' This will dispose of R.SAs. Nos921 to 923 of 1968.
2. These regular second appeals have arisen out of the three suits instituted by Nadir plaintiff on 16- 11-1965 for the possession of different pieces of land; the defendants in the suits out of which R.SAs.
Nos.921 and 922 have arisen were Malik and Monda respectively; they were sons of Pir Bakhsh, the defendant in the suit out of which R.SA. No,923 has arisen was Bati son of Amir.
3. The parties are now agreed that the original owners of the land were Bahawal, etc. Predecessors-in-interest of the plaintiff Nadir. The plaintiffs case simply was (and this is a tribute to the brevity and legal knowledge of the author of the plaint who it seems was while drafting the plaints fully conscious of the distinction between Articles 142 and 144 of the Schedule to the Limitation Act) that the defandants were in possession of the land; that they denied the plaintiff's ownership although they had nothing to do with the ownership of the land.
4. The defendants in their written statements pleaded that they had acquired title by adverse possession of more than 12 years and that the suits were barred by time.
5. On the parties' pleadings two issues were tried, namely, whether the defendants had been in adverse possession of the land for more than 12 years and whether the suits were barred by time, the onus of both of them being on the defendants.
6. The parties' evidence consisted mainly of documents. The defendants produced copies of Jamabandis Exs. D.1 to D.9 and the plaintiff produced copies of Jamabadis Exhs. P.3 to P.S. The position that emerges from these documents in R.SAs. Nos.921 and 922 is that Pir Bakhsh father of Malik and Monda defendants had occupied the land for the first time in the year 1915-16 (Exh.P.3) as Ghair Maurusi under the predecessors-in-interest of the plaintiff. In the year 1926-27 (Exh.D.1), the entry in the cultivation column remained the same but in the Lagan column the words Ba-Sharah Malikan Bawaja Taswa r Malkiyat 'thud came to be recorded. Pir Bakhsh continued to occupy the land till 1930-31 (Exh. D.2). In the next Jambandi, namely, Jambandi for the year 1934-35 (Exh. D.3), the defendants Malik and Monda came to be recorded, in the cultivation column as Ghair Maursui; in the Lagan column they were continued to be shown as Ba-Sharah Malikan Bawaja Taswar Malkiyat Khud. Since then these entries have been repeated in the subsequent Jambandis.
7. In R.SA. No,923, the factual position was materially different. In the year 1915-16 (Exh. P.3), Bahawal etc. Predecessors-in-interest of Nadir plaintiff were recorded as owners and Pir Bakhsh, Amir Bakhsh, Wazir Khan and Kamir sons of Qasim were recorded as Ghair Maurusi; in the lagan column Pir Bakhsh, etc., Ghair Maurusi were shown to be paying Batai to the owners. In the Jamabandi for the year 1918-19 (Exh.P.4), Amir alone was recorded as Ghair Maurusi in the cultivation column; in the Lagan column the entry was Ba-Sharah Malikan. These entries were repeated in the Jamabandi for the year 1922-23 (Exh.P.5). In the year 1926-27 Nadir son of Amir was recorded as Ghair Maurusi in the cultivation column; in the Lagan column the entry was Ba-Sharah Malikan Bawaja Taswa r Malkiyat Khud. In the Jamabandi for the year 1930-31 (Exh.D.2) instead of Nadir son of Amir, Bati'son of Amir came to be recorded as Ghair Maurusi through one Khwaja in the cultivation column; in the lagan column the entry Ba-Sharah Malikan Bawaja Taswar Malkiyat Khud was repeated. In the year 1934-35 (Exh. D.3) Bati continued to be shown as Ghair Maurusi Awal through one Pir Bakhsh; the entry in the Lagan column remained the same. In 1938-39 (Exh.D.4), Bati as Ghair Maurusi was shown to be in possession through one Ahmad; the entry in the Lagan column remained the same. In 1942-43 (Exh.D.5) Bati was again shown as Ghair Maurusi Awal; the physical possession was shown to be one with Ibrahim Ghair Maurusi Doem; the entry in the Lagan column remained the same. In 1946-47 (Exh.D.6) the same entries were repeated. In 1951-52 (Exh.D.7) Bati was recorded as Ghair Maurusi Awal; the physical possession was with Mauloo Ghair Maurusi. Doem; the entry in the Lagan column remained unchanged. The same entries were repeated in the year 1955-56 (Exh.D.8). In 1959-60 (Exh.D.9), Bati was himself recorded to be in physical possession; the entry in the Lagan column again remained unchanged.
8. The learned Civil Judge decreed the suits by his judgment dated 13-9-1967. On the defendants' appeal, however, the learned Additional District Judge, Gujrat, held, as regards the suits against Malik and Monda sons of Pir Bakhsh that "it was well-established principle of law that in such like cases, it is incumbent upon the plaintiff to plead that the defendants were originally inducted in possession of the property as a tenant. Unless that plea may be specifically put in plaint, the plaintiff stands debarred in asserting that the original entry being permissive an occupant cannot dispute the right of a true owner". For his view the learned Additional District Judge relied upon the cases reported as 1940 PLR 497 and PLD 1964 Lahore 356. He noticed that in the latter the plaintiff had to amend the plaint "so as to include the plea that the defendant's original entry was as tenant". In his view as the plaintiffs case was that the defendants were trespassers they "could not have reverted to the position to allege that since originally the defendant's predecessors were tenants-at-will, the defendant could not have claimed a hostile title". He held that the defendants' documents Exhs.D.1 to D.9 "were furnishing a positive proof of the fact that since 1926-27, the defendant was coming in adverse possession of the property".
9. In the suit against Bati also the learned Additional District Judge proceeded on the same basis. In so doing he had not his attention called to the very important fact that before 1955-56, Bati had not been himself in physical possession of the land and that the physical possession of the land had been that of the tenants, Mauloo, Pir Bakhsh, Ahmad, Ibrahim and then Mauloo again. As the physical possession of the land had been with the persons other than Bati defendant, it is obvious that the plea of adverse possession could not avail him. The physical possession of Bati defendant started in the year 1959 and as his possession had not been for a period of 12 years at the date of the suit, he could not have acquired title by adverse possession.
10. In a case of the defendants Malik and Monda sons of Pir Bakhsh, their father Pir Bakhsh occupied the land as Ghair Maurusi in the year 1915-16; in other words his possession in its inception was as a tenant and permissive. On his death, Malik in one case and Monda in the other entered into possession in the year 1934-35. As has been seen, in 1926-27 (Exh.D.1) Pir Bakhsh had come to be recorded, in the Lagan column Ba-Sharah Malikan Bawaja Taswar Malkiyat Khud and it is upon this entry that the claim of the defendants that their possession had been adverse, is founded, and it is upon the interpretation of this entry that the defendants' case turns. In the case of Bati defendant also, I will assume for the purpose of discussion that follows, that he was entitled to rely upon the entry Ba-Sharah Malikan Bawaja Taswar Malkiyat Khud, despite the fact that he had not been in physical possession of the land.
11. This is a vexed question of law and has been considered in a number of cases. Fortunately the guidance to be gleaned from two reported cases upon which learned counsel for both the parties relied is sufficient to reach the right conclusion. They are Mst. Bhag Bhari, etc. v. Mst. Bhagan and another PLD 1954 Lahore 356 in which Kaikaus, J. As he then was surveyed the entire case-law; his view on the subject was approved by the Supreme Court in Lala and another v. Mst. Jante (1968 SCMR 131). In Mst. Bhag Bhari's case the entry in the cultivation column was Ghair Maurusi and the entry in the rent column was Nakdi-ba-Sharah Malikan Bila Malikana. It was held that these "entries, as they stand, are consistent with the position of the plaintiffs as well as that of the defendants. It cannot be denied that by itself the entry `Ghair Maurusi' does not necessarily imply that the person so described is a tenant. The Patwari uses these words for every person who is in possession without any right or title. The entries in the cultivation column are always to be read alongwith the entries in the rent column as pointed in AIR 1928 Lah.
147. Here the entry in the Lagan column is `Nakdi-ba-Sharah Malikan Bila Malikana.' The difficulty in interpretation in the present case arises out of the fact that the Patwari would be using this expression in a case where a tenant is paying only land revenue as well as in a case where a person's possession is without any right or title. There is no doubt that generally when a person is in possession on an assertion of hostile title or unlawfully the Patwari will use some such expression as `Ba Taswa r Malikiat Khud, Bawaja Qabza,' etc., but the use of such expressions is not necessary and it does sometimes happen that even in the case of a person in adverse possession the Patwari uses only the words which have been used in the present case The real question which is to be decided in cases like the present is not whether non-payment of rent puts an end to the tenancy but what is the interpretation of the entry in the Revenue Record. As I have said above, the present entry is consistent with the defendants being tenants as well as being in possession on their own behalf. The proper approach, therefore, in such cases is to consider the other circumstances of the case in order to determine the interpretation of the entry. In approving this view of such entries, Hamoodur Rahman, J. As he then was held in Lala v. Jante: "Such an entry, as therein pointed out, is not an unequivocal assertion of a hostile title and, therefore, one has to interpret this entry in each particular case in the light of the facts and circumstances of that case".
12. It is noteworthy that in Lala v. Jante, two contentions were raised: (i) that as the plaintiff had not pleaded in the plaint that the defendants had entered into possession as tenants, he "should not have been allowed to set up a new case at the appellate stage which had not been made out in the plaint" and (ii) "that the entries in the Jamabandis themselves recording the defendants from years 1939-40 onwards as occupancy tenants paying rent 13a Sharah Malikan Bawajah Kabza' should have by themselves been held to be sufficient to lead to the inference that they were holding adversely to the owner of the land". As regards the first contention, it was held:-- "The onus of proving adverse possession was clearly upon the defendants and if their own evidence disclosed that their possession at its inception was as tenants it is they who must fail.
There can, in such circumstances, be no question of the plaintiff setting up a new case which was not pleaded in the plaint. She sued them as trespassers but they claimed that they had acquired title by adverse possession. If they fail to establish this title they remain trespassers, as alleged in the plaint. This is not a new case, for the plaintiff cannot in the circumstances be charged with having shifted her stand."
' Regarding the second contention it was held that there was "nothing on the record to show that they ever openly and to the knowledge of the proprietor asserted a hostile title". In that case also the defendants' possession had in its inception been as a tenant; it was held: "if possession of person claiming adverse title was at its inception as a tenant then some notice is necessary to indicate that the tenant had repudiated that position or resiled from it. The mere non-payment of rent does not alter the nature of the tenancy. The tenant must show that he had done something more to deny the landlord's title, for, the law assumes that a tenancy of land once entered upon continues until determined in one of the ways provided for by statutory enactment. In such case, therefore, clear and unequivocal evidence of the assertion of a hostile title is necessary. Mere non- payment of rent or a mere entry in the Jamabandi showing that rent was being paid at the rate of the proprietor's share of the revenue and cesses is not such clear evidence, for, the entry is equally capable of being explained on other grounds consistently with the subsistence of the relationship of landlord and tenant. It may well be that the rate of rent is fixed at such a low rate due to relationship with the landlord or due to the fact that the tenant has brought under cultivation virgin Shamilat land, as in the present case, by incurring heavy expenditure.
13. Learned counsel for the defendants sought to distinguish the facts of the case in Lala v. Jante from the facts of these cases; he said that in Lala v. Jante the defendants' own documents showed that their possession at its inception was as tenants but here, this was not the defendants' case and the fact that the defendants had entered as tenants was evidenced by the plaintiffs own documents. This distinction is in my opinion without any material difference. The truth of the matter being that the defendants had, to begin with, occupied the land as tenants, the circumstance that that fact was proved by the plaintiffs evidence should in my opinion make no difference. For the object of the judicial function is to reach the truth and to do justice and that must be done by reading the entire evidence on the record. In any case this contention does not take into account the following observation of the Supreme Court in Lala v. Jante: "She (plaintiff) sued them as trespassers, as alleged in the plaint. This is not a new case, for the plaintiff cannot in the circumstances be charged with having shifted her stand".
14. Here, as there, the plaintiff had alleged that the defendants were in possession of the land without any right and since, as in the precedent case, the defendants have failed to prove that they had acquired title by adverse possession, their position is that of trespassers. Learned counsel for the defendants then argued that with the death of Pir Bakhsh in the case of Malik and Monda defendants and on the death of Amir in the case of Bati defendant a new relationship came into being and that relationship was not that of tenacny. The same was the position in Lala v. Dante; there also the land had first been occupied by the predecessors of the defendants, named, Ali and Karma.
15. Only in one case, that of Malik defendant, the latter had entered into the witness-box to say that he had been in occupation of the land in his own right. There was, however, no evidence to show that the defendants had ever openly and to the knowledge of the plaintiff asserted hostile title nor was there any evidence of any notice having been given by the defendants to the plaintiff or his predecessors-in-interest, indicating that the defendants had repudiated their position as tenants or resiled it or that they had done anything more than mere non-payment of rent to deny the plaintiff's title. As was held in Lala v. Jante the law assumes that a tenancy of land once "entered upon continues until determined in one of the ways provided for by statutory enactment"; here, there was no evidence whatever of the assertion of hostile title.
16. For these reasons, I would accept the appeals, set aside the judgments and decrees of the learned Additional District Judge dated 7-11-1968 and restore those of the learned Civil Judge dated 13-9-1967. In other words the plaintiff's suits shall stand decreed. The parties are, however, left to bear their own costs throughout.