase. This entry is repeated in the subsequent jamabandi for the year 1972-73 (Exh.D.W.l/3) and (1976-77, Exh.P.W.1/2,) and also in the Khasra Girdawari Exh.P.W.1/D 1. The plaintiff-petitioner feeling aggrieved from the aforesaid entries in the Revenue record in the name of defendant-respondent No.l as "bila lagan bawajja Bah" without payment of rent, felt the necessity to file the instant suit for declaration of title as well as for declaring the defendant-respondent No.l as tenant-at-will under him on payment of half `Batai' and the entries of the Revenue record as `bila lagan bawajja beh' in his name as collusive and fraudulent. The defendant contested the suit and in his written statement controverted all the allegations of the plaintiff-petitioner and claimed ownership through purchase and also alleged to have acquired prescriptive title to the suit land through adverse possession for more than 12 years. Issues in accordance with the pleadings of the parties were framed and evidence of the parties, pro and contra, thereon recorded by the learned trial Judge who vide his judgment and decree dated 25- 9-1982 decreed the suit of the plaintiff-petitioner as prayed for by him. Not content with the same, the defendant-respondent No.l preferred appeal which was heard by the learned Additional District Judge, Mansehra and he, vide his judgment and decree dated 20-2-1984, accepted the same, and by setting aside the judgment and decree of the trial Court, dismissed the suit of the plaintiff --petitioner. Hence the instant revision petition.
3. 1 have heard learned counsel for the parties for sufficient length of time and have perused the record of the case with their valuable assistance.
4. The main contention of the learned counsel for the petitioner is that Said Jalal Shah father of the petitioner was owned of the suit property and on his death it devolved upon the petitioner and his co-heirs defendants 2 to 4 (respondents 2 to 4 herein); that the defendant-respondent No.l was tenanting the suit land under the petitioner on payment of half 'batai' and that the adverse entries in the Revenue record showing him as 'Bila Laggan Bawaja-i-Beh' were wrong and ineffective on his rights; that the defendant-respondent No.l having been inducted by the plaintiff-petitioner as a tenant over the suit land was legally estopped to deny the title of the plaintiff-petitioner and defendant-respondents 2 to 4 and could not legally derive any benefit from the aforesaid entries of the Revenue record. About the plea of purchase by the defendant-respondent No.l through Exh.
D.W.1/1 he submitted that the same was compulsorily registrable u/s 17 of the Registration Act and having not been registered, could neither confer nor extinguish title in the land transferred through the same. He further argued that at the time of the execution of the sale-deed, Said Jalal Shah had ceased to be the owner of the suit land and consequently could not legally alienate the same. The learned counsel for the defendant-respondent No.l on the other hand controverted these subrr, Lssions by stating that the defendant-- respondent No-1 had purchased the suit land vide unregistered sale-deed, copy Exh.D.W.l/1 on the file, from Said Jalal Shah father of the plaintiff- petitioner for a sum of Rs-500 and that he entered upon the land not as tenant or licensee on behalf of Said Jalal Shah but as a vendee claiming proprietary rights over it through the sale-deed referred to above and that in the alternative, he having remained in possession of the same for more than 12 years exclusively in denial of the title of Said Jalal Shah as well as his heirs (the petitioner and respondents 2 to 4) had acquired prescriptive title to the suit land and that the title of Said Jalal Shah and his heirs had extinguished under section 28 of the Limitation Act. As regards the inadmissibility of the sale-deed on account of non-registration, he submitted that the execution of the deed having been duly proved, the same could be legally considered to corroborate the hostile nature of possession of the defendant respondent No.l. He also contended that the suit was not competent under section 42 of the Specific Relief Act' inasmuch as the plaintiff-petitioner was admittedly out of possession and the suit for bare declaration, without claiming relief of possession as a consequential relief, was not maintainable.
5. 1 have anxiously considered the arguments of the learned counsel for the parties. The pivotal question for determination in the instant dispute between the parties is the genuineness or otherwise of the sale-deed copy Exh.D.W.l/1 on the file. The petitioner has denied the execution of the said-deed and has further asserted that the deed does not disclose the number khasra or the boundaries of the suit land and thus cannot be held to relate to the suit property. To prove the execution of the same, defendant-respondent No.l has produced Abdur Rehman D.W.2 who has scribed the deed and he, as per his statement in Court, laying hand on the Holy Book, deposed that the document copy Exh.D.W.l/1 was scribed by him, that Said Jalal Shah father of the plaintiff- petitioner sold the suit land to defendant-respondent No.l, received the sale consideration of Rs.500 in his presence whereafter he wrote the deed and got the thumb-impression of the executant as well as the witnesses thereon. He also added that prior to the execution of the sale- deed the uncle of Said Jalal Shah was cultivating the suit land and after the sale in his favour, the defendant-respondent No.l remained in uninterrupted possession of the suit land without admitting the title of anybody or paying share of produce to any one, as he was in possession as owner. He has been cross-examined at length but nothing material has been brought out to cast any aspersion on his veracity. He is totally disinterested person having no relationship whatsoever with the defendant-respondent No.1 or any illwill towards the plain-petitioner. The other witnesses of the deed are reported to be dead. In this view of the matter the defendant-respondent No.l has fully discharged the onus of proof regarding the execution of the sale-deed and the plaintiff- petitioner failed to disprove the same. However, under section 49 of the Registration Act as amended by Ordinance XLV of 1962 (Registration (Amendment) Ordinance, 1962), the said document required compulsory registration as the value of the land transferred through the said deed was more than Rs.99 and since it has not been registered, it can neither extinguish the title of the executant Said Jalal Shah nor confer title on the vendee defendant-respondent No.l and therefore defendant-respondent No.l cannot derive any benefit from the production of this document in support of his claim of ownership on the basis of title. In this regard, the judgment of the Supreme Court in case Habibur Rehman v. Mst.Wahadania, and others reported as PLD 1984 SC 424 is relevant wherein their Lordships have' held that unregistered document hit by the provisions of section 49 of they Registration Act cannot confer title on the transferee.
6. As regards the pleas of limitation and adverse possession, the learned trial Judge decided both these issues in favour of the plaintiff-petitioner, while the appellate Court came to the conclusion that the defendant-respondent No.l entered into possession of the suit land under the unregistered sale-deed Exh.D.W.l/1 and remained in continuous possession thereof since then and resultantly held that the entries of the Revenue record showing him as in possession 'bila lagan bawaja-e- beh' were correct and not collusive or fraudulent. No doubt, the August Supreme Court in cases Shad Muhammad v. Khan Poor PLD 1986 SC 91 and Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113, while disagreeing with the principle enunciated by the Full Bench of the Peshawar High Court in the case of Shad Muhammad v. Khan Poor PLD 1979 Peshawar 93 have held that where there is conflict between the entries of jamabandi in the column of cultivation and the column of lagan, the entries of the cultivation column shall have preference over the entries of lagan. But at the same time, the august Court did not decide the matter before them on the basis of the mere entries of the Revenue record but remanded the case back to the trial Court for affording opportunity to the respondent before them to adduce independent evidence to support and corroborate the entries relied upon by him in the lagan column, so as to rebut the presumption raised in support of the appellant's plea in that case by entries in the cultivation column that he was a tenant. I have minutely and carefully gone through the cited judgments of the august Supreme Court and am of the considered opinion that in the opinion of their Lordships the Judges of the Supreme Court the mere entry as `bila lagan' would not constitute adverse possession unless independent evidence in corrboration of the claim of adverse possession and the entries of lagan column showing the person in possession as not paying any rent on account of hostile title be adduced. This the reasoning advanced by the learned counsel for the Plaintiff petitioner that the plea of adverse possession raised by the defendant-respondent No.l is hit by the dictum in the cited judgments cannot be accepted inasmuch as, in the instant case the entry of 'bila lagan bawaja-e-bch' in the Revenue record, right from 1953 in the lagan column is supported by the sale-deed copy Exh.D.W.l/1 duly proved from the statement of Abdur Rehman D.W.2. 1n this respect the judgments of the Supreme Court in case Mir Laik Ali v. Standard Vacuum Oil Company and others PLD 1964 SC 220 and that of the Peshawar 1 High Court in case of Abdul Jalil and others v.
Ajoon and others PLD 1989 Peshawar 127 are pertinent which support the proposition that possession obtained under invalid deed is adverse for all intents and purposes and if the transferee is able to show that he has remained in such possession for more than 12 years, he matures title through adverse possession resulting in the extinguishment of the title of the original owner. The aforesaid authorities are on all fours with the facts of the present case. Ali Mardan Shah and others entered into possession in 1953 on the strength of the deed EXh.D.W.l/1 in denial of title of Said Jalal Shah, the original owner and his possession as such, was recorded in the record of rights of 1953-54 Exh.P.W.l/D1 and Said Jalal Shah, if feeling aggrieved from this conduct of the defendant-respondent No.l, was bound to dispossess him within 12 years and the instant suit obviously beyond 12 years, is not within time. Additionally, the possession of defendant respondent No-1 over the suit land was visible, open and hostile, in denial of the title of the rightful owner to his knowledge and comprised all the ingredient of adverse possession required under the law and he having remained in such possession for more than 12 years had matured title through adverse possession. Consequently the suit of the plaintiff-petitioner is not within time and the defendant- respondent No.l has also acquiied prescriptive title.
7. Nevertheless learned counsel for the petitioner also pointed out that at the time of the execution of the alleged sale-deed copy Exh.D.W.l/1 Said Jalal Shah had ceased to be owner of the suit property on account of the decision of the Provincial Government referred to above in the earlier part-of this judgment. Consequently the sale-deed was without any authority and ineffective under the law. I am afraid this contention of the learned counsel for the plaintiff-petitioner has no force because under section 43 of the Transfer of Property Act, the principles whereof are applicable in this part of the country, as well as under section 115 of the Evidence Act (since repealed) substituted by section 114 of Oanun-e-Shahadat, Said Jalal Shah on re-instatement to the original ownership is legally estopped to deny the transfer made by him through the sale-deed.
This objection is,, therefore, legally not entertainable.
8. I don't feel inclined to agree with the contentions of the learned counsel for defendant- respondent No.l that the suit was incompetent in present form for the reasons; firstly, that this point was not specifically raised in the written statement with the result that the lower two forums did not attend to it while delivering the impugned judgment; secondly, the frame of the suit reveal that the plaintiff-petitioner wanted a declaration of title in himself and the possession of defendant- respondent No.l as tenant under him and consequently it was discretionary with him to claim possession in the instant suit or to defer it for adjudication by the competent revenue Court after securing the relief prayed for. There appears to be no flaw in the present suit.
9. The upshot of the above discussion is that there is no merit in the instant revision petition and the same is hereby dismissed. However, in view of the complicated legal and factual points involved, the parties shall bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.