The appeal is addressed against the order of District Judge, Muzaffarabad, f gassed on Septemebr 20, 1986, whereby the order of Sub- Judge, Muzaffarabad passed on January 11, 1986, was upheld.
2. Mst. Maimoona Begum, ancestor of Muhammad Yunus Shah and others, brought a suit for possession of the suit land measuring 23 kansls 13 marlas comprising survey Nos. 49, 50 and 52, situate in village Bandi Mir Samdani, Tehsil and District Muzaffarabad, on the ground of title. It was averred that the plaintiff was owner of the land and the defendant, her tenant-at-will, few years prior to the institution of the suit, declined to pay rent and to deliver possession of the land, as such she felt constrained to bring action. The suit was instituted on June 4, 1977. On her death in 1984, the present respondents succeeded her. Muhammad Zaman brought a counter-suit for declaration and perpetual injunction on August 11, 1977. The counter-claim was that Abdul Ghafoor Shah, late husband of Mst. Maimoona Begum, was owner of the land and Safdar Ali, father of Muhammad Zaman entered into possession as tenant--at-will. After some time, the proprietor desired to give the land on tenancy to one Abdul Rehman's which was resisted by Safdar Ali. Thus, with effect from 1996,R1 the land remained in exclusive possession of Muhammad Zaman, withour payment of rent or `batai' to the proprietor. He also claimed improvements in the shape of built-up property, fruit plants and trees in his written statement. Muhammad Zaman raised preliminary objections including the objection of jurisdiction of Civil Court. The suits were consolidated and disposed of together. The suit of Muhammad Zaman was dismissed, whereas the counter-suit was decreed. On appeal, the learned District Judge felt persuaded to concur with the trial Court, as such he dismissed the appeal.
3.Mr. Abdul Rashid, the learned Counsel for the appellant, raised the following points:- (i)That the Civil Court had no jurisdiction in the matter; (ii)that the adverse possession of Muhammad Zaman was proved; and (i.e)that on passing of decree for possession, Muhammad Zaman, appellant was entitled to improvements.
The aforesaid points were controverted by Mr. Muhammad Hanif Khan, the learned counsel for the opposite side, who supported the findings of the subordinate Courts.
4. Section 77 of the Punjab Tenancy Act (as adapted in Azad Jammu and Kashmir) describes category of suits triable by Revenue Courts. In II-Group clause (e), among others, it is postulated that suits by landlords to eject the tenants shall be instituted in and be determined by Revenue Court. This suggests that a suit for ejectment against tenant is cognizable by Revenue Court and not by Civil Court. In a plain case of ejectment by landlord, it is undenied that the Revenue Court alone is vested with jurisdiction to determine the point at issue. However, this provision is subject to an exception. This is so as the Revenue Court is competent to determine a suit of ejectment of the tenant when the relationship of the landlord and tenant exists. In a case where it is averred that A the relationship of landlord and tenant has extinguished or is disputed, in that case, the Civil Court alone is competent to decide the matter. The first source to help in deciding the point of jurisdiction is the pleadings of the plaintiff. In addition to that, the Court, if not satisfied from the pleadings of the plaintiff, may examine him to arrive at safe conclusion. The Court is not excluded to examine the written statement of the defendant to decide the question of its jurisdiction. Thus, when it is satisfied that the relationship of landlord and tenant does not exist, the Civil Court is vested with jurisdiction to entertain the suit for possession or ejectment and decide it accordingly. In the present case, it is evident from aras. 3, 6, 7 of the plaint wherein it is averred that the defendant had declined to pay `rent batai' to the proprietor and that he denied to accept the title of ownership of the plaintiff. This denial was made 2 years prior to the institution of the suit. The appellant, in his written statement as well as counter-suit, expressly denied the title of the plaintiff-respondents and alleged his counter-title by prescription. In the circumstances, I find no force in the objection. Apart from that, the objection is unsustainable on the ground that the decision of the trial Court on the point of jurisdiction was not challenged in grounds of appeal or arguments before the District Judge. There is no specific ground of objection to that effect in the memorandum of appeal preferred before this Court. Be that as it may, the fact remains that the objection being purely of academic nature is not, sustainable. '
5. It is admitted in the pleadings of the appellant that Abdul Ghafoor Shah and after his death, Mst.
Maimoona Begum, plaintiff deceased were proprietors of the land, Safdar Ali, his father entered into possession as tenant-at-will. The position changed, according to him, when somewhere in 1966 BK, Mst. Maimoona Begum attempted to eject his father in order to deliver the land to one Abdul Rehman's. According to the appellant, since then he remained in possession of the land in his own right as no rent or `batai', whatsover, was ever paid to the proprietor. It was also averred that at some stage, an effort was made to eject him but it was defeated. The proposition of adverse possession raised in the present case, briefly, is that the entry of father of the appellant was permissive but subsequently, on account of an attempt to eject him, he denied the title by refusing to pay `batai' or rent and enjoying the fruits of the land exclusively over a long period for more than 12 years. The onus to prove the claim of adverse possession was obviously on the appellant.
6. It is an accepted rule relating to adverse possession that mere possession for any long time is not sufficient to hold it as adverse possession against the owner. For mere possession and adverse possession are altogether two different things. Mere use of property over a period for more than 12 years cannot be taken as a definite assertion of proprietary rights. In order to claim it by adverse possession, the denial of title must be open to the knowledge of the owner coupled with exclusive use of the property. The proposition of adverse possession claimed by a tenant against the landlord was considered in Jagdeo Narayan Singh's case (A.I.R. 1922 Privy Council 272), wherein it was held that mere non-- payment of rent or discontinuance of payment of rent has not, by itself, been held, to create adverse possession. The relevant observation is:- "If the thikadar fails to collect the rent from any individual tenant, it would not create adverse possession against the proprietor. Mere non-- payment of rent or discontinuance of payment of rent, has not, by itself, been held to create adverse possession".
The proposition of adverse possession was analysed by Oudh High Court in Babu and others' case (AIR 1931 Oudh 144 (1)). It was claimed that the plaintiffs were in possession of the land for many years. They never paid any rent in respect of the land and that in Revenue Record, their possession was recorded as `bila faisla' tenants. It was held that the facts were not sufficient to establish t he title by adverse possession. The finding is: "In a suit for declaration of title to certain land, the plaintiff claimed to have acquired title to it by adverse possession. There was no reliable evidence to prove that the plaintiffs physically dispossessed the defendants, or that they ever asserted hostile title. All that was made out by evidence was that the plaintiffs had never paid any rent in respect of the land and that in the village papers they had been recorded as bila faisla tenants whereas the tenants were recorded as proprietors."
"For clai ming adverse possession the entry upon land, in order to be an assertion of hostile title, must be an entry as an owner."
Muhammad and others (PLD 1955 Lahore 483) was a case where the tenant claimed his adverse possession by denying the title of his landlord. It was held that where the tenant entered into possession of the land in his capacity as tenant, unless it was proved that his tenancy relinquished under the provisions of the Tenancy Act and thereafter he occupied the land in his own right denying the title of the landlord and that his possession by prescription was proved satisfactorily, the claim of adverse possession could not be accepted, The relevant observation is; "We are, therefore, of the opinion that in absence of proof of material fact that the defendants had actually relinquished the land at any time even for a moment, their mere assertion of title in themselves, howsoever and how-long-so-ever made, cannot make their possession adverse to the plaintiff."
The Shamasur Rehman's case (P.L.D. 1967 Peshawar 30.1) Mr. Justice-''
Faizullah Khan examined the proposition of adverse possession in the following manner: "The essential ingredients of adverse possession are that possession must be peaceful, open and continuous. Possession to be adverse must be possession "by a person who does not acknowledge the other's rights but denies them". It is well-established principle of law that to constitute adverse possession the burden of proof lies on the person setting up adverse possession that he was holding the property adversely to the rightful owner and when the entries are irreconcilable the person setting up adverse possession must fail. It is equally well-established principle of law that non-payment of rent for any length of time alone does not constitute adverse possession."
The principle of adverse possession laid down in Aksar Ali's case (1982 C.L.C. 1309) does not help the appellant as the facts and evidence led in that case were of accepted standard and credibility. As noted next, in the present case, the preponderance of evidence is not favourable to the appellant.
As against that, in Muhammad Asghar's case decided on February 10, 1985, the Supreme Court of Azad Jammu and Kashmir observed as under: "It is well-settled principle of law that to prove possession being adverse, it must be shown that the possession of the person claiming title on the basis of adverse possession was hostile, continuous and notorious. If it is found that a person came into the possession of the land as tenant or it was otherwise permissive, the non-payment of share in produce or rent C to the landlord would not render the nature of the possession as hostile to the owner, because in such case possession being peaceful cannot be termed as hostile or notorious. In some cases the landlord may be satisfied to continue the tenancy even by accepting the actual land revenue as rent or even without demanding the same. Therefore, in such circumstances, it cannot be said that the possession of the tenant has become hostile to the landlord."
The view expressed in the aforesaid case is more close to the proposition under consideration. It, therefore, renders full assistance to reach a definite conclusion. The principle laid down in the aforesaid authorities was adhered to by this Court throughout. The Supreme Court of Azad Jammu and Kashmir equally made its observations in the aforesaid manner. The learned counsel for the appellant was unable to refer to any authority having different view.
7. In support of his claim, the appellant produced documentary and oral evidence. His evidence was rebutted by documentary and oral evidence. The documentary evidence consists of record- of-rights of pre-independence and post--independence period. The earliest document is a Jamabandi for the year 1986-Bk. It is an attested true copy of the original. The entries show that Mst. Maimoona Begum was the proprietor and Safdar Ali a `ghair mustaqil' tenant on payment of `batai'. Next is the Jamabandi for the year 1992-93 Bk., Ext.PG. The entries are identical to entries of 1986-Bk. However, Muhammad Zaman, appellant and Abdul Rehman's are shown in joint possession of the suit land as `ghair mustaqil' tenants on payment of `batai'. The entries of PG are undisputed, rather relied by appellant. It is relevant to state here that the entries of Ext.PG expressly repudiate the claim of plaintiff to hold that in 1996-BK, his father was in possession of the land who resisted his ejectment when the land was being given on `batai' to Abdul Rehman's. The learned Counsel for the appellant primarily relied on Khasra Girdawari for the years 1994-99 Bk. According to the entries of this document, in Kharif 1994-Bk., Muhammad Zaman and Abdul Rehman's were in possession of land as `ghair mustaqil' tenants on payment of `lagan' in equal shares However, in Kharif 1996-Bk., in survey No.49, Muhamamd Azam was sshown in possession without payment of refit. Survey No.49 measuring 1 kanal 10 marlas is recorded as `ghair mumkin raasta'. The entries of survey Nos.50 and 52 measuring 22 kanals 3 marlas, show that Muhammad Zaman was in possession on payment of `batai' excluding grass. It is only the documentary evidence which.
According to the learned counsel, supported the claim of the appellant. The record-of-rights prepared after the independence, of course, was adverse to his claim as the entire record-of- rights upto date, contained the entry of possession of Muhammad Zaman as tenant-at-will on payment of `batai'. The entries of Khasra Girdawari are to be read alongwith the pleadings of the appellant. In para.l of his suit, the plaintiff averred that Abdul Ghafoor Shah gave the land to the father of the appellant on tenancy. Later on, the proprietor tried to give the land on `batai' to one Abdul Rehman's which was resisted by his father who continued in possession of the land with effect from 1996-Bk, without payment of rent or `batai'. This averment is quite in conflict with the entries of Khasra GirdawarrExt.DA. This is so as according to the pleadings, Safdar Ali, father of the appellant, was in possession of the land in 1996-Bk., whereas the Khasra Girdawari shows that the appellant was in possession of the same. Apart them the position that Khasra Girdawari carried no presumption of truth, these entries do not lead to the conclusion, as suggested by the appellant, to hold that he denied the title of the proprietor in the land. The entries of Ext.DA were repudiated by subsequent entries made in the record-of-rights of 1952 upto date. It is on record that the appellant or his witnesses did not say single word in their evidence about incorrectness of subsequent entries. It was, of course, alleged in his pleadings that post-independence entries were fictitious but no evidence was led to rebut the same. Thus, mere assertion of non-payment of rent or `batai', by itself, is not a proof of title by prescription.
S.The oral testimony consists of the statements of Abdul Rehman's. Sher Zaman, Noor Ali Shah, Gul Zaman and Muhammad Zaman, appellant. None of these witnesses uttered a word in support of adverse possession claimed by the appellant. In their evidence, all the witnesses, all along, said that Muhammad Zaman was in continuous long possession of the land and nothing more. Sher Zaman even accepted the status of Muhammad Zaman as tenant-at-will on payment of `batai'. Be that as it may, the fact remains that the oral evidence was not supportive of the claim of adverse possession. The counter -evidence led by B the plaintiff, on the other hand, refutes the claim of the appellant. The learned counsel for the appellant was unable to point out any misreading, non- reading or misconstruing of evidence by the subordinate Courts. The objection is, therefore, repelled.
9.The improvements claimed by the appellant consist of a house, fruit plants and trees. It is basic rule of pleadings that where compensation for damages or improvements is asserted, the detail of each item has to be described in the pleadings. In the present case, of course, the number of fruit plants and F trees is alleged but there is no detail of the fruit trees or nature, age and value of the trees. Similar is the case with the house. The dimensions of the house and its particulars are not given. Likewise is the fate of the evidence. The witnesses who appeared in support of the claim of the appellant, gave varying value of the house, plants and trees. Unless the exact value of the house, fruit plants and trees was brought on record it was not possible for the Court to grant the improvements.
10. The allegation of plaintiff is that the house was built sometime before the institution of the suit.
This allegation was repudiated by showing that the house was built somewhere in early seventies.
The record-of-rights produced by the parties is silent about the presence of the house in the suit land. This is just to point out that in case the house was built much earlier as alleged by the appellant, its presence in the suit land must have been recorded in Khasra Girdawari, at least at the relevant period. The absence of entry rather supports the claim of plaintiff. On analysis of the leading facts of the case, one has to accept that the construction of the house was unauthorised. It was not with the consent of the landlord, even if it was constructed when the relationship of the landlord and tenant existed. As I have not come to the conclusion that the house was constructed during the existence of relationship of the landlord and tenant, I cannot accept the claim of the appellant to that effect. Even if for argument sake the proposition is accepted, in that case too, in absence of assessed value of the house, no improvements can be given. An application was moved before the District Judge as well as this Court for appointment of Commission to assess the value of the alleged improvements. The learned District Judge rejected the application as, in his view, it was not prosecuted by the appellant. The application moved in this Court was at the stage of second appeal. This attempt has been made to make up the deficiency in evidence which the appellant was enjoined to produce at the stage of trial.
11. The Commission is issued under Order 26, Rule 1, C.P.C. It postulates that the Court may, in any suit, issue a Commission for the examination on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, who is exempted under the Code from attending the Court or who is from sickness or infirmity unable to attend it. It is purely a matter of discretion likely to be exercised in genuine cases. But the spirit of law is that the Commission is issued for the examination of any person who is unable to attend the Court for one of the reasons described above. In the present case, the Commission is sought to be issued to appraise the alleged improvement by G determining its age and evident value. This, in my estimation, is not so simple a matter likely to be determined by issuing a Commission. Of course, the subordinate Courts as well as this Court is clothed with the discretion to make Inspection of the property but that by itself, again, cannot resolve the proposition under consideration- The value of the built-up property is to be assessed by an expert- Similarly, the value of fruit plants and trees, by considering their age, is to be determined by an expert. The appellant was given ample opportunity for 1-ding his evidence.
He furnished a list of witnesses sought to be produced in support of his claim. The list was supplied to the Court on April 13, 1978 wherein particulars of 6 witnesses were given. The. Second application was moved on arch 17, 1984. In second application, only one Sher Zaman was desired to be summoned. It was stated in the application that rest of the evidence shall be produced by the appellant on his own. The appellant closed his evidence on March 11, 1985. These facts are elicited to show that the appellant despite availing ample opportunity, failed to substantiate his claim for improvements. The application for appointment of Commission moved in this Court is clearly an attempt to make up deficiency of missing evidence. However, the learned counsel was unable to satisfy as to why additional evidence may be allowed to be led at the stage when the claim of the appellant has already been rejected twice at lower level.