MAIN MUHAMMAD AJMAL, J.---By this common judgment, we propose to dispose of Civil Appeals No,564 and 565 of 1997 as they arise out of common factual background and involve identical questions of law and facts.
FACTS OF CIVIL APPEAL 564 OF 1997 The plaintiffs/petitioners filed a suit before the Civil Court seeking declaration to the effect that they are owners of the disputed land measuring 12 Kanals 18 Marlas out of Khasra No,92/2, Khata No, 1833/2424, village Shewa, Tehsil Swabi and is free from mortgage charge as it stood redeemed, the mortgagees are not in its possession for more than 12 years and the entries of mortgage in the Revenue Record are incorrect. They also prayed for possession of the land. Except for defendant/respondent No,1 other defendants/respondents who were recorded as mortgagees of the disputedland, did not contest the suit, as such, they were proceeded against ex parte.
Defendant/respondent No,1, however, resisted the suit alleging that the suit is barred by time and he has become owner on the basis of adverse possession. Issues were framed and evidence of the parties was recorded. The suit was dismissed by the Civil Court vide its judgment/decree dated 3- 11-1987. Appeal and revision filed by the petitioners also met the same fate vide judgments dated 1Z-3-1990 and 10-6-1990 passed by the learned Additional District Judge Swabi and the learned High Court, respectively.
FACTS OF CIVIL APPEAL NO.565 of 1997 Another suit was filed by the plaintiffs/petitioners for declaration that the suit land measuring 12 Kanals and 12 Marlas out of Khasra Nos.180, 128, 126 in Khata No,1834/2425 situate in village Shewa, Tehsij Swabi belonged to them and is free of the charge of mortgage as it has been redeemed and the mortgagees are not in its possession for more than 12 years. Possession of the suit land was also prayed for. The suit was resisted by defendants/respondents Nos.1 to 3 whereas the remaining defendants/ respondents who were recorded as mortgagees, were proceeded against ex parte.
On divergent pleadings of the parties, the trial Court framed issues, recorded evidence of the parties and after hearing the learned counsel for the parties dismissed the suit vide its judgment dated 3-10-1987. The appeal and revision petition filed by the petitioners were also dismissed vide judgments dated 12-3-1990 and 20-11-1994 passed by the learned Additional District Judge-II, Swabi and the High Court, respectively.
2. We have heard the learned counsel for the parties at length and have gone through the record with their assistance. The property in dispute was mortgaged but the mortgagees despite notices did not turn up in any Court and they were thus proceeded against ex parte. Suit No,435/1 of 1983 was contested by respondent No,1 who claimed ownership on the basis of adverse possession whereas respondents Nos.1 to 3 in Suit No,436/1 of 1983 claimed that they were mortgagees and became owner due to time-barred mortgage. Shamsher, one of the petitioners appeared in both the suits as plaintiffs' witness and stated that suit property belonged to them and respondents were their tenants and the entries in the Revenue Record are incorrect. In cross-examination, he stated that they have never given any receipt for the share of produce received from the respondents. Mst Qamresha sister of Shah Gul, respondent No,1 appeared as D.W.1, as his special attorney in the former suit and stated that suit land has been in possession of their forefathers and they are cultivating the same since long and have never paid any share of produce to anybody.
She, in cross-examination, stated that she did not know about the ownership of the suit property and admitted that her father had not purchased the suit property from anybody nor got it through mortgage. She also said that her uncle had told her that her father (Dilbar) used to cultivate the land of the petitioners (other than the suit property) on rent basis did not give the description of the other property. Khan Muhammad, respondent appeared as a witness in the latter suit and stated that they have been cultivating the land for over 60 years as mortgagees. He stated that land was firstly mortgaged to Ayam and thereafter to Jafar and Pordil who mortgaged it with their father. In cross-examination, he stated that he cannot produce any mortgage mutation whereby disputed land was mortgaged to his father. The Revenue Record shows that Ziarat Khan etc. The predecessor-in-interest of the petitioners mortgaged the suit land to Badshah and Ayam etc. But their successors who were defendants in both the suits did not appear before any Court, while Dilbar father of Shah Gul respondent has been recorded as 'Ghair Dakhilkar Bila Lagan'. Likewise, Khan Muhammad and his two brothers have been recorded as 'Ghair Dakhilkaran' with no entry in Lagan column in the Revenue Record, while the petitioners have been constantly recorded as owners of the suit land. In case of Shad Muhammad v. Khan Poor (PLD 1986 SC 91), it was held that the entries of column of "Lagan" otherwise not corroborated by any evidence, cannot take precedence of the A entries of column of cultivation. The relevant paragraph is reproduced hereunder: "In the present case the respondent relied on the Lagan column entry to the effect that the appellant was not paying rent, on account of a mortgage. This stands contradicted by the cultivation column where he is mentioned as tenant, as also, indirectly by the ownership column of the Jamabandi where other persons are mentioned as mortgagees but not the appellant. The explanation of the learned counsel for the respondent is that although the mortgage in favour of the appellant, indicated obliquely in the Lagan column, had taken place, the mutation was not yet sanctioned when the relevant Jamabandi was prepared. But he failed to produce any evidence to support this. It was his burden as held in Mehrab Shah's case to adduce such evidence. The reliance of similar entry in the Khasra Girdawari as in Lagan column of Jamabandi, is of no avail to the respondent; because it cannot be given preference to the above referred two columns of the Jamabandi. Similarly there is no force in the argument of the learned counsel for the respondent that Lagan column does not show payment of any Lagan, therefore, the appellant even if mentioned as tenant in the cultivation column was not a 'tenant' as defined in the relevant law, which required payment of rent unless contracted otherwise. Firstly it, is based on the entry in the Lagan column which is contradicted by the cultivation column and secondly non-payment of rent as shown in the Lagan column by itself would not change the character is tenant of the appellant if shown so in the cultivation column." In another case of Said Amir v. Ashraf Khan (PLD 1986 SC 113), the above ruling was reiterated as follows: "In the present case the respondents are at most of the relevant places mentioned as Ghair Dakhilkaran. The patchy entry in the Lagan column of their being Hissadaran or the Lagwi column having been left blank is of no help to the respondents. They were clearly tenants at will and could not be held to be in adverse possession. The concurrent findings of the learned Courts below could not justifiably be set aside by the High Court in its revisional jurisdiction. The impugned judgment is set aside. This appeal is thus allowed but the parties will bear their own costs."
The tenants cannot become owners by prescription merely on the ground of non-payment of rent or 'batai' for a certain period as it would not constitute a case of adverse possession to assert title unless it is established by them in unequivocal terms that they remained in possession of the land adversely and explicit hostility to the interest of the true owners, whereas in the present case possession of the respondents was permissive in nature and by the efflux of time its nature would not change. In case of Abdul Rashid v. Ghulam Nabi Khan (1996 SCM R 864), this Court observed as under: "After considering the facts and circumstances admitted and proved in this case, we find that the possession of the petitioner-defendant was permissive in origin and character and at no stage possession of the petitioner was acquiesced in by the respondent-plaintiff. So, the possession of the plaintiff was consistent with continuance of his title in spite of the possession of the petitioner, whatever may be its duration. It is a case by a person entitled to possession as owner against a person in possession without title. In such a case, unless the petitioner succeeds in establishing that his possession had matured into title by reasons of his adverse possession for over 12 years, he cannot prevent the plaintiff from obtaining the possession of the property by means of a suit. It is well settled that a mere trespass over 12 years will not extinguish the title of the true owner nor trespasser will acquire title by prescription. The petitioner has failed to prove the starting time from which his possession became adverse to that of the plaintiff. The onus to prove that the suit was barred by time was rightly placed on him which he failed to discharge." Learned Courts below in view of the Revenue Record held the petitioners to be owners of the suit land whose predecessors mortgaged the suit land to Badshah and Ayam etc. But non-suited them on the ground that they had extinguished their right of redemption. The successors of mortgagees despite notices did not appear in Court to contest the suit, in such circumstances, there would be a strong presumption that land may have been redeemed by the mortgagors. The respondents as per entries in the Revenue Record are tenants 'Ghair Dakhilkaran Bila Lagan' in the former case and Ghair Dalchilkaran' in the latter case with no entry in lagan' column, as such, their possession was in the capacity of the tenants, and in such a capacity they could not claim ownership on the basis of adverse possession as once a tenant is always a tenant, and they not being the mortgagees could not take the plea of extinguishment of the right of redemption of the land. In case of Jalal Shah and others v. The Custodian and others (PLD 1981 SC 262), this Court has held as under: "Even otherwise, it is well settled that institution of a civil suit within the requisite period of prescription breaks the continuity of the adverse possession. The High Court has further held that the relevant entries in the Revenue Record about the cultivating possession of the suit land were which means that the factum of cultivation was disputed. This, it was rightly held by the High Court, was not tantamount to adverse possession and rather showed that even the very factum of any alleged cultivation by the appellants was not fully established but was a disputed matter in its own place. This type or state of affairs can hardly be a proof of any clear or matured adverse possession, because as laid down in Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt.
Bhagjogna Kuer and others (AIR 1937 PC 69) in order to succeed on such a plea adverse possession should have "all the qualities of adequacy, continuity and exclusiveness: to displace the owners' title. In this case all these ingredients, as has been shown above, are, lacking. The result is that the learned counsel has not been able to make out any case of acquisition of possessory title by prescription on the plea of adverse possession as raised by him, therefore, the aforesaid claim of his clients fails and is hereby repelled."
3. Section 28 of the Limitation Act has been declared to be repugnant to the Injunctions of Islam vide judgment of this Court in case of Maqbool Ahmad v. Hakoomat-e-Pakistan, reported in 1991 SCM R 2063 and has ceased to have effect from 31st August, 1991, when revision petition was pending before the High Court, but the learned High Court has not taken this aspect of the case into consideration.
4. In view of the above discussion, we accept both the appeals, set aside the judgment and decree of the learned High Court and that of the lower Courts and decree both the suits with costs throughout.