PLJ 2003 SC 632
[Appellate Jurisdiction]
Present: rana bhagwandas and syed deedar hussain shah, JJ. AMIRZADA KHAN and others-Appellants
versus
AHMED NOOR and others-Respondents Civil A. No. 607 of 1997, decided on 7.1.2002.
(On appeal from
judgment of Peshawar High Court, Peshawar dated
... 11.6.1995 passed in Civil Revision No. 67 of 1991)
Specific Relief Act, 1877 (I of 1877)--
—-S, 42-Constitution of Pakistan '(1973), Art 185-Findings based on inadmissible evidence-Effect-Plaintiffs claim was based on copy of unregistered and un-stamped agreement of sale purported to be executed by defendants predeeessor-jn-interest in favour of plaintiffs—Copy of said documents tendered in evidence by plaintiffs was seriously challenged by defendants on the ground that same was neither duly stamped nor registered and therefore, did not transfer any right-Such document was taken on record and exhibited although same was not only inadmissible in evidence and did not confer any right, title or interest in favour of vendee-Documents in question, although purported to be agreement of sale, yet contents thereof showed same was sale-deed-Documents in question relating to transfer valuable right in immovable properly exceeding Rs. 100/- ought to have been stamped and registered under S. 17 of Registration Act 1908-Findings of fact recorded by High Court affirming findings of trial Court thus, suffer from serious misconstruction of evidence and misconception of law in that evidence on record had not been properly and correctly appreciated in its true perspective. [P. 636] A
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
—Arts. 76 & 100-Production of secondary evidence-Plaintiffs did not
plead
loss or
destruction of original documents-Presumption would be that
plaintiffs were guilty of withholding best available primary evidence
which
if produced the same would have been unfavourbale to them-
Assumption
of Trial Court as also of High Court that document in
question
being more than thirty years old was valid piece of evidence
within
contemplation of Art. 100 of Cjanun-e-Shahadat was misconceived-
Presumptoin
of correctness or validity cannot be attached to document
which
was inadmissible in evidence. [P. 637] B
(in) Specific Relief Act, 1877 (I of 1877K
—-S. 42-Limittaion Act (DC of 1908), S. 120-Suit against Cancellation of mutation-Mutation was cancelled on 25.2.1957, while suit to challenge
same was fixed on 3.12.1984--Averments in plaint do not clarify as to when did respondents come to know about rejection of mutation in their favour nor did they challenge same before Revenue Authorities-Inordinate delay in filing suit would not entitle plaintiffs to claim relief.
• [P. 637] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
—O. VII, R. 14-Rent agreement and rent notes placed on record by
plaintiffs
were never tendered in evidence nor proved, therefore, same
were inadmissible and could
not be considered as legal evidence in
support of plaintiffs claim/title. [P. 638] D
(v) Words and Phrases-
—Expression "ghair dakhelkar"-Mea.mng import and scope
of~Expression
"ghair
dakhalkar" in column of cultivator would tend to show that
plaintiffs
predecessor was recorded to be in occupation of land in
question,
with permission of owner as tenant at will-Possession of such
person,
thus, could not be switched in his favour as in his own right-
Such
possession could not be deemed to be adverse to the right of and
interest
of real owner. [P. 639] E
(vi) Adverse possession-
-—Non-payment rent by tenant~Effect~Non-payment of rent by tenant for
more
than twelve 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 owners tenant. [P. 640] F
(vii) Specific Relief Act, 1877 (I of 1877)--
—S. 42--Constitution
of
[P.640]G
PLD 1990 SC 1049; PLD 1991 SC 290; PLD 1992 SC 438; 1998 SCMR 509;
1999 SCMR 985; 1999 SCMR 996; 1999 SCMR 1245; PLD 1964 SC 456; PLD
1989 SC 575; 1993 SCMR 428; PLD 1989 SC 485 and 1996 SCMR 1719 ref.
Mr. Abdul Sattar Khan, ASC and Mr. Muhammad Zahoor Qureshi, Azad, AOR for Appellants.
Mian Yunus Shah, Sr. ASC and Mr. Imtiaz Muhammad Khan, AOR for Respondents.
Date of hearing: 7.1.2003.
judgment
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.
Ahmed 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
Marias 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'(Ex. PW-3/2) purportedly executed by Mr. 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 Marias with
the
boundaries mentioned therein for consideration of Rs. 368/, which was
allegedly
paid in kind Le. 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 life time 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 colnmu of cultivator. In support
of their plea of possession over the said
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 of the scribe and the marginal witnesses
thereof.
In this view, on the basis of entries in the column of cultivation and
lagan
in thejamabandi
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
Deputy Commissioner, Mansehra
permitting construction of building on a
price of land on the application of
Aziz Noor (Ex. PW-1/1 to PWl/3).
Another circumstance, which found
favour with the learned Judge in
Chambers appears to be the entries in
the Register Haqdaran Zamin and
Khasra girdwari for the year 1947-48 (Ex. PW-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 ATV/^ U l£> $.
&JI/* in the
column of rent. Learned Judge also referreotojama6ancfz
for the year 1951-
52 (Ex. PW2/7) indicating that 14 Marias
of land was in self-cultivation of
the owner while for remaining 10 Marias
Aziz Noor was shown a
In this entry in the column of rent Aziz Noor was shown as -^ftj the kind of land as banjar qadeem. Similar entries in thejamdoandi 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,
reference was made to
entry in Column No. 4 of Register Haqdaran Zamin,
in
which Aziz Noor was described ( i^J^"'"• )
cobbler by caste as
.......... ^J^J and observed that due to ban on transfer of land in favour
of a non-agriculturalist under the provisions of Alienation of Land 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 (Ex. PW-3/2) purportedly executed by appellants' predecessor-in-interest in favour of Aziz Noor. This document was tendered in evidence by Sherzada PW-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 Ex. 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 Marias 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, in purports to transfer valuable right in immovable property exceeding Rs. 100/-, which ought to be properly stamped and registered, hi 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 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 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 favou| 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
vhave 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
D
called agreement of sale does not specify any khasra number or deh whereas in the plaint itself respondents claimed 1 Kanal 4 Marias 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 identity 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 identify 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 Shezada 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 a 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, inadmissible 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 year 1925-26 to 1940-41 Ex. 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. Ex. 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 j Khasra number is shown to be 228971359/2 measuring 1 Kanal 4 Marias. Nature of the land is shown to be banjar qadeem. Column of lagan indicates. 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 Marias and getting cultivated remaining 10 Marias 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 Entries for the year 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 1867-68 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 th§ eolumil of ownership whereas name of Aziz Noor appears in the column of cultivation as ghair dakheelkar and in the column of lagan
. 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 circumstances 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 by 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 Noor 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.
id In All Akbar v. Malook (1991 SCMR 829), entries in the revenue record were to the effect ^jfc/tjiiJJ^ £ t^J, \M . It was held that on the basis of aforesaid entries a case* of adverse possession was not made out in law by the respondents. In Sahara 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 S.C. 485), where entries in the revenue record were to the effect cOlwsf/itt) 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 nonpayment 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 in
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.
UmarBakhsh
(PLD
1964 S.C. 456), Shamim Akhtar v. Muhammad Rasheed
(PLD
1989 S.C. 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 had 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. Ahmed Yar. (PLD 1990 S.C. 1049), Ghulam Hussain v. Iqbal Ahmed (PLD 1991 S.C. 290), Muhammad Akram v. Muhammad Iqbal (PLD 1992 S.C. 438), Akbar v. Gujra Khan (1998 SCMR 509), Akhtar Begum vs. Asad MumtazAli Khan (1999 SCMR 985), Khuda Bakhsh v. Mureed (1999 SCMR 996) and Abdul Mqjeed 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.
(A.A) Appeal accepted.