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Letters Patent Appeal No. 1 of 1951 decided on 11th June 1954, under clause 10 of the Letters Patent against the judg ment passed by Muhammad Sharif, J. dated the 25th October 1950 in R. S. A. 262 of 1949, affirming that of Malik Ahmad Khan, District Judge, Shahpur at Sargodha, dated the 24th June 1949, who affirmed that of M. A. Latif, Senior Civil Judge, Sargodha, dated the 23rd May 1948, dismissing the plaintiffs' suit.

(a) Shamilat land‑Suit in 1890 by plaintiffs, as co‑sharer, for rent of parcel of shamilat land cultivated by other co‑sharers, ‑Suit resisted by defendants co‑sharers on the ground that plaintiffs were not co‑sharers in the shamilat‑Suit dismissed and plaintiffs directed to establish title in Civil Court‑Plaintiff s suing in 1946 to establish title‑Held that the whole cause of action and not merely in respect of land involved in the rent suit arose in 1890 and thus the suit in 1946 was time‑barred ‑Limitation Act (lX of 1908), First Schedule Art. 120.

The plaintiffs sued in 1890, as co‑sharers for their share of produce of a parcel of shamilat land cultivated by other co‑sharers and were met with the plea that the shamilat had been declared as the shamilat of four pattis and that the plaintiffs did not belong to any of the four pattis.

The Revenue Assistant, who tried the suit, found conflicting entries in the revenue records and held that the matter was for adjudication by a Civil Court and dismissed the suit for rent. No suit, however, was instituted.

After some further litigation between parties, the plaintiffs in 1946 applied for a partition of their share with the defendants, a question of title arose and the plaintiffs were referred to a Civil Court. They brought the present suit which was dismissed by the first two Courts on two grounds, (1) that the plaintiffs had no right in the land in suit, and (2) that their suit was time barred. In second appeal, Sharif J. held that although the plaintiffs were co‑owners with the defendants, their suit was time‑barred. The plaintiffs pursued their remedy in Letters Patent.

It was contended for the plaintiffs that the possession of the defendants was openly adverse only in respect of the land which formed the subject matter of the previous suit and could not affect the remaining land.

Held, that the result of the suit of 1890 affected the entire shamilat and the cause of action for the whole case, therefore, accrued in 1890.

The plaintiffs can be regarded as co‑sharers only if their right has not been extinguished ; but if the cause of action has already arisen to them and they have not instituted a suit within the six years allowed by Article 120, then under section 28 of the Limitation Act, their right has become extinguished.

Muhammad Hanif v. Ratan Chand I L R 3 Lah. 43 distinguished.

(b) Legal Practitioner‑Duty towards Court in matter of adequate preparation of case‑Professional misconduct.

Ghias Muhammad and Bashir Ahmad for Appellants.

Ghulam Mohy‑ud‑Din and Said Akbar for Respondents.

M. R. KAYANI, J.‑

The dispute relates to the shamilat of Meli Pir Bakhsh in Sargodha District which the plaintiffs claim in common with the defendants. Up to 1929, 1/4th of the shamilat of Meli Pir Bakhsh was recorded in the name of "the proprietors of Meli Sadar Din", apparently adjoining revenue estate, but in that year the defendants got their own names entered as co‑sharers by a mutation, estensibly without the knowledge of the plaintiffs, who also claim to be "proprietors of Meli Sadar Din". When in 1946 the plaintiffs applied for a partition of their share with the defendants, a question of title arose and the plaintiffs were referred to a Civil Court. They brought the present suit which was dismissed by the first two Courts on two grounds, s (1) that the plaintiffs had no right in the land in suit, and (2) that their suit was time barred. In second appeal, Shad J. held that although the plaintiffs were co‑owners with the defendants, their suit was time barred. They are now pursuing their remedy in Letters Patent.

The plaintiffs are descendants of Khushi Mnh;llYlill1u and the defendants of Sadar Din, collaterals, who originally belonged to Meli Pir Bakhsh but broke away there from and broke land on the bank of River Jhelarn. Sadar Din also established a habitation there and called it after himself, Meli Sadar Din. This would mean that Khushi Muhammad continued to reside in Meli Pir Bakhsh or resided elsewhere, but not in Meli Sadar Din. Two of the plaintiffs now reside in Meli Sadar Din and the other two in Mangreen. However, Khushi Muhammad's heirs were recorded in Meli Sadar Din as malik qabza, apparently because they did not settle down as residents. In Meli Pir Bakhsh, the descendants of the two ancestors were recorded as owners of 1/4th in the shamilat at the time of the first settlement.

On the 21st of January 1920, Khan Bahadur Mian Muhammad Hayat Qureshi, Lambardar of Meli Pir Bakhsh and one of the co‑sharers, together with some other Qureshis, applied for a partition of the shamilat of that village. In that application both the plaintiffs and defendants were impleaded as proprietors of Meli Sadar Din. The list of proprietors Exh. P. 8 shows the names of the defendants or their predecessors in terest at Nos. 73 to 79 arid those of the plaintiffs or their pre decessors‑in‑interest at Nos. 80 to 83. On the 23rd of March 1920, during these very proceedings, the plaintiffs applied for a partition of their one‑fourth share inter se with the defendants. A copy of this application is Exh. P. 9. Eleven days later, however, on the 3rd of April 1920, they made a statement withdrawing the application. A copy of the statement is Exh. P. 10. The partition proceedings continued until a mutation was sanctioned on the 18th of January 1925. The result of the partition was that a part of the shamilat in Meli Pir Bakhsh was left joint of the whole village including "the proprietors of Meli Sadar Din" while in the land actually partitioned, one‑fourth was left, out as a separate patti for "the proprietors of Meli Sadar Din". The latter is described as lot 'A' and consists of 3422 kanals in khewat No. 42 and the former as lot 'B' and is 3610 kanals in area comprising khewat No. 43. In "A' they claimed one half and in 'B' one‑half of one‑fourth.

In 1929, as already observed, the defendants effected a mutation so as to substitute the entry "proprietors of Meli Sadar Din" by their own names.

The learned judge in Chambers held upon an examination of the revenue records that the plaintiffs were "proprietors of Meli Sadar Din" equally with the defendants and that the entry in Exh. D/21, pedigree‑table of the proprietors of Meli Sadar Din prepared in 1861, that "the descendants of Khushi Muhammad were the owner of the land under their possession", was wrongly interpreted as meaning that Khushi Muhammad's line were only malikan‑i‑qabza without any rights in the shamilat. This finding as to the plaintiffs' rights has not been questioned before us by the defendants' counsel. The learned Judge in Chambers, however, dismissed the suit as it was time barred. According to 'him the case admittedly fell under Article 120 of the Limitation Act which provides six years from the date when the right to sue accrues, and it has not been argued that any other Article applies. The right in question, it was found, accrued in 1890 in consequence of a rent suit brought by the plaintiffs or their predecessors for the recovery of Rs 8‑12‑0 as their share of the produce for the kharif of Sammat 1947 in respect of khasra Nos. 5355, 539 and 540 of Meli Pir Bakhsh, measuring 9 bighas and 10 biswas which the defendants had cultivated. A certified copy of the judgment in that case is Exh. D. 11.

It is necessary to make it clear that the land in respect of which the suit of 1919 was instituted belonged to Meli Pir Bakhsh and not to Meli Sadar Din, as was erroneously supposed by the Courts which had to deal with the matter in subsequent litigation and as has perhaps been supposed by the Courts in the present litigation and by learned counsel for the parties. The judgment in Exh. D. 11 opens thus : "At the time of the regular settlement a plot of land 9. bigas and 10 biswas, was measured out into field numbers 5355, 539 and 540. It then consisted of forest trees and a graveyard. It was measured in Meli Pir Bakhsh", that is to say, as a part of Meli Pir Bakhsh "but it was stated to be shamilat of this village and Meli Sadar Din". This sentence is not very clear. "No proprietary shares were recorded nor any details given. That land became subject to river action and when in 1888 an attested jamabandi was prepared, it was shown in four shares in khasra No. 425. These four shares belonged to (1) proprietors of Meli Sadar Din according to ancestral shares, (2) Tarf Meli Pir Bakhsh 1/4th' (3) Tarf Meli Qaim Din 1/4th and (4) Traf Meli Nur 1/4th. A part of that land has now been recovered from the river. In Kharif 1947, 8 bighas and 3 kanals thereof were sown with paddy. The plaintiffs claim that out of the share of Meli Sadar Din, they are entitled to 1/4th. .

The defendants reply that the land in question has been in their possession for over twelve years, that the land has been declared as the shamilat of four pattis and that the plaintiffs do not belong to any of the four pattis. Tho issue between them, therefore, is whether the plaintiffs ark, proprietors of Meli Sadar Din".

It will thus be clear that the land then in question belonged to the shamilat of Meli Pir Bakhsh and that it was sown by the defendants or their ancestors upon reclamation from river action. The Revenue Assistant, who tried the suit, found conflicting entries in the revenue records and held that the matter was for adjudication by a Civil A Court and dismissed the suit for rent. No suit, however, was instituted.

The next step in litigation 6etwee the parties is marker: by an application for partition made by the plaintiff: or their ancestors on the 28th of 'October 1913 in respect of khasra Nos. 93 and 97, comprising an area which in recorded as 23 bighas and 13 kanals in Exh. D. 12 and 13 bighas and 31 kanals in Exh. D. 13, situate in village Meli Sadar Din and apparently the only area left out of shamilat in that village which had remained joint. The defendants resisted the application on the ground that the plaintiffs were only malikan‑i‑qabza. The Naib‑Tehsildar, while submitting his report (Exh. D. 12) stated that "the defendants had supported their case by the copy of a judgment relating to 1 8 )0 where the plaintiffs filed a suit for rent and which makes a reference to the records of Meli Sadar Din", arguing that although the plaintiffs had been directed to file a title suit, they had not done so. ' In pursuance of this report the Settlement Officer, Mr. Leigh, directed the "objectors" (by which term he apparently meant the plaintiffs) to file a civil suit in his own Court. A copy of this order which is dated the 31st of March 1914 is Exh. D. 13.

Instead of filing a civil suit the plaintiffs applied sometime before the 7th of November 1914, for the resumption of the partition proceedings and when the revenue authorities examined the file and found that the plaintiffs had not obeyed the previous direction, they returned the file to the record room on the 12th of December 1914 (Exh. D. 15).

It was not till the 2nd of May 1919, that the plaintiffs filed a suit but they did so, not, in the Revenue Court, as they had been directed, but in the Court of the Munsif of Shahpur, who on the 27th of April 1921, returned the plaint for presentation in the Revenue Court (Exh. D. 17). This was done on the 4th of August 1921. The Sub‑Divisional Officer of Khushab who tried the suit did not give a clear finding. It was contended before him that for the same land the plaintiffs had brought a rent suit in 1890 and that, having been directed to establish their title in a Civil Court, they had not done so within the period of limitation. On that ground the Sub‑Divisional Officer, acting as a Civil Court, held that since the suit had been brought "more than six years from the date of the first denial", it was time barred under Article 120. At the same time he held that since the plaintiffs had not complied with the order of the Settlement Officer dated the 31st of March 1914, within six years and had not appealed from the order, it had become final (Exh. D. 18). In appeal before the District judge it seems to have been strenuously contended that the land in suit was different from the land involved in the litigation of 1890 but the learned District Judge, by referring to previous judgments (which in our‑opinion contain indications to the contrary) held that the subject matter in the two cases was identical, and being further of the opinion that the resistance of the defendants in 1913 was merely a reiteration of the 'resistance of 1890, agreed with the lower Court on the question of limitation (Exh. D. 19). A second appeal in the High Court was disallowed because it was time barred.

Learned counsel for the plaintiffs mainly relied on two arguments. Firstly, both the plaintiffs and defendants were parties to the partition case of 1920 and the plaintiffs, like the defendants, had been impleaded in their capacity as "proprietors of Meli Sadar Din". Whatever may have been the result of the previous litigation, the plaintiffs' rights were affirmed during the partition proceedings and the defendants did not repudiate those rights. At one stage the plaintiffs had even applied for a partition inter se of their own 1/4th share with the defendants. The subsequent change of the records in 1929 by a mutation ex parte could not affect the plaintiffs' rights, for mere mutation entries are not judicial proceedings in which title to immovable property is determined. They are fiscal entries for ascertaining as to who might be put in possession of land with greater confidence that revenue would be paid by him to the Government (A I R 1926 P C 100).

Secondly, (it was contended) the learned judge in Chambers had found the plaintiffs to be co‑sharers with the defendants. If so, they would be regarded as being in cons tructive possession with the defendants unless the possession of the defendants is openly adverse to the plaintiffs. It was openly adverse only in respect of the land which formed the subject matter of the previous suit and cannot affect the remaining land.

As regards the first point, it will have been noticed that when the application for partition was made on the 21st of January 1920, there was pending between the parties a civil suit which had been instituted on the 2nd of May 1919, in the Court of the Munsif, and while that suit was pending, the plaintiffs made an application on the 23rd of March 1920 for a partition inter se but withdrew the application eleven days later. They were apparently well advised‑ to withdraw it because the moment the defendants had been confronted with it, they would have opposed it, as they did the suit itself. The almost immediate withdrawal of the application in the partition proceedings was necessary if the plaintiffs did not desire a fresh denial of their title to be brought on the record of the partition proceedings. In any case, it cannot be argued that the defendants did not protest having been impleaded jointly with the plaintiffs as owners of Meli Sadar Din, for that point was the subject of litigation in the Civil Court.

As regards the second point, if the arguments as to constructive possession is to be accepted, it will be accepted on the ground that the cause of action in respect of the land in suit had not accrued earlier. This would mean that each parcel of land which the defendants cultivated from time to time would give rise to a separate cause of action. If then there were 26 parcels of shamilat belonging to Meli Pir, Bakhsh, named after the letters of the alphabet, and parcel 'A' alone had been cultivated by the defendants in 1890, then the plaintiffs' suit in respect of parcel 'A' would confine the finding as to their title to that parcel only. In other words, if it were found that the plaintiffs are proprietors of Meli Sadar Din and as such entitled to the shamilat of Meli Pir Bakhsh, the finding would be resticted to parcel 'A' and when subsequently in 1905 the defendants cultivate parcel 'B', the cause of action having arisen afresh, the plaintiffs would have to file a fresh suit for a declaration that they were among the proprietors of Meli Sadar Din. In the ultimate resort, they would have to establish their right twenty‑six times. But if that seems ridiculous‑as it does to me‑then it would be equally ridiculous for the plaintiffs to claim that having failed in the first suit or having failed to institute a suit in respect of parcel 'A', they could repeat the claim as often as the defendants brought a new parcel of shamilat under cultivation, and‑pursuing the argument to the absurdity inherent in it‑since the land ploughed on the morning of saturday would be different from the land ploughed in the evening, the two fragments of land would give rise to different causes of action. This notion of the cause of action, if it is known to law, makes the law look like an ass and for that reason alone should be declared as absurde. The only argument for its legitimacy is to be found in the consequences flowing from the doctrine of co- ownership, but both parties were co‑sharers in the entire shamilat, not merely in its various parts, and when once the title of the plaintiffs was openly challenged, not in respect of a particular parcel, but on the ground that they were not co‑sharers at all, there was no longer implicit in the posses sion of the defendants a constructive possession of the plaintiffs.

Further, this is an argument in a circle. The plaintiffs can be regar4ed as co‑sharers only if their right has not been extinguished ; but if the cause of action has already F arisen to them and they have not instituted a suit within the six years allowed by Article 120, then under section 28 of the Limitation Act, their right has become extinguished.

The issue that arose in the rent suit of 1890 was whether the plaintiffs were owners of Meli Sadar Din and the result of that issue affected the entire shamilat of Meli Pir Bakhsh. D The defendants, therefore, repudiated plaintiffs' claim entirely to the proprietorship of Meli Sadar Din, whether for the purposes of land in that village or the shamilat of Meli Pirl Bakhsh, and the cause of action for the whole case, therefore, accrued in 1890.

The plaintiffs' counsel relied on Muhammad Hanif v. Ratan Chand (1 L R 3 Lah. 43.) where the] plaintiff had bought a share in the shamilat of the village. At a time when only a parcel of the shamilat was being partitioned, his claim was resisted by another vendee from the same vendor. The Revenue Officer held that he was not a co‑sharer in the shamilat and against that finding he did not bring a civil suit for the establishment of title. Subsequently the remaining portions of the shamilat were also partitioned and the plaintiff again put forward a claim to a share. It was again resisted and he brought a suit. Although there had been an interval of nineteen years after the, first denial of his right, the suit was held to be within time. This, however, is a case distinguishable on facts, as the following passage in the judgment will show :‑

"It is admitted that the plaintiff is a co‑sharer in the shamilat independently of his claim to a share by reason of the sale to him in 1879. It is also admitted that he has all along been in joint possession with other co‑sharers of plots Jim and sin (the remaining two plots which were being partitioned) and is enjoying grazing rights therein

In Hakim Singh v. Waryaman (140 P R 1907.) it was held that a suit for a declaration of his title to immovable property by a person in possession as proprietor is not barred if brought within six years from the time when the defendant attempts to oust him from the land, although a right to sue the defendant who had been recorded as owner of the property in the settlement record had already accrued and become barred".

The plaintiff in that case was in actual enjoyment of the land together with the defendant, and the principle applying to a person in possession was applied to him.

It has not been argued that this was a continuing wrong within the meaning of section 23 of the Limitation Act, but we might have said in reply to such an argument that it has never been held that a complete denial of title which is in the nature of a complete custer can be regarded as a continuing wrong. It does not produce a state of affairs the continuation of which every moment is a continuing source of injury. Familiar examples of continuing wrong are obstruction to the flow of water or a wife's refusal of her society to her husband.

We, therefore, dismiss the appeal with costs.

We wish to register our disapproval of the inadequacy of argument with which learned counsel on both sides came ostensibly to assist us. Notwithstanding that there was an F extensive record on the file from 1850 downwards we found that learned counsel had read nothing beyond the judgment of the learned Judge in Chambers. They displayed ignorance even as regards the plaint and the written statement and based their arguments on the facts stated in the judgment. It was for that reason that they did not even know that the subject matter of the suit in 1890 was different from the subject matter in 1919.

Learned counsel should remember that they are regarded as officers of the Court because they assist the Court, not because they have been commissioned by the parties to the litigation to make an apologetic appearance with inadequate equipment. This is clearly professional misconduct and this is a matter which has strained the patience of other Judges of the Court also in respect of Advocates in general. We regret to have to say that, with a few honourable exceptions, superficial handling has become almost a rule in this Court and that Judges have to devote considerable time, after the hearing is concluded, to do research in the manner of paid counsel. At one stage we were constrained to say that it were better if we took the file to our Chambers and studied it by ourselves' because that would at least insure us against recording erroneous facts in the judgment. We were surprised to hear the appellants' counsel plead by way of apology that this case had been entrusted to him by a judge of the High Court after his elevation to the Bench, implying thereby that because this was not one of his own cases, he had decided to act superficially.

To err is human, but to condone faults which lead others away from rectitude is an indefensible human failing ; and therefore we propose telling gentlemen of the bar‑not in a valedictory speech in which they are used to hear nice things‑that their failure to perform an obvious duty corrupts not only the judicial system but also public life in which they are called upon to play no inconspicuous part.

A. H. Appeal dismissed,

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