' The appeal is addressed against the order of learned Additional District Judge, Bhimber, passed on July 30, 1989, whereby the order passed by the learned Sub-Judge, Bhimber on April 28, 1985, was set aside.
2. Bashir Ahmad and Rashid Ahmad, plaintiff-respondents alleged their exclusive title in the suit land measuring 19 kanals 5 marlas out of 1365 kanals 18 marlas, comprising survey number 2020- min, situate in village Kasguma, Tehsil Bhimber, by virtue of their adverse possession. Their claim was repudiated by the defendant-appellant. Muhammad Oasim, defendant-appellant acquired title in the suit land through a sale-deed executed in his favour on December 24, 1978. The learned Sub-Judge dismissed the suit for want of proof, on April 18, 1981. On appeal, the learned Additional District Judge reversed the finding of the Sub-Judge and decreed the suit. This order is the subject of present appeal.
3. Mr. Jahandad Khan, the learned counsel for the respondents raised a preliminary objection and urged that the appeal was not properly presented as Khadim Hussain was not authorised to appoint a counsel, to sign the memorandum of appeal and present it before the Court. Reference was made to Muhammad Afsar Khan's case PLD 1978 SC (AJ&K) 143 and Gut Taj Begum's case PLD 1980 SC(AJ&K)
60. Agha Ashiq Hussain, the learned Counsel for the appellant controverted the aforesaid objection and argued that the memorandum of appeal was duly signed by him as counsel and it was properly presented before the Court. He relied on 132 IC 895, 43 IC 748 and AIR 1934 Lah.973(1).
4. It is an accepted rule of construction of documents that the language used in the document by the executant is to be given its ordinary grammatic meaning. In case of power of attorney, the consensus is that the authority conferred by the principal on his agent, is to be construed strictly and nothing is to be imported to give a different meaning to the phraseology used therein. This view finds favour from Muhamamd Afsar Khan's case PLD 1978 SC (AJ&K)
143. The relvant observation is: "A power of attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers."
' The observations made above were followed by the same learned Judge in Gal Taj Begum's case PLD 1980 SC (AJ&K)
60. In present case, in order to appreciate the true meaning and scope of the authority conferred on the agent, it is deemed expedient to reproduce the document: "This General Power of Attorney is made the 29th day of September, One Thousand Nine Hundred and Eighty by me Muhamamd Qasim of 186 Ampthill Road in the Town and County of Bedford-- ' I appoint Khadim Hussain son of Fazal Ahmad of Village Khalabut Kasguma District Mirpur Tehsil Bember Azad Kashmir to be my attorney in connection with the prosecution and defence of my legal case against Rashid Ahmad currently being carried on in the Courts of Azad Kashmir and in all respects in accordance with the Laws of Azad Kashmir."
It is evident from the language of the document that Muhammad Qasim appointed Khadim Hussain as his attorney-general to prosecute and defend legal case instituted against him by Rashid Ahmad in the Courts of Azad Kashmir. At the time of execution of the power of attorney, the appeal before .The Additional District Judge was pending against Muhammad Qasim, In that background of the situation, it has to be construed that the attorney was authorised to defend the principal in that appeal. Reference to the term "the prosecution" obviously indicates that the attorney was empowered to present appeal before the proper Court and to act in prosecution of the appeal as was permissible in accordance with the laws of Azad Kashmir. The document was though very brief, yet it contained a comprehensive scope, to defend and prosecute the matter in the Courts of the State. It, therefore, cannot be construed to restrict or limit the scope of authority to the matter confining to the principal Court of law where it was sub judice at the time of execution of the power of attorney. Reference to the terms "the Courts of Azad Kashmir" and "in all respects in accordance with the laws of Azad Kashmir" convey the true objective of the appointing authority so as to enable his attorney to prosecute the matter on his behalf in all Courts of law, including this Court. Reference to the term "the laws of Azad Kashmir", as mentioned earlier, would further indicate that the attorney was authorised to engage counsel to sign the memoradum of appeal and to present it on behalf of the attorney, in the Court of law.
' The principle of law enunciated in Muhammad Afsar Khan's case by the Supreme Court of Azad Jammu and Kashmir, when applied to the present case, obviously leads to the conclusion that Khadim Hussain was duly authorised to engage a counsel, to sign the memorandum of appeal and to present it in the Court on his behalf. In Mst. Balqis Begum's case, AIR 1934 Lah. 973(1), the power of attorney authorised the agent to prosecute the claim of the principal. An objection against presentation of the appeal raised by the counsel for the opposite side was overruled as, in view of the learned Judges, the reference to the authority of the agent "to prosecute the claim" was an ample authority for holding that the appeal being a proceeding in the suit, was properly presented and prosecuted by the attorney. The relevant observation is reproduced: "The important words in the document with which we are concerned are those which authorised the agent to prosecute the claim (pervi dawa). There is ample authority for holding that an appeal is a proceeding in a suit and that the prosecution of a suit includes the prosecution of all the proceedings till a final decree is passed. It is true that the power of attorney enumerates certain powers conferred on the agent, but this enumeration is not exhaustive. In the document it is stated that whatever is done by the agent shall be acceptable to the executant thereof. It can hardly be contended that the agent was authorised to withdraw the suit or to compromise it, but was not authorised to file an appeal against the decision of the .Trial Court. After a careful consideration of the terms of the power of attorney together with the surrounding circumstances, we are of opinion that it conferred an authority on the agent to file an appeal. This authority is clearly implied in the words "prosecute the claim'."
' In Bishen Singh's case, 132 IC 895, while construing the language of power of attorney, the learned Judge, who spoke for the Court, observed: "After considering the arguments advanced and referring to the deed itself, I am of opinion that the power of attorney in question did authorise Karam Dad to lodge an appeal in connection with this litigation. The ruling in Dyal v. Hirde Ram (29 IC 895) is authority for the view that the mere omission in a power of attorney to mention expressly the power to institute an appeal does not necessarily preclude the attorney from instituting an appeal. As in that case so here there is no doubt that the plaintiff authorised his agent to prosecute all litigation connected with the suit and thus conferred upon him power to prosecute an appeal."
' In the Bharat National Bank's case, 43 I C 748, it was observed as: "We have now to examine the case on the two points dealt with by the lower Appellate Court to which the arguments in this Court have been confined. The circumstances relating to the prosecution of this appeal are the following. The suit was brought by one Kesar Singh under a power-of-attorney from the Bank. When the appeal was filed, it was filed by the authority of Barkat Ram. Sardar Narain Singh, Pleader, who actually filed the appeal and filed his power of attorney with it, got his power of attorney from Barkat Ram. The latter, as has been already observed, is a manager of the Bank and holds a general power of attorney, paragraph 9 of which confers upon him authority to do the acts enumberated below, i.e., "to take and use all lawful proceedings and means for recovering and receiving debts and advances and also to commence and prosecute and to defend at law all actions, suits, claims, demands and disputes." It is contended by the defendants-respondents that as the above enumerated acts do not refer to any power to lodge an appeal, it must be taken that he had no authority to file the appeal in the present case or to instruct Sardar Narain Singh... ...
' With this proposition in the abstract we have no quarrel, but we think in the present case the powers conferred upon Barkat Ram were wide and comprehensive enough to include the power to prefer an appeal and that, therefore, no fault can be found with the appe.Al in this case on the ground of want of proper presentation."
The signing of memorandum-of appeal and its presentation are proper. c The objection is not sustained.
5. On merits, Agha Ashiq Hussain, the learned counsel for the appellant invited attention of the Court to the evidence and argued that the plaintiff-respondents were unable to prove their claim as to adverse possession as there was no evidence on record in its support. Mr. Jahandad Khan, the learned Counsel for the opposite side, argued that in addition to oral evidence, the report of the Commissioner was sufficient to allow decree in favour of the plaintiff-respondents. The learned counsel supported the impugned order.
6. The plaintiffs, in support of their claim, produced Nek Alam, Muhammad Khan, Bashir Ahmad and Muhammad Afzal, and Rashid Ahmad, one of the plaintiffs, also appeared as a witness. In rebuttal, Raja Muhammad Azam Khan, one of the vendors, and Khadim Hussain, attorney of Muhammad Qasim, appeared as witnesses. Ch. Muhammad Najeeb, Advocate who was appointed Commission, appeared as a witness in support of his report.
7. The area of survey number 2020, as shown in Jamabandi Ex.PA, was r 1365 kanals 18 m arias. It was a `Ghair Mumkin Pabbi' in possession of the `" owners, inlcuding the vendors. The plaint does show the total area of survey number 2020-min as well as the suit land, but it does not contain the exact description in measurement or directions to exactly identify the location of the suit land. Likewise is the position of the sale-deed. Survey number 2020-min was not shown to have been partitioned among various co-sharers as according to the entires of the record of rights, it was in joint ownership and possession of the owners, including the vendors. One of the requirements of the rules of procedure in a civil action was that the property, the subject of dispute, must be identified in the pleadings by giving its accurate description and measurements so that decree was conveniently executed. In present case, though no such objection was raised in the written statement, yet the fact remains that exact description of the property was omitted.
8. The record of rights was produced in evidence. According to the entries of the record of rights, the owners, including the vendors, were shown in joint possession of the land under survey number 2020-min. The plaintiffs were not shown in possession at all. The plaintiffs, who were under duty to discharge the onus of proof, failed to rebut the record of rights to support their alleged claim of continuous possession for 12 years constituting their title by adverse possession.
9. The oral evidence was of no value to enable the Court to give a conclusive finding. Nek Alam, PW, in answer to a question in cross-examination, disclosed that he was not aware of survey number of the suit land or its measurement and that he could only state its area by perception. Muhammad Khan, another witness, explained that the suit land was adjacent to his land and that the plaintiffs were in its possession in their own right. Similar was the statement of Bashir Ahmad. Rashid Ahmad, plaintiff-respondent deposed that the suit land was in their possession for the last 15-16 years. It was alleged that he had stored boulders in the suit land, of the value of Rs. 10,000 and the land was used as grazing field for his cattle. In corss-examination, the witness stated that he went to England in 1960 and came back in 1980. He verified the entries of Jamabandi Ex.PA as correct and admitted that his name did not appear as owner of the land in the Jamabandi. The explanation given by him for the omission was that the Patwari and Girdawar lived in the house of the defendants, as such the defendants alone were shown owner of the land.
10. The oral evidence of all the witnesses, if at all accepted as correct, it supported simple possession but not adverse possession of the plaintiffs. The claim of the plaintiffs, on the other hand, was that they were in adverse possession of the land as they never accepted title of the actual owners. The rule of law applicable to adverse possession is that the possession of the claimant must be open, continuous over a period of 12 years, to the knowledge of the true owners.
In present case, the requisite conditions constituting adverse possession are not found satisfied by oral evidence. The learned Sub-Judge, therefore, rightly rejected the oral evidence led by the plaintiffs in support of their claim.
11. The report of the Commission, Exh. PZ, and the site plan, Exh. PZ/1 was unreliable for two reasons: Firstly, the report suggests that it was prepared on the basis of statements of the parties and the witnesses present at the time of spot inspection, as mentioned in para. 2 of the report. The statements, if recorded by the Commission, were not appended with the report for perusal by the Court. On the other hand, if the statements were not reduced into writing, then mere oral expressions of the withesses could not be made basis of the report for want of satisfaction of the Court. Secondly, the report indicates that some boulders were stored in a portion of the suit land.
Mere storing or piling up boulders was not enough to uphold the claim of the plaintiffs as having continuous adverse possession of the suit land. The report does not show the length of period of possession of the plaintiffs. The kind of the suit land was `Ghair Mumkin Pabbi'. Therefore, unless the land was shown under a definite use by its claimants, it was not possible to ascertain the exact period of possession to uphold the claim.
12. The plaintiffs averred in the pleadings that they acquired title in the suit by prescription. Their claim to the property by prescription, impliedly accepted the title of the vendors in. The suit land.
Therefore, in order to succeed in their claim, it was enjoined upon them to prove that they entered into possession of the land against the will of the true owners and that they denied title of the owners openly, to their knowledge. The evidence discussed above provided no assistance to the claim of the plaintiffs. The learned Additional District Judge fell in error to draw different conclusions from the evidence led by the plaintiffs. On merits, therefore, the plaintiff-respondents failed to bring home their claim in the suit land.
' In view of the aforesaid conclusions, the appeal is accepted. The order of the learned Additional District Judge is set aside and the suit of the plaintiff-respondents is dismissed with costs.