ABDUL RASOOL Versus MUHAMMAD NAWAZ

This Regular Second Appeal impugns the judgment/ decree, dated 15-7-1979 of the learned Additional District Judge, Rawalpindi, whereby the appellants-plaintiffs' first appeal was dismissed.

2. The dispute related to Shamlat Deh measuring 673 Kanals 2 Marlas in question. The plaintiffs sought a declaration that they alone were in its possession as co-owners being descendants of the original proprietor Mian Ahmada and that entries appearing in the Revenue record instead showing the defendants to be in possession as co-sharers thereof were unauthorised, illegal and ineffective against their interest. They also prayed for a permanent injunction to restrain the defendants from claiming themselves to be in possession of the land or felling trees standing thereon. ,

3. The case of the appellants was that the defendants originally coming from Village Thikerian in Tehsil Gujar Khan were neither themselves the descendants of the original proprietor nor had they purchased any share in Shamlat Deh from his descendants or any other proprietor. They observed that land signified by Khasra No. 64 till 1923-24 was recorded to be in possession of owners (Maqbooza Malkan) but this entry was replaced in the succeeding Jamabandi of 1927-28 by the entry 'Maqbooza Muhammad Ashraf Hissadar" ant later by the present defendants as his successors. They added that they came to know of this change in 1967 when Muhammad Ashraf felled trees from the land whereupon they brought a suit for possession of the land but had to withdraw it with permission for a technical defect presumably with a view to assert that being Banjar Qadeem and Ghair Mumkin the land shall always be deemed to be in their possession as true owners. Accordingly in, the present suit they sought merely the declaration as also the injunction explained above.

4. The defendants seriously resisted the suit pleading bar of limitation, its non-maintainability in the present form, incorrect valuation for court-fee and jurisdiction, and non-joinder of necessary parties. They claimed to be in physical possession of the land as Hissadars Shamlat Deh by having raised a reserved forest (Rakh) in it, Appropriate issues were framed on all these points. The trial Court found particularly on issues Nos. 1, 2 and 7 that the respondents being in possession since 1927-28, the suit brought against them in 1967 was patently beyond the prescribed period of six years falling under Article 120 of the Limitation Act. It was further found that even the respondents defendants were among the proprietary body of the estate and as such entitled to keep in their possession the impugned Shamlat Deh until it was lost to them through partition. The form of the suit was also held to be defective for want of prayer for possession. The first appeal failed. ,.

5. C11. Murad Ali for the appellants laid considerable stress upon the entries appearing in the Bandobast of 1905-06 (Exh.P.4) and repeated subsequently upto 1923-24 (Exh.P.2) to the effect that this piece of land was in possession of the owners (Maqbooza Malkan). The change occurred in the Jamabandi of 1927-28 (Exh.P.3) and for the first time Muhammad Ashraf was shown to be in possession as Hissadar. He submitted that this change was unauthorised inasmuch as no order either from the civil Court or from the Revenue Officer in the shape of mutation was ever passed to introduce it in the record of rights and that by virtue of the rule laid down in Allah Dad v. Muhammad Ali and others P L D 1956 Lah. 245 any such change being basically illegal was of no effect as against the original entry which in the circumstances shall be presumed to continue. He referred to section 52 of the West Pakistan Land Revenue Act which provides that unless the contrary was proved, the entries appearing in the record of rights were to be presumed to be correct. He argued that since the change was not borne out by any valid orders, the contrary stoo6 proved anal that the new entry shall yield.

6. The proposition is not that simple. Right from 1927-28 till today the entries bear out possession of the respondents as Hissadars. It is a long period to be ignored altogether merely because the change taking place more than 50 years ago was not warranted by any mutation etc. Even a Bandobast during the year 1955-56 had intervened in which the entry made in favour of the respondents was confirmed. The appellant Abdur Rasool himself conceded as P.W.1 that the entry was verified by the Tehsildar during settlement by having read it out openly to all concerned. It goes without saying that an entry so confirmed in the course of settlement (Bandobast) should claim greater presumption of truth than those appearing in any other periodical record. Even otherwise the rule laid down in Mt. Alo v. Sher etc. A I R 1927 Lah. 607 and Karim Bux v . State P L D 1980 Rev. 55 is that record of later years is to be preferred. The passage of more than half a century can also be used to raise a presumption of consent on the part of the appellants in relation to the continuance of such adverse entries in the record. There is no substance in the plea.

7. There was much ado about the so-called change in the aforesaid entry. The rule is not that every new entry must be supported by an order from a civil Court or a Revenue Officer. Section 42 of the Land Revenue Act, 1967, refers to the circumstances under which a specific order from the Revenue Officer etc. would be needed in order to effect a change in entries. It may be 'acquiring by inheritance, purchase mortgage, gift, or otherwise, any right in an estate as a land-owner or a tenant for a fixed term exceeding one year'. Muhammad Ashra was shown to have entered this land in 1927-28 as Hissadar. The change, if at all, related to possession and not title itself The respective column of Jamabandi P.3 still showed the land to be the part of Shamla Deh, meaning thereby that the title continued to vest in the entire proprietary body and was not affected by reason of a particular Hissadar coming into its possession. In simple words, the change did not relate to title but only to possession and as such ordinarily did not require any specific order from the Revenue Officer. Of course, in certain cases involving change of possession, it might require a mutation but that is only where any change is 'disputed'. Section 43 of the Act ibid deals with such situations. In this case, no dispute was raised in the year 1927-28 when the entry in favour of Muhammad Ashraf, Hissadar, appeared for the first time. In fact, there is detailed procedure provided in the Land Records Manual. Para. 9.3(ix) at page 469 thereof prescribes that where any change in possession is denoted by absence of a diagonal in Khasra Girdawari and if the same is disputed, a Fard Mashkoori shall be prepared and verified by the Girdawar for purposes of getting it cleared through mutation. The respondents failed to take up any such plea. The inference would be that they acquiesced in the change, which went on finding mention in all succeeding Jamabandis. The plea that the alteration in the relevant entry was unauthorised or illegal, could not be entertained.

8. The concurrent finding that the respondents were in physical possession of the suit land, cannot be easily disturbed in second appeal. The appellants themselves had asked for possession in their former suit though the same was later withdrawn with the permission of the Court. The idea behind may have been that the suit land being Banjar Qadeem or Ghair Mumkin was to be deemed to be in possession of the appellants as true owners but I don't think the material placed upon the record substantiates it. Undeniably the area despite having been shown as Banjar Qadeem or Ghair Mumkin contains a forest which the respondents were availing by felling trees from. Their evidence was that they had tended it by making overt efforts and that it could not have been in existence but for their physical possession. Even the cause of action was ascribed to an incident allegedly taking place in 1967 when the respondents started felling trees from the disputed land. It signified their physical possession and, therefore, the normal presumption of fallow land lying with the true owners could not be of much assistance. This phenomenon will have the obvious effect of determining limitation. If the respondents were veiling possession over the land since 1927-28, the suit brought in 1969 was obviously nowhere in the framework of law of limitation. The appellant Abdur Rasool himself conceded that such an adverse entry was read out to him during the Bandobast of 1955-56. It would mean that he had full knowledge of it ever since if not earlier and the period of six years had elapsed latest in 1962 whereas he filed the suit in 1969.. It was obviously hit by limitation. In Abdul Hamid Khan and 5 others v. Inayat Khan and 2 others P L D 1958 (W.P.) Lah. 99, it was held obligatory on- the part of the plaintiff to show that he had been in possession of land within twelve years before the institution of the suit. This requirement was not satisfied. Ordinarily the respondents' possession as Hissadars may have been helpful to the appellants but their own case is that the respondents had no such status as they were neither the descendants of the original proprietor nor had they purchased it from his descendants or any other proprietor. They cannot, therefore, take benefit of the respondents' possession on the basis of co-sharer ship. Rather the respondents' possession shall be in their own right in a way adverse to the appellants making it necessary: that they should have been dispossessed within twelve years proceeding the 'suit. The nature of their suit as also the claim negate such possibility altogether, establishing on the contrary their complete ouster. For this reason too the limitation runs against them.

9. There is yet another aspect. The evidence discloses that the respondents had acquired title in the land with proportionate share in the Shamlat Deh. The appellant himself conceded as witness that Qazi Muhammad Ashraf had purchased such land in the estate. This overture on the part of the appellant himself suffices to dispel an impression that Muhammad Ashraf was entirely an outsider. There was no embargo even on an outsider to come and purchase land in this estate with rateable share in Shamlat Deh. This may have been the reason why he was entered as far back as 1927-28 as Hissadar Shamlat Deh. This entry was repeated, as already remarked, in the subsequent Bandobast and became almost immune from all attacks.

10. For all these reasons, there is no substance in the Regular Second Appeal and the same is dismissed leaving the parties to bear their own costs.

A. A. Appeal dismissed.