' This revision petition arises out of a suit for declaration and permanent injunction filed on 26-7- 1968 by Ilam Din, predecessor-in-interest of the petitioners in the Court of Civil Judge, Ferozewala.
The respondents resisted the suit and filed their written statement which gave rise to the following issues:---
(1) Whether the plaintiffs are owners of the suit land by adverse possession for over 12 years?
(2) Whether the plaintiffs' suit is not maintainable in its present form?
(3) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is incorrect?
(4) Whether the plaintiffs have a right to sue?
(5) Relief.
' The trial Court recorded findings on Issues Nos.1 to 3 in favour of the petitioners/plaintiffs and decreed the suit vide judgment and decree, dated 15-1-1977. The respondents preferred an appeal which was allowed and judgment and decree of the trial Court was reversed by the learned Additional District Judge vide his judgment and decree dated 19-11-1977.
2. The petitioners' learned counsel contends that the land measuring 16 Kanals bearing Khasra Nos.66 and 68, situated in Mauza Qila Masitia, was originally granted to Khuda Yar grandfather of IIm Din, deceased plaintiff, in the year 1852. He submits that Abdullah, father of IIam Din, deceased was also shown to be Moafidar, of the land in the year 1952. The Revenue authorities found that the terms and conditions of Moafi were fully complied with. After death of Abdullah the land was mutated in favour of Ilam Din, deceased. He remained in possession throughout and after enforcement of MLR 64 Ilam Din became the owner of the land by virtue of provisions of para. 21 of the Regulation. He submits that even otherwise the petitioners have become owners of the land by way of adverse possession. He places reliance on the judgment in the case of Nawabzada Malik Habib Ullah Khan Tiwana and others v. The Province of West Pakistan and another PLD 1%7 Lah.
533.
3. On the other hand, the .learned counsel for the respondents submits that after abolition of Jagirs the petitioners' interest was extinguished and the land reverted to the original owners (the respondents) free from all encumbrances. He submits that findings of fact recorded by the Appellate Court, about possession, are based on proper appraisal of the material on the record and did not deserve interference by this Court. He further submits that the land in question belonged to the respondents and that the Government had merely granted exemption of land revenue to Khuda Yar, deceased for rendering services to the village mosque. It was a kind of Jagir which stood abolished with the enforcement of Martial Law Regulation 64, sub-para. (1) of para. 21 of the Regulation.
4. The disputed land originally belonged to Ghulam Haider Shah forefather of the respondents and was being cultivated by Misri son of Sazawar. Presumably under some arrangement made by the owner, the land was granted to Khuda Yar forefather of the petitioners for rendering services to the village mosque. The land revenue of the disputed land was remitted by the order of Mohtamum Bandobast dated 20-11-1852. The above facts can be gathered from a careful reading of the Missal Haqiat for the year 1855-1856.
' Khuda Yar remained in cultivating possession of the disputed land and his name has been appearing in the Revenue papers as Moafidar. It is significant to mention that the name of Ghulam Haider Shah and after his death the names of his successors-in-interest have been figuring in the column of ownership o: the jamabandis. The arrangement originally made with Khuda Yar permitting him to cultivate the land in lieu of the services rendered for the village Mosque continued even after his death as his successor-in-interest have also been rendering services to the Mosque. The inheritance of the possessory rights by the successors-in-interest of Khuda Yar deceased was tacitly accepted by the respondents and their predecessors-in-interest because they never objected to the same. The owners of the disputed land felt content with the arrangement originally made in the year 1852 and never tried to interfere in the use and possession of disputed land by Khuda Yar and his successors-in-interest for more than 100 years. This created an impression in the mind of the petitioners and their predecessors-in-interest that they had become owners of the disputed property. The petitioners' late father Ilam Din had sunk a well in the disputed land and grown an orchard under the same impression.
5. On 4-2-1952, the Punjab Abolition of Jagirs Act, 1952 was enforced which put an end to all Jagirs covered by the definition of "Jagir" given in section 2 of the Act. Moafi lands enjoying release of land revenue were covered by the definition of the word "Jagir". The immediate effect of the abolition of the jagirs was that the disputed land became subject to payment of land revenue since 4-2-1952 when the Act was enforced. The subsequent Martial Law Regulation No,64 had no bearing on the instant case because the jagir stood abolished with effect from 4-2-1952. Therefore, the provisions of MLR -- 21 are not relevant in the case. After the abolition of the jagir, Ilam Din deceased plaintiff remained in physical possession of the land and was erroneously noted as Moafidar in the Revenue Record. An order for cancellation of moafi was again passed by the revenue officer on 30- 7-1959 which was legally redundant because moafi/jagir already stood abolished. Ilam Din deceased remained in cultivating possession of the land and his name duly figured in the Parcha Khatauni for the years 1959-1961 (Exhs.P.7 and P.8). In the said documents he was even shown as an owner although, in the jamabandis the names of the respondents appeared as owners. In the jamabandi for the years 1960-1961 (Exh.D.1) the name of one Barkat son of Nizam Din was shown as Ghair Morusi tenant and thereafter again name of Ilam Din figured as a cultivator.
6. I am not prepared to believe that Ilam Din deceased had quietly handed over possession of the property to the owners for its cultivation by Barkat and that thereafter again the land was given back to him. Perhaps the entry in the column of cultivation in the name of Barkat D.W. 1 was procured to controvert the claim of adverse possession made by the deceased plaintiff.
7. The above facts show that the land was not granted by the Government by way of a jagir to the petitioners. The Government could not legally grant it as a jagir because it was privately owned by Ghulam Haider Shah, forefather of the respondents. The jagir was only to the extent of release/remission of the land revenue. After abolition of the jagirs in the year 1952 the land became subject to payment of land revenue but the ownership remained with the respondents. The petitioners or for that matter their predecessors-in-interest enjoyed possession of the land under an arrangement made in the year 1852 and they neither asserted their own title nor were they competent to do so. They could only enjoy use and possession of the land for the purposes of rendering services to the village Mosque. The interest created in favour of Khuda Yar deceased was heritable and subsists till today because services to the village Mosque are still being rendered by the petitioners. The claim of adverse possession by the petitioners was rightly rejected by the appellate Court for cogent reasons. In the column of ownership the names of the respondents or their predecessors in interest have been appearing, correctness whereof was never challenged by the petitioners. The act of sinking the well or growing an orchard by the petitioners is not enough to prove the claim of adverse possession made by them. Jalal Din son of Chiragh Din P.W.1 had admitted that the respondents had attempted .to take possession of the disputed land 10/15 years ago but failed to do so. His statement was recorded on 8-4-] '174. Therefore, the said attempt was made some where in the year 1964 or a few years earlier. The suit was filed in the year 1968, thereTore, the petitioners had failed to establish that 12 years before the institution of the suit they peaceably enjoyed the possession of the disputed land as owners without any objection on the part of the respondents. The petitioners at the most can remain in possession of the disputed land on the basis of the original arrangement for rendering services to the village Mosque. Ilam Din predecessor-in-interest of the petitioners was Imam in the village mosque and now the said duty is being performed by Mian Muhammad RA, petitioner No,5. Therefore, the findings of the appellate Court that the petitioners were in possession of the disputed land as Ghair Morusi tenants is not sustainable and is accordingly set aside.
8. For the foregoing discussion, I accept this petition and reverse the findings of the appellate Court on Issue No,4. The impugned judgment and decree of the appellate Court is set aside and the petitioner's suit decreed to the extent of their entitlement to the use and possession of the disputed land in lieu of rendering services to the village mosque. The respondents shall not interfere in the use and possession of the land by the petitioners as long as they (the petitioners or their successors-in-interest) continue to render services to the village mosque, If at any stage the petitioners or for that matter their successors-in-interest discontinue their services to the village mosque, then their possessory rights over the suit land would come to an end and the respondents would be entitled to recover its possession in accordance with the law. The parties are left to bear their own costs.