MUHAMMAD BASHIR JEHANGIRI, J.--This appeal by Saleem Shah and 80 others by leave of this Court is directed against the dismissal of revision petition under section 115 of the Civil Procedure Code (V of 1908) by a learned Judge in Chambers of Peshawar High Court, Abbottabad Bench, dated 30-4-1995.
2. Briefly stated facts of the case are that Muhammad Salim Shah and 80 others appellants instituted a 'suit in the Court of learned Civil Judge, Abbottabad, against Aziz-ur-Rehman and 43 others respondent for: (1) perpetual injunction restraining the respondents from taking possession of a parcel of land comprised in village Shamilat or raising any construction thereon and (2) for a decree for possession thereof by demolition of the superstructure if they were proved to have raised some construction thereon. The appellants founded their claim on the allegation that the disputed land forming part of village Shamilat was handed over to respondent No,1 for enjoying its usufruct in lieu of performance of duties of Imamat in the village mosque without payment of any rent. On his getting old he abandoned the Imamate and the land was occupied by his son Muhammad Aziz respondent who instead of performing the duties of Imama' ts and enjoying the usufruct of the land relinquished his possessory rights by a deed of relinquishment dated 15-6- 1987. It is further added that since then the respondents were bent upon taking possession of the said land raising construction thereon without any lawful authority.
3. The perusal of the Revenue Record would indicate that since the Land Settlement for the year 1905-06 till the Jamabandi for the year 1948-49 of village Mammola where the disputed land is situate, the appellants and other owners stand recorded in the proprietary column while respondent No,1 is shown in possession as a tenant in the cultivation column but in the column of rent, it is recorded that the aforementioned tenancy was in lieu of services rendered by Ghulam Hussain as Imam Masjid. In the subsequent Register Haqdaran Zamin Muhammad Aziz defendant No,1 came to be recorded as Imam Masjid on the same terms. On 8-2-1987, it appears defendants 2 to 4 got a deed of relinquishment Exh.DW.1/2 executed by Muhammad Aziz in their favour and were threatening on that basis to disturb the status quo and were out to raise construction.
Defendants 2 and 3 and defendants 5 to 28 tiled two separate set of written statements wherein status of disputed land forming part of village Shamilat was conceded but they claimed to have taken possession of land and Kotha from defendant No, 1.The pleadings of the parties thus gave rise to as many as 11 issues including the relief. But for the purpose of this appeal, the follwing four issues are material:--
(6) Whether defendant No,1 was in possession of the suit property who had made improvements constructed a house and surrendered the possession in favour of defendants No, 2 and 3 on the basis of deed dated 8-7-1987?
(7) Whether the suit property was given to the defendant No,1 as Imam Masjid but later on he left the suit property and executed a deed dated 15-6-1987?
(8) Whether the defendants have taken the possession on 11-6-1987?
(10) Whether the plaintiffs are entitled to the decree for injunction and in alternative for possession of the suit land?
4. The learned trial. Judge took Issues Nos.3 and 6 to 9 together and on the aforementioned issues, it was held that defendant No,1 was in possession of property and had constructed a house but relinquished the possession thereof in favour of defendants Nos. 2 and 3 on the basis of relinquishment deed dated 8-7-1987. On Issue No,7, it was held that defendant No,1 was tenant-at- will but in his capacity as Imam Masjid and thus his right of tenancy carried the liability to render special service as Imam Masjid and he undertook to perform the duties of Imam he could not legally retain the possession of the land as Ghair Dakhilkar and therefore, he was not competent to surrender the possession of the land to defendants Nos.2 to 4 particularly on the basis of the relinquishment deed Exit DW.1/2 execution whereof was not proved under the law. In this context, it was observed that the scribe and marginal witness of the deed did not come into the witness-box to prove the execution of the deed besides being unregistered and did not, therefore, create any right which could be transferred to defendants Nos.2 to 4. This issue was also decided against the defendants. Issue No,9 was also decided against the defendants. On Issue No,10, it was held that since the entries of column of rent were irreconcilable with those of the column of the cultivation and the proprietary column of the revenue record, therefore, it did not create any transferable right in favour of defendant No,1 or for that matter in favour of defendants Nos.2 to 4. As a cumulative effect of the above finding, the suit of the appellants was decreed. In appeal before the learned Additional District Judge, Abbottabad, filed by the respondents was also dismissed. It was, however, directed in the appellate judgment and the decree that the appellants were granted the decree for possession in respect of the suit property for handing it over to Imam of their mosque for rendering the services as Imam which was the position since 1948-49 in the Revenue Record. They were also held entitled to a decree for permanent injunction as prayed for. The respondents still dissatisfied sought the revision of the impugned judgment and the decree before the Peshawar High Court, Abbottabad Bench. A learned Single Judge notwithstanding upholding the concurrent findings of the learned two Courts below held that none of the rival parties had proved its possession over the suit-land both in law and fact and, therefore, he did not find any justification to interfere therewith.
It was, however, observed that both the parties were co-sharers in the suit-property which admittedly formed part of the Shamilat Deh of the village. The learned Single Judge conceded that law accorded proper recognition to the possession of a joint owner in 'Shamlat Deh' of the village, but no sanctity could be accorded to a possession which had been obtained by dispossessing another joint owner by force or otherwise than in due course of law. It was maintained that a joint owner in Shamilat Deh having in possession in excess of his legal share, could be dispossessed through a suit for partition. In such circumstances, according to the learned Judge, the defendants-respondents had obtained the possession of the disputed property "because the evidence in this behalf has been convincing that both the learned Courts had concurred on this question and it passed a decree for possession in favour of the plaintiffs/appellants as against the defendants/respondents". The learned Single Judge also did not agree that "the defendants- respondents had taken possession of the land on 8-7-1987 and instead held that it was obtained on 11-6-1987 while the suit was filed on 18-6-1987" and in this context reference was made to para.4 of the plaint. The aforesaid paragraph was taken to be "unequivocal admission on their part that the defendants-respondents had taken over the possession of the disputed property on 11-6-1987 which was much earlier than the issuance of order of maintenance of status quo". The learned Single Judge, therefore, held that the possession of the defendants-respondents over the suit- property was established as co-sharer in the suit-property. The learned Single Judge relying on Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (PLD 1974 SC 193) held that the defendants-respondents were in possession of the suit property as co- sharers and could not be dispossessed of otherwise than in due course of law. In view of these findings, the revision petition was accepted and the judgment and the decree passed by the learned Additional District Judge, Abbottabad and those of the learned Civil Judge-III, Abbottabad, were set aside and the appellants were non-suited.
5. Mr. Abdur Rashid Awan, learned Advocate Supreme Court appearing on behalf of the appellants, contended that notwithstanding the fact that the learned Judge in Chambers of the High Court had maintained the finding of fact recorded by the learned two lower Courts but deemed it appropriate to non-suit the appellants merely on the ground that the respondents were co- sharers in village Shamilat and had taken over the possession of a portion of the land, therefore, they could not be dispossessed. According to the learned counsel, the learned Single Judge had completely overlooked the entries of the Revenue Record which he had himself noticed that the status of the defendants- respondents but was one of a tenant in cultivation column and was recorded as "Bila Lagan Bawaja Imam Masjid", whereas the appellants and some of the respondents were recorded as owners in the proprietary column. The learned counsel further submitted that the proposition has been settled by this Court that if the entry of Bila Lagan in the column of rent in the record of rights is irreconcilable with those of column of cultivation it is not of any help to those recorded in the column of cultivation as tenants. In this context reference was made to the law laid down in Tehmas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629 wherein it was observed as under:-- "Ordinarily, it has now been held authoritatively that an entry in the column of Legan would not be preferred over an entry in the column of possession/cultivation, or for that matter the column of ownership. However, it was held in the case of Shad Muhammad referred to above that depending upon the circumstances of each case the party relying on the column of Legan as against the cultivation column would be entitled to produce evidence independent of the entry itself to show that the entry in the column of Legan had a separate contemporaneous support from other reliable evidence, which of course together with the disputed entries would have to be put in juxtaposition to the entry in column of cultivation."
6. Mr Abdur Rashid Awan, learned Advocate Supreme Court conceded that the parties have not been able to bring on record Wajibul Arz and, therefore, the law laid down in Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325 that the entries of Wajibul Arz may be of two kinds: They may be statements of local custom or usage or they may be recitals of agreements. So far as the statements of custom or usage are concerned, they had strong evidence of existence of such custom or usage but they have only an evidentiary value and that in the instant case, the parties have not been able to bring on record any entry of Wajibul Arz showing any custom or usage to the effect that an Imam 'who is enjoying the usufruct of Shamilat Deh land is entitled to transfer it to his heirs and that he would surrender the land on his failure to perform the duty of the Imamat': Nonetheless the learned counsel has pointed out that in the instant case, the case of the parties, was not based on any entry in the Wajibul Arz qua any custom or usages as aforesaid but on the contrary their case was squarely based on the long-standing entries of the record the propriety whereof is not disputed. According to him, it was only the judicial implication of those entries reproduced in para. 4 ante and nothing more.
7. Mr. Muhammad Ibrahim Satti, learned Advocate Supreme Court for the respondents took over rostrum but did not argue the case.
8. Keeping in view the factual background of the controversy as narrated in the preceding paragraphs, the question involved was whether the entry of Bila Lagan existing in favour of defendant-respondent No,1 from whom the answering respondents derived the possessory title regarding the character of their possession was of any benefit to them when particularly it comes in conflict with the entries in the column of cultivation. The proposition, as aforesaid for the first time came up for consideration before a learned Judge in Chambers of Peshawar High Court in the case of Shamsur Rehman v. Hukmat Khan and others (PLD 1967 Peshawar 304). The question that arose in the case of Shamasur Rehman (supra), was whether the entries in the column of cultivation are to prevail over the entries in the column of rent, or whether both the entries are to be read together as in the present case. The learned Judge resolved the proposition in the following paragraph: "It is well-established principle of law that to constitute adverse possession the burden of proof lies on the person setting up adverse possession that he was holding the property adversely to the rightful owner and when the entries are irreconcilable the person setting up adverse possession must fail. It is equally well-established principle of law that non-payment of rent for any length of time alone does not constitute adverse possession."
9. The proposition as aforesaid was later on approved by this Court in the case of Tehmas v. Dawar Khan (supra) and it was held as has been reproduced above, that an entry in the column of rent as "Bila Lagan" would not be preferred over an entry in the column of possession/cultivation or for that matter the column of ownership. Reference has been made to another authority of this Court reported as Shad Muhammad v. Khan Poor (PLD 1986 SC 91) and Said funk and another v. Ashraf Khan and others (PLD 1986 SC 113). In the former case of Shad Muhammad (supra), it was held that the depending upon the circumstances of each case the party relying on the column of Legan as against the cultivation column would be entitled to produce evidence independent of the entry itself to show that the entry in the column of Legan had a separate contemporaneous support from other further reliable evidence, which of course together with the disputed entries would have to be put in juxtaposition to the entry in column of cultivation.
10. In the instant case, as has been noticed earlier, defendant/respondent No,1 had stepped into the shoes of his father as 'Imam' of the village mosque and had notionally come to possess the disputed land in lieu of services to be rendered by him. He could only enjoy the usufruct of the land which formed part of the village Shamilat, so long as he performed the duties of Imam of the mosque. In the terms of the entries of the column of Lagan and those of column of cultivation in the instant case which are inter se irreconcilable he could not have transferred the possessory right to respondents Nos.2 to 4. Notwithstanding the findings which are concurrently recorded by the two Courts below that the relinquishment deed Exh.DW-1/2 was far from proved and was devoid of any evidentiary value. The defendants-respondents themselves have not asserted in their two sets of written statements separately filed by them that they had come to possess the disputed land in a lawful manner as co-sharer in village Shamilat. It is an improvement in their case in the witness- box that besides the relinquishment deed Exh.DW-1/2 additionally they have come to possess the disputed land as co-sharer in the village Shamilat. Even otherwise the implications of the entries of column of rent and those of column of cultivation being irreconcilable could be that none of the parties could take the possession of the disputed property by virtue of their status as co-sharers in the village Shhmilat. The long-standing entries of the revenue record from 1909-1910 to 1987 would show that usufruct of this land was to be enjoyed by the Imam of the village mosque and that neither the proprietary body of the village cap take possession thereof nor Imam could relinquish by any mode the possession thereof in favour of anyone else. Another implication of these entries is that the proprietary body of the village notionally remained the owner of the land and that they can jointly evolve any fromula to regulate the status thereof as they wish by their own concurrence.
11. The finding of the learned Additional District Judge are thus well-founded and were not liable to be interfered with by the learned Judge in the High Court.
12. We are, therefore, constrained to accept the appeal, set aside the impugned judgment in revision of the Peshawar High Court and restore that of the learned First Appellate Court. The parties are, however, left to bear their costs.