THEMAS and 16 others vs DAWAR KHAN and 7 others

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave, to appeal has been sought; against the dismissal by the High Court, of a Civil Revision, by the defendants' side in a suit for possession filed by the respondents' side on the plea that they were the owners of the suit land.

2. ' The respondents' suit has been decreed throughout. Reliance has also been placed in the impugned judgment on two recent judgments of this Court; namely, Shad Muhammad v. Khan Poor PLD 1986 SC 91 and Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113.

3. ' The question involved is very simple: whether, the entry "Bila Legan Bawaja Bai" in the Legan column in the record of rights regarding the character of possession of the petitioners/defendants is of any help to them, if it comes' in conflict with an entry in the column of possession/cultivation.

4. Ordinarily, it has now been held authoritatively 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. The rule being that in rare cases it might be possible that there is an extraordinary reliable feature of the case, on account of which or as a result of which, the conflict and/or odd entry in the column of Legan might have been made. And where in a genuine case of dispute about ownership rights, a party if afforded opportunity would be able to establish an independent genuine reason for such an entry, an opportunity may be afforded to that party. It was so done in the case of Shad Muhammad. The case was remanded to the trial Court "for affording opportunity to the respondent to adduce independent evidence to support and corroborate the entry relied upon by him in the Legan column so as to rebut the presumption raised in support of the appellant's plea ' It is interesting to note that the said case after remand has again reached this Court and the party in whose favour the remand order was passed, has succeeded in the proceedings after remand in getting a small part 01 the disputed land by establishing its rights to it by further independent evidence supporting the Legan column. It may be mentioned here that this facility of remand would not be available in cases where reliance on the Legan column is mala fide with a view to deprive the real and genuine owner of property rights. See for example the aforenoticed case of Said Amir in which the following observation was made on this issue:-- "Secondly, as was done in the case of Shad Muhammad, learned counsel prayed that this case may also be remanded to afford opportunity to the respondents to adduce more evidence. This will open field for purgery in the circumstances of this case. This plea is thus untenable."

5. ' Accordingly, the said case was not remanded. Therefore, the approach to a case like the present one will depend upon the circumstances involved therein.

6. 'Learned counsel for the petitioners has drawn our attention to a very important circumstance, namely, that an attempt was made before the trial Court for adducing additional evidence so as to support the plea of ownership of the petitioners through purchase of the property. The same plea was raised before the High Court through a formal application but without any success. The respondents' case is also similar; namely, claim of ownership of the same property through another purchase. No doubt it is a moot point as to whether the petitioners' side at any stage did purchase the land in question. Learned counsel for the respondents contended that even if they did purchase it, it was after the purchase by the respondents. The present record is not of much help in this behalf. It is very difficult to render a decision on this and other connected-important questions without recording additional evidence.

7. ' For all these reasons, as have been discussed above, we convert this petition into appeal and allow the same. The matter is remanded to the learned trial Court for proceeding in accordance with law seeking guidance from the judgment of this Court in the case of Shad Muhammad in the matter of recording additional evidence which might be offered by both the parties. If need be the Court may also, on its own accord suo motu, summon the necessary evidence to remove doubts.

8. There shall be no order as to costs.