' MUHAMMAD YOUNAS SURAKHVI, J.--This appeal, with the leave of the Court, has been directed to call in question the order recorded by the High Court on November 26, 1994, whereby, while dismissing the appeal with costs of the appellants, herein, the findings recorded by the District Judge, Mirpur and the trial Court were upheld.
2. The precise facts of the case are that the appellants-plaintiffs filed a declaratory suit against the defendants-respondents in the Court of Additional Sub-Judge, Mirpur on May 16, 1987, to the effect that they were owners in possession of the suit land, measuring 16 Karials 8 Marlas, comprising Survey Nos.471, 701, 1240, 1244, 1272 and 1466, Khewat No,1/1, Khatooni No,10/54, situate in Village Sonkiah, Tehsil Mirpur, since the time of their forefathers. It was also claimed that their possession over the suit land, for being hostile in nature, for more than 12 years, had ripened into ownership. As a consequential relief it was prayed that respondents-defendants be restrained from interfering with the possession of the plaintiffs over the suit land. A counter-suit was also filed by the resTiondents-defendants, Mst. Amir Begum and others, against the appellants on December 17, 1987, wherein it was averred that they were the owners of the suit land and the defendants, the present appellants, were in possession of the same as their tenants-at-will but they had started repudiating their title since the last two years. It was, therefore, prayed that a decree for possession of the suit land may be passed in their favour.
3. Both the suits were consolidated by the learned Additional Sub-Judge, Mirpur, who, after necessary proceedings, dismissed the suit of appellants and decreed the suit for possession to the extent of land measuring 14 Kanals 10 Marlas, which was filed by the respondents, Mst. Amir Begum and others, vide the judgment and decree, dated July 16, 1990. Appeal filed before the District Judge failed vide his order, dated July 27, 1992. The legality of the aforesaid order of the learned District Judge, Mirpur, was challenged through a second appeal, in the High Court, which was also dismissed, vide the impugned order of the learned Single Judge in the High Court. Hence this appeal.
4. Arguing the case on behalf of appellants, Mr. Abdul Majeed Mallick, the learned counsel, submitted that the findings recorded by the High Court as well as the Courts below were erroneous and bad in law. According to the contention of the learned counsel for the appellants there was ample evidence on the record to substantiate the plea that the suit land was purchased by one Baroo, the predecessor-in-interest of the appellants, from the predecessor-in interest of defendants-respondents, through an oral sale, for a consideration of Rs,800 and since the date of the oral transaction, they were in possession of the suit land in their own right as owners and their possession into the suit land, being adverse in nature, had ripened into ownership, but the Courts below as well as the High Court misconstrued and misinterpreted the documentary and the oral evidence. The learned counsel maintained that the impugned judgment suffered from non- reading and misreading of both, documentary, as well as the oral evidence, on record, especially so, when in the previous round of litigation between one Sooba and the respondents herein, the controversy was set at rest by the judgment of High Court, dated November 27, 1986, which was upheld even by the Supreme Court, but this aspect of the matter was overlooked by all the Courts.
The learned counsel strenuously contended that the possession of the appellants over the suit land was by all means adverse and hostile in nature. He, therefore, pressed into service the submission that by setting aside the impugned judgment and decree, the appellants may be granted the decree as prayed for by them. The learned counsel for appellants placed reliance on Ibrahim Khan and others v. Muhammad Afsar Khan PLD 1960 Azad J&K 26, Raja and others v. Karam Ali and others PLD 1951 Lahore 177, Mir Laik Ali v. Standard Vacuum Oil Company (ESSO) and another PLD 1964 SC 220, Naba Chandra Bangshi and others v. Nanda Kumar Bangshi and others PLD 1961 Dacca 57.
5. Raja Muhammad Siddique Khan, the learned counsel from the opposite side, maintained that the plaintiff-appellants were bound by their own pleadings and were not supposed to get relief on the basis of evidence produced by them which was quite contrary to and in conflict with their case as set up in the pleadings. The learned counsel pressed into service the submission that the evidence produced by the plaintiff-appellants in support of their case runs counter to their stand taken in the pleadings. He maintained that even in the evidence the plaintiff-appellants did not stick to any consistent stand but they have been shifting their position from time to time. The learned counsel submitted that even if we take the evidence of the plaintiff-appellants, as it is, no case for adverse possession has been made out. The learned counsel maintained that the impugned judgment of the High Court and those of the Courts below, for having been passed according to law, are perfectly valid and in accordance with the proper appraisal and appreciation of evidence, and as such do not require any indulgence by this Court. The learned counsel for the respondents placed his reliance on Muhammad Amin v. Muhammad Yunus 1994 SCR 162 and an unreported case of this Court titled Raja Muhammad Azam Khan v. Azad Government and others, decided on January 15, 1995.
6. We have heard the learned counsel for the parties and have examined the record made available with care. It will not be out of place to mention here that both the learned counsel for the parties presented their view points with clarity and in accordance with their best professional talent and skill and we are really thankful to them for rendering their valuable and proper assistance to the Court.
7. In order to prove their case, the plaintiffs-appellants, produced Munshi Muhammad Aziz, Patwari, Muhammad Fazal s/o Waris resident of Kas Kalyal and Haji Noor Alam as their witnesses. One of the plaintiffs Fazal also appeared in the case as his own witness. Besides, documents Exhs.P.A. To P.J. Were also placed on record as evidence in the case by plaintiff Fazal. From the respondents side Raja Muhammad Ayub was produced as a witness to support the defendants' case and one of the respondents-plaintiffs in the cross-suit, Gul Nawaz Khan, also appeared as a witness.
8. It will be useful to reproduce the brief gist of the evidence produced by the plaintiffs. P.W. Munshi Muhammad Aziz, Patwari, the witness for plaintiffs, proved Jamabandi Exh.PA. Pertaining to the year 1967-68, in which the appellants-plaintiffs have been shown as tenants-at-will while the respondents-defendants, according to the entries in the proprietary column of the document have been listed as owners only the Column relating to the payment of Lagan the entry has been shown as on account of "sale-deed." When cross-examined, this witness stated that no entry relating to any mutation, on account of oral sale, or sale-deed, in favour of plaintiffs-appellants has been made in the Revenue Record. This is the only documentary evidence in respect of the suit land which has been placed on record as evidence in the case by the plaintiffs. P.W. Fazal is the next witness, who appeared and stated that the suit land was purchased by one Baroo, the father of plaintiff Fazal, from Dewan Feroz Khan, the ancestor of respondents on payment of Rs,800. This fact was revealed to the witness by Baroo who was originally resident of Ballah Mirpur, who thereafter, shifted and settled in Sonkiah. On cross-examination the witness failed to state either the survey number or the other particulars of the land in dispute. The witness, however, admitted that during Dogra Regime the mutation used to be sanctioned on the basis of oral sale. The witness admitted having no knowledge of any sale. Another witness Haji Noor Alam stated in his evidence that Baroo, the father of the plaintiffs, had purchased the suit land on payment of Rs,800 from Dewan Feroz Khan during the Dogra Regime but when Baroo went on the spot for getting the possession of the land, one Sooba Khan claimed that he would not allow him to take the possession as the land belonged to him so a meeting of respectable was called, who settled that Baroo should pay an additional amount of Rs,800 to Sooba Khan. Thus, the payment was accordingly made and the possession was taken by Baroo. Lastly Fazal, one of the plaintiffs, while appearing, as his own witness, repeated the story that his father Baroo had purchased the suit land from one Dewan Feroz Khan on payment of Rs,800 in the year 1937, but at the time of getting the possession one Sooba Khan, intervened by claiming his ownership. In pursuance of decision, taken by the notables of the village, Sooba Khan, was also paid Rs,800 by his father. This witness then introduced a new story by deposing that out of the land, purchased by his father, half of it was sold by his father to his cousin, namely, Alif. This witness admitted that no receipt against the payment was secured by his father, either from Dewan Feroz Khan, or from Sooba Khan. Then there are other documents in the shape of uncertified and unattested copies of the field inspection record from the year 1970 to 1987 appended with the plaint of respondents-defendants in the cross-suit. These documents were neither exhibited nor tendered in evidence, so both the learned counsel for the parties, during the course of arguments, placed no reliance on these documents. Naturally the aforesaid documents are not taken into consideration for the purpose of decision of this case, as they do not form part of legal evidence.
9. The above reproduction of the gist of the evidence of the plaintiffs is just to show that the plaintiffs, in their evidence, have taken totally a contradictory, inconsistent and different stand than the case set up by them in their pleadings. In the first and second para. Of their plaint, the claim of the appellants-plaintiffs appears to be that the suit land was in their ownership since the time of their forefathers but in the written statement filed by them in the cross-suit of respondents- plaintiffs, they came forward with a plea that the suit land had been purchased by one Baroo from the predecessor-in-interest of respondents. Yet in the evidence a different claim was put up that the suit land was purchased from Dewan Feroz Khan on the payment of Rs,800 and then an additional amount of Rs,800 was paid to one Sooba for the purpose of securing the possession of the suit land. The plaintiffs-appellants even did not stick to the above stand when they once again changed their position and made an assertion that out of the land purchased by the Baroo, the half of it was sold to one Alif.
10. In our view the plaintiffs-appellants have been changing sides and taking different and inconsistent stands from time to time, quite contrary and alien to their original pleading. It is a cardinal and settled principle of law that a party is precluded from taking a different and inconsistent stand than that as has been set up by it in its pleading. In the case reported as Muhammad Amin v. Muhammad Yunus 1994 SCR 162 it has been observed by this Court at page 166:-- "Evidence in support of a plea not taken in pleadings cannot be looked into. The plaintiff- respondent has taken contradictory stands in his plaint and in his statement, both the Courts below have failed to consider this aspect of the case. This resulted in wrong approach to the case and thus, the Courts below based findings on the evidence which could not be taken into consideration as there was divergence between the pleadings and the evidence of the plaintiff- respondent."
' Similarly in an unreported case tilted Raja Muhammad Azam Khan v. Azad Jammu and Kashmir Cooperative Bank and others (decided on 15-1-1995) this Court observed at page 38 of the judgment in the following manner:-- "That there was no averment in the writ petition that the notification had not been published in the official Gazette. This point does not find mention in the judgment of the High Court which shows that this point was not raised before the High Court. It is well-settled that only that evidence may be considered by the Court while deciding a case which is in the support of the pleadings of the parties. In absence of pleading to that effect no decision can be recorded on this point."
11. It has rightly been observed by the learned trial Judge that the plaintiffs-appellants have been sailing simultaneously in more than one boats. By now it stands settled that a party cannot be allowed to blow both hot and cold in one and the same breath or to indulge in approbate and reprobate.
12. Coming to the point of adverse possession, we may observe that the case of the plaintiffs- appellants, as disclosed in their evidence, is that one Baroo, the predecessor-in-interest of the plaintiffs-appellants purchased the suit land from Dewan Feroz Khan, the predecessor-in-interest of respondents. Apart from the fact that the evidence with regard to the oral transaction is self- contradictory, the fact remains, that it stands admitted, that the respondents or their predecessor- in-interest, Dewan Feroz Khan, were the original owners of the suit land, from whom the plaintiffs claim to have purchased it through an oral sale. Once the ownership of respondents is admitted in the suit a very heavy burden lies on the plaintiffs-appellants to prove the plea of adverse possession. The plea of adverse possession, being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. In the instant case in order to prove the plea of adverse possession a much heavier burden lies on the shoulders of plaintiffs, especially so, when initially they were shown in the column of possession as tenants-at-will. It was enjoined upon the plaintiffs to prove it by cogent evidence that their tenancy-at-will extinguished on a particular date and their relationship with their landlords came to an end on the date when they purchased the suit land froni the owners and entered in the possession of the suit land as owners, on the basis of oral transaction of sale. As said earlier in the present case, apart from Jamabandi of C the year 1967-68, no other Jamabandi or Khasra Girdawari preceding the year 1967-68 or any Jamabandi or Khasra Girdawari after the period of 1967-68 was produced by the plaintiffs-respondents. May be the possession of the plaintiffs continued for a period of more than 12 years but on the strength of evidence led by them, we cannot say that the possession of plaintiffs was adverse in nature for a period of more than 12 years. The constituent conditions of adverse possession are that it must be actual, visible, exclusive, continuous and hostile to the knowledge of the actual owner. If any one of the constituent conditions is lacking in evidence the plea is outrightly rejected. It is for this reason that the Courts have always insisted_ on cogent and positive evidence in support of adverse possession. After careful perusal of the evidence, on record, we are of the view that plaintiffs- respondents have failed to prove their adverse possession on the suit land.
13. It was vehemently contended by the learned counsel for the appellants that in the previous round of litigation, initially between one Sooba Khan, and Dewan Feroz Khan, the predecessor-in- interest of respondents, and ultimately between the heirs of Sooba Khan and respondents, a decree of land, measuring 7 Kanals 5 Marlas was granted in favour of Gul Nawaz Khan and others, the heirs of Sooba Khan, in which the land entered in Khasra No, 1240, measuring 2 Kanals 18 Marlas, is also included, which is also a part of the present suit land, vide the judgment of the High Court, dated November 27, 1986. On the authority of this judgment it was contended that Sooba Khan was declared an occupancy tenant of the land measuring 7 Kanals 5 Marlas including the land entered in No, Khasra 1240. The learned counsel maintained that the aforesaid judgment of the High Court was upheld by the Supreme Court vide judgment dated March 30,1988. So Sooba Khan, being the occupancy tenant of the land entered in No, Khasra 1240 sold the occupancy tenancy rights to the plaintiffs-appellants. On the strength of the judgments of the High Court and this Court, in the previous round of litigation, the learned counsel for the appellants, strenuously contended that adverse possession of the plaintiffs had been proved on the suit land, especially in the land entered in No, Khasra 1240. We regret that we cannot subscribe to the aforesaid contention of the learned counsel for the appellants for the three-fold reasons:--
(i) The present litigation is not between the same parties. In the present suit the heirs of Sooba Khan are not impleaded in the line of respondents.
(ii) It is not the case of plaintiffs-appellants in their pleading that they ever purchased the suit land from Sooba Khan or at least they ever purchased the occupancy rights of the suit land from Sooba Khan.
(iii) It is also not the case of plaintiffs-appellants that Sooba Khan was the occupancy tenant in the suit land.
14. So far as the land entered in number Khasra 1240 is concerned, its decree has not been granted by the learned trial Judge in favour of respondents in the counter-suit filed by them, obviously on account of previous judgments of the High Court and this Court. Besides in the instant case we have simply to examine as to whether the plaintiffs-appellants have been able to prove their adverse possession or not. And since they have failed to prove the same their suit is therefore, bound to fail.
15. Another important aspect of the matter is that the appellants-plaintiffs did not challenge their entries in the revenue record as tenants-at-will. Conversely in the counter-suit the case of respondents-plaintiffs precisely is that they are the owners of the suit land and the defendants (plaintiffs-appellants herein) are their tenants-at-will and the entries in the revenue record to the contrary are ineffective in so far as their rights are concerned. The stand of respondents remained consistent and uniform throughout. Even on this score the plaintiffs have failed to prove their adverse possession.
16. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, during the course of arguments, relied on an application Exh.P.J. Which was produced by the plaintiffs-appellants, at the stage of their evidence, in the trial Court, in which the respondents, herein, admitted that in certain land including the land entered in Khasra No, 1240, was in the occupancy tenancy of one Sooba Khan and the heirs of respondent surrendered their share in favour of heirs of Sooba Khan and consequently a decree of occupancy tenancy to the extent of land measuring 7 Kanals 5 Marlas was passed in favour of heirs of Soob'a Khan. On the aforesaid premises, it was argued, that the land entered in number Khasra 1240, was in the occupancy tenancy of Sooba Khan, who according to the evidence produced by the plaintiffs sold the same to appellants-plaintiffs. But it may be pointed out, as stated earlier, that the misfortune of the plaintiffs-appellants lies in the fact that in their pleadings they never alleged or asserted so that any transaction took place between Sooba Khan and the plaintiffs-appellants. So far as the decree having been passed in favour of heirs of Sooba Khan, including the land entered in number Khasra 1240, is concerned, it is a matter to be sorted out by the heirs of Sooba and the respondents. We need not advert to this aspect of the case, as the same is not relevant in so far as the present suit filed by plaintiffs-appellants is concerned:
17. We also cannot overlook the fact that appellants 1 to 9, in High Court, as pointed out by the High Court, are the heirs of one Alif, while appellants Nos.10 to 12, in High Court, are the heirs of Baroo. All of them claimed to be in adverse possession of the suit land but the evidence has been produced only to the effect that the suit land was purchased by Baroo, the father of appellants Nos. 10 to 12, in the High Court, and that he secured possession from the vendor. Appellants Mst. Jewani and Mst.
Mukhtar Begum are the widows, while appellants Nos. 3 to 9, in High Court, are sons of Alif. None of them appeared to claim that they or any one from amongst them on their behalf was also in possession of any part or the suit land. None of the witnesses who appeared from the plaintiffs' side had said a single word in their evidence in support of the alleged hostile possession of appellants 1 to 9. This is an additional circumstance resulting in the dismissal of plaintiffs-appellants suit.
18. The citations relied by the learned counsel for the appellants are distinguishable and have no relevancy to the facts of the instant case; so they need not be dilated upon by us.
After giving our deep thought to the evidence available on record, we find that the finding recorded by the trial Court was based on proper appraisal of evidence and suffered from no legal infirmity.
The first and second appellate Courts by upholding the judgment and decree of the trial Court acted in accordance with law. Finding no force in this appeal, we hereby dismiss it with no order as to costs.