WALI MUHAMMAD KHAN, J.- Muhammad Khan alias Aan, plaintiff/respondent herein filed suit for possession of the suit land measuring 1 kanal 9 marlas out of several khasra numbers described in the heading of the plaint, against Government of N.W.F.P, through Deputy Commissioner and others, defendants/petitioners herein, claiming to be the owner of the suit property and the possession of the defendants/petitioners over the suit land being unlawful on account of encroachment through "Banna Shakni." The defendants/petitioners contested the suit and in their written statement controverted the allegations of the plaintiff/respondent in toto, besides raising certain preliminary objections with regard to the limitation, estoppel, lack of cause of action, non- joinder of necessary parties and also prescriptive title on the basis of adverse possession for more than l2 years. Necessary issues in the case were framed and the parties led evidence, pro and contra thereon. During the course of the proceedings it transpired that the demarcation carried out by Gul Aslam Khan, Girdawar Circle (PW2) was in the absence of the defendants/petitioners and consequently the learned trial Judge considered it proper to appoint a local commissioner, well versed in demarcation for re-demarcating the suit land and the adjoinings one in the presence of the parties. Accordingly Muhammad Din, Girdawar Circle (C.W.1) was appointed as a Local Commissioner vide order dated 28/11/1983 with the consent of the parties and directed to carry out fresh demarcation of the suit land in their presence. He inspected the spot and made demarcation in the presence of the plaintiff/respondent, Khanzada Khan, Girdawar Irrigation and the Patwari Halqa and submitted his detailed report vide Ex.CW1/1 and the site plan Ex.CW1/2, according to which land measuring 1 kanal to marlas, as per details mentioned in the report and the site plan, was found to have been encroached upon by the defendants/petitioners from the suit Khasra numbers. This report was objected to by the defendants/petitioners. The Court accordingly examined Muhammad Din, local Commissioner as C.W.1 and Khanzada Khan Girdawar Irrigation Department as O. W.1 and vide its detailed order dated 17/7/85 on the order sheet, confirmed the report of the local commissioner by over-ruling the objections of the defendants/petitioners.
Further evidence in the case was also recorded and ultimately the learned trial Judge, vide his judgment and decree dated 18/4/1987 decreed the suit of the plaintiff/respondent as per the report of the local Commissioner (Ex.CW1/1 and site plan Ex.CW1/2). Dis-satisfied with the same, the defendants/petitioners preferred appeal before the learned District Judge, Bannu which could not succeed vide judgment and decree dated 7/2/1988 and hence the instant revision petition.
2. I have heard Malik Hamesh Gul Advocate for the defendants/petitioners, Syed Zafar Abbas Zaidi, Advocate for the plaintiff/respondent and have carefully perused the record of the case with their assistance.
3. The suit land admittedly belonged to the plaintiff/respondent either as the exclusive owner or as joint owner with his other co-owners and the defendants/petitioners do not dispute this position.
The sole question for determination, therefore, is whether the defendants/petitioners have encroached upon any portion of the suit khasra numbers or not. To find out the same the plaintiff/respondent got the suit land demarcated through the Girdawar Circle (PW 2) and for the confirmation or otherwise of his report, the learned trial Judge also appointed another Girdawar, who was entrusted with the task of such demarcation in the presence of the parties. According to the local Commissioner's report and his statement on the file, he conducted the demarcation from permanent spot and to the satisfaction of Khanzada Khan, Girdawar Irrigation (nominee of the defendants/petitioners) who himself was a Girdawar well-versed with the demarcation work.
Khanzada Khan, Irrigation Girdawar was produced as O. W.1 in support of the objections filed by the defendants/petitioners but his statement went against them inasmuch as he admitted in un- equivocal words in the cross- examination that the measurement was started by the local Commissioner from the Pacca Bannas and the suit Khasra numbers alongwith all the adjoining khasra numbers were separately measured and demarcated according to the original revenue record. He has also admitted that the demarcation was made to his satisfaction and the report of the local Commissioner bears his signature in token of his being satisfied regarding the proceedings of the local Commissioner. The order of the trial Judge confirming the report of the local commissioner was, therefore, perfectly legal and was rightly acted upon by him while passing the impugned judgment. No doubt the defendants/petitioned are within their rights to question the correctness of the report in the appeal and revision filed against the decree ultimately passed in the suit but since they have failed to bring on record any satisfactory evidence in rebuttal of the report of the commissioner, their prayer was not sustainable and was rightly negatived by the learned lower to forums. The lower to forums have concurrently held that the land decreed by them is a part of the khasra numbers in suit belonging to the plaintiff/respondent and have been encroached upon by the defendants/petitioners and as such this Court will not disturb the said finding, particularly, when no mis-reading or non-reading of evidence could be pointed out by the learned counsel for the defendants/petitioners. There is' no jurisdictional or legal error in the impugned judgments as well.
4. As regards the claim of the defendants/petitioners that they have prescribed title to the suit land through adverse possession for more than l2 years, suffice it to say that their alleged possession was neither open nor hostile but under a mistaken belief that the same was part of their property viz Nullah Kachkot. In this respect the judgment of this Court in case "Ghulam Haqani and another Vs (Mst). Zulekha and others" reported as (PLD 1953 Peshawar: 65) is on all fours and respectfully following that authority I have to hold that the plea of the defendants/petitioners regarding their prescriptive title through adverse possession cannot be entertained. Lastly it was contended by the learned counsel for the defendants/petitioners that the trees growing on the land decreed were plainted and looked after by them and that the plaintiff/respondent had no right to the possession of the same. The defendants/petitioners have failed to substantiate their this assertion through reliable, documentary or oral evidence of unimpeachable character with the result that the lower to forums concurrently gave their decision against them in this respect. In the ordinary course of nature whatever grows in the land is presumed to be belonging to the owners of the land and a trespasser cannot be held entitled to it in the absence of any positive proof. No substantial effort and labour is required in the growth of 'Sheesham' trees particularly, when these are standing close to the Canal. The plaintiff/respondent being the owner of the land is legally entitled to the trees as well and the judgments and decrees of the learned lower to forums do not suffer from any legal or jurisdictional error on this count to.
5. The upshot of the above discussion is that finding no merit in the instant revision petition, the same is hereby dismissed, with no order as to costs.