' Briefly stated the facts are that plaintiffs/respondents Nos.1 to 5 filed a suit for possession of land measuring 35 Kanals 9, Marlas comprising of Khasra Nos.616, 617, 618, 619, 621, Khatooni Nos.422 to 426, Khata No,190 as shown in record of rights for the year 1968-69 and situated in Estate of Mauza Danga, Tehsil Pasroor, District Sialkot against the defendants/petitioner and defendants/respondents Nos. 6 to 16 on the ground that the property in dispute belonged to their father namely Lal Din and after his death had fallen to their share and as such they were shown the owners of the land under dispute. They further asserted that the predecessor-in-interest of the petitioner and defendants/respondents Nos.6 to 16 were cultivating the land in dispute as tenants at will and on account of relationship they were not paying any rent to plaintiffs/respondents Nos. 1 to 5 as well as their predecessor-in-interest namely. Lal Din.
2. The defendant/petitioner and defendants/respondents Nos.6 to 16 contested the suit and maintained that suit was time-barred, that under the Act of 1913 Lal Din, predecessor-in-interest of plaintiffs/ respondents Nos.1 to 5 was to be enrolled as a voter, therefore the land was mutated in his name as a Benami ownership, that land jointly purchased was privately partitioned and they were in possession of their share as owners. In the alternative they claimed, the protection of their title by adverse possession.
3. Contention of the parties culminated into following issues:--
(1) Whether the land in dispute is owned by the plaintiffs?
(2) Whether the defendants are in possession of the land in dispute as trespassers?
(3) Whether the suit is within time?
(4) Whether this Court has jurisdiction?
(4-A) Whether the father of the plaintiffs was a Benamidar?
(4-B) Whether the defendants have become owners by adverse possession? And (4-C) Whether the ancesters of the defendants occupied the suit land as tenants-at-will? If so, the effect thereof?
(5) Relief.
4. In support of their stand one of the plaintiffs-respondents Nos.1 to 5 Sardar Khan appeared as P.W.1 and after bringing on record documents closed their evidence. Similarly one of the defendants Sultan Ahmad/petitioner are respondents Nos.6 to 16, appeared as D.W.1 and closed their evidence.
5. After going through the evidence produced by the parties the trial Court dismissed the suit vide judgment and decree dated 19-11-1975. The plaintiffs/respondents Nos.1 to 5 felt aggrieved against the said judgment and decree and filed an appeal which was accepted by the learned Additional District Judge, Sialkot vide judgment and decree dated 30-9-1984. Hence the civil revision.
6. Arguments have been heard and record perused.
7. Contention of the learned counsel for the defendant/petitioner is that according to revenue record produced by the plaintiffs/respondents Nos.1 to 5, it is evident that the petitioner and predecessor-in-interest of respondents Nos.6 to 16 have been occupying the suit land being in their capacity as 'Ghair Dakheel Karan' and they have not been paying any rent produce to Lal Din predecessor-in-interest of the plaintiffs/ respondents Nos.1 to 5, that this fact alone proves that they had been in possession of the suit. Land as owner. He further argued that if this contention does not find favour with this Court then they have acquired the proprietary rights being in adverse possession of the suit land as they have been coming in possession of the same for the last more than 30 years. He thus submitted that First Appellate Court has not passed the impugned judgment and decree in accordance with law and the same be set aside and that of trial Court be restored.
8. Conversely the impugned judgment and decree has been supported by the learned counsel for the plaintiffs/respondents Nos.6 to 16. He contended that according to the revenue record which is available in the form of documents Exh. P.1 to P.4, it is proved that suit land existed in the name of Lal Din predecessor-in-interest of plaintiffs/ respondents Nos.6 to 16, that predecessor-in-interest of defendants/petitioners and respondents Nos.6 to 16 have been shown to be in possession as "Ghair Dakheel Karan Ba Sharah Bila Lagan", but this fact will not clothe them either with the rights of ownership or claim ownership on account of adverse possession. He contended that after the death of Lal Din the suit land was mutated in the name of plaintiffs/respondents Nos.1 to 5 being legal heirs of Lal Din and the defendants/petitioner and respondents Nos.6 to 16 or their predecessor-in-interest never objected said mutation of inheritance. He further argued that defendants/petitioner and respondents Nos.6 to 16 had been occupying the land with their prior approval and as such their possession is permissive one which fact defeats their claim of ownership. He further asserted that mere non-payment of rent or Batai on assertion of ownership could not change the nature of possession which was permissive in its inception into adverse possession and relied upon Fazal Ghani and others v. Khitab Gul and others (1968 SCM R 1040(2)).
He further asserted that entry in record of rights (Jamabandis) "Ba Sharah Malikan Bawaja Kabza" by itself is not sufficient to constitute adverse possession. Such entry is not unequivocal assertion of a hostile title and therefore, one has to interpret this entry in each particular case in the light of facts and circumstances of that case. He further asserted that mere entry as "Ghair Dakheel Karan Bila Lagan' does not mean that defendant/petitioner and respondents Nos.6 to 16 had become owners on account of adverse possession and placed reliance upon Lala and another v. Mst. Jante (1968 SCMR 131). He thus submitted that impugned judgment and decree has been passed in accordance with law and the revision petition being devoid of any force be dismissed.
9. Instant suit has been filed by plaintiffs/respondents Nos.1 to 5 claiming themselves to be owners of the suit land being successors-in-interest of Lal Din who was owner of the suit property. It is evident from record that suit land was purchased by Lal Din vide Mutation No,626 dated 16-12-1929 Exh. P.1. On the death of Lal Din mutation of his Inheritance No,1360 dated 27-9-1966 Exh. P.2 was sanctioned in favour of plaintiffs/respondents Nos.1 to 5. The record further reveals that the suit land was mortgaged by the present plaintiffs/ respondents Nos.1 to 5 vide Mutation No,567 dated 18-5-1969 Exh. P.3. However this land was got redeemed by the plaintiffs/ respondents Nos.1 to 5. It is also evident from Jamabandi of 1951-52 that Lal Din has been shown its owner whereas predecessor-in-interest of defendants/petitioner and respondents Nos.6 to 16 have been shown to be tenants over the same. Same is the position during the year 1960-61 as Jamabandi for the said year Exh. P.6 also discloses them to be tenants over the suit land without paying any Lagan. This position continued till 1968-69, as is evident from Jamabandi Exh. P.9. They have also been shown as such even in the Khasra Gardawari pertaining to the land in question.
10. The stand of plaintiffs/respondents Nos.1 to 5 stands controverted by the defendants/petitioner and respondents Nos.6 to 16 as they claimed themselves to be owner of the same on the ground that they have not been paying any Lagan to the original owner Lal Din and after his death to his heirs/plaintiffs/respondents Nos.1 to 5. The mere fact that defendants/petitioner and respondents Nos.6 to 16 have been occupying the land as "Ghair Dakheel Karan" and have not been paying any Lagan either to Lal Din or to his heirs i,e, plaintiffs Nos.1 to 5, does not mean that they have acquired proprietary rights, in respect of suit land. Entries in record of rights (Jamabandis) to the effect that tenants had not been paying any Lagan, does not mean that they have become owner on account of adverse possession. The mere nonpayment of rent does not alter the nature if the tenancy. The tenant must show that he had done something more to deny the landlord's title, for, the law assumes that a tenancy of land once entered upon continues until determined in one of the ways provided for by statutory enactment. In such case, therefore, clear and unequivocal evidence of the assertion of a hostile title is necessary. Mere non-payment of rent or a mere entry in the Jamabandi showing that rent was being paid at the rate of proprietor's share of the revenue and cesses, is not such clear evidence for, the entry is equally capable of being explained on other grounds consistently with the subsistence of the relationship of landlord and tenant. It is possible that no rent was being claimed, as predecessor-in-interest of defendants/ petitioner and respondents Nos.6 to 16, were real brothers of Lal Din. Thus the mere fact that no rent was being paid by the petitioner and respondents Nos.6 to 16, does not mean that they have become owner on account of adverse possession and reliance is placed on (1968 SCMR 131) (supra). The impugned judgment and decree of the Appellate Court is unexceptionable. There is no force in this civil revision and the same is hereby dismissed.