Ghulam Ahmad son of Hayat, plaintiff-Respondent (No, 1) herein, had instituted a suit for declaration claiming to be the owner in possession with regard to the possession of land, the detail of which is mentioned in the . head note of the plaint, on the basis of his adverse possession over the same for more than 12-years, restraining the defendants-petitioners from interfering in his possessory rights. The suit was contested by the defendants-petitioners, who filed their written statement, denying the averments of the plaint and from the factual controversy appearing on the pleadings of the parties the trial Court led to frame various issues.
2. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide, its judgment and decree dated 22.5.1991 decreed the suit. Feeling aggrieved thereby, the defendants preferred an appeal and learned Additional District Judge, Mandi Bahaduddin vide, impugned judgment and decree dated 21.7.1996 dismissed the same, upholding the observation of trial Court on Issues Nos, 1 and 2.
3. Learned counsel for the petitioners argued that plaintiff-Respondent No, 1 had filed the suit on two contradictory pleas, firstly, claiming the possession over the land in dispute on the basis of title and secondly on the basis of maturing a possession after the expiry of period of 12-years. Further contended that the suit is liable to be dismissed on account of these contradictory pleas. Further added that the plaintiff had not claimed adverse possession in his examination-in-chief while appearing as PW-1. Further submitted that Plaintiff-Respondent No, 1 is entered as tenant in the column of cultivation and a tenant is not entitled for decree on the basis of adverse possession.
Further argued that non-payment of Batai' to the `landlord', is not sufficient to constitute the adverse possession of a party,
4. On the other hand, learned counsel for Respondent No, 1 has vehemently opposed the arguments of learned counsel for the petitioners, contending that Plaintiff-Respondent No, 1 is an occupant Of the suit property from the time of his fore-fathers and not paid any produce to the petitioners. Further argued that in Column No, 8 of the record of rights the entries with regard to the ownership of the property have been entered continuously. Lastly argued that judgment of the Shariat Appellate Court, declaring adverse possession against the injunctions of Islam is not attracted to the present case.
5. I have heard the learned counsel for the parties and perused the record.
6. The plaintiff-respondent has filed the suit on 17.7.1986, wherein, he has matured his possession as owner after the expiry of prescribed period of 12-years and that the entries in the revenue record were not corrected by the revenue staff in accordance with the possession of the plaintiff. The plaintiff has placed on record, the copies of record of rights, Ex. PT to P-21.
On the other hand, the defendants-petitioners had also produced the copies of record of rights pertaining to the years 1964-65 to 1984-85 of the land in dispute. In column No, 4 (cultivatiou) of the record of rights for the years 1964-65 to 1985-85 the Plaintiff-Respondent No, 1 is entered as tenant of land and in Column No, 8 of record of rights the entry of payment of Tate is also entered.
In documentary evidence produced by the plaintiff i,e, Ex. P1 to P-21, there is entry from the time of fore-fathers of plaintiffs in the column of cultivation where plaintiff is entered as tenant. The plaintiff had no applied to any of the revenue hierarchy for the correction of record of rights and khasra- girdawari to establish his case for the period 1960-61 to onward.
7. The plaintiff while claiming the decree on the basis of adverse Possession has to show continuous and un-interrupted adverse possession or prescribed period of 12 years and mere entry in the revenue record that Person or his predecessor-in-interest was tenant-at-will not paying lagan or atai owing to assertion of ownership would not in law amount to open and Evert act of hostile or adverse possession against true owners as laid down in cases of Khair Muhammad vs. Khuda Bux (1976 SCM R 69), Khushi Muhammad vs. Shahana and 4 others (1987 CLC 916), Ashiq Hussain Shah Muhammad Shafi (PLJ 2002 Lahore 218) and Ghulam Qadir vs. Ahmad Yar (PLD 1990 SC 1049). In case of Amirzada Khan us. Ahmad Noor (PLD 2003 SC 410) he Hon'ble Judges of Supreme Court of Pakistan have observed as under:-- "The plaintiffs or their predecessor had not remained in possession of land in their own right in pursuance of alleged agreement and no assertion of open and hostile title adverse to interest of defendants was made out. Party claiming ownership of land in his own right as well as maturing of his title by way of prescription. Both such claims could not be maintained in law being mutually destructive and not alternative or reconcilable."
9. In this case Amirzada Khan vs. Ahmad Noor (PLD 2003 SC 632) has been observed by the Apex Court that non-payment of rent for more hand 12 years would not constitute adverse .possession of tenant. in order to succeed in a claim of adverse possession, tenant is further required to prove/establish by his conduct that he had given up his tenancy rights, declined title of owner and openly enjoyed land in his own rights and not as mant.
10. From the scrutiny of plaintiff's oral as well as documentary evidence, it has been established that the plaintiff or any of his "predecessor ad even denied the title of real owner.
11. The most significant feature of the case is that Plaintiff respondent No, 1 while appearing in the Court as PW1 in his examinations-Chief had not deposed even a single word to the effect that he has matured his possession by. prescription or his possession from the first day by any of his overt act was hostile, open and continuous to the knowledge of I real Owners. In cross-examination he admitted that he stayed 'abroad for about six years which would mean that his possession over the suit land was not continuous. In his deposition he admitted that his brathary had partitioned the land and this portion of land came to his share. In his deposition before the Court he had not claimed his adverse possession rather he established his case on the basis of his title and ownership. In his plaint, the plaintiff had prayed for a decree on the basis of adverse possession while in the Court he deposed otherwise. A person who asserts ownership over a certain property by his title would not be legally justified at the same time to say that his occupation of the property was hostile or adverse 'as against the real owner. In this context, a reference can be Made to the case of Abdul Majeed vs. Muhammad Subhan (1999 S.C.M.R. 1245).
12. Two contradictory pleas of permissive and hostile possession could not stand together and the clash between two was irreconcilable as laid down in case of Mira Khan vs. Ghulam Farooq (1988 SCM R 1765) and Farid Khan vs. Abdul Latif (PLD 1994 SC 353).
13. In a case, the permissive possession .cannot be converted into an adverse possession unless it is proved that the person in possession asserted as adverse title to the property to the knowledge of true owners for a period of 12 years. The plaintiff and his fore-fathers were entered as "Bila lagan bawaja rishtadari" and a tenant cannot acquire a larger right inconsistent with the real relationship by mere length of possession. As earlier observed, mere non-payment of rent by tenant for more than 12 years is not sufficient to entitle him superior rights of ownership and he has to establish by his conduct that he gave up tenancy, denied the title of the owner and openly enjoyed the land in his own right, and not as the owners' tenant. Reference can be made in his context, to the case of Khanpur v. Muhammad Zarin (PLD 1989 SC 485).
14. Learned counsel for the respondent had emphatically contested his case, contending that there are entries in column of Lagan which shows that the plaintiff had not paid any batai to the owners.
It had been observed in Mehrab Shah case reported as (1985 SCM R 497) that entries in column of cultivation, take precedence over entries in column of Lagan. The burden to produce evidence to support his defence on the basis of entries of lagan in column of Lagan was on the plaintiff for which he miserably failed.
15. In another case Lola and another vs. Mst. Janat (1968 SCMR 131). the Hon'ble Judges of Supreme Court have categorically observed that entries in jamabandis "Ba sahara malikan bawajah kabza" by itself is not sufficient to constitute adverse possession. Such an entry is not an unequivocal assertion of a hostile title and one has to interpret this entry in each particular case and under the provisions of Section 36 of the Punjab Tenancy Act, 1887 it is necessary for a tenant asserting adverse title to a-land originally taken possession as a tenant to give notice to that effect to the landlord and in the absence of such notice the title of the tenant cannot become adverse. If possession of person claiming adverse title was at its inception as a tenant then some notice is necessary to indicate that the tenant had repudiated that position' or resiled from it. The mere non-. payment of rent does not alter the nature of the tenancy.
16.The Board of Revenue had also issued instructions to the Field Staff that term such as " " or " " ought not to be recorded in any of the revenue record.
17. The entries in column of Logan for non-payment of batai or " would not be beneficial to the tenant. The present plaintiff-respondent cannot take benefit of said entries as has miserably failed to establish ingredients of adverse possession like open, hostile, continuous and to knowledge of real owners.
18.The above dictum laid down by the Highest Courts of the country, have not been adverted to by both the. Courts below and passed the impugned judgments and decrees contrary to the decisions taken in .the above referred cases and in such like cases this 'Court in exercise of its revisional jurisdiction would interfere and set at naught the concurrent findings of fact of the Courts below.
19.For the foregoing reasons this revision petition is accepted and the judgments and decrees passed by the Courts below are set aside. and as a result whereof, the suit filed by the plaintiff-