' Mian Tayubuddin etc. And pro forma defendants 2 to 83 sued Muhammad Atiq, defendant No,1, for possession of land, as detailed in the heading of the plaint. The plaintiffs alleged that the suit land was given to defendant No,1 in lieu of his services as "Imam" and as he failed to perform his duty and started to raise construction on the suit land, he was asked to hand over the possession of the same to the plaintiffs and on his refusal the plaintiffs filed the instant suit. Defendant No,1, Muhammad Atiq, contested the suit by filing his written statement wherein he, besides other pleas, raised the plea of adverse possession over the suit land. The learned trial Judge on the pleadings of the parties framed as many as 13 issues. For deciding the question of making improvements over the suit land by defendant No,1, the trial Court appointed a local Commission, who submitted his report accordingly. Thereafter, on the available evidence of the parties, which they adduced before the trial Court, the learned trial Judge dismissed the suit of the plaintiffs vide judgment and.
Decree dated 28-7-1991. Dissatisfied with it, the plaintiffs as well as defendant No,1 filed two appeals before the learned District Judge, Mardan who accepted both the appeals and after setting aside the judgment and decree of the learned trial Judge remanded the case back to the trial Court with certain observations and further directed to decide the case afresh. It was also directed that the trial Court should record its findings about the acceptance or rejection of the report of the local Commission. In compliance with the above directions, the learned trial Judge accepted and confirmed the report of the local Commission vide order dated 29-9-1992 holding the cost of improvements to be Rs,67,700 incurred by defendant No, 1 . Through her judgment and decree dated 14-3-1992 the learned trial Judge again dismissed the suit of the plaintiffs. Aggrieved of this order, the plaintiffs filed an appeal with the learned Additional District Judge-I, Mardan, who vide his judgment and decree dated 27-7-1994 accepted the same and while setting aside the impugned judgment and decree of the learned trial Judge decreed the suit of the plaintiffs, as prayed for, subject to the condition that they should deposit the costs of improvements viz. Rs,67,700 within two months in the trial Court.
2. Not content with the findings of the learned lower appellate Court, Mian Tayubuddin etc. Filed Civil Revision No,635 of 1994 with regard to payment of cost of improvements only. Muhammad Arif etc., the legal heirs of Muhammad Atiq defendant No,1 (since dead) also filed Civil Revision No,686 of 1994 challenging the judgment and decree of the learned lower Appellate Court in toto. As both these revision petitions arise out of one and the same judgment of the learned Additional District Judge-I, Mardan, therefore, these were heard together and by this single judgment in Civil Revision No,686 of 1994 I propose to dispose of both of them.
3. I have heard the learned counsel for the parties in both the revision ktions at length and with their help have also perused the record minutely. I would prefer to take up Civil Revision No,686 of 1994 first, through which the whole judgment and decree of the learned lower Appellate Court has been impugned.
4. A perusal of the record would show that the suit land was given to the predecessor-in-interest of late Muhammad Atiq, namely Najeem Khan alias Dangray Baba as "Sadaqa/Seri" by the predecessor-in-interest of the rival petitioners, namely, Mian Burhanuddin in 1876 and in this respect entry in the revenue record is "Bawaja-e-Imam Bila Lagan". Since then, the predecessor in interest of defendant No,1, Muhammad Atiq and after latter's death, the present petitioners are in peaceful possession of the same. The record further reveals that it has been admitted by the attorney of the rival petitioners, namely, Mian Tayubuddin (who himself is plaintiff No,1 and attorney of the remaining plaintiffs) that even after the institution of the instant suit, Muhammad Arif, one of the legal heir of late Muhammad Atiq, is still performing the duty of "Imam" in the said mosque. In his cross-examination, this witness has clearly stated that the suit land was given to the forefathers of defendant No,1, Muhammad Atiq, by the forefathers of the plaintiffs. He further stated that he does not know as to who had given the suit land to the father of contesting defendant No,1 as "Imam" of the mosque because it was given so before his birth. This witness stated his age at the time of recording of his statement in Court to be 78 years. He further stated that before the father of defendant No,1 his father was performing the duty of "Imam" in the said mosque. Muhammad Arif had recorded his statement as D.W.1 as attorney of the defendants, wherein he stated that Najeem Khan alias Dangary Baba, his great grandfather, was appointed as "Imam" of the mosque by the ancestors of the plaintiffs before the Settlement of 1895, who had installed a Persian wheel in the suit land and made a portion thereof as graveyard. After his death, Muhammad Atiq (since dead) was the "Imam" of the said mosque and enjoyed the suit land in the manner as stated above and during the old age of Muhammad Atiq, Muhammad Arif D.W.1 had become the "Imam" of the said mosque and is still performing the said duty. The record further shows and confirms that no objection/interference was ever made by the forefathers of the plaintiffs in the peaceful and open possession of the suit land by the present petitioners. This peaceful possession of the present petitioners (Muhammad Arif etc.) and before them by their father, grandfather and great grandfather spreads over a century. In the record of rights, placed on record, for the year 1926-27, one Muhammad Siddique son of Muhammad Faiq is recorded as "Ghair Dakhil Kar" in the column of cultivation while the column of 'Lagan' carries the entries "Bila Lagan Bawaja-e-Imamat". Since then the said land has remained in possession of the defendants (Muhammad Atiq etc.) due to "Imamat".
5. Plaintiffs have not produced any evidence showing that their forefathers had exercised any right with regard to the suit land as against the defendants. The plaintiffs are not in possession of any documentary proof showing the so-called tenancy of the suit land by the great grandfathers of the defendant No,1 (since dead). Right from 1926 till the date of institution of the suit in hand, no objection whatsoever was taken in respect of the open enjoyment of the suit land by the defendants. On the other hand, the defendants have brought evidence on record which proves that Najeem Khan alias Dangary Baba was the great grandfather of the defendants, who was given "Imamati" of the mosque, Constructed by one Mian Burhanuddin in Surkh Dheri. This Mian Burhanuddin had sufficient landed property in the village, who had given the suit land out of the same to the said Najeem Khan as "Hibba" in recognition of his services as "Imam" of the said mosque where after till the present time descendants of the said Najeem Khan had been performing the duty of "Imam" in the said mosque, without any objection by the other side.
6. What has been stated above is sufficient to prove that the suit land was given to great grandfather of the present petitioners (Muhammad Arif etc.) before the Settlement of 1895 as 'Bila Lagan Bawaj-e-Imam' and the same is in their possession till today without any kind of objection in respect to their open enjoyment of the same. The report of local Commission appointed in this regard is a further pointer to the fact that the present petitioners have made improvements over the suit land which were calculated to be Rs,67,700.
7. As regards the legal position of the case, the record proves it beyond any shadow of doubt that the suit property was given to the great grandfathers of the present petitioners as "Sadaqa/Seri" by the forefathers of the rival petitioners, more than a century ago, and in this way possession of the present petitioners over the suit land becomes 'adverse' as compared to the rival petitioners. There is an elaborate authority on the point reported in Azizur Rahman and another v. Atai Khan (represented by his heirs) and 6 others PLD 1976 Pesh. 60 which is on all fours applicable to the facts of the case in hand. Their Lordships have held in this authority as under:-- " 'Seri' tenure--Defendants not denying plaintiff's specific allegation of land in dispute being owned by plaintiff's grandfather as 'Seri' and their continuous possession for 70 years---Revenue record also showing land as 'Seri'---History of 'Seri' tenure and old judgment of Judicial Commissioner holding 'Seri Khors' to be usually carrying rights of 'Malik-e-Qabza'--Ancient archives record translating 'Seri' as grant of land in ownership to religious characters--Plaintiffs, held, Seri Khors and not liable to be evicted as tenants-at-will."
' In this authority, the plaintiffs were in possession of the suit land for a period of 70 years whereas in the instant case the record shows that the suit land was given to the great grandfather of the present petitioners more than a century ago. Their lordships have further observed in the cited case that possession of the plaintiffs shall be deemed to be adverse.
8. In view of what has been discussed above, I am of the firm view that the suit land was given to the great grandfather of the present petitioners by the forefathers of the rival petitioners more than a century ago in lieu of their services as "Imam" and the said gift comes within the definition of "Sadaqa/Seri" and after its creation the rival petitioners have lost their right of revocation of the same. They have admittedly not objected/interfered with the peaceful/open possession and making improvements by the present petitioners during this long period and the fact that a "Sadaqa" which is completed by delivery of possession is not revocable, therefore, I hold that the learned lower Appellate Court has misread the record of the case and was thus not legally correct in setting aside the judgment and decree of the learned trial Judge. Accordingly, I would accept Civil Revision No,686 of 1994, set aside the impugned judgment and decree of the learned Additional District Judge-I, Mardan dated 27-7-1994 and restore the judgment and decree dated 14-3-1992 of the learned trial Judge. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs.
9. Reverting to Civil Revision No,635 of 1994, suffice it to say, that the petitioners have tried to blow hot and cold` in one breath. They have accepted the impugned judgment and decree qua the grant of decree in their favour but have assailed the same with regard to cost of improvements only, by saying that it is the result of misreading of the evidence on record, which legally they cannot do. Anyhow, as I have set aside the impugned judgment and decree of the learned Additional District Judge-I, Mardan in toto under Civil Revision No,686 of 1994, therefore, this Civil Revision being without any substance deserves dismissal and I . The parties are, however, left to bear their own costs.