Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. SIKANDAR JAN and 13 others through his Legal Heirs VS Respondent: ABDUL GHANI JUDGMENT
Court Name: Peshawar High Court Judge(s): Faiz Muhammad Khan Title:Mst. SIKANDAR JAN and 13 others through his Legal Heirs vs ABDUL GHANI
JUDGMENT
Reported As: 1985 CLC 2582 Result: Petition partly accepted Judgment JUDGMENT ' Abdur Rehman and 4 others instituted this suit against Mst. Sikandar Jan and 7 others for a declaration to the effect that the land measuring 3 Kanals 8 Marlas, bearing Khasra Nos. 1335 and 1356, situated in village Nawan-shehr Janoobi, Tehsil and District Abbottabad, having been purchased by their ancestor Din Muhammad was owned and possessed by them and that the defendants had no concern with it and that the inheritance Mutation No. 2816, attested on 9-11- 1963, respecting this land, being void and against law, was inoperative against their rights. It was alleged in the plaint that the suit land was originally owned by Abdur Rehman s/o Ghaffar, the ancestor of the defendants, who had sold it in the year 1948-49 to Din Muhammad, the ancestor of the plaintiffs, and had also delivered possession thereof to him; that after the death of Din Muhammad the plaintiffs entered into possession of the suit land as owners and are in continuous possession thereof uptil now; that although the said Abdur Rehman had got entered mutation No. 13989 for the sale of the suit land in favour of the ancestor of the plaintiffs, but he later, without the knowledge of the ancestor of the plaintiffs got that mutation rejected, that after the rejection of the said sale mutation the said Abdur Rehman (vendor) had instituted a suit, bearing No. 38/1 decided on 19-3-1952, for possession of the suit land against the plaintiffs 1 and 2 and Abdur Rahim, the ancestor of plaintiffs 3 to 5, which suit he later got dismissed after admitting the suit land to be the property of the plaintiffs; that in the revenue record, however, the said Abdur Rehman (vendor) remained entered as owner and for that reason his inheritance Mutation No. 2816 was attested on 9-11-1963 in favour of the defendants; that the plaintiffs were owners of the suit land by purchase and they also remained in adverse possession thereof for more than twelve years but since the
---
## Page 2
aforesaid inheritance Mutation in respect of the suit land had been wrongly attested in favour of the defendants, they were obliged to bring this suit. 2. Out of the defendants, Fazalur Rehman defendant No. 2 confessed judgment in favour of the plaintiffs. The defendants Nos. 1 and 3 to 8, however, contested the suit on many grounds. The pleadings of the parties gave rise to the following issues:- (1) Whether the plaintiffs have got a cause of action? (2) Whether the suit is incompetent in its present form? (3) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? (4) Whether the suit is within time? (5) Whether the plaintiffs are estopped by their conduct to bring the present suit? (6) Whether the defendants are owners in possession of the suit property and have matured their adverse possession as alleged by them in paragraph No. 2 of their written statement? (7) Whether inheritance Mutation No. 2816 dated 9-11-1963 in favour of the defendants is void, fraudulent and against law, hence ineffective against the rights of the plaintiffs. (8) Whether Din Muhammad deceased, the predecessor-in-interest of the plaintiffs was the original vendee of the suit property which has devolved upon the plaintiffs through inheritance and the plaintiffs are owners in possession of the same? (9) Whether the plaintiffs are in possession of the suit property for a period of more than 12 years hence matured their adverse possession in respect of the same? (10) Relief. 3. The learned trial Judge decided issue No. 2 in the affirmative, issue Nos. 3 and 5 against the defendants, issue No. 4 in favour of the plaintiffs, issue No. 6 in favour of the defendants and issue Nos. 1 and 7 to 9 against the plaintiffs. He, therefore, vide his judgment and decree dated 4-4-1977, dismissed the suit, leaving the parties to bear their own costs. 4. Aggrieved as they were by the decree of the learned trial Judge, the plaintiffs went up in appeal to the Court of the learned District Judge, Abbottabad. Before the learned District Judge cross- objections were also filed by the defendants. The learned District Judge, vide his judgment and decree dated 6-5-1978, while accepting the appeal, set aside the, judgment and decree of the learned trial Judge and granted the plaintiffs the decree prayed for. He dismissed the cross- objections filed by the defendants-respondents before him. Like the learned trial Judge, he also left the parties to bear their own costs. 5. It is against the judgment and decree aforesaid of the learned District Judge that Mst. Sikandar Jan and others (defendants in the suit) have come to this Courtin revision. 6. Sardar Bahadur Khan, Advocate appeared on behalf of the petitioners and Qazi Abdur Rashid, Advocate appeared on behalf of the respondents. They were heard and the record of the case perused` with their assistance. 7. While confining his arguments to issue Nos. 1, 7 and 8, the learned counsel for the petitioners argued that the learned lower Appellate Judge arrived at erroneous conclusion on material issues by misreading and non-reading of material documentary and oral evidence brought on record. He contended that the inference drawn by the learned lower Appellate Judge from the documentary evidence, particularly the revenue record, was also wrong being the result of misreading and non- reading thereof. His contention was that exactly as the respondents had failed to bring any convincing evidence on the record to show that the disputed land had been purchased by their ancestor Din Muhammad from Abdur Rehman, the ancestor of the petitioners, so had they failed to bring cogent evidence on the record in proof of the plea of adverse possession set up by them. The learned counsel contended that for all these reasons the findings of the learned lower Appellate Judge on issue Nos. 1, 7 and 8 were incorrect and those of the learned trial Judge were correct. He urged that the decree of the learned lower Appellate Judge, having been based on incorrect
---
## Page 3
findings, may be set aside and that of the learned trial Judge restored. In his endeavour to pursuade me to accept his assertions, the learned counsel for the petitioners took me through the entire evidence brought on record. The learned counsel for the respondents, on the other hand, argued that the findings of the learned lower Appellate Judge on the issues mentioned above were correct, had the support of the evidence, both oral and documentary, brought on the record and could not, therefore, be upset in revision being final as to the questions relating to fact. He also pleaded res judicata and estoppel against the petitioners and in support of this argument cited PLD 1980 Azad J&K 43; PLD 1963 Dacca 816, PLD 1956 (W.P.) Lah. 760 and PLD 1983 Pesh. 100. 8. It is true that the finding of the first Appellate Court on the questions of fact is final and cannot be interfered with in revision unless some jurisdictional error is pointed out, or it is established that such finding was arrived at by ignoring material evidence brought on record, or was the result of misreading of such evidence, or was based on extraneous consideration, in which case the revisional Court would be competent to disturb the finding of fact reached by the first Appellate Court. 9. The case set up by the respondents at the trial was that their ancestor Din Muhammad had purchased the suit land from the ancestor of the petitioners, who was Abdur Rehman son of Ghaffar. No document evidencing such sale was, however, brought by them on record. They mainly relied on the entries made in column of Lagan of the Jamabandis which showed them as 'Bila- lagan Bataqrar bai'. The learned lower Appellate Judge was also greatly influenced by these entries and he rather based his finding thereon, attaching no importance to the entries made in column of cultivation which showed the respondents as tenants at-will. The precise question to be determined in this case, therefore, is whether the entries made in column of Lagan of the Jamabandi would take precedence over the entries made incolumn of cultivation? There has been a conflict of authorities on this point in this Court in Shamsur Rehman v. Hikmat Khan and others PLD 1967 Pesh. 304 and Shad Muhammad v. Khanpur PLD 1979 Pesh. 93. This point of law was examined by the Supreme Court and the conflict has been resolved by the Supreme Court in its unreported judgment in Mehrab Shah through his Legal Heirs v. Shahzaman and others (Civil Appeal 52/P of 1972). The view taken by the Supreme Court was that "entries of the column of Lagan, otherwise not corroborated by any evidence cannot take precedence over the column of cultivation." It was also held in that case that the party relying on the Lagan column as against the cultivation column would have to produce evidence in support of its plea. The same view has been re-affirmed by the Supreme Court when the case of Shad Muhammad went b&fore it for adjudication in Civil Appeal No. 65/P of 1980, decided on the 25th November, 1984. In order to succeed on the plea of purchase the respondents were, therefore, required by law to produce evidence respecting the purchase and the mere entries in column of Lagan in the Jamabandis to that effect were not sufficient to warrant a decree in their favour. It is, therefore, to be seen what other evidence has been brought by them on record and whether such evidence was sufficient to support the plea of purchase set-up by them. As already mentioned, there is no document available on the record to support the plea of purchase set-up by the respondents at the trial. The oral evidence led by them in this respect consists of the solitary statement of Abdul Ghani Respondent, who had appeared as his own witness and witness for all the respondents. He did not claim his presence at the time when the alleged bargain of sale was struck between the ancestors of the parties. He was also not aware of the price (cross-examination) for which the suit land had been purchased by his father from the ancestor of the petitioners. The other witness produced by the respondents was Mir Azam son of Kala who was a witne..s to the fact that he was cultivating the suit land on behalf of the respondents. He has not uttered a word about the sale of the suit land by
---
## Page 4
the ancestor of the petitioners in favour of the ancestor of the respondents. The other witness produced by the respondents was Hayat Muhammad. He had allegedly constructed 'Bandi' in the suit land for the ancestor of the respondents. He only made a casual mention of the sale in his statement while referring to the possession of the respondents on the suit land. He was not a witness of the sale transaction. This evidence, in my view, was not sufficient to prove the purchase of the suit land by the ancestor of the respondents from the ancestor of the petitioners. 10. The learned first Appellate Court decreed the suit in favour of respondents mainly because they were shown in the revenue record as in possession of the suit land and entries in column of Lagan with respect to them were of 'Bila Lagan Bataqrar Bai'. While so deciding the learned first Appellate Judge gave preference to entries made in column of Lagan over the entries made in column of cultivation, although no documentary or cogent oral evidence was brought on record in support of entries in column of Lagan. The inference so drawn from the revenue record was against the law laid down by the Supreme Court in the authorities already referred to. The learned first Appellate Judge also misdirected himself while holding that the counsel for defendants (petitioners herein) had admitted that Mir Zaman was in cultivating possession of the suit land. The record, at least, does not speak of any such admission having been made by the counsel for the defendants. Much weight appears to have been attached by the learned first Appellate Court to the statement of Mir Zaman who claimed to be in cultivating possession of the suit land on behalf of the respondents. The revenue record, to which I would refer later while dealing with the question of adverse possession, does not support the claim of Mir Zaman in its entirety. Further, if it be assumed without conceding that Mir Zaman was holding possession of the suit land on behalf of the respondents, this fact alone did not constitute sufficient proof of the factum of sale of the suit land by the ancestor of the petitioners in favour of the ancestor of the respondents. It has been admitted by Adbul Ghani respondent in his statment in Court that the ancestor of the petitioners was son-in- law of the ancestor of the respondents and that in former's absence the latter had been lookingafter his property. In such circumstances, Mir Zaman's holding possession of the suit land on behalf of the ancestor of the respondents was not of much significance. The learned first Appellate Judge also drew a wrong inference from the plaint of the former suit between the parties, the copy of which is on the record and is Exh. PW 2/6. No doubt, therein it was mentioned that without the consent of the plaintiff (ancestor of the petitioners) the respondents had got entered a sale mutation in respect of the suit land in their favour which was later rejected, but such recital in the plaint could not be termed as admission of sale made by the ancestor of the petitioners, nor could mere entry of sale mutation at the instance of opposite party be deemed as evidence of sale. as was held by the learned lower Appellate Judge. The fact that the former suit instituted by the ancestor of the petitioners against the respondents Abdur Rehman and others was withdrawn by him on the basis of compromise did not prove the sale, of the suit land by the ancestor of the petitioners in favour of the ancestor of the respondents. The order of the Court Exh. PW 2/7 and the 'Baz-dawa' Exh. PW 2/8 do not indicate any such sale, nor do they contain any terms of compromise or 'Baz-dawa'. When such was the position these documents were to be considered in the light of the evidence brought on record. In his statement recorded by the learned trial Judge Ghulam Hussain, attorney of the petitioners, stated that by way of compromise between the parties the suit land was left to the ancestor of the petitioners and for that reason he had withdrawn from the previous suit. The portion of his statement went unquestioned and that being so, it would be deemed to have been accepted by the opposite party. The subsequent revenue record, to which I would refer while discussing the point of adverse possession, supported the assertion of the attorney of the petitioners that the pos session of the suit land had been delivered to the petitioners after the former suit between the parties had been withdrawn. The learned lower Appellate Court has also attached much weight to the admission by Fazalur Rehman, one of the
---
## Page 5
legal heirs of the ancestor of the petitioners, of the claim of the respondents, and since such admission was against his own interest, it did affect, in the opinion of the learned Judge, the interest of other co-heirs with him, who were the petitioners. This approach of the learned lower Appellate Judge was wrong as any admission made by one of the defendants in the suit litigating independently of others could only bind him and not the others whom he did not represent in the litigation. Similarly, such admission could not be taken as proof of the fact admitted by him as against the others, who were litigating under an independent title though derived from a common ancestor. The aforesaid discussion would show that the learned lower Appellate Judge not only drew wrong infrerence from the documentary evidence but also misread the evidence brought on record. He also proceeded on wrong assumption and based his finding on extraneous considerations. Such finding of the learned lower Appellate Court could not, therefore, be maintained. 11. 1 would now deal with the question as to whether or not the respondents had succeeded in proving their adverse possession on the suit land for the statutory period. The learned lower Appellate Court found this fact in their favour. As already mentioned in first paragraph of this judgment, the land in suit measures 3 Kanals 8 Marais and is represented by Khasra Nos. 1335 and 1356. The revenue record pertaining to the suit land from the settlement of 1948-49 till the Jamabandi of 1964-65 has been brought on record and is Exh. P.W. 2/1 to Exh. PW 2/6. Similarly, copies of Khasra Girdawaris from Kharif 1966 upto Rabi 1975 relating to both the Khasra numbers have also been placed on record as Exh. PW 1/2. Since the land is represented by two Khasra numbers, it would be convenient and more appropriate to deal with each Khasra number separately. Khasra No. 1335 measures 2 Kanals 10 Marlas and constitutes the major portion of the suit land. The other Khasra No. 1356 measures only 18 Marlas. In the Settlement record of 1948-49 Khasra number 1335 was shown in cultivating possesion of Haji Din Muhammad, the ancestor of the respondents, who was shown to be in possession as a tenant under Abdur Rehman, the ancestor of the petitioners, who was entered as vendee of the suit land. In column of Lagan, however, entry with respect to Haji Din Muhammad was 'Bila-Lagan Bataqrar Bai'. In the Jamabandi of 1952-53, in cultivation column, Mira son of Faizu was shown in cultivating possession of this land under the sons of Haji Din Muhammad, who, in turn, were entered under Abdur Rehman, the ancestor of the petitioners. The entry with respect to them was that of tenants but in column of Lagan the sons of Haji Din Muhammad were shown as holding possession 'Bila Lagan Bataqrar Bai'. In the Jamabandi of 1957-58 entry with respect to the vendee and the sons of Haji Din Muhammad was repeated both in column of cultivation and in column of Lawn, but instead of Mira the land was shown to be in cultivating possession of Rehmatullah s/o Ghulam. The Jamabandi of 1960-61 contained same entries with respect to cultivation column as well as Lagan column. In the Jamabandi of 1964-65, however, this land I was shown in cultivating possession of petitioners as 'Khud Kasht'. In the Khasra Girdawari this Khasra number was entered as in possession of the petitioners who were also the vendees thereof. In the Girdawari of Kharif 1968, however, one Sadiq s/o Mir Zaman, caste Dhoond, was recorded as in possession of this Khasra number under the vendees and the same entry continued upto Rabi 1973. In the Girdawari of Kharif 1974, however, the respondents were recorded as in possession through the same Muhammad Sadiq who was holding possession of this land as a tenant under the petitioners. From the perusal of the revenue record it becomes clear that from 1964-65 onward the major portion of the suit land (Khasra No. 1335) came to be possessed by the petitioners who were its vendees as well. Muhammad Sadiq was in cultivating possession thereof under them and all of a sudden, and without cogent proof, in the two harvests preceeding the institution of this suit, the respondents managed to get themselves entered in the Khasra Girdawari as in possession through the same Muhammad Sadiq. It is pertinent to note that Muhammad Sadiq who was in actual cultivating possession of this Khasra number was not produced by the
---
## Page 6
respondents, who were plaintiffs and on whom the onus lay, as their witness at the trial. This would certainly raise a presumption against them to the effect that had Muhammad Sadiq been produced by them he would not have supported their claim. Instead of him, the respondents produced at the trial his father Mir Zaman, who was not in actual cultivating possession of this land. The statement of Mir Zaman, besides being a bundle of lies, was of no help to the respondents' case because he was not in actual cultivating possession of this land. I am, therefore, of the view that from 1964-65 onward Khasra number 1335 has remained in continuous possession of the petitioners who were its vendees and the entry of the names of the respondents in the Khasra Girdawari of Kharif 1974 and Rabi 1975 being without any basis was of no legal value. 12. Now I take up Khasra No. 1356. In the Settlement record of 1948-49 and the Jamabandi of 1952-53 entries in column of cultivation and in column of Lagan with respect to this Khasra No. are the same as in respect of Khasra No. 1335. In the Jamabandis of 1957-58 and 1960-61 the entries as regards the parties to this litigation are the same as in respect of Khasra No. 1335, but the land was in actual cultivating possession of Mira son of Faizu. In the Jamabandi of 1964-65, however, entry with respect of Mira s/o Faizu disappeared and this land was shown to be possessed by the sons of Haji Din Muhammad. In column of Lagan they were shown as holding possession 'Bila Lagan Bawaja Bai'. In the Girdawari of Kharif 1966 Mirzaman s/o Kala, caste Karral, was recorded to be in cultivating possession of this land as a tenant. It was not mentioned in the Khasra Girdawari under whom he was holding possession. Such entry, in my humble view, shall be read in favour of the actual vendees and not in favour of the trespassers who failed to prove alleged sale in their favour. In the Girdawari of Rabi 1969, however, a change took place and Sadiq s/o Mir Zaman, caste Dhoond, came to possess this land. This Sadiq would also be deemed to have possessed this land under the actual vendees under whom he was holding possession of the other disputed Khasra No. 1335. Subsequent entries in Khasra .Girdawari remained unchanged and it was in the Girdawari of Kharif 1974 that the respondents again got themselves entered as in possession of this Khasra number, but through same Muhammad Sadiq, who was not produced by them at the trial in support of their case. The entries in the revenue record, therefore, show that this Khasra number also came to be possessed by the actual vendees, who are petitioners, and Muhammad Sadiq, who was in physical possession thereof as a cultivator, would be deemed to have possessed it, like other disputed Khasra, under the petitioners, who were the real purchasers, and not under the trespassers. 13. From the discussion above it is clear that the respondents, who were plaintiffs in this suit had failed to prove their continuous possession on the suit land for more than 12 years before the institution of the suit. Further, their possession, if any, in its inception being permissive in nature, having come into being on the basis of close relationship with the real vendee, could also not be termed as adverse to the rightful owners and mere entry in column of Lagan showing them as not paying Lagan on the basis of claim of purchase did not clothe them with a title hostile to the rightful owners. The learned lower Appellate Judge, therefore, drew wrong inference from the revenue record placed on file and his finding on this issue cannot, therefore, be maintained. 14. Coming to the last argument of the learned counsel for the respondents, the contention was that the question of ownership of the suit land was res judicata between the parties, having been already finally decided in the former Suit between the ancestor of the petitioners and the respondents, and for that reason it could neither be raised again by the petitioners in reply to the suit instituted against them by the respondents, nor could it be re-determined by the Court, and that in any case it did operate as estoppel against the petitioners. In so far as the plea of res judicata was concerned, neither was framed by the learned trial Court any issue on this point nor
---
## Page 7
was this point specifically urged by the respondents before the learned two Courts below. The learned counsel for the respondents contended that since in the plaint a specific reference was made to the withdrawal of the former Suit instituted by the ancestor of the petitioners against the respondents in respect of the suit land and since the copies of the plaint of the former suit, the application given for withdrawal of that suit and the order made by the Court dismissing that suit as withdrawn were placed on the record and were even not disputed by the petitioners, this plea could be urged at this stage and the Court was not precluded from giving decision thereon. The learned counsel for the petitioners did not seriously contest the argument of the learned counsel for the respondents that in the circumstances of this case the plea of res judicata could be urged at this stage and could be looked into by the Court, but his contention was that the petitioners were not…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.