Rasul Lone vs Ghani Mir

S. M. Fazl Ali, C.J.

1.The point involved in this reference to the Full Bench is as follows:-

Whether the entry of Naqdi Hassab Partah Deh appearing in the column of tenant prima facie and Per se proves that the person in possession

was holding adversely to the owner ?

The plaintiffs had brought a suit for a declaration that they were owners of the land in dispute, having acquired title by adverse possession

against the owner and prayed for an injunction restraining the owner from interfering with their possession. The suit was decreed by the trial Court

which accepted the allegations of the plaintiffs, but on appeal the District Judge Anantnag accepted the appeal, reversed the decree of the trial

Court and dismissed the plaintiff's suit, holding that there was no question of adverse possession and that the entry 'Hasb Partah Deh' would not

indicate that the plaintiffs were in adverse possession. When this matter was heard by me and Jalal-ud- Din J. reliance was placed by the counsel

for the appellant on a Division Bench decision of this Court in Ahmad Wani v. Yassu Ganai. 1967 Kash LJ 135 = (AIR 1967 J. & K. 149)

wherein their Lordships observed in passing that an entry Hasab Partah Deh is prima facie proof of adverse possession. In this connection Bhat J.

who spoke for the Court observed as follows:-

...........and that possession is shown as Hasb Partah Deh which means that the plaintiffs did not recognize anybody other than themselves as the

owners of this land and therefore paid the land revenue direct to the Numberdar.

Although their Lordships held that on the facts and evidence adverse possession was proved, yet they have clearly observed that an entry shown

as Hasab Partah Deh clearly proves the fact that the tenant did not recognize anybody other than himself as the owner of the land. It is the effect of

this observation that is being questioned before us in the Full Bench. It however, appears that there is complete identity of view with respect to the

legal position amongst the counsel for the appellant and the respondent. Both of them have contended that the observations made by the Division

Bench were wrong in law and there was no warrant for, holding that the entry Hasab Partah Deh per se indicated that the tenant had started

prescribing by adverse possession, or had in any way started denying the title of his landlord. Mr. Bhan appearing for the appellant relied on two

authorities: Amjad Ali Vs. Ghafoor Mohammad Khan, and AIR 1936 461 (Lahore) . In Amjad Ali's case (supra) Niamatullah J. (as he then was)

in almost similar circumstances observed as follows :-

In the absence of other evidence, the entry in the khasra would have been taken to be Prima facie evidence of the fact that such occupier is a

tenant, as he is recorded.

A similar view was taken by the Lahore High Court in AIR 1936 461 (Lahore) where Jai Lal J. observed as follows:-

In the column of rent paid by the tenant the amount of rent is mentioned. In subsequent entries the amount of rent is not mentioned and what is

recorded is that the amount is the same as the land revenue payable in respect of the land by the landlord to the Government. On such an entry in

my opinion the learned District Judge has reached the correct conclusion that a presumption arises that the relationship of landlord and tenant

existed between the parties.

To the same effect are the decision in AIR 1932 586 (Lahore) , 31 Pun LR 243 = AIR 1930 991 (Lahore) and 33 Pun LR 771. All these

authorities clearly hold that: the words 'Naqdi Hasab Partah Deh' are proof of the fact that the person recorded as such continues to be in

possession as a tenant, and unless there are other circumstances to indicate that such a person has acquired title by adverse possession, the entry

per se would be no evidence of adverse possession. It seems to us that the decisions given by the High Courts (Supra) lay down the correct law

on the subject. A literal translation of the words 'Hasab Partah Deh' would clearly indicate that it has reference only to the quantum of the rent

payable and not to the nature of the possession of the person concerned. In these circumstances if the entry indicates as to how and what is the

rent Payable, how can it be construed to be an overt act of adverse possession by the person who supports this entry. It is well settled that when a

person enters on the land as a tenant, he continues to be a tenant unless he shows some overt act by which he has converted his permissive

possession into an adverse one. The entry Hasab Partah Deh by itself is absolutely innocuous and does not constitute any evidence of an overt act

amounting to adverse Possession. To this extent. therefore, the observations of a Division Bench of this Court (supra) are not legally correct and

must be overruled.

For these reasons we answer the question referred to us in the following way:-

The entry Hasab Partah Deh does not per se indicate that the person in whose favour the entry has been made is in adverse possession. nor is the

entry any proof of adverse possession at all, but it merely denotes that the rent payable is equal to the land revenue and thus has reference only to

the quantum of the rent payable. If, however, apart from the entry there are other circumstances or evidence to prove adverse Possession, that is a

different matter which can be taken into account by the Court.

The reference having been decided accordingly the case will now go back to the learned Single Judge from where it was originally referred to

the Division Bench before being referred to us. In the circumstances there will be no order as to costs.

Mian Jalal-Ud-Din, J.

I agree.

Mufti Baha-Ud-Din, J.

I agree.