1. BASHARAT AHMAD SHAIKH, J.--- This is defendants' appeal in which leave was granted to challenge the judgment and decree passed by the High Court on 16th April, 1998 by which second appeal filed by respondent Muhammad Latif was accepted and a decree of ownership on the basis of adverse possession was passed in favour of the respondent against the present appellants.
2. Respondent No.1 Muhammad Latif filed a suit in the Court of Sub--Judge, Mirpur on 8th May, 1991 against Inayat Begum and Walayat Begum daughters of Dittoo, as well as Nazir Alam son of Said Ullah seeking a declaration that land measuring two Kanals fifteen Marlas under Survey No.798 in Dheri Qandu Khan, Tehsil and District Mirpur is m the plaintiffs' ownershin on the basis of private sale. He alternatively pleaded adverse possession over the suit land spreading over twelve years.
3. He also sought an injunction that the defendants be restrained to interfere in the plaintiff's possession of the suit land The contents of the plaint in brief were that according to "Jamabandi" of 1975--76 suit land was purchased by the ancestors of the plaintiffs from ancestors of the defendants long time ago and it was in their continuous possession. In the Revenue Record there is entry of "Ba'4-Khangi" (private sale). In the written statements defendants Nos.1 and 2. Inayat Begum and Walayat Begum, denied the averments but they did not take any specific plea.
4. However, defendant Nazir Alain admitted the claim of the plaintiff. The "Jamabandi" 1975-76, attached with the plaint, Exh.P.C. Contains the names of Dittoo son of Sahib Din, the father of appellants Inayat Begum and Walayat Begum, as well as defendants Nazir Alam and Fateh Alam, sons of Said Ullah, as owners. In the cultivation column possession is that of Dittoo while cultivation is shown to be that of Mst. Zewar Nishan widow of Said Muhammad as tenant-at-will. Mst. Zewar Nishan is now succeeded by Muhammad Latif. In the rent column it is stated that rent was not being paid because of private sale. In "Misl-e-Haqqiat" 1991-92, Exh.P.E. The entry in the ownership column remains unchanged while in the column relating to tenant the name of Dittoo no longer exists while the name of Mst. Zewar Nishan has been substituted by the name of plaintiff No.1 Muhammad Latif son of Muhammad Sharif who is a nephew of Said Muhammad, the husband of Mst. Zewar Nishan as tenant. The rent column remains unchanged. The plaintiff produced Abdul Shakoor, Patwari, Safdar Khan, Feroze and Muhammad Shafi as his witnesses and also appeared as his own witness. Inayat Begum did not produce any witness while Walayat Begum produced Muhammad Sabir as her witness while Muhammad Tasab, attorney of Walayat Begum, was also examined as witness.
5. The learned Sub-Judge recorded the finding that the plaintiff had proved factum of oral sale but held that the oral sale itself did not give right of ownership to the vendee. He further held that the possession of the plaintiff over the suit land was in pursuance of defective sale which amounted to adverse possession. He, therefore, held that the plaintiff was in possession under defective title for a period of exceeding twelve years. The plea was raised on behalf of the defendants that the plaintiff was paying "Ghalla Batai" (share of produce) to the owner but this plea was repelled on the ground that it had not been duly raised in the written statement.
6. The learned District Judge set aside the decree passed by the trial Court by holding that private sale had not been proved. The learned District Judge, therefore, held that possession of the plaintiff could not be termed as adverse.
7. The High Court held that it was proved that the land in dispute was previously in possession of Mst.
8. Zewar Nishan and then in plaintiff's ossession. The High Court further held that the Revenue Record supported byoral evidence showed that the land was in adverse possession of the plaintiff. The High Court also mentioned that the learned District Judge failed to take otice of the fact that defendant Nazir Alam had admitted the claim of the laintiff and.The plaintiff was in any case entitled to a decree to that extent.
9. We have heard the learned counsel for the parties. Mr. Manzoor Hussain appeared in support of the appeal and Ch. Munsif Dad represented the respondents.
10. It was contended by Mr. Manzoor Hussain that in the Revenue Record uptil the names of the ancestors of the defendants and subsequently of the defendants have all along been shown as owners while plaintiff's side is shown as tenants-at-will. He submitted that private sale had not been proved by the plaintiffs by producing any cogent evidence. He further submitted that the plaintiffs' claim was based on entries in the Revenue Record as proof of private sale but the legal position was clear that neither oral sale was valid nor could be proved by entries in Revenue Record. Mr. Manzoor Hussain contended that entries in the record to the effect that there was oral sale cannot be considered as a proof which must come from outside the Revenue Record. He submitted that the oral evidence produced by the plaintiff did not prove oral sale, therefore, the entries of private sale were meaningless. He vehemently contended that the suit land was transferred by Dittoo to appellants Inayat Begum and Walayat Begum through gift-deed, Exh.D.A.
11. Executed by him on 18th June, 1972, before filing of the suit. He contended that the gift-deed itself disproved the case of the plaintiff. Mr. Manzoor Hussain relied on Muhammad Ayub and others v.
12. Adalat Khan and others 1993 SCR 338 and Dewan Ali Khan v. Jehandad Khan and others 1995 SCR 116.
13. The evidence in the case consists of documentary as well as oral evidence. There is no dispute on the point that entries in all the revenue papers show that the suit land was in the ownership of Dittoo son of Sahib Din and the heirs of. Said Ullah, namely, his widow Karam Bibi and his sots Nazir Alam and Fateh Alam. In the earlier entries Dittoo was shown as the owner in possession while Mst.
14. Zewar Nishan and subsequently Muhammad Latif respondent No. 1 were shown as tenant-at-will. It further carries the entry that no rent is being paid because of private sale. These entries are contained in Exhs.P.C. "Jamabandi" 1975-76, P.E. "Misl-e-Haqiat" 1991-92, (P.E. "Misl-e-Haqiat" 1991- 92) and P.D. Of the period under reference. Oral evidence consists of Abdul Shakoor Patwari who proved some of the Revenue Record. The plaintiff produced Safdar Khan, caste Rajput, aged seventy years, belonging to same village Dheri Qandu Khan, who stated that the suit land was sold by Gamoo Teli to Said Muhammad Qureshi through oral sale for a consideration of Rs.325 in his presence. After the sale Said Muhammad used to cultivate the land. After him his widow Mst. Zewar Nishan cultivated the land. Now Latif was the owner and cultivating it. He stated that Muhammad Latif cultivated the suit land considering himself to be its owner. In cross-examination Safdar Khan repudiated the suggestion that Zewar Nishan was alive and is in England. He further described it as correct that a daughter of Zewar Nishan is alive and was in England. He further stated that Zewar Nishan had no son. No further question was put to Safdar Khan. His statement that the land was sold in his presence was not challenged. It was not even suggested to him that he had made a wrong statement or that he was an interested witness. The second witness was Feroze, caste Jat, who was sixty years old at the time of his Court statement also was from Dheri Qandu Khan. He stated that from his childhood the suit land was in possession of the plaintiff and his ancestors have been cultivating it considering themselves to be its owners and did not pay share to anybody.
15. He stated that he had been seeing the possession of the plaintiff for thirty-five to forty years. In cross-examination he stated that the suit land was purchased by the plaintiff before his childhood.
16. He did not know what was the sale price. In answer to another question he deposed that factum of sale was narrated to him by his father. He repudiated the suggestion that the suit land was on "Ghana Batai" with the plaintiff party. He also repudiated the suggestion that the plaintiff party cultivated the land due to their relationship with the owners. It was put to him that he had made his wrong statement but he denied having done so. Another witness belonging to the same village Muhammad Shafi deposed about the continuous possession initially of Zewar Nishan and subsequently of Muhammad Latif. He stated that he used to cultivate the land on behalf of Mst.
17. Zewar Nishan. The land was not on "Ghalla Batai". He stated that he cultivated the land for twelve to thirteen years and gave produce to Mst. Zewar Nishan. He stated that subsequently Muhammad Latif started cultivation of land himself. In cross-examination he stated that he had heard that the land had been purchased by Mian Said Muhammad, the paternal-uncle of Muhammad Latif, but it was much before his childhood. He denied the allegation that he had made a false statement.
18. Defendants produced Muhammad Sabir and Muhammad Tasab as their witnesses. Muhammad Sabir, aged forty years, belonging to Chakswari, a place at least mile or two away from Kot Qandu Khan. Muhammad Sabir stated that the suit land belonged to Dittoo and his daughters were defendants Inayat Begum and Walayat Begum. He also stated that Dittoo had gifted the suit land alongwith a house to his daughters and that Inayat Begum was living in the house while plaintiff Latif was in occupation of the suit land. He stated that Latif was paying "Ghalla Batai" and that previously the land was on "Ghalla Batai" with Said Muhammad. In cross-examination he admitted that the suit land was partly owned by Nazir Alam son of Said Ullah. He stated that he had been going to Kot Qandu Khan at least eight times a month for twenty to twenty-five years. He admitted that he had all along been seeing the suit land to be in possession of plaintiff Muhammad Latif and his ancestors but denied the suggestion about oral sale. He stated that in 1971-72 "Ghalla Batai" was paid in his presence by one Anwar Jan. The other witness Muhammad Tasab stated that the suit land was owned by Dittoo who had gifted it to his daughters through gift deed Exh.D.A. Executed on 19th June, 1972. He however, admitted that the land was in possession of the plaintiff but stated that he was paying "Ghalla Batai".
19. On the basis of this evidence the learned Sub-Judge gave a finding in favour of the plaintiff. This finding was set aside by the learned District Judge. The learned District Judge expressed the view that no record had been produced by the plaintiff to substantiate his claim in respect of oral sale nor did the plaintiff produce any cogent evidence in support of this claim. However, the High Court has set aside the judgment of the learned District Judge and restored the finding of the trial Court.
20. As is well-settled, appraisal of evidence is not a function of this Court. A finding of fact recorded by the High Court in second appeal is sacrosanct although it can be vacated by this Court if it is found that it is based on gross misreading or non-reading of evidence or if a finding has been recorded by adopting an illegal procedure. We have gone through the evidence produced by the parties and have summarised it so as t9 satisfy ourselves whether the conclusion drawn by the High Court suffers from any such defect but in our view the conclusion drawn by the High Court flows from the evidence on the record. In case of adverse possession the manner in which the person claiming to be in adverse possession began his possession of the suit land is important. The plaintiff claimed that his ancestors purchased the land through oral sale. On the other hand the defendants did not take any specific plea as their written statements consist of bare denials. During the trial however, the defendants tried to prove that the land was on "Ghalla Batai" with the plaintiff and his ancestors.
21. Law is firmly settled on the point that a party cannot produce evidence to provea fact which is not part of its pleading. Therefore, the statements made by the two witnesses produced by the defendants on this point are of no avail. Long standing possession of the plaintiff and his ancestors is proved; in fact it was admitted during evidence. Documentary proof establishes the possession on the basis of oral sale from 1975 onwards while the plaintiff's witness Safdar Khan stated that the land was purchased in his presence fifty-five years ago and that it had all along been in possession of the plaintiff and his ancestors. This statement was .Not challenged by the defendants. Similarly, Feroze also stated that the land was in possession of the plaintiff and his ancestors since before his childhood. As already mentioned Safdar Khan was seventy years old and Feroze had already E attained sixty years: when their statements were recorded.
22. Preponderance of evidence therefore, leads to the finding of fact recorded by the High Court.
23. Therefore, no inference is possible.
24. Ch. Munsif Dad, the learned counsel for the respondents, rightly placed reliance on Mir Laik Ali v.
25. Standard Vacuum Oil Company (ESSO) and Abdul Razzak PLD 1964 SC 220 and Ahmad Khan v.
26. Rasul Shah and others PLD 1975 SC 311 to contend that possession under defective title is adverse to the owner. It was held in Mir Laik Ali's case by Supreme Court of Pakistan that in the absence of some rebutting circumstance a person in possession under an invalid F deed is in adverse possession to the true owner. Similarly in Ahmad Khan's case the Supreme Court of Pakistan reiterated the principle of law that a vendee who remains in possession after the sale of land or property. Which goes of or is otherwise defective in law holds adversely to the vendor. This rule is fully applicable to the case.
27. Therefore, finding no force in this appeal, we order its dismissal. However, the parties are left to bear their own costs in this Court.