' This revision petition by the plaintiffs is directed against the judgment and decree of Additional District Judge, Nowshera dated 4-3-1987, whereby their appeal against the judgment and decree of Civil Judge, Nowshera was dismissed on 22-10-1985.
2. It may be briefly stated that plaintiff-petitioners herein brought a suit for declaration in the Court of Civil Judge, Nowshera against Wilayat Shah and others defendant-respondents to the effect that they are occupancy tenants of the suit land measuring 13 Kanals 11 Marlas bearing Khasra No,4483/4484/2159 situated in Mauza Aza Khel Payan, Tehsil Nowshera and that the entries in the revenue record are incorrect and ineffective on their rights. Mutations Nos. 2779, 2781 and 2782 and subsequent Mutation Nos.3062, 3164 and 3190were challenged to be illegal and ineffective on their rights. In the alternative they have prayed for possession and improvements made over the suit land.
3. It was alleged that the plaintiffs are the owners of the suit land which was `Shamilat Deh' which they are cultivating as occupancy tenants since before 1925-26. Subsequently the revenue entries were changed in collusive manner and in the column of ownership defendants were recorded as owners and plaintiffs as `Ghair Dakhilkar Bila Lagan Bawaja Qabza'. The said entries were subsequently changed in Kharif 1979. Words `Batai Ba Hissa Nisfi' were substituted for 'Bila Lagan Bawaja Qabza'. On the basis of such illegal entries defendants 1 to 16 brought a suit for produce in the Revenue Court wherefrom they came to know of the wrong entries made in the revenue record against their interest. Defendants 1 to 16 in their joint written statement apart from raising several legal pleas in resisting the plaintiffs' suit further stated that the suit land was `Shamilat Deh' of which partition took place in the year 1947-48 in which the suit land was allotted to the defendants as their share. It was not denied that plaintiffs were in possession of the land but subsequent to the partition they were rightly sued for produce and ejectment in the Court. The learned trial Judge framed the following issues in the case:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiffs are estopped by their conduct to bring the present suit?
(4) Whether the suit is competent in its present form?
(5) Whether the defendants have become owners of the suit land after the partition?
(6) Whether the plaintiffs are owners in possession of the suit land?
(7)Whether the entries in revenue record in favour of defendants pertaining to suit Khasra Nos. Are void and ineffective against the rights of the plaintiffs?
(8) Whether the .Attestation of mortgage mutation on behalf of defendants 1 to 16 in favour of defendant No,17 is illegal and alongwith other mutations is liable to be cancelled?
(9) Whether the plaintiffs are entitled to the decree as prayed for?
(10) Whether the plaintiffs are entitled to the compensation and improvement in alternative?
(11) Relief.
' After recording evidence of the parties the learned trial Judge dismissed the plaintiffs' suit on 22- 10-1985 and their appeal failed in the Court of Additional District Judge Nowshera on 4-3-1987 hence the present revision petition.
4. Learned counsel for the parties have been heard and record of the case perused. The material evidence in the case on which both tike parties have relied is the revenue record pertaining to the suit land. According to Jamabandi for the year 1928-29 copy Exh.P.W.I /1, previous Khasra Nos.4483/459, 4484/2159 is `Shamilat Deh' and the predecessor-in-interest of the plaintiff- petitioners was in its possession as Hissadar. This entry is repeated in the subsequent Jamabandis for the years 1933-34, 1937-38 and 1941-42, copies whereof are Exh.P.W. 1/2 to Exh.P.W.1/4 respectively on the file. In the subsequent Jamabandi of the year 1947-48 Khasra No,2159 was split up into two parts i,e, Khasra No,4482/2159 measuring 15 Marlas and 4483/2159 measuring 12 Kanals 16 Marlas recorded in the ownership of the defendants and their predecessor-in-interest, while the entries in column of cultivation in favour of the predecessor-in-interest is maintained. However, in the column of Lagan they were shown in possession `Bila Lagan Bawaja Qabza' per copy Exh.P.W.
1/5. Such entry is repeated in the subsequent Jamabandi for the year 1951-52 copy Exh.P.W. 1/6. In the year 1955-56 both the Khasra numbers are shown as `Maqbooza Malikan' but in the subsequent Jamabandis the long standing entry was re-enforced in the column of cultivation per Jamabandis for the year 1963-64 copy Exh.P.W.1/8 and for the year 1967-68 copy Exh.P.W.1/9. In the year 1971-72 again Khasra No,4482/2159 is shown in possession of the predecessor-in-interest of the plaintiffs, while the other one is shown as `IChud Kasht' and `Maqbooza Malikan'. In the Khasra Girdawari for the year 1980 both these Khasras are shown in possession of the plaintiffs and their predecessor-in-interest. Reference can also be made to the statement of Hassan Gul Patwari (P.W.1) who has stated that the land was previously `Shamilat Deh' of which partition took place in 1947 in which the suit land fell to the share of the predecessors-in-interest of defendants 1 to 16 namely Maarifat Shah and Sakhawat Shah sons of Lubab Gul. That Sakhawat Shah died and his inheritance mutation No,2922 was attested in favour of his legal heirs on 4-10-1975. Similarly inheritance Mutation No,2779 of Maarifat Shah was attested on 12-12-1973. The inheritance Mutations of Mst. Shahzadgai, Mst. Quresha and Mst. Parizadgai were attested from time to time in the names of defendants 1 to 16. Faced with this situation the learned counsel for the petitioners' contention that plaintiffs have become owners by adverse possession for more than 12 years loses its force. Admittedly the plaintiffs' initial possession over the suit Khasra number was in their capacity as Hissadars, therefore, on partition when the suit Khasra number fell to the I share of the defendants the ownership changed but the character of plaintiffs' possession would not change until possession is voluntarily surrendered to the person entitled to it in pursuance of the partition voluntarily or they are dispossessed through a Court of law. Both the Courts below were, therefore, justified in deciding the issues pertaining to ownership and adverse possession against the plaintiffs and in favour of the defendants.
5. The grievance of the learned counsel for the petitioners that plaintiffs have been wrongly shown as tenants `Batai Dahenda' is well-founded and has got force. It cannot be denied that when partition takes place and the land in possession of a Hissadar is allotted to another co-owner the Hissadar in possession is shown as `Ghair Dakhilkar' in the column of cultivation and in column of Lagan the entry of `Bila Lagan Bawaja Adam Tabdili Qabza' is recorded. In general words such possession denotes possession without consent of the owners due to non-delivery of possession in execution of the final order in partition proceedings within three years. The real owner is, however, entitled to bring suit for his share of produce under section 7 of the N.-W.F.P.Tcnancy Act against the person in possession but such person in possession cannot be ejected by the Revenue Courts in a suit. Such being the case the person entitled to possession has to bring suit for possession in the Civil Court and not otherwise. With these observations the revision petition is dismissed. No order as to costs.