1. MUHAMMAD YAQUB A.I, J.-This order will dispose of Civil Appeals Nos. 106 to 116 of 1970.
2. The appellants were defendants in the eleven suits filed by the respondents against them in the Court of Civil Judge, Charsadda, district Peshawar, for ejectment from various parcels of agricultural land situated fn village Bashaki. The claim in the suits proceeded on the averment that the plaintiffs were owners landlords and the respondents were holding under them as tenants-at- will on payment of batai (share in the produce); about two years before the institution of the suits the tenants discontinued payment of batai and repudiated ownership of the plaintiffs consequent upon which the lease-hold rights held by the defendants were in law extinguished; hence the suits for their ejectment. In their written statements the respondents denied the relationship of landlord and tenant and claimed that they were the owners of the land which had devolved on them by inheritance. The suits were also claimed to be barred by time.
3. On the pleadings of the parties the trial Judge framed the following issues which are common to all the suits:
(1) Whether the suit is within time?
(2) Whether plaintiffs have a cause of action?
(3) Whether the plaint has not been verified properly if so with what effect ?
(4) Whether plaintiffs are owners of the suit land and entitled to its possession?
(5) Whether defendants have prescribed title to the suit land by adverse possession?
(6) Relief ?
4. The entries in the revenue records showed that the plaintiffs were the owners of the land and the defendants or their predecessors-in-interest were in possession as tenants-at-will under them since 1938-39. On the basis of these entries the trial Judge held the plaintiffs to be the owners of the land, but as regards the nature of the defendants' possession, he considered these entries to be erroneous. In the suit from which Civil Appeal No. 106 of 1970 has arisen the trial Judge gave the following reasons in support of this finding:- "In the jamabandi of 1952-53, Jangir Khan is shown in possession of the land on payment of 1/4th share as batai. These entries continue in the jamabandi of 1956-57. Jangir the defendant in the case as such had been shown as tenant-at-will under the plaintiffs. He has denied the position and has led oral evidence to prove that he has not remained tenant under the plaintiffs. It was stated that all the witnesses produced by the defendant were either his relations or were interested because similar suits were pending against them. I am conscious that normally it is not very safe to rely upon interested evidence for the proof of certain fact but it will be extremely dangerous to lay down as a general rule that simply because a person happens to be interested in the subject- matter of the dispute he should be taken as not speaking the truth and his statement should be summarily rejected. If a person interested though he may be, is found to be speaking the truth there is no reason why his statement should not be accepted and the judgment not exclusively based upon it. Jangir and others whom he has brought to the witness-box no doubt are interested but in the circumstances to be discussed presently, I will attach weight and importance to their deposition, it deserve the entries as regard payment of batal either by the predecessors of Jangir or he himself are evidently without foundation. To prove my point of view, I will refer to the statements of Bahadur Sher Khan one of the plaintiffs and Ahmad Jan who happens to be the agent of the plaintiff for the last 40 years. The statement of Bahadur Sher Khan would be of no significance as he has not even contended that he himself has received the rent from the defendant. We are thus left with the state--ment of the all important witness i.e. Ahmad Jan.
5. Though he has stated that he received rent from the defendant but if we go through his entire statement the falsity of this part of his deposition becomes apparent. Jangir is the brother of Dalil, who according to the witness has purchased land some 20 years back. He and his other brothers have remained in occupation of the land they purchased enjoying its usufruct. In the circumstances, his statement that Dalil or his brothers delivered to the plaintiffs becomes ridiculous. No owner who has paid consideration for a land would agree to pay its produce to any other person. The witness has further not impressed me as he was not able t9 Show how much produce he received from the tenant any single year. He has also not produced any receipt as regards payment of malia. All these facts and the one to which I will make reference presently will show that the entries as regards payment of balai in the revenue record were wrong. I have stated above that Dalil was shown in possession of the land as Bila Lagan Bawaja Rahin and Bai in the jamabandis of 1936-39, 1942-43 and 1948-49, I see no reason how Jangir-brother of Dalil would occupy the land on payment of batal, when his brother was either shown as mortgagee or purchaser. The entries seem to me wrong."
6. Consequent upon the finding that the defendants were not holding as tenants under the plaintiffs, the trial Judge held all the eleven suits to be barred by time. It was reasoned that the onus to prove dispossession within 12 years lay on the plaintiffs and admittedly they had not been in possession within 12 years. The suits filed beyond 12 years were, therefore, barred under Art. 142 of the Limitation Act. On these findings the suits were dismissed with costs.
7. Aggrieved by the dismissal of the suits the plaintiffs preferred appeals before the Additional District Judge, Peshawar, who reversed the findings of the trial Judge and on the basis of the entries in the revenue records held that the defendants were tenants-at-will under the plaintiffs. In that case the suits were under Article 142 of the Limitation Act well within time. The judgments and decrees passed by the trial Judge were, accordingly, set aside and the suits decreed with costs throughout.
8. Thereupon the defendants filed second appeals in the High Court which were dismissed by a learned Single Judge on 19-1-1966 affirming the finding of the Additional District Judge. Further Letters Patent Appeals preferred by the defendants were dismissed by a Division Bench in limine on 4-5-1966.
9. Leave to appeal was granted on 4-10-1966 to examine whether the principle of Article 142 of the Limitation Act has been rightly applied by the High Court. It was urged that the plaintiff's having admitted dispossession ft was for them to establish that they have been in possession within twelve years of the suit.
10. We have examined the revenue records which show that the trial Judge had grossly misconstrued them. From 1938-39 up to 1956-57 the plaintiff's are consistently shown as owners landlords and the defendants or their predecessors. In-interest as tenants under them. It appears that in some cases the defendants mortgaged either the leasehold rights or the standing crops to third persons who did not pay any batai to the defendants. This misled the trial Judge in arriving at the conclusion that in some cases the defendants did not pay any batai to the plaintiff's. We pointed out the entries in the revenue records to the learned counsel for the defendants- appellants herein and he was unable to construe them in the manner in which the trial Judge had given effect to them. On the basis of the entries in the revenue records which carry presumption of correctness we find that the Additional District Judge and the High Court have correctly held the plaintiffs to be the owners landlords and the defendants as tenants under them.
11. On the findings that the defendants were in possession as tenants under the plaintiffs Art. 142 of the Limitation Act had no application. This aspect has been omitted from consideration both by the learned Judges in the High Court and the Additional District Judge. The plaintiff's claim in the suits was based on the averment that they were the owners landlords nod the defendants were holding as tenants under them. That is why the prayer in all the suits was for ejectment and not possession.
12. Once it was found that possession of the defendants was permissive, Art. 142 or Art. 144 of the Limitation Act ceased to have any application. As the suits were for eject--ment of the tenants on the extinguishments of their leasehold rights, Art. 139 of the Limitation Act applied which provides as follows: "Description of suit.Period ofTime from which Limitationperiod begins to run.
139. By a landlord toTwelveWhen the tenancy recover possessionyears.Is determined." from a tenant.
13. Sheikh Muhammad Shafi, learned counsel for the appellants, stated from the bar that the facts of all the appeals are similar. He therefore did not consider it profitable to refer to the revenue records relating to each of the suits. He did not press Civil Appeal No. 110 of 1970.