AMIRZADA KHAN Versus AHMAD NOOR

RANA BHAGWANDAS, J. ‑‑This appeal by leave of this Court arising out of the judgment at variance by learned Judge in Chambers of the Peshawar High Court has a chequered history.

2. Ahmad Noor and others successors‑in‑interest of deceased‑Aziz Noor brought a suit for declaration against the appellants claiming that they were owners in possession of the suit land comprising of Khasra numbers 2279 and 2289/1359 or 2278, 2289/1359 Mauza Rustam, Tehsil and District Mardan measuring 1 Kanal, 4 Marlas and that the entries in the record of rights in the names of the appellants were illegal and ineffective upon their rights. As a consequential relief, they prayed for relief of possession, if any part of the suit land, was not found to be in their possession. Respondents further pleaded for a decree of declaration of title in the alternative having matured their title by prescription and extinction of the right of the appellants and for a perpetual injunction restraining the appellants from interfering with the right title and enjoyment of the suit land.

3. Precisely, the case of the respondents was founded on agreement to sell (Exh.P.W.3/2) purportedly executed by Mir Aftab Khan, predecessor‑in- interest of the appellants on 6‑10‑1947 transferring a piece of land (without mentioning any Khasra number) measuring 1 Kanal. 4 Marlas with the boundaries mentioned therein for consideration of Rs.368, which was allegedly paid in kind i.e. commodities and a buffalo. As per averments of the agreement, possession of the land was handed over to the vendee, who shall be deemed to be absolute owner of the land divesting the vendor of all his rights therein. It was claimed in the plaint that consequent upon the aforesaid agreement Aziz Noor remained in possession of the suit land as owner during his lifetime and, after his death respondents continued to enjoy the possession thereof. It was pleaded that vendor had assured the vendee that he had attested a sale mutation in favour of Aziz Noor but the latter being an old and illiterate person did not have the knowledge of wrong entries in the Revenue Record. After his death respondents desiring the attestation of inheritance mutation in their favour came to know from the record that sale mutation by Mir Aftab Khan in favour of Aziz Noor was not attested and in the record of rights Mir Aftab Khan was recorded as owner in the column of ownership whereas name of Aziz Noor was incorporated in the column of cultivator. In support of their plea of possession over the sail land, they claimed to have constructed many shops over it, which were in occupation of their tenants. Taking undue advantage of wrong entries in the record the appellants by force and pressure attempted to transfer the suit land in favour of third parties and were interfering with the tenants by prompting them to deny the title of the respondents, hence the suit.

4. The suit was contested by the appellants who emphatically denied the execution of sale agreement calling it as forged, fake and fraudulent. Furthermore, the agreement being unregistered and unstamped did not confer any right, title or interest nor did it relate to the suit land. They asserted that they were in continuous exclusive possession and enjoyment of the suit land, thus, there was no question of adverse possession of the respondents therein.

5. After framing issues, recording evidence and hearing parties counsel, learned Civil Judge‑II, Mardan decreed the suit as prayed. In appeal, learned District Judge, Mardan reversed the findings recorded by the trial Court expressing the view that the respondents‑plaintiffs could not claim adverse possession and at best they could be treated tenants at will in the facts and circumstances of the case. He found that they were recorded to be in permissive possession of the land in the Revenue Record, therefore, they could not claim adversely to the real owners till they parted with the possession of the land in favour of the appellants as they were inducted as tenants. The Appellate Court rejected the agreement of sale being unregistered for non‑examination the scribe and the marginal witnesses thereof. In his view, on the basis of entries in the column of cultivation and Lagan in the Jamabandi Register for the year 1947‑48, respondents could not derive any benefit. Respondents assailed the vires of the Appellate Court judgment in civil revision before the High Court, which was accepted. Consequently, judgment of the Appellate Court was set aside while judgment and decree of the trial Court was restored, leading to this appeal by leave of the Court.

6. Learned Judge in the High Court, through the impugned judgment while reversing the judgment of the Appellate Court accepted the agreement of sale as sale‑deed being more than 30 years old and valid, in view of the provision of law contained in Article 100 of the Qanun‑e‑Shahadat Order, 1984. Learned Judge was also impressed by an application, letter of Executive Engineer, Buildings and Roads and sanction letter by Deputy Commissioner, Mansehra permitting construction of building on a piece of land on the application of Aziz Noor (Exhs.PW‑1/1 to PW‑1/3). Another circumstance, which found favour with the learned Judge in Chambers appears to be the entries in the Register Haqdaran Zamin and Khasra Girdawari for the year 1947‑48 (Exh. P.W. 2/6) describing the land as Banjar Qadeem reflecting name of Aziz Noor in the column of cultivation as tenant at will and recording his status as ( ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ) in the column of rent. Learned Judge also referred to Jamabandi for the year 1951‑52 (Exh. PW‑2/7) indicating that 14 Marlas of land was in self‑cultivation of the owner while for remaining 10 Marlas Aziz Noor was shown as ( ﺭﺎﮑﻠﻴﺧﺪﺭﻴﻏ ). In this entry in the column of rent Aziz Noor was shown as ( ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ﻰﮕﻣ ﺬ ) and the kind of land as Banjar‑Qadeem. Similar entries in the Jambandai Register for subsequent years were considered as supporting and corroborative factor. For lack of mutation of the land in suit in favour of Aziz Noor, a reference was made to entry in Column No.4 of Register Haqdaran Zamin, in which Aziz Noor was described cobbler by caste as ( ﺭﺎﮑﻠﻴﺧﺪ ) and observed that due to ban on transfer of land in favour of a non‑agriculturalist under the provisions of Alienation of Lands Act, 1900, no mutation of sale could be attested in his favour. In the ultimate analysis, learned Judge discarded the evidence adduced by the appellants and held that respondents were owners of the land because of the sale‑deed in their favour as also on account of adverse possession for they had remained in its possession for more than prescribed period of limitation.

7. We have heard learned counsel for the parties at quite some length and very carefully scanned the relevant evidence on record. In our view, findings of fact recorded by High Court, affirming the findings of the trial Court suffer from serious misconstruction of evidence and misconception of law in that the evidence on record has not been correctly and cautiously appreciated in its true perspective. Important piece of evidence in support of the respondents' claim is copy of unregistered and unstamped agreement of sale (Exh.PW‑3/2) purportedly executed by appellants predecessor‑in- interest in favour of Aziz Noor. This document was tendered in evidence by Sherzada P.W.3. Its production was seriously challenged by the appellants on the ground that it was neither duly stamped nor registered and, therefore, did not transfer any right. Surprisingly, a photocopy of the document was taken on, record as Exh.PW‑3/2, without caring to ask for and directing production of the original document. There can be no cavil with the proposition that this deed is not only inadmissible in evidence it does not confer any right, title or interest in favour of the vendee. Although it is captioned as "agreement of sale" it purports to transfer absolute right of ownership in a piece of land measuring 1 Kanal, 4 Marlas with the boundaries incorporated therein for consideration of Rs.368 paid in kind with delivery of possession to the vendee. Contents of the document tend to transfer absolute ownership of the land without mentioning any Khasra number, Deh or village of its location. Authenticity and genuineness of this document was not only challenged in the written statement by the appellants but also its production in evidence was seriously objected, which was never decided. In our view, irrespective of the fact whether it be an agreement of sale or a sale‑deed per se, it purports to transfer valuable right in immovable property exceeding Rs.100, which ought to be properly stamped and registered. In case it is treated as sale‑deed, it required compulsory registration in terms of section 17 of the Registration Act, 1908 which is badly lacking. It is astonishing to note that all the Courts below have not adverted to this vital aspect of the case and proceeded to accept the document as a valid deed of transfer being 30 years old. Question arises as to where is the original document? After lengthy arguments of the learned counsel, we were inclined to order the impounding of document and directing the respondents to pay the stamp duty thereon alongwith penalty within the contemplation of section 35 of the Stamp Act, 1899 but when we examined original record of the trial Court, we were amazed to find that instead of original document a photostat copy was exhibited in evidence without the leave of the trial Court to lead secondary evidence, after the proof of loss or destruction of the original one. Since the respondents did not plead loss or destruction of the original agreement, we would be legally justified in presuming that they are guilty of withholding best available primary evidence. We feel, had it been produced in Court, it would perhaps have been unfavourable to them. Since the original document has not been placed on record, we are not inclined to pass any order for impounding the same. Assumption of the trial Court as well as the High Court that the deed of sale being more than 30 years old was a valid piece of evidence within the contemplation of Article 100 of Qanun‑e‑Shahadat Order, appears to be misconceived. Suffice it to observe that the document itself being inadmissible in evidence, hardly any presumption of correctness or its validity can be attached to it in the circumstances. In the absence of original document, in our considered opinion, no presumption of correctness or its due execution can be drawn in this case.

8. Even otherwise, assuming for the sake of agreement that said document was executed by Mir Aftab Khan, it would not transfer any valid and marketable title in favour of the respondents being unregistered and considering also that it did not mention any Khasra number and Deh or Mouza of its location and. therefore, lacking necessary particulars in respect of identity of land.

9. There is another aspect of the case. Though the document was, purportedly executed on 6‑10‑1947 but mutation in the Register Haqdaran Zamin in favour of Aziz Noor was made by the Patwari for the first time on 9‑2‑1957 and cancelled by the Tehsildar on 25‑2‑1957, suit was, however, filed as late as 3‑12‑1984. Averments in the plaint do not clarify as to when did the respondents come to know about the rejection of mutation in their favour nor did they challenge this entry in the record of rights before the Revenue Authorities. It was pleaded that taking undue advantage of the entries in the record of rights, appellants by force and pressure, were attempting to create third party interest and persuading their tenants to deny their title, there was no supporting evidence on record. Inordinate delay on the part of the respondents in bringing the suit in 1984 creates serious doubts about the bona fides of their acts and speaks volumes about the genuineness of their cause.

10. Adverting to the issue of possession in pursuance of the agreement of sale, there is absolutely no evidence worth consideration in support of the plea raised by the respondents. Even from the contents of the plaint, it appears that they were out of possession otherwise they would not have asked for relief of possession of the suit land, on the premise that in case a part of the suit land was not found in their possession, they be granted a decree for possession as a consequential relief to the decree for declaration. Respondents themselves were not sure as to which of the Khasra numbers was purportedly purchased by their predecessor‑in‑interest i.e. Aziz Noor. So‑called agreement of sale does not specify any Khasra number or Deh whereas in the plaint itself respondents claimed 1 Kanal, 4 Marlas out of two sets of Khasra numbers without specifying the source or foundation of their claim. Learned High Court quite erroneously laid much stress on the permission for construction of a building on a plot of land obtained by Aziz Noor and the rent agreements purportedly executed by some of the persons as tenants. We are least impressed by both the sets of documents as two letters pertaining to permission for construction of building do not identify any plot or Khasra number whereas execution of the rent notes has not been established. In order to establish the fact of construction of shops on the site. It would be incumbent to identity the property, which is completely missing in the case in hand. Similarly, acceptance of nine rent notes and rent agreements in the absence of specific plea and lack of proof would be uncalled for. This sort of evidence to our mind would not improve the case of the respondents to establish their possession over the suit land. Even the star witness Sherzada P.W.3, who appeared as attorney on behalf of the respondents, cursorily stated that his father had constructed some shops on the suit property for which he had obtained permission from the Highway Authorities, which were still in possession of respondents. He did not state that as many as nine shops had been let out on rent during September to December, 1984 on rent of Rs.15 per month to different tenants. He did not care to exhibit any of the rent notes or the rent agreements in evidence. Admittedly, none of the tenants was produced at the trial to substantiate the claim of possession, which found favour with the High Court. On the face of the record, these documents appear to have been placed on record before the trial Court but were neither tendered in evidence nor proved, therefore, these were inherently in admissible and could not be considered as legal evidence in support of the assertion. It may be observed that there is no reference to these documents in the judgments of the trial Court as well as the judgment of the Appellate Court. In law, these documents could not be validly considered as a legal piece of evidence without independent proof.

11. Adverting to the entries in the Register Haqdaran Zamin for the years 1925‑26 to 1940‑41 Exhs.PW‑2/1 to 2/5, it may be observed that such entries tend to show that Mir Ghous and Mir Aftab Khan were shown as owners in the column of ownership while different persons were shown in the column of cultivation. Nature of land is recorded as Banjar Qadeem. Exh PW‑2/6 is an entry in the Register Haqdaran Zamin for the year 1947‑48 in which Mir Aftab Khan is recorded as owner of the land and Aziz Noor as ( ﺮﺎﮑﻠﻴﺧﺪﺭﻴﻏ ﻪﻬﻴ ﻥﻜﺎﺴ ). Khasra number is shown to be 2289/1359/2 measuring 1 Kanal, 4 Marlas. Nature of the land is shown to be Banjar Qadeem. Column of lagan indicates ( ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ). In the extract from Register Haqdaran Zamin for the year 1951‑52 Mir Aftab is recorded as owner and self‑cultivator to the extent 14 Marlas and getting cultivated remaining 10 Marlas through Aziz Noor recorded as Sakin Deh Ghair Dakheelkar in the column of cultivation against Khasra Nos.2278, 2279/ 1359. Land has been shown to be Banjar . Qadeem. In the column relating to Lagan, it is recorded ( ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ﻰﮕﻣﺬ ). Entries for the years 1955‑56, 1959‑60 and 1963‑64 are to the same effect except that in the last entry in Column No. 10 relating to conditions i.e. inheritance mutation on account of death of Mir Aftab Khan has been attested in favour of his legal heirs. In the extract for the year 1967‑68 Musamatan Mah Jeenah and other daughters and sons are recorded as owners but in the column relating to conditions, daughters are stated to have surrendered their shares in the land in favour of appellants Amirzada and other male heirs. In the subsequent years appellants names appear in the column of ownership whereas name of Aziz Noor appears in the column of cultivation as Ghair Dakheelkar and in the column of lagan ( ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ).

12. On reappraisal of the entries in the record of rights, we find that even after 1947 Mir Aftab Khan‑predecessor‑in‑interest of appellants was recorded as owner of the land throughout whereas Aziz Noor shown as tenant at will i.e. with the permission of the original owner. We also think that remark in Column No.8 reflecting that the tenant was not liable to pay any rent on account of purchase would be misleading as such entries cannot be reconciled with entries as to ownership. Accordingly Aziz Noor could at best be described as tenant at will and not as occupancy tenant of the land on account of the purchase. To our mind, it seems that the entries in Column No.8 were recorded in routine at the instance of the person found at the site claiming to have purchased the land without any proof of title. This impression also gathers support from the strong circumstance that the land remained Banjar Qadeem throughout and there was no occasion for sharing rent with the landlord or the elders of the village as per custom. Learned trial Court as well as the High Court were swayed away be these entries in favour of predecessor‑in‑interest of the respondents while holding that there was a valid transfer of title in favour of Aziz Noor. The expression "Ghair Dakheelkar" in the column of cultivator clearly tends to show that Aziz Now was recorded to be in occupation of the land with the permission of the owner as tenant at will. His possession as such could not be stretched in his favour as in his own right. If the possession of the respondents was permissive in nature, it could neither be in their own rights nor adverse to the right of and interest of the real owner.

13. In Ali Akbar v. Malook (1991 SCMR 829), entries in the Revenue Record were to the effect ( ﺖ ﻴﻜﻟﻣ ﺭﻴﻮﺼﺗﻠﺎﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ). It was held that on the Oasis of aforesaid entries a case of adverse possession was not made out in law by the respondents. In Sohara v. Muhammad Nawaz (1996 SCMR 1719), where the plaintiff did not claim that he had handed over possession of the disputed land to the defendants as tenants and entries in the Revenue Record indicated that the respondents were entered as tenants and not paying any rent, it was held that the mention of the word tenant was of no consequence and did not affect the defendant's right to claim ownership of the land through prescription. In Khanpur v. Muhammad Zarin (PLD 1989 SC 485), where entries in the Revenue Record were to the effect ( ﻯﺭﺍﺩ ﻪﺗﺸﺭ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ), it was held that such entries would not make possession less permissive. Elaborating the question of adverse possession, it was held that permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owner for a period of twelve, years or more. Even non‑payment of rent by tenant for more than twelve years would not per se be sufficient to entitle him to superior right of ownership. In order to succeed in a claim of adverse possession, tenant is further required to establish by his conduct that he had given‑up the tenancy rights, denied the title of the owner and openly enjoyed the land in his own right and not as owner's tenant.

14. In view of the aforesaid discussion, we are in no manner of doubt that the respondents or their predecessor‑in‑interest did not remain in actual and physical possession of the land in their own right and there was no assertion of open and hostile title adverse to the interest of the appellants. Since we have taken the view that the respondents did not remain to possession of the land in pursuance of the alleged agreement of sale in part performance thereof, the question of protection of their possession in terms of section 53‑A of the Transfer of Property Act, 1882 would not arise at all. Even otherwise, it is well‑settled principle of law that possession of property obtained in part performance of a contract can only be used by a defendant as a shield in defence of his right and not as a weapon of offence as intended in the present case. Principle of law was laid down in Ghulam Sakina v. Umar Bakhsh (PLD 1964 SC 456), Shamim Akhtar v. Muhammad Rasheed (PLD 1989 SC 575) and Hikmat Khan v. Shams‑ur‑Rehman (1993 SCMR 428).

15. In our view, trial Court and the High Court appear to have committed serious error of law in assuming that the respondents could claim the ownership of the land in their own right as well as having matured their title by way of prescription. Both the claims are mutually destructive and not alternative or reconcilable. Both the assertions, in law cannot be maintained, as it would be impossible for a party who pleads that it has a valid title through purchase and subsequent inheritance to succeed in the alternative on the plea that the possession being open and hostile, he had matured the title by efflux of time. The principle of law has been set at rest in Ghulam Qadir v. Ahmad Yar (PLD 1990 SC 1049), Ghulam Hussain v. Iqbal Ahmad (PLD 1991 SC 290), Muhammad Akram v. Muhammad Iqbal (PLD 1992 SC 438), Akbar v. Gujar Khan (1998 SCMR 509), Akhtar Begum v. Asad Mumtaz Ali Khan (1999 SCMR 985), Khuda Bakhsh v. Mureed (1999 SCMR 996) and Abdul Majeed v. Muhammad Subhan (1999 SCMR 1245).

16. For the aforesaid facts, reasons and circumstances, this appeal must succeed and on acceptance thereof, judgments and decrees of the trial Court as well as the High Court are set aside whereas the judgment and decree rendered by Appellate Court restored. No order as to costs.

S.A.K./A‑371/S Appeal accepted.