' Rustam Khan and Raza Khan plaintiffs/petitioners herein, filed suit against Khan Sahib Madad Khan and his son Muhammad Azam Khan, defendants/respondents herein, for declaration that they are owners in possession of the suit land measuring 9 kanals 2 marlas comprised in Khasra No,1160 situated in the estate of Hisara Nehri; that the defendants/respondents have no right or interest in the same and that the entries in the revenue record showing them as owners are based on fraud and collusion, wrong and illegal and ineffective against their rights. A prayer for the issuance of perpetual injunction was also sought against the defendants/respondents to restrain them from interference in their possession and claiming produce from them. It was averred in the plaint that the plaintiff/petitioners are in possession of the suit land as owners and have made improvements therein; that the defendants/respondents in collusion with the Patwari Halqa managed to enter their names as tenants-at-will under the defendants/respondents at the rate of Rs, 330 per jareeb per annum on the basis whereof the defendant/respondent No,1 approached the Assistant Collector, Charsadda for the recovery of rent from them who, finding that there was no basis of the entries of the Revenue record, rejected the application of the defendants/respondents; that the plaintiffs/petitioners are not bound by the wrong entries of the Revenue record and they having remained in possession of the suit land as owners for more than 12 years adversely to the defendants/ respondents have acquired prescriptive title to the suit land. The defendants/ respondents contested the suit and denied the allegations of the plaintiffs/ petitioners in toto.
Necessary issues, keeping in view the pleadings of the parties, were framed, evidence produced by the parties, pro and contra thereon, recorded and the learned trial Judge, vide his judgment and decree dated 24-4-1984 decreed the suit of the plaintiffs/petitioners with costs. Feeling aggrieved with the same, the defendants/respondents preferred appeal before the learned Additional District Judge, Charsadda, who vide his judgment and decree dated 8-2-1986 accepted the same and by setting aside the judgment and decree of the learned trial Judge, dismissed the suit of the plaintiff/petitioners. Hence the instant revision petition calling in question the judgment and decree of the learned appellate Court.
2. I have heard learned counsel for the parties and have perused the record of the case with their assistance.
3. The sole point for determination in this case is whether the plaintiffs/ petitioners have remained in adverse possession of the suit land for over 12 years and have in consequence acquired prescriptive title to the suit land or not. In support of this plea of the plaintiffs/petitioners, they have produced Patwari Halqa (PW1) who exhibited the extracts from Jamabandis from the Settlement Record 1926-27 till the current Jamabandi of 1978-79 (Exh.PW1/1) to Ex.PW1/13) and the copies of khasra girdawari from Kharif 1971 to Rabi, 1981 (ELPW1/14) and copy of Roznamcha Waqiyati Mad No, 349 dated 7-4-1970 (Ex.PW1/15) Rustam Khan plaintiff appeared as his own witness as PW.2 and produced Marjuddin (PW3) in support of his version. Khan Sahib Madad Khan defendant No,1 rest contented with his solitary statement as DW.1. According to the entries of the jamabandi from 1926- 27 till 1940-41 (Ex.PWI/1 to Ex.PW1/5) the suit land is recorded as the ownership of Hukmat Khan father of defendant No,1 and in his possession. Vide mutation No, 594 attested on 24-11-1943 reference given in the jamabandi of 1940-41 the suit land alongwith other khasra numbers was gifted by Hukmat Khan in favour of Khan Sahib Madad Khan defendant No,1 and this entry was incorporated in the subsequent jamabandi 1946-47 (Ex.PW1/6) wherein the defendant No,1 appears as owner in the ownership column. This entry of ownership was repeated in the jamabandi 1950-51 (Ex.PW1/7) but in the cultivation column Akram son of Siddique is shown as tenant-at-will on payment of 1/4th batai. In the jamabandis following viz. 1954-55 (Ex.PW1/8) and 1958-59 (Ex.PW1/9) the defendant No,1 is recorded as owner and is also recorded in possession of the suit land in the cultivation column. For the first time in the jamabandi 1962-63 (Ex.PW1/10) Raza Khan and Rustam Khan plaintiffs/petitioners are shown in possession of 6 kanals as tenantat-will but without payment of any Lagan on account of Hissadari while the name of defendant No,1 still appeared as owner in the ownership column. These entries were repeated in the subsequent jamabandi for the year 1966-67 (Ex.PW1/11). Vide mutation No, 1353 attested on 26-12-1967 defendant No,1 gifted the land comprised in the entire khata including the suit land in favour of his son Muhammad Azam Khan defendant/respondent No,2 and his name was substituted in the subsequent jamabandi for 1970-71 (Ex.PW1/12) while the entries of cultivation column show Raza Khan and Rustam Khan plaintiffs/ petitioners in possession of six kanals as tenant-at-will but on payment of Rs, 330 per jareeb per annum. Thenceforth the plaintiffs/petitioners have been shown as such in the subsequent jamabandis as well as the khasra girdawari referred to above.
4. It is vehemently argued on behalf of the plaintiffs/petitioners that they have continuously remained in possession of the suit land without payment of any rent and that their possession from the very outset was in their own rights and in denial of the rights of the defendants/respondents.
Undoubtedly the burden of proof in such like cases is on the trespassers to establish not only that they have remained in possession in the property for more than 12 years and without payment of rent but also that they remained in possession as such indenial of the rights of the true owners to their knowledge and that the hostile nature of their possession was open, visible and not permissive in its inception. As discussed above Akram their father entered into possession for the first time in 1950-51 as tenant-at-will on payment of 1/4th batai and it can be safely presumed that on his death the plaintiffs/petitioners entered into possession as his heirs and their possession too was permissive. No doubt in the intervening two jamabandis viz. 1954-55 and 1958-59 the suit khasra number is shown as `Maqbooza Malik' but since the kind of the land is shown as banjer the entry had to be made as such by the Revenue staff. Anyhow even in the jamabandi where the petitioners themselves are recorded in possession, the nature of their possession is shown as that of tenant-at-will on account of Hissadari. They never asserted hostile title against the owners and, therefore, the nature of their possession from its inception cannot be termed as adverse. In the last two jamabandis i.e, 1970-71 (Ex.PW1/12) and 1978-79 (Ex.PW1/13) they are recorded as tenants-at- will on payment of cash rent at the rate of Rs, 330 per jareeb per annum. Presumption of truth is attached to the entries of the jamabandis and the burden to rebut the aforesaid entries regarding the nature of their possession is on the plaintiffs, petitioners. They have failed to produce reliable evidence in support of their contention that these entries of the Revenue record are collusive or wrong. Consequently the learned appellate Court (Additional District Judge Charsadda) was perfectly justified to negative their claim of adverse possession and to dismiss their suit.
5. The upshot of the above discussion is that there is no merit in the instant revision petition and the same is dismissed, with no order as costs.