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Regular Second Appeal No. 52/32 of 1960, decided on 18th May 1964.

O. XXI, r. 35‑Decree- holder and judgment‑debtor do not jointly hold property after possession is delivered to former‑Possession of judgment‑debtor becomes adverse from date of delivery of possession to decree- holder‑Suit of decree‑holder for possession brought more than twelve years after delivery of possession‑Held, time‑barred -Limitation Act (IX of 1908), Art. 142.

Pir Bakhsh Khan for Appellants.

S. Rifaqat Ali Shah for Respondents.

Date of hearing: 11th May 1964.

Briefly the facts of the case giving rise to this second appeal are that a house bearing old Municipal No. 934 and present No. 650‑L, situated in Mohalla Buria Bafan, Peshawar City, originally belonged to Inayatullah Khan, defendant, who died during the pendency of the suit and is now represented by his sons Musali, Fazli Ilahi and Nur Ilahi. This Inayatullah in addition to the house, mentioned‑above, was also the owner of certain agricultural land situated in village Badraga, Tehsil Charsadda. On the basis of a sale‑deed, registered on the 24th of January 1945, Inayatullah sold 1/8th share out of the house along with some land in village Badraga to Mst. Zamroot Sultan. This sale was pre‑empted by Mst. Aulya Begum and Mst. Anwar Sultan and a decree for possession by pre‑emption of the land and 1/8th share of the house was passed in favour of Mst. Aulya and Mst. Anwar Sultan on payment of Rs. 4,800 as pre‑emption money on the 28th of February 1946. On the 11th of March 1946, the decree‑holders instituted an execution application for delivery of possession and a warrant for delivery of possession was issued under Order XXI, rule 35, C. P. Code and joint possession of 1/8th share of the house in dispute was delivered to them who filed a receipt dated 6‑4‑46 (certified copy Exh. D. W. 1/2) and consequently, the execution application was filed in full satisfaction on the 11th of May 1946 (certified copy Exh. P. W. 1/4).

2. Mst. Aulya and Mst. Anwar Sultan brought a suit for possession by partition of 1/8th share of the house against Inayatullah who, as stated above died during the pendency of the suit, and consequently, his successors‑in‑interest were impleaded as defendants who resisted the suit.

3. The following issues were framed‑

(1) Whether plaintiffs are owners of 1/8th share of the house in dispute and are within their right to get their share separated O. P. P.

(2) Whether the suit is barred by time O. P. D.

(3) Whether the suit is bad for non‑joinder of necessary parties O. P. D.

(4) Has the suit been properly valued for the purpose of Court‑fee and jurisdiction O. P. P.

(5) Whether plaintiffs have no cause of action O. P. D.

(6) Whether the previous decree was obtained through fraud, if so, with what effect O. P. D.

(7) Relief.

4. The learned trial Judge after recording the evidence produced by the parties answered issue No. 1 in the affirmative and issues Nos. 2, 3, 5 and 6 against the defendants. On issue No. 4, he came to the conclusion that the market value of 1/8th share of the house in dispute was Rs. 187‑8‑0 and the plaintiffs made up the deficiency in Court‑fee. As a result of his above mentioned findings, the trial Judge, by his order dated the 18th of April 1959, passed a preliminary decree for possession by partition of 1/8th share of the suit property in favour of the plaintiffs against the defendants. The defendants appealed and only the findings of the Court below on issues Nos. 1, 2 and 6 were assailed and its findings on issues Nos. 3 and 5 were not pressed. The learned District Judge maintained the findings of the Court below on issues Nos. 1, 2 and 6 and dismissed the appeal, by his order dated 7th of January 1960, with costs. The aggrieved defendants have come up in 2nd regular appeal to this Court.

5. The learned counsel for the appellants did not press the findings of the learned District Judge on issues Nos. 1 and 6 and confined his arguments to the finding of the learned District Judge on issue No. 2 only. It was urged that the suit was brought by the plaintiff‑respondents more than 12 years after the possession was delivered 'to them under Order XXI, rule 35, C. P. Code and, therefore, the defendants had matured their title to the suit property on the basis of adverse possession. Attack ing the finding of the learned District Judge on issue No. 2, he urged that there was no material to show that the plaintiffs continued to remain in joint possession of the house with defendant‑appellants after the possession was delivered to them under Order XXI, rule 35, C. P. Code. He urged that the possession of a judgment‑debtor becomes adverse from the date when possession is delivered to a decree‑holder under Order XXI, rule 35, C. P. Code and it is for the decree‑holder to bring a suit for the recovery of possession under Article 142 of the Limitation Act within 12 years. In support of this contention, he relied upon Mst. Jan Sultan and another v. Abdul Manan and others (A I R 1936 Pesh. 7) wherein it was held:-

"The passing of a decree for joint possession and handing over of symbolical possession in pursuance thereof under Order XXI, rule 35, Civil P. C., terminates 911 claims to adverse title previously put forward by the defendants. But the fact that the person in possession continues to be in enjoyment of the property just after the formality under Order XXI, rule 35 is over, does to all intents and purposes amount to an, immediate dispossession of the decree‑holder after he has been put in possession. The decree‑holder must under Article 142, Limitation Act, come within 12 years to recover possession again and if he does not, his suit is time‑barred".

6. The authority relied upon by the learned counsel lay down that the decree‑holder and judgment‑debtor no longer jointly held the property after the possession is delivered to the former under Order XXI, rule 35, C. P. Code and the possession of the judgment‑debtor becomes adverse with effect from the date when possession is delivered to the decree‑holder and; therefore, the two learned Courts below were wrong in coming to the conclusion that the plaintiff‑respondents and the defendant -appellant, were co‑sharers in the suit‑property and that the possession of the defendant‑appellants was also on behalf of the plaintiff respondents.

7. The learned counsel for the respondents agrees with the proposition of the law, as laid down by the authority mentioned above, but he contends that possession of the house in dispute was delivered to the plaintiff respondents on the 6th of April 1.946 as is obvious from the receipt filed by them (certified copy Exh. D. W. 1/2) and, therefore; the suit is within time.

8. The counsel for the respondent contended that the suit was brought within 12 years with effect from the 6th of April 1946, when possession of 1/8th share was delivered to the respondents under Order XXI, rule 35, C. P. Code. The suit should have been instituted on the 6th of April 1958, but that being Sunday, the last date for institution of the suit was therefore, the 7th of April 1958. It is true that the 6th of April 1958 was. Sunday and, therefore, the suit was rightly brought on the 7th of April 1958, but a reference to the receipt (certified copy Exh. D. W. 1/2) would show that it was executed, attested and filed on the 6th of April 1946, but it does not show that possession was also delivered on that very date to the decree‑holders. Even the learned District Judge was of the opinion that the possession was delivered before the 6th of April 1946 to the respondents. He observed‑

"The counsel for the appellants has failed to cite any authority to show that the present suit should necessarily have been brought by the plaintiffs within twelve years of the delivery of joint possession. On the other hand by obtain ing joint possession of 1/8th share in this house, the decree-holders had become co‑sharers, and unless the appellants prove that they had acquired title to this share of the house as well as by adverse possession for more than 12 years against their co‑sharers, the plaintiffs had every right to enforce their right for partition of this property. No doubt, the defendants‑appellants were in exclusive possession of this house, but their possession under the law, be construed to be the possession on behalf of all the co‑sharers including the plaintiffs".

9. From the record it appears that the plaintiff-respondents obtained possession of 1/8th share under Order XXI, rule 35, C. P. Code before the 6th of April 1946, i.e., the execution of the receipt (Exh. D. W. 1/2) and so it follows that the suit was brought more than 12 years after the delivery of possession and so in view of the facts discussed above and the authority relied upon by the learned counsel for the appellants, I am of the opinion that the suit brought by the plaintiffs is barred by time and I, therefore, accept this appeal, set aside the finding of the learned two Courts below on issue No. 2 and dismiss the plaintiffs suit with costs throughout.

S. Q. Appeal accepted.

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