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Civil Appeal No. 17‑P of 1971, decided on 13th December 1973.

(On appeal from the judgment and order dated 13‑6‑1967 of the former High Court of West Pakistan, Peshawar Bench, Peshawar passed in Civil Revision No. 212 of 1958).

--‑‑Art. 144‑Adverse possession‑Initial possession of appellant and defendants referable to their lawful title as co‑sharers in shamilat‑Possession of defendants including appellant‑Cannot be regarded as adverse merely for non‑payment of rent to a co‑sharer after partition of shamilat until express repudiation of such co‑sharer's title made.

Karam All v. Raja P L D 1955 F C 35 distinguished.

Lala v. Mst. Jamey 1968 S C M R 131 and Fazl‑e‑Ghani v. Khatib Gul 1968 S C M R 1040(2) ref.

Muhammad Shafi, Senior Advocate Supreme Court instructed by, Qasim Imam, Advocate‑on‑Record for Appellants.

Ghanzanfar AU Bukhari, Advocate Supreme Court instructed by Safdor Hussain, Advocate‑on‑Record for Respondents Nos. 1 to 5 and 23.

Respondents Nos. 6 to 22 : Ex parte.

Date of hearing : 18th December 1973.

This appeal by special leave, arises out of a suit instituted on 9‑t‑1956, by Hukmat Khan (since deceased) predecessor‑in -interest of respondents Nos. 1 to 5 herein, for the possession of land measuring 20 kanalas 7 marlas bearing khaira Nos. 1765/388 etc./3 (herein after called the suit land) being one half share of land measuring 40 kanals 15 marlas comprised of khasra Nos. 388 to 391, 441 and 469/1 and once forming part of shamilat of village Kala, Tehsil Sawabi, District Mardan.

The suit was brought by Hukmat Khan on the allegations that Shamsur Rehman, the appellant herein, and 7 others all of whom were impleaded as defendants, were in possession of the land in dispute as tenants under the deceased plaintiff, but they had discontinued paying rent. A suit brought for the recovery of rent was dismissed by the Revenue Court, because the defendants had repudiated the deceased plaintiff's title in the land and the Revenue Court directed him to establish his title in civil Court. From among the 8 defendants only 6 including Shamsur Rehman appellant herein, entered appearance to contest the suit, inter alia on the ground that Hukmat Khan had never been in possession of the land in dispute within 12 years next prior to the institution of the suit and that the defendants had perfected their title thereto by prescription. A number of issues were framed on the pleadings of the parties. The learned Civil Judge, Sawabi, dismissed the suit on 4‑11‑1957, holding that it was barred by limitation and that the defendants had acquired title to tire land in dispute by prescription.

On appeal by Hukmat Khan, the decree of the trial Court was reversed by the learned Senior Civil Judge, Mardan who in a well‑reasoned judgment dated 16‑6‑1958, tracing the history of the land since 1940‑41, came to the conclusion that Hukmat Khan and the defendants in the suit were co‑sharers in the shamilat and the defendants, including Shamsur Reh trait, appellant herein, had initially entered into possession of the land as hissadars shamilat He further found that on the partition of the shamilat the land in dispute fell to the share of Hukmat Khan and his 4 brothers by mutation of partition No. 101:5 attested on 13‑6‑1941, but the defendants who had initially entered in its possession as co‑sharers continued even after partition of shamilat. In the jamabandi of 19;1‑42, which followed the attestation of mutation of partition, in the column of possession the defendants were entered as non -occupancy tenants and in the rent column the entry was without payment oh any rent because of "qabza sabiqa" which in the learned Senior Civil Judge's opinion referred to the defendants' possession as co‑sharers in the shamilar prior to its partition. In the jamabandi in the proprietary column, Hukmat Khan was entered as owner of 4/5th share in the suit land, which indicated that his brother had transferred their share in the land in dispute in his favour. In all subsequent jamabandis this entry was repeated. On the above facts, the learned Senior Civil Judge, came to the conclusion that Hukmat Khan not having pleaded his actual possession and subsequent dispossession of the land, the suit for the: purposes of limitation fell under Article 144 and not under Article 142 of the Limitation Act 1908, and that therefore the burden of proving adverse possession fell on the defendants which they had failed to discharge. The learned Senior Civil Judge took the view that since the origin of the defendants' possession of the suit land was permissive as co‑sharers in the shamilat, its partition in 1941 did not per se make their possession adverse to Hukmat Khan and his brothers. In his view there was no open repudiation of title of Hukmat Khan by the defendants including Shamsur Rehman appellant herein until they, for the first time in the suit for the recovery of rent before the Revenue Court, repudiated Hukmat Khan's title and lie was directed by the Revenue Court on 29‑6‑1955 to establish his title to the land in the civil Court. The civil suit was instituted within 12 years of that date and the learned Senior Civil Judge reversing the judgment of the trial Court decreed Hukmat Khan's claim for the possession of the suit land.

From among the defendants only Shamsur Rehman went in revision against the appellate judgment of the learned Senior Civil Judge, which was dismissed by a learned Single Judge of the Peshawar Bench of the former, High Court of West Pakistan, on 13‑6‑1967.

Leave to appeal was granted to Shamsur Rehman to consider ‑

(i). whether the shamilat having been partitioned in 1941, and the defen dants having ceased to be co‑sharers in the suit land, their possession became adverse to Hukmat Khan and his brothers to whose share the land in dispute bad fallen ; and

(ii) whether Hukmat Khan's suit for the recovery of rent having been dismissed on a finding that the relationship of landlord and tenant did not subsist between the parties, the subsequent civil suit by Hukmat Khan on a direction by the revenue Court was covered by Article 142 and riot Article 144 of the Limitation Act, 1908

Learned counsel for the legal representatives of Hukmat Khan raise; a preliminary objection against the competency of this appeal by Shamsur Rehman with whom the other defendants who were in joint possession of the land in dispute had not joined in the appeal. The objection was that even if the appellant may otherwise have a good case on merits, his appeal cannot succeed with regard to the entire suit land, because the other defendant, have not agitated against the decision of the two Courts immediately below. The objection is without any merit. It overlooks the provisions of Order XLI, rule 33, C. P. C. which clearly envisages the acceptance of an appeal with regard to the entire matter in dispute, even if some of tile respondents or as the case may be, parties may not have filed any appeal or objection.

Learned counsel for the appellant conceded the broad proposition that Article 142 of the Limitation Act applied only to a case where the plaintiff alleges possession and subsequent dispossession of the land so that to succeed in his suit for possession, he has not only to prove his title to the land but also his possession of it within 12 years next prior to his suit. Learned counsel, however, submitted that in the instant case Hukmat Khan alleged possession through the defendants as his tenants but he was non suited by the revenue Courts on the finding that there did not exist relationship of landlord and tenant between the patties. That according to learned counsel amounted to an averment of possession and subsequent dispossession so as to attract the application of Article 142 of the Limitation Act, 1908. And the further argument was that the deceased plaintiff in that situation could not be permitted to rely upon his constructive possessions as to bring his suit within limitation. In support of this proposition, reliance was placed on the Federal Court's judgment in Karam Ali v. Raja (P L D 1955 F C 35). The argument in our opinion is without substance. A plain reading of the plaint in suit makes it perfectly clear that the deceased plaintiff based his suit on his title vesting in him on the partition of the shamilat. Nowhere in the plaint he had alleged his actual physical possession of the land under tire mutation of partition. Rather entries in the jamabandis showed that the defendants merely continued in possession of the land since before the partition of the shamilat. In the precedent case relied upon by the appellant's learned counsel the frets were entirely different. From the report of the case, it appears that the plaintiff in that case in paragraph 2 of his plaint had clearly alleged possession of the land and in the following paragraph he alleged his dispossession. It was on the basis of these averments that the Federal Court held that the suit for the relevant purposes fell under Article 142 of the Limitation Act and that in such circumstances the plaintiffs could not be permitted to turn round to rely upon their construc tive possession so as to bring the suit under the residuary Article 144 of tile Limitation Act.

In a recent judgment of this Court in Lala v. Mst. Jamey (1968 S C M R 131) entries ill the jamabandis Bashara Malkaan Bawaja Qabza by itself was held to be insufficient to constitute adverse possession against the owner. It was observed in that case that such an entry was not an unequivocal assertion hostile title. In the instant case in our opinion the deceased plaintiff's case stood on a stronger footing. As pointed out already the initial possession of the appellant and the co‑defendants with him is referable to their lawful title as co‑sharers in the shamilat in which Hukmat Khan and his brothers were also co‑sharers. Therefore, the possession of the defendants including the appellant could not be regarded as adverse merely because they failed to pay rent to Hukmat Khan and his brothers after the partition of shamilat until they had expressly repudiated Hukmat Khan's title which they did in the revenue Court by asserting a hostile title in themselves. This same principle is deducible from another judgment of this Court in Fazle‑e‑Ghani v. Khatib Gul (1968 S C M R 1040(2)).

For the foregoing reasons we do not find any force in this appeal which is dismissed. We however, leave the parties to bear their own costs.

Appeal dismissed,

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