1. ANWARUL HAQ, J.--This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 13th of January 1975, whereby a Second Appeal filed by the respondents in respect of the claim of the petitioner to agricultural land measuring 8 kanals an situate in Bahawalpur tehsil, was accepted, and the decree in favour of the petitioner was set aside.
2. The petitioner had claimed adverse possession for over 12 years in the land, which was recorded in the revenue papers as being the property of certain non-Muslim owners. He relied upon entries appearing in the jamabandis for the year 1931-32, 1943-44, 1955-56 and 1959-60, in which he, or his ancestor, was described as being in occupation as a tenant-at-will but paying no Lagan or B3tai to the owners on account of assertion of ownership. He also contended that in any case the property had not been treated as evacuee property before the let of January 1957, and could not, therefore, be treated as such subsequently in view of the bar contained in section 3 of Act XII of 1957.
3. The defendants disputed the jurisdiction of the civil Court, and also raised other objections to the claim put forward by the petitioner, but all the relevant issues were decided In favour of the petitioner, and a decree was granted to him to the effect that he had perfected his title by adverse possession. These findings were upheld by the learned District Judge in first appeal, but have been reversed by the High Court in second appeal. The learned Judge has observed that the revenue entries relied upon by the petitioner did not establish conclusively that he was holding the land in open and hostile possession as against the true owners for over twelve years. The learned judge has also held that this case did not fall within the exclusive jurisdiction of the Custodian of Evacuee Property, for the reason that the petitioner was claiming title in the land prior to the 28th of February 1947, without date evacuee laws were brought into operation and evacuee x ray was vested in the Custodian.
4. It is submitted on behalf of the petitioner that the Courts below have erred in thinking that the matter did not fall within the jurisdiction of the Custodian of Evacuee Property, and therefore, they should have referred the question to that authority for decision in the first instance. It is next submitted that in any case the learned Judge in the High Court was in error in setting aside the concurrent finding of fact recorded by the lower Courts regarding the continuous adverse possession of the petitioner for over twelve before the date of enforcement of evacuee laws.
5. After hearing the learned counsel at some length, we are of the view that there is no merit in either of these submissions. In the first place, it hart to be noticed that it was the petitioner who had invoked the jurisdiction of the Civil Court, and, therefore, it does not now lie in his mouth to contend that the Court had no jurisdiction in the matter. Secondly, we are in agreement with the view taken by the High Court that on the averments made, bar the petitioner himself, the case did not fall within the exclusive jurisdiction of the Custodian, as the petitioner was claiming that he had alreadyperfected his title by adverse possession before the date prescribed in the evacuee laws, namely, 28th of February 1947.
6. On the merits of the case, we find that the learned Judge has rightly held that the mere entry of the petitioner or his predecessor-in-interest as a tenant at-will not paying any Lagan or Batai owing to assertion of ownership did not. In law, amount to an open and overt act of hostile or adverse possession against the true owners.
7. We are also in agreement with the High Court that in any case, in order to succeed in a claim based on adverse possession, the plaintiff has to show that he has been in continuous and uninterrupted adverse possession for the prescribed period of twelve years. This onus could not be discharged by filing copies of revenue jamabandis for the years 1931-32 and 1943-44. It was necessary for the petitioner to show by producing evidence. In the shape of the intervening jamabandis that his position as a person In adverse possession had been continuously maintained throughout the prescribed period of twelve years. This petitioner failed to do. Even if he is treated as being in adverse possession in the years 1931-32 and again in 1943-44, there is no presumption that he continued to maintain the same position during the twelve intervening years.
8. We also find that the learne3 Judge rightly took note of the fact that in any case the petitioner was shown to be in possession of only half the disputed area, namely, four kanals, and on that ground he could not maintain his claim to the entire area of eight kanals .
9. For the foregoing reasons, we are of the view that no justification is made out of our interference in the matter. The petition is accordingly dismissed.