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1991 C L C 1606

 

[Azad J&K (High Court)]

 

Before Chaudhry Muhammad Riaz Akhtar, J

 

HAQ NAWAZ KHAN and another—Appellants

 

versus

 

MUHAMMAD YAQOOB and 3 others—Respondents

 

Civil Appeal No.53 of 1990, decided on 23rd May, 1991.

 

Raja Matloob Khan for Appellant.

Abdul Majeed for Respondent.

 

ORDER

 

To seek the annulment of the judgment and decree of the learned District Judge, Kotli, dated March 25, 1990, whereby Civil Appeal No.105 of the respondents was accepted by the learned District Judge, Kotli, and the suit of the respondents was decreed, the present appeal has been filed.

 

2. The facts giving rise to the present appeal are that the respondents (plaintiffs) filed a suit for possession in the Court of Sub-Judge, Sehnsa on January 24, 1982, wherein -it was alleged by the respondents (plaintiffs) that land measuring 2 Kanals and 2 Marlas bearing survey numbers 832 (previous) (1463 present) (one Kanal and nine Marlas) and 1,466 (13 marlas) situate in village Sehrmandi, Tehsil Sehnsa, was in the ownership and possession of the plaintiffs. The plaintiffs handed over the possession of the land to the defendants in lieu of rent.

 

3. Now the defendants have refused to adopt the right of the plaintiffs. The respondents (plaintiffs) repeatedly requested the appellants that they should hand over the possession to the plaintiffs (respondents), but they refused to do so. A decree for possession was sought by the respondents (plaintiffs) regarding the aforesaid land.

 

4. The defendants contested the suit and alleged that their adverse possession had matured and ripened into ownership.

 

5. During the pendency of the suit, the respondents (plaintiffs) partly withdrew their suit regarding Survey No.1466. The controversy between the parties remained only to the extent of land measuring 1 Kanal and 9 Marlas bearing Survey No-1465. The Sub-Judge, vide his judgment and decree dated June 30, 1986, dismissed the suit of the respondents (plaintiffs) on the ground that the adverse possession of the defendants had matured and proved, so no decree could be passed.

 

6. The respondents filed an appeal before the learned District Judge Kotli who, vide his judgment and decree dated March 25, 1990, accepted the appeal of the respondents and set aside the judgment and decree of the learned Sub-Judge and decreed the suit of the respondents.

 

7. The present appeal has been filed against this judgment and decree of the learned District Judge Kotli.

 

8. The learned Counsel for the appellants, Raja Matloob Khan, argued that the entire evidence led by the defendants (appellants) has clearly proved the case of adverse possession. He also contended that the arguments of the Counsel for the appellants were not heard by the learned District Judge, so the judgment and decree of the learned District Judge is liable to be set aside. He also maintained that adverse possession has been proved by the testimony of Wali Dad, witness.

 

9. On the other hand, Raja Abdul Majeed Khan, the learned Counsel for the respondents, argued that Fateh Alam, witness of the defendants themselves, deposed that he did not know about the nature of the possession. According to the Revenue Record, Exs. PA and PB, the possession of the defendants has been recorded as `Ghair Mauroosi’, so they were having the permissive possession.

 

10. I have heard the learned Counsel for the parties and have perused the record of the case.

 

11. In the present appeal, the learned Counsel for the appellants has only argued on the plea of adverse possession and claimed the rights of the appellants on the basis of adverse possession. He argued that issue No.3 regarding adverse possession stands fully proved. Now the only controversy between the parties to be resolved is whether the adverse possession of the appellants had matured or not.

 

12. The onus of proof regarding issue No.3 was on the appellants defendants. The appellants-defendants, in support of this plea, did not produce any kind of documentary evidence; neither any Jamabandi nor any Khasra Girdawari has been produced by the defendants.

 

13. During the course of arguments, the learned Counsel for the appellants was confronted with the situation that as no documentary evidence has been adduced by the appellants in support of their claim, so the best evidence like Jamabandi/Khasra Girdawari has been withheld by them and no cause for withholding this evidence has been shown why not it should be presumed that the entire documentary evidence was against the version of the appellant, so it had been suppressed.

 

13A. The learned Counsel for the appellants staggeringly argued that the documentary evidence was not the only proof of possession and could not afford any explanation.

 

14. It is settled law that once a party withholds the best evidence without sufficient cause, then the presumption will be drawn against that party. This view finds support from A I R 1971 All. 531 (536), wherein it was held as under:———

 

“No doubt the witnesses have stated that every effort was made to quell the fire. But the learned Judge did not find it safe to rely on the oral testimony of the witnesses who had come to depose after 5 or 6 years, particularly when the records relating to the facts deposed to by the witnesses which were maintained by the railway administration, were, for reasons best known to the defendant, withheld and not produced before the Court. Those records, were the primary evidence in the case and could have thrown sufficient light on the questions involved. The primary evidence having thus been withheld, it is open to the Court to draw a presumption adversely against the defendant under Section 114(g) of the Indian Evidence Act.”

 

The same view was also held in A I R 1968 Punjab 72 and A I R 1929 PC 95.

 

15. Now it is presumed that the entire documentary evidence, Khasra Girdawari and Jamabandi are against the version of the defendants regarding the adverse possession, as they have not produced the documentary evidence.

 

16. Sotrre documentary evidence produced by the plaintiffs on the file is Misl-e-Haqiyyat for the year 1975-76 Ex.PA and Khasra Girdawari pertaining to Rabi 1981 wherein the possession of the defendants (appellants) is recorded as `Ghair Mauroosi’ and in the column of `Lagan’ rent has been assessed, which supports the contention of the respondents-plaintiffs that the appellants-defendants were having the permissive possession in lieu of rent.

 

17. It was also contended by the learned Counsel for the appellants that some witnesses deposed in their statements that the appellants have stopped paying the rent, so the possession has become adverse. There is no reasonable evidence from which it is proved that the defendants ever stopped paying the rent; even Haq Nawaz, defendant does not depose that he had stopped paying rent, but he states that he is paying rent. Assuming for the sake of argument that they have stopped paying the rent, even then it does not constitute adverse possession.

 

18. Mere non-payment of rent does not constitute adverse possession. Although while deciding about the nature of possession, entries in the column of cultivation and in the column of `Lagan’ are to be read together, but at the same time, it is well-settled law that entries in the column of Lagan, otherwise not corroborated by any evidence, cannot take any precedence over the entries of column of cultivation. The same view was adopted in 1985 S C M R 497.

 

19. Although in the present case no such like document has been produced in which the entries in the cultivation column and the Lagan column are contrary, but, however, presuming that there would have been any such like entries, even then the entry in the column of Lagan cannot take precedence.

 

20. There is no proof on the file from which it could be ascertained that the appellants stopped paying the rent. There is some oral evidence which even otherwise does not inspire confidence. Assuming for the sake of arguments that payment of rent had been stopped, even then non-payment of rent or discontinuance of payment of rent does not by itself create any adverse possession.

 

21. As in the present case, the possession of the appellants has been clearly incorporated in the Revenue Record as `Ghair Mauroosi’, then the entire burden was on the appellants that they should have proved that how their possession became adverse, while they have failed to discharge this onus.

 

22. The learned Counsel for the appellants mostly stressed on the point that by non-payment of rent, their adverse possession has been proved. It is obligatory upon the person who obtained possession of the land by permission, to prove when and how and by which overt act his possession has become adverse. There is no evidence on the file from which it could be proved that by such overt act and at such time in such like manner, the possession of the defendants has become adverse.

 

23. It is settled principle of law that permissive interception cannot be adverse unless it is proved by an overt act.

 

24. During the perusal of the file, Jamabandi pertaining to the years’ 1966-67 and 1961-62 also came to my notice. Both of these documents are attested copies and have been adduced in evidence, but both these documents have, not been marked as exhibits. Now the question arises whether documents which have not been exhibited, can be read in evidence or not. It seems that these documents have not been marked as exhibits by the learned Sub-Judge.

 

25. Mere non-endorsement by a Judge on the documents does not render them inadmissible. This is an omission on the part of the trial Court. According to Order XIII, Rule 4 of the C.P.C. the documents placed on the record can be looked into while deciding the case. Moreover, if any such omission has been committed by the Court, then it is not due to the fault of the party concerned. In the circumstances, there could be no reason as to why such party should be penalised for the omission of the Court. This view finds support from P I. D 1975 Lah.1170 (1174), which is as under:———

 

“According to law in spite of an omission on the part of the trial Court in strictly following the procedure as laid down in Order XIII, Rule 4, C.P.C., the documents placed on record can be looked into and considered while deciding the case. Moreover if any such omission has been committed by the Court then it is not due to the fault of the party concerned. In the circumstances, there is no reason as to why such party should be penalised for the omission of the Court.”

 

26. Now in these circumstances, these documents can be read in evidence. Accordingly to the Jamabandi 1966-67, Survey No. 832, which was previous survey number of 1465, was shown in the possession of the defendants (appellants) as `Ghair Mauroosi’ and in the column of Lagan, it has been mentioned “‘Naqdi Bilmuqtah Aik Rupia”. This Jamabandi clearly shows the possession of the defendants appellants) as permissive one.

 

27. I have gone through the oral evidence adduced by the defendants. The testimony of Wali Dad even does not support the contention raised by the learned Counsel for the appellants. Nowhere Wali Dad says that how, when and by which overt act, the possession of the defendants became adverse.

 

28. Even otherwise, the statement of Wali Dad is not corroborated by any other evidence. The appellants (defendants)’s witness Fateh Alam clearly states that he does not know about the nature of the possession.

 

29. So far as the argument of the learned Counsel for the appellants is concerned that his arguments have not been heard by the learned District Judge, so the judgment is liable to be set aside on this ground, it carries no substance because the order of the learned District Judge dated March 25, 1990 clearly reveals that the arguments of the learned Counsel for the appellants and arguments of Haq Nawaz respondent have been heard. It is also incorporated in the judgment of the learned District Judge that he has also heard the arguments of the learned Counsel for the appellants and the arguments of the respondent, Haq Nawaz.

 

30. It is not necessary that the arguments of the Counsel of the parties should be heard but it is obligatory for the Court to hear the parties in support of I their-claim. Order 41, Rule 16 of the C:P.C. contemplates that the Court will hear the appellant and the respondent so this is no ground that the arguments of the Counsel of the appellants have not been heard.

 

31. It is not mandatory for the Court to hear the Counsel of the parties, but mandatory for the Court is to hear the parties.

 

The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed with costs.

 

AA./462-H/AJK Appeal dismissed.

 

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