JAHANDAD KHAN Vs. ABDUL GHAFUR KHAN

JUDGEMENT

(1.) The Khans of -aida and Hund are owners of adjacent landed estates on the bank of the Indus. Near by and situated between two branches of the river is an island of waste ground, a portion of which, comprising about 20 acres, is covered with shisham trees of considerable value. This plot is known as Bela Fakir Buti, and now bears Survey No. 2084, but is unassessed. The part of the island in which the Bela lies is just opposite to a bungalow belonging to the Khan of -aida in the village of Rana Dheri, and has for long been a subject of dispute between the rival estates. Prior to 1875 the Bela, together with most of the rest of the island, then bearing Khasra Nos. 1-6, was entered in the revenue records as the property and in the possession of -aida. In that year the Khan of Hund instituted a suit in respect of this area, claiming both title and possession, and praying that it might be recorded as his property. His suit succeeded; it was held that the area claimed was part of the Hund estate, and it was ordered that the revenue authorities should make the necessary entry in the settlement papers. The decree also directed possession to be given, but there is no evidence that this was done. In the present proceedings it is only the Bela that is in dispute. It is admitted that it was part of the area covered by the decision of the 1875 suit, and it is clear therefore that so far as the claim of -aida is based upon title, it must fail.

(2.) The real question in the case however is whether the Khan of -aida has established a right to the Bela by adverse possession. The suit out of which this appeal has arisen followed upon proceedings taken under S. 145, Criminal PC In 1922 the Khan of -aida commenced to fell trees on the Bela and his men were forcibly evicted by the Khans of Hund. The Khan of -aida then applied to the District Magistrate under the section above referred to, alleging that he was in possession, and praying for reinstatement and protection. The District Magistrate held an enquiry and came to the conclusion that ownership and possession were with Hund. Thereupon the suit was instituted by the Khan of -aida praying for a declaration of his title and for possession. Under these circumstances it lay upon him to establish affirmatively his adverse possession of the Bela for 12 years prior to 1922. The District Judge of Peshawar, by whom the suit was tried, held that he had not done so, and dismissed his suit. The Judicial Commissioner, on appeal, held that he had, and gave him a decree for possession as owner. The Khans of Hund now appeal to His Majesty in Council. The Khan of -aida is the respondent.

(3.) The possession which the respondent is required to prove ''must be adequate in continuity, in publicity, and in extant to show that it is possession adverse to the competitor" per Lord Robertson, in delivering this judgment of the Board in, Radhamoni Debi V/s. Collector of Khulna, [1900] 27 Cal 943. Their Lordships think that there is special difficulty in establishing this in the case of uncultivated jungle land such as the Bela in dispute, which produces nothing beyond self-sown trees and a seasonal crop of wild grass: see the remarks of Lord Shaw in Kuthali Moothavar V/s. Peringati Kunharankutty, AIR 1922 PC 181 (at 402 of 48 IA)