1. Z. A. CHANNA, J.-----This appeal by the four appellants is directed against the judgment and the decree of the learned Additional District Judge, Tharparkar at Sanghar, whereby he dismissed the suit of the appellants with costs. The fa6ts which form the background of this appeal are these: Appellant Mst. Jado is the widow of one Ghulam Mohammad, who died about eight years prior to the institution of the suit from which the present appeal arises, while the other three appellants are his daughters. The late Ghulam Mohammad possessed considerable agricultural lands in Deb Chamaro and Sanghar of Taluka Sanghar. The case of the appellants, as set. Up in the plaint is, that in about 1942, when there was `Hur' movement in the: Province of Sind, they alongwith the late Ghulam Mohammad and other relatives were confined in 'Lorhas' till 1953, and on their release, they went to their lands and cultivated the same, but thereafter they came to know that the Government had forfeited their lands and the Record-of-Rights had been mutated accordingly. It is further averted in the plaint that the plaintiffs and late Ghulam Mohammad moved the authorities to set aside the muta--tions in favour of the Government, but instead were asked to leave the lands in question, whereupon the plaintiffs, in order to continue their possession, took some of the lands, measuring 120-6 acres, on lease from the Government and also continued to pursue their remedies in the various Revenue Courts. The claim of the plaintiffs to the lands in question being finally rejected on 30-6-64 by the Board of Revenue, West Pakistan, the plaintiffs, on 16-2-1965, instituted a suit in the Court of the Additional District Judge at Sanghar against the respondent praying for a declaration that they are the owners of the land in question and that either there has been no forfeiture of the lands or the forfeiture is without jurisdiction and also sought an injunction to restrain the defendants from recovering the lease money from them.
2. The respondents in their written statement, while admitting that the land in question originally belonged to Ghulam Mohammad and that the said Ghulam Mohammad and the appellants had been confined in `Lorhas' up to 1953, took the plea that the land in question was confiscated "during the last Martial Law period under the Criminal Procedure Code for maintaining law and order in "Hur menace". It was further asserted in the written state--ment that some of the confiscated land was granted to some other persons in the normal course, as Ghulam Mohammad was a habitual criminal, but sub--sequently the Government again decided that the appellants be granted land up to the extent of 100 acres, and accordingly they were re-granted 96 acres of land and the remaining land was leased out to Mst. Jado (the present appellant No. 1) and others on `Yaksala Tenure' basis. Pleas were also raised that the suit was time-barred and not maintainable, was not properly stamped and valued and was not in proper form.
3. On the pleadings of the parties the following issues were framed:- "(1) Whether the plaintiffs, after release from the Hur Settlements, cultivated the suit land?
(2) Whether the land was forfeited because late Ghulam Mohammad was absconding? What is the effect when Ghulam Mohammad was discharged?
(3) Whether there is any legal forfeiture?
(4) Whether the suit is time-barred?
(5) Whether this Court has jurisdiction to try the suit?
(6) Whether the defendant has right to recover the lease money?
(7) Whether the suit is maintainable?
(8) What should the decree be?"
4. The trial Court held that the land in question having been forfeited under the provisions of the Criminal Procedure Code, the suit was not maintainable. It further held that as the land had been rightly forfeited, the plaintiffs were required to pay the lease money. In consequence of these findings it dis--missed the suit with costs.
5. It was contended by Mr. Ashraf Kazi, the learned counsel for appellants, that there was no tangible evidence to show that the land in question had actually been forfeited. The main piece of evidence on which the respondents have relied to establish the fact of forfeiture are two true copies of entries from the register of Record-of-Rights and Changes in Deh Chamaro and Sanghar respectively (Exhs. 24 and 26) relating to the land in question. The said entries show that the land has been transferred from Ghulam Muhammad to Government. Under the heading `nature of rights' in both the entries, it is recorded: "confiscated vide District Magistrate's letter No. 5381, dated 30-1-1942. See Order No. 299, dated 23-2-1942 of the Mukhtiar kar for changes." However, neither the said letter of the District Magistrate nor the order of the Mukhtiar kar referred to in the said entry, or any copies thereof, were produced, as according to D. W. Lakhrej, clerk in the office of the Barrage Mukhtiar kar, Sanghar, these records are not traceable. In addition to the aforesaid entries from the Record-of-Rights, reliance on behalf of the respondents was placed upon an order under section 253, Cr. P. C. Passed by the Joint-Sub-Judge and Special F. C. M., Hyderabad, on 26-4-51, whereby the late Ghulam Mohammad, who was challaned for offences under sections 364, 120-B, 458/149 and 147, P. P. C., was discharged. In the said discharge order it is stated that the offence is alleged to have taken place on 9-5-1941 but the accused (Ghulam Mohammad) was absconding for a number of years as he was a declared Hur and there was a prize for his arrest, and he was ultimately arrested in 1948. On the basis of these three documents, Mr. Naimuddin, the learned counsel for the Government, contended that the lands in the suit were confiscated under the provisions of sections 87 and 88, Cr. P. C. Due to the absconsion of Ghulam Mohammad. His precise argument was that the said two documents being records of official acts, a presumption of genuineness and authenticity attaches to them, and taken together they are indicative of the fact that the lands were forfeited under the Criminal Procedure Code, because Ghulam Mohammad, to whom they belonged, was absconding to avoid his arrest and trial on serious charges. He further contended that under section 135-J of the Sind Land Revenue Code, 1879, a presumption of correctness attaches to entries in Record-of --Rights and registers of mutations. In support of this contention he relied upon the decision in Gangabai and others v. Fakirguwda (AIR 1930 P C 93) and in Mohammad Sadiq v. Ghulam Hyder (PLD 1961 Kar. 511).
6. "135-J. An entry in the record-of-rights, and the certified entry in the register of mutations, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore."
7. "Their Lordships do not hold that the entries made under the Bombay Act IV of 1903 are in any way conclusive, but they are evidence of the facts recorded therein. The pronouncement of Lord Shaw that the importance of revenue records varies with the circumstances applies directly to the present case. Their Lordships have already pointed out the manner in which the entries under the Bombay Act IV of 1903 were made and the strict scrutiny to which they must have been subjected.
8. The entries in this case spread over series of years. The Act, as has been pointed on, contains careful provisions for the entries being checked from time to time, and in the circum. Stances of this case the entries are in their Lordships' opinion cogent, though not conclusive, evidence of the facts recorded therein."
9. "In law, the entries in the Record-of-Rights, though not conclusive, are evidence of facts stated therein. Moreover, section 135 of the Bombay Land Revenue Code provides that such an entry shall be presumed to be true until the contrary is proved. There is no cogent evidence in this case to hold that these entries are not recorded according to facts arid are bogus."
10. The same learned Judge, however, in the subsequent case of Paslm Kambar v. Chanderbhan Wadumal (PLD 1962 Kar. 253) while reiterating his earlier view that under section 135-J of the Bombay Land Revenue Code an entry in the Record-of-Rights, and a certified entry in the Register of Mutations, is to be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore, held that such presumption did not apply to entries made in ex parte proceedings and stated: "No doubt in this case a new entry was substituted but it is quite plain to us that this was done in an ex parte proceedings in the absence of the respondents and no importance can be attached to such an entry."
11. We are in respectful agreement with the view expressed in the above decision, which is based on the Privy Council's decisions in Fakirgowda's case which has already been noticed and in the case of Magesharbakshingh v. Canesha (41 I A 51). In the instant case, as in Kasim Kambar's case, the entries in the Record-of-Rights, on which Mr. Naimuddin has relied upon were admittedly made ex parte and in the absence of Ghulam Muhammad and the appellant.
12. The circumstances in which the said entries have been made also do not inspire confidence. We have already referred to the fact that the orders of the District Magistrate and the Mukhtiar kar, on the basis of which the said entries purport to have been made, are not forthcoming. Further--more, there is no evidence whatsoever to indicate that any proceedings under sections 87 and 88, Cr. P.
13. C. Were taken against Ghulam Muhammad, any proclamation was issued against him or his property was attached or was forfeited under the said sections. Neither the aforesaid entries nor the order of the Sub-Judge and F. C. M., Hyderabad, discharging Ghulam Muhammad, make mention of any such proceedings having been taken against him. All that the discharge order mentions is that Ghulam Muhammad was absconding from 1941 uptill 1948 when he was arrested.
14. This statement in the discharge order is at variance with the assertions made by the appellants in their plaint wherein it is stated that they as well as Ghulam Muhammad and their other relatives were confined in `Lorhas' in about 1942 and were detained there till 1953. The respondent in its written statement has admitted the fact that they "were in Lorhas up till 1953". It is also stated in para. 8 of the written statement that the forfeiture of land in question was due to maintaining law and order in the Mukhi area and was notified in the Gazette. However, no copy of the relevant notification or of the Gazette was produced. There is thus no tangible evidence to indicate that due proceedings for the forfeiture of Ian of Ghulam Muhammad were taken and his land was forfeited due to his absconsion. As such, it is not possible to place any reliance either on the entries in the Record-of-Rights or on the discharge order for the purposes) of holding that the land in question was actually forfeited under the provisions of the Criminal Procedure Code.
15. It was next contended by Mr. Naimuddin that the appellants having taken the land in question on lease were estopped by reasons of the provisions contained in section 116 of the Evidence Act from denying the title of the Government. In support of this contention he relied upon the decision of their Lordships of the Privy Council in Chandrika v. B. B. & C. I. Railway Company (AIR 1935 P C 59).
16. In that case it was held, in view of the provisions of section 116 of the Evidence Act, that a tenant cannot dispute his lessor's title so long as he remains in possession under an agreement which he has made with him. Mr. Naimuddin was unable to show us on what date the appellants took the land in question on lease and for what period the lease was taken. He, however, attempted to show on the basis of receipts, Exhs. 31-A to 31-K, issued by the Tapedar, that the appellants were in occupation of the land in question as lessee when they sought to deny the title of the respondent.
17. These receipts are for money paid by Ghulam Muhammad and later by Ghulam Muhammad's son, Sawan, and appellant No. 1, Mst. Jado. The first receipt, Exh. 31-A, which is for a sun of Rs. 28-6-0, is dated 2-7-1955, while the last receipt, Exh. 31-K, is dated I-4-1964, and is for an amount of Rs. 250 in respect of Kharif 1963-64. These receipts do not themselves indicate that they are for lease money paid by the appellants nor do they indicate that the appellants had taken the land in question on lease. As a matter of fact they are simple receipts which neither give the Survery Numbers or particulars of the land in question nor the purpose for which they had been issued. D. W. Lekhraj, Clerk in the office of the Barrage Mukhtiar kar, Sanghar, has deposed that Ghulam Muhammad enjoyed lease of the land in question till his death in 1957 and after his death the land continued to be on lease with his heirs up to 1960. He has further stated that the lease money was recovered by' the Barrage Department till 1960. His evidence thus seems to suggest that the appellants were in possession of the land in question as lessees only till 1960. However, even if, it be assumed that the receipt, Exh. 31-K, was in respect of the lease money paid by the appellants, the lease was only the Kharif 1963-64 and had expired by 1-4-1964, while the suit was filed by the appellants on 15-2-1965.
18. Since the appellants were apparently notpossession of the land in question as lessees at least after 1-4-1964, the provisions of section 116 of the Evidence Act are not attracted and they cannot be estopped from claiming the land or denying the title of the, respondents.
19. It was finally contended by Mr. Naimuddin that the suit by .The appellants was time-barred as Government was in possession of the land in question for 12 years and the title of Ghulam Muhammad and his successors was extinguished by reason of the provisions contained in section 28 of the Limitation Act read with Article 142 and 144 of that Act. The scope of these two Articles and the distinction between them have been considered at some length in L. P. A. No. 245 of 1965, which was decided by us on 24-10-1973. It is needless to repeat the arguments considered in that case. It would be sufficient for the purposes of the present appeal to, state that we were of the view that the practical and convenient distinction between the two Articles is that whereas Article 142 is applicable to suits where the cause of action is dispossession from, or discontinuance of possession of, immovable property, Article 144 would apply where the cause of action is based on the plaintiff's title to immovable property. It was clarified in that case that under Article 142 the plaintiff must prove dis--possession from or discontinue possession of, immovable property within 12 years preceding the date of suit, while under Article 144 the plaintiff must bring his suit within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.
20. According to Mr. Naimud. Din, the appellants and Ghulam Muhammad were out of possession from 1941 up to 1953 and during all this period the Government should be deemed to have been in possession of the land on the basis of the entries in the Record of Rights, Exh.
26. The entries do not bear the date on which they were made nor is there any other evidence to show on what date they were made. However, since reference is made therein to the letter of the District Magistrate of 31-1- 1942 and the order of the Mukhtiar kar of 23-2-42, it may be presumed that these enries were made after the latter date. Even if it be considered that the date of the District Magistrate's letter i.e. 31-1- 1942, should be considered as the date on which Ghulam Muhammad and the appellants were dispossessed or at any rate lost possession, it would appear that they were not out of possession for a continuous period of 12 years, which is the period described both in Article 142 and Article 144 of the Limitation Act. We have already referred to the fact that in para. 4 of their written statement, the appellants have stated that in the year 1953, when they and Ghulam Muhammad were released from the 'Lorhas', they went over to the lands and cultivated the same. This assertion in the plaint has not been specifically denied in the written statement which merely alleges that the said assertion is not supported by any documentary evidence. This plea not having been specifically denied is presumed to have been admitted. As the appellants resumed possession of their land within 12 years, and furthermore, in the intervening period, they were detained in 'Lorhas' by the respondent, their title to the land cannot be considered to have been extinguished nor can the respondent claim that they were entitled to the land by adverse possession. These are all the contentions which were raised before us on behalf of the parties.
21. We are of the opinion that since the admitted position is that the land in question originally belonged to Ghulam Muhammad and the appellants are his heirs, and it has not been established that this land was either rightfully forfeited by the Government or the Government acquired title thereto by adverse possession, the appeal must succeed. We would accordingly allow this appeal and grant the appellants the reliefs sought in their plaint. In view of the fact that the appellants had lost their case in the trial Court and the further fact that they had taken the land on lease from Government for a number of years and paid lease money, we would make no order as to costs and allow the parties to bear their own costs. .
22. K.B.A.