1. ' These two connected Petitions Nos.1182 and 1183 of 1992, under section 115, Civil P.C. raise a common point about acquisition of prescriptive title to the land-in-suit on account of adverse possession. Courts below found that possession by them was not adverse, and, decreed the suit for possession in favour of Saee Muhammad plaintiff-respondent No,1.
2. ' 60 Kanals, 6 Marlas of culturable land at Mauza Bhelowal, in Tehsil Phalia of District Gujrat was recorded in the ownership of respondents Nos.2 to 10 in records of revenue estate of Bhelowal. They sold it to Saee Muhammad through a consent decree of Civil Court at Mandi Baha-ud-Din passed in Civil Suit No,575 of 1973 on 2-10-1973. Mutation No,647 was attested on 10-3-1975 for effecting alteration in revenue records in accordance with the consent decree of the Civil Court. Petitioners were in possession of the land-in suit. They claimed hostile title to it by asserting adverse possession on it for the past about 60 or 70 years in their own right, and, consequent acquisition of ownership rights in it, in the result of corresponding loss of title by its true owners i.e. respondents Nos.2 to 10. On 11-2-1975, they brought a civil suit against the respondents for a declaration and affirmation of their ownership rights in the land-in-suit on account of efflux of time. It was stated that the petitioners and their forbears held the land in suit in hostile possession for period about 60 years or 70 years to the knowledge of the true owners without payment of any rent to or sharing usufructs of the land with them. Respondents put up a stout defence by denial of plea of adverse possession. It was asserted that the petitioners, and, their predecessors-in-interest -held permissive possession of the land as their tenants, and, paid them their due share of produce. It was further asserted that respondents Nos.2 to 10 had transferred their ownership rights in the land in suit to respondent No,1 through a consent decree of the Civil Court, and mutation of names had taken place accordingly.
3. ' On 13-5-1976 respondent No,1 Saee Muhammad, as plaintiff instituted a civil suit against the petitioners in the Civil Court at Mandi Baha-ud-Din to recover physical possession of the land in suit (60 Kanals 6 Marlas) from them. It was averred that the plaintiff was owner of the land; defendants were its occupants as tenants but had denied the title of the plaintiff to the land. On the above statement of fact, decree for vacation of possession by the defendants from the land in suit was prayed for. In defence to the suit of the plaintiff, petitioners as defendants set up prescriptive title to the land in their possession on account of its being held by them adversely for number of years. Plea of limitation was also set up. As rival suits by the parties pertaining to the land in dispute invovled determination of common questions of fact and 6v, therefore, by an order of the trial Court passed on 15-11-1977, they were 'consolidated for a joint trial. Following two issues were settled for determination:--
(1) Whether the plaintiffs have become owners of the land in dispute through adverse possession?.
4. O.P.P.
(2) Whether the defendant No,1 is owner of the land in dispute by purchase from defendants Nos.2 to 10? O.P.D.
5. 1.
(3) Relief.
6. ' In support of the above issues, parties gave oral evidence and relied upon copies of number of revenue documents. Upon scrutiny of the above material, the trial Court dismissed the suit brought by the petitioners for claiming adverse title to the land in dispute and decreed corresponding suit for possession instituted against them by respondent No,l on 7-9-1980. Petitioners took up an appeal against the verdict of the trial Court. On 1-12-1983, appeal was allowed, and, the matter was remanded to the trial Court for the trial on an additional issue relating to the point "Whether the suit filed- by Saee Muhammad is within time"? O.P.D. Additional issue was numbered as 2-A by the first appellate Court. Upon remand, parties gave more evidence on the additional issue. Remand order was, however, not placed on the- file of this Court. It was not available with the learned counsel for the petitioners also. This was the impression conveyed to the Court at the hearing. On cumulative assessm ent of entire material brought on file, the trial Court, in a common judgment delivered on 10-10-1987, again dismissed the suit of the 'petitioners, and, decreed their ejectment from the land in their possession, in the suit filed by respondent No,1 against them. It was held that the petitioners had not established adverse possession on the land in dispute; respondent No,1 was its owner and entitled to receive relief for possession of the land and the suit instituted by him was within limitation. Against the judgment and decree passed in consolidated trial of suits, petitioners preferred two appeals to learned District Judge of Gujrat District. Their appeals were marked to learned Additional District Judge of the District for hearing and decision. By a common judgment, rendered on 7-6-1992, the appeals were dismissed, and, findings contained in the judgment of the trial Court were maintained and affirmed substantially. Judgments and decrees given in appeals are assailed in revisional jurisdiction of this Court.
7. ' Learned counsel was heard at length. With his assistance, evidence has been perused. As observed at the beginning of this judgment, only point, and perhaps there could be no other, posed for consideration by the Court was whether the petitioners successfully established their hostile possession on the land in dispute for the requisite period to clothe them with ownership rights in it.
8. Judgment of the lower Court was against them. Petitioners as well as the respondents gave oral as well as documentary evidence. In parole evidence of three P.Ws. and a statement by one of them, the petitioners sought to assert that the land in dispute was possessed by them for the past several decades without payment of any rent to or sharing its usufructs with its recorded owners. It was asserted that their possession was open, and, continuously hostile to the knowledge of the true owners. As against this, Yara, Saee Muhammad and respondent No,1 entered the witness-box as D.Ws. 1 to 3. Yara deposed that the land in dispute belonged to them and was possessed by the forefathers of the petitioners as their tenants who paid them share of its produce. Saee Muhammad sort of Taja D.W.2 deposed similarly. Saee Muhammad himself as D.W.3 testified that he had purchased the land in dispute, and, in his contemplation, petitioners held the land on tenancy. In addition to oral evidence, copy of decree-sheet dated 2-10-1973, Exh.D.1 and copy of Mutation No,647 Exh.D.2 were tendered in evidence, and, evidence was finally closed. A reference to an earlier portion of the judgment would show that the petitioners had produced extracts from the Jamabandis for the land in dispute pertaining to the years 1922-23 to 1971-72 marked Exhs.P.2 to P.13. Copy of pedigree-table Exh.P.1 was also put in evidence. Perusal of entries in aforesaid revenue record showed that the land in dispute was consistently recorded in the ownership of either respondents Nos.2 to 10 or their predecessors-in-interest. Petitioners admitted the correctness of record of ownership in their favour. In cultivation column of the Jambandis, petitioners and their predecessors-in-interest were shown as non-occupancy tenants. Entry in Lagan column of the Jamabandis recorded "Naqdi Basharah Malikan Bawajah Kabza". Except for a little variation in course of time, aforesaid entry regarding Lagan persisted in Jamabandis produced in evidence.
9. Learned counsel heavily relied upon consistent entries in cultivation and Lagan columns of the Jamabandis for reading an element of hostility and notoriety of occupancy of the land by the petitioners, and, submitted that the Courts below by misconstruing them did not draw proper conclusions from them. In my opinion, the contention is without substance. Burden of proof in case of adverse possession heavily lay upon its claimant. It is for him to establish by cogent evidence that not only he remained in undisturbed possession of the property for more than twelve years without payment of any rent to or sharing of its usufructs with the true owners but that his possession was in clear denial of the rights of the true owners to their knowledge and his hostility of possession was open and visible. Overt acts for perfecting adverse title must be clearly forthcoming in the evidence. Possession which was permissive at its inception could not be converted into hostile and adverse, without an overt and visible change in its character to the knowledge of true owner. Though the petitioners claimed commencement of adverse possession on the land in dispute approximately over half a century ago, yet no serious attempt was made by them or their predecessors-in-interest for deletion of the names of respondents Nos.2 to 10 or their predecessors from the revenue records. Further, no attempt was discernible for a change in their status from the status of non-occupancy tenant to a term "Qabiz" which could have denoted an element of holding adverse possession by them. Current view was that in case of a conflict of entries in columns of cultivation and Lagan, in absence of other material, the former entry shall prevail. It was found in Lala and another v. Mst. Jante 1968 SCMR 131 that the entry in the Jamabandi "Basharah Malikan Bawajah Kabza" was by itself insufficient to constitute elements of adverse possession. Recent swerve in the view leaned against the adverse possession and acquisition of title on its basis. Courts insisted on strong and cogent evidence for sustaining such a plea. Still more recently, acquisition of title by force or stealth was considered un-Islamic.
10. Obviously, the plea of adverse possession lacked moral content. In the above view of record, the petitioners had not successfully discharged the heavy burden of proof lying upon them to establish holding of the land adversely by them for acquiring a perfect title to it on that score. In my view, existing record was correctly read and legal principles were rightly applied to it for holding that adverse possession was not established. In default of adverse possession for the requisite period for perfecting title, petitioners were left with no further right in them to maintain their possession on the land which they were clearly bound to surrender to its true owner. Civil revisions were meritless and ale dismissed in limine.