' The following facts culminated into above-titled appeal.
2. Two suits one by Muhammad Shair and Shair Dil sons of Faqir Khan on the ground of adverse possession against Din Muhammad and others and the other by Muhammad Sadiq and Muhammad Afsar sons of Bandar Khan seeking possession of the suit-land against Muhammad Shair and Shair Dil were brought before Sub-Judge, Pallandari on 7-7-1976 and 20-4-1980 respectively. Both the suits were consolidated by the trial Court and after due process of law the suit by Muhammad Shair and others was disallowed whereas the cross suit for possession was decreed in favour of Muhammad Sadiq and others. On appeal the judgment and decree by the trial Court was reversed by Additional District Judge, Pallandari. Hence this appeal.
3. The claim of Muhammad Shair and others (respondents herein) is that the suit-land comprising Survey No,1193 measuring 8 Kanals and 11 Marlas is under their possession as full owners on the ground of adverse possession since Dogra Regime. They had been paying land revenue directly to the Lumberdar of the village. They, have broken the land to make it available for cultivation. The improvements in shape of house and garden etc. Were also made as full owners. The real owners (defendants in the suit) attempted to take-over the possession of the suit-land in March, 1963 but they were pushed away and from there onwards the suit-land is under their possession and their possession has been matured into ownership. Despite knowledge of adverse possession over the suit-land, Nawazish Ali and Mukhan transferred their share in the suit-land through a sale-deed executed on 21-6-1976 in favour of defendants Muhammad Sadiq and Muhammad Afsar.
According to them, the sale-deed executed in favour of aforesaid persons was ineffective and inoperative as against the rights of the plaintiffs as such it was liable to be cancelled.
4. The defendants Muhammad Sadiq and Muhammad Afsar submitted their written statement on 17-1-1977 wherein they admitted the fact of possession by the plaintiffs Muhammad Shair and others over the suit-land since Dogra Regime, however, the other averments in the plaint were denied by them claiming that the suit-land was mortgaged to the plaintiffs. In lieu of Rs,60 by one of the co-owners namely Hashmat Khan. The father of the plaintiffs and after his death the plaintiffs are occupying the suit-land as mortgagee. They denied the fact of improvements and also refuted through their written statement the claim of adverse possession by the plaintiffs.
Nawazish Ali and Mukhan also submitted their written statement on 2-4-1977 and the stand taken by them is almost the same as that of Muhammad Sadiq and Muhammad Afsar. So far other defendants are concerned, some of them have been proceeded ex parte and a few of them have admitted the claim by the plaintiff Muhammad Shair and others.
5. The claim put forwarded by Muhammad Sadiq and Muhammad Afsar in their cross-suit for possession is somewhat different. According to their claim in their suit, they are owners of the suit- land on account of sale-deed executed in their favour by Nawazish Ali and Mukhan on 21-6-1976.
They further claimed that the father of Mukhan and Nawazish Ali mortgaged the suit-land to the plaintiff Muhammad Shair and others in lieu of Rs,80, however, before execution of the sale-deed the mortgage money was adjusted against the land produce and the possession of the suit land was handed over to them (Muhammad Sadiq and others). According to them, Muhammad Shair and others after handing over the possession to plaintiffs (Muhammad Sadiq and others) dispossessed them in July, 1976 forcibly and from there onwards the suit-land is under their illegal possession and they are deriving benefits out of the land without any justification, therefore, a decree for possession is sought on the ground of a title deed.
6. Muhammad Shair and others also submitted their written statement in response to the cross- suit filed by the opposite-party and they had taken almost the same version as they have pleaded in their cross-suit for adverse possession.
7. The learned counsel for the appellants while assailing Judgment and decree of First Appellate Court argued that the suit for possession was brought before the Court on the basis of title and, unless the title of the appellants was extinguished, the suit for possession could not be disallowed.
He further submitted that mere possession over the suit-land how long it may be could not constitute adverse possession unless the possession being adverse was open, hostile and to the knowledge of real owners. According to him, Nawazish Ali and Mukhan Khan being full owners transferred their share in favour of Muhammad Sadiq and Afsar through a sale-deed and their title at the time of institution of the suit for possession was alive as such they were entitled to the possession of the suit-land. It was also argued that the respondents were tenants-at-will and, under law, they were debarred to claim adverse possession against real owners. The First Appellate Court while recording its judgment and decree failed to appreciate evidence brought on record in its true perspective which resulted into wrong conclusion. The learned counsel, during his arguments cited; PLD 1978 SC (AJ&K) 33, PLD 1973 SC 214 and PLD 1987 SC (AJ&K) 93 in order to support his case.
8. Conversely, the learned counsel for the respondents argued that the suit for possession by Muhammad Sadiq and other was not maintainable on the ground that they failed to implead other co-owners of the suit-land and as such no effective decree could be passed in their suit for possession. According to him Nawazish Ali and Mukhan Khan (vendors) were the owners to the extent of 1/4th share of the suit-land in Survey No,1193 which comes. To 2 Kanals and 3 Marlas only.
It was further argued that neither Nawazish Ali and Mukhan nor the present appellants ever occupied the suit-land, therefore, they being out of possession were under legal obligation to array all other co-owners as defendants and, in case, they succeeded to establish their claim they could be awarded an effective decree. It was also argued that the forefathers of Nawazish Ali and Mukhan who executed sale-deed in favour of present appellants migrated from village Chowkian situated in District Sudhnoti to village Sehr Kahkota in Poonch during Dogra Regime and the suit- land remained under the possession of forefathers of the present respondents and after their death the respondents are occupying the suit-land for more than a half century. They raised construction over the suit-land in shape of house and other improvements had also been made by them showing clear ouster of real owners. The real owners were aware of the fact that the forefathers of the respondents and the respondents themselves were occupying the suit-land as full owners but despite the fact they could not dispossess them and their possession had matured into ownership at the time of sale-deed or at the time of institution of suit for possession. The fact of adverse possession was proved satisfactorily through documentary and verbal evidence brought on record by the respondents, therefore, the First Appellate Court travelled in the right direction while allowing the suit for adverse possession. The learned counsel supported his contention by citing (1982 CLC 1309, 1983 CLC 1029, 1985 CLC 1448 and 1993 SCR 170) and contended that the appeal being without substance might be dismissed with costs.
9. The record of the case was carefully examined. The suit-land is situated in village Chowkian, District Sudhnoti. It is borne out by the record that forefathers of Nawazish Ali and Mukhan migrated from village Chowkian to village Sehr-Kahkota Poonch during Dogra Regime and from there onwards they are living there. It is admitted by the appellants in their written statement to the cross-suit for adverse possession that the suit-land is under the possession of respondents since Dogra Regime. The appellants have claimed the suit-land to be under the possession of the respondents on account of mortgage by one of co-owners namely Hashmat Khan. The fact of mortgage is not proved in the light of evidence rather the learned counsel for the appellants during his arguments attempted to set up a different case saying that the respondents are occupying the suit-land permissively by Nawazish Ali and relied on an entry in this respect in Jamabandi Exh.P.A.
Pertaining to the year 1956. This stand taken by the learned counsel for the appellants runs counter to the version taken in the written statement by appellants themselves. Therefore, the logical result is that neither the suit-land was mortgaged nor it was a permissive possession on behalf of Nawazish Ali. It cannot escape the attention of this Court that the appellants in their cross-suit took a categorical stand that before execution of sale-deed in their favour the possession of the suit- land was handed over to them and the respondents forcibly took over the possession of the suit- land in July, 1976. Thus, the suit-land, according to their own version is being occupied forcibly by the respondents till date. Now the question arises, that whether the nature of possession before institution of the suit regarding suit-land remained the same as claimed by the appellants after July, 1976. The answer is that a decree on the basis of adverse possession can only be passed when the adverse possession is matured in terms of period required for it. The respondents claimed their possession continuously since Dogra Regime and evidence brought on record which consists of oral statements of different persons of old age being not relatives to the respondents corroborate the version of the respondents for long and uninterrupted possession over the suit- land. The respondents also claimed that in the year 1963 an attempt was made by the real owners to oust them from the suit-land but they had foiled it at that time resultantly their possession over the suit-land remained intact. They have, built up a house and also have made other improvements too. The Revenue Record which has been tendered into evidence shows that the respondents raised a house in the year 1963 and this fact was categorically pleaded in their suit for adverse possession. The verbal evidence also speaks in favour of this fact of raising house over the suit-land. The evidence brought on record by the respondent when seen in the light of two very important factors i,e, the sale of 132 Kanals and 11 Marlas including suit-land for a consideration of Rs,6,000 only in the year 1976 and admission of claim of adverse possession by other co-owners (defendants) leads to the conclusion that the respondents were in fact occupying the suit land forcibly and that is why 132 Kanals and 11 Marlas including suit-land was sold to the appellants by vendors for a throw away price because they were not in position to take the possession back from the respondents. Another adding factor to constitute adverse possession is the report of Commissioner who observed improvements over the suit-land effected 20-25 years back.
10. To constitute adverse possession, it is not necessary to push away the real owners with baton charge or by using fire-arms. The classical requirement of adverse possession is that it must be adequate in continuity and its nature as adverse to the knowledge of real owners. In civil cases as compared to criminal cases only preponderance of probability is to be seen while recording a judgment in favour of a party. We have to see cumulative effect of all the material placed on record while deciding a civil case. If the material placed on record read with other attending factors creates the preponderance of probability in favour of a party, that party must succeed.
11. In the given circumstances of the present case as narrated above, this Court is convinced that the respondents held the land in their own rights and it was open to the real owners who failed to take possession back from the respondents and on account of their failure they transferred 132 Kanals and 11 Marlas including suit-land to the present appellants Muhammad Sadiq and Muhammad Afsar for a throwaway price. The case-law cited at Bar was also examined but it was found not helpful in the instant case as such it is not required to reproduce the observations recorded by the learned Judges in different cases. To constitute adverse possession, its openness.
Hostility. Continuity and maturity to the knowledge of real owners is necessary. The aforesaid requirement may be conveyed to the real owner without use of force. In the instant case all the requirements are fulfilled, therefore, the judgment and decree of First Appellate Court needs no interference by this Court.
12. There is yet another aspect of this case. Messrs Nawazish Ali and Mukhan Khan transferred their share out of joint property being out of possession, therefore, those who stepped into their shoes were under legal obligation to implead all the co-owners in the suit for possession. No effective decree could be passed in absence of co-sharer, therefore, the suit for possession by Muhammad Sadiq and Muhammad Afsar is not maintainable in the eye of law.
13. The result is that the appellants failed to prove their title as alive at the time of sale deed and suit for possession consequently their suit was rightly dismissed by the First Appellate Court by allowing cross suit on the basis of adverse possession.