Judgement

Appeal (No. 68 of 1928) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province February 3, 1927), reversing a decree of the District Judge of Peshawar (July 17, 1924).

The respondent instituted a suit against the appellants claiming by adverse possession for twelve years certain land which was uncultivated and unassessed, but bore shishan trees of considerable value and grew natural grasses useful for grazing.

The District Judge dismissed the suit, but it was decreed on appeal to the Court of the Judicial Commissioner.

The facts appear from the judgment of the Judicial Committee.

1930. May 9, 12, 13, 15. De Gruyther K.C. and Parikh for the appellants.

Dunne K.C. and Wallach for the respondent.

The arguments were upon the evidence, reference being made to Act XVII. of 1887, Indian Limitation Act, 1908, Schedule L, arts. 142, 144, the two cases referred to in the judgment, also to Kumar Basanta Roy v. Secretary of State for India. (( 1917) L.R. 44 I. A. 104,113.)

June 17. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The Khans of Zaida 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 shishan trees of considerable value. This plot is known as Bela Fakir Buti, and now bears survey number 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 Zaida 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 numbers 1-6, was entered in the revenue records as the property and in the possession of Zaida. 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 Zaida is based upon title, it must fail.

The real question in the case, however, is whether the Khan of Zaida 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 of the Criminal Procedure Code. In 1922 the Khan of Zaida commenced to fell trees on the Bela, and his men were forcibly evicted by the Khans of Hund. The Khan of Zaida 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 inquiry and came to the conclusion that ownership and possession were with Hund. Thereupon the suit was instituted by the Khan of Zaida 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 twelve 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 Zaida is the respondent.

The possession which the respondent is required to prove " must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor"; per Lord Robertson, in delivering the judgment