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Regular Second Appeal No. 294 of 1962, decided on 16th October 1974.

(a) Adverse possession-

-Suit founded on adverse possession of occupancy rights in suit land without impleading landlord-Not properly constituted-Mere non-payment of rent coupled with entry in Jamabandi "bila adai lagan bawaja takrar mustagali khud az bail' without purchase having beer proved-Would not render possession adverse to landlord.

The suit founded on adverse possession of occupancy rights in the suit land in the absence of the landlord/landlords is admittedly not properly constituted.

Further, even if it be held that there can be adverse possession of a limited interest the application of this principle has to be confined to the limits enunciated by the provisions of the Punjab Tenancy Act, because if the bar of non-acquisition of right of occupancy by mere lapse of time section 9 is not given full effect, the landlord may occasionally have an occupancy tenant thrust on him without any laches on his part, and that would be a result entirely foreign to the spirit of the Tenancy Act.

Where a person is in possession as a tenant and the landlord enters into an agreement to sell with such a tenant and thereafter the sale transaction does not materialise, the possession of the tenant would not become adverse to the landlord.

Swarnamoyi and another v. Sourindra Nath Mitra and others 89 I C 747 ) Umar Said and others v. Faiz Muhammad Khan and others P L D 1961 Pesh. 110 ; Jumman v. Allah Rakha P L D 1951 Lah. 85 ; Mst. Bhag Bhari etc. v. Mst. Bhagan and another P L D 1954 Lah. 356 ; Lala and another v. Mst. Jante 1968 S C M R 131 and Fazal Ghani and others v. Khitab Gul anal others 1968 S C M R 1040 ref.

(b) Civil Procedure Code (V of 1908)-

--S. 100-Second appeal-Adverse possession-Mixed question of law and fact and can be gone into second appeal.

Ch. Aziz Ahmad for Appellant.

Sh. Ataullah Qureshi for Respondent.

Date of hearing : 7th October 1974.

Ghulam Muhammad respondent brought a suit against Muhammad Din appellant for declaration to the effect that he is the owner of land measuring 6 kanals 14 marlas bearing Khasra No. 2719 Khata No. 560/1492, Tehsil Chakwal, District Jhelum, with a further prayer for permanent injunction restraining the appellant from interfering with his possession. The suit was contested on all grounds. Before framing of the issues, the statements of the parties were recorded and it was divulged that the respondent claimed pur chase of occupancy rights in the suit land by his father Mehdi and not the land itself as given in the plaint. The learned trial Judge framed the follow ing issues:-

"(1) Whether the defendant had sold his occupancy rights in the snit land to the father of the plaintiff O. P. P.

(2) If issue No. 1 is in the negative, whether the plaintiff is in adverse possession of the suit land for more than 12 years, and what is its effect O. P. P.

(3) Whether any suit of produce of the suit land between the parties operates as res judicata between the parties O. P. D.

(4) Whether the plaintiff is estopped to bring the suit by his conduct O. P. D.

(5) Relief."

All the issues haying been found in favour of the respondent, the suit was decreed. The appellant appealed. The learned District Judge, while holding that the sale of occupancy rights by the appellant in favour of the respon dent's father is not proved on the record dismissed the appeal on the ground of adverse possession. Hence this second appeal.

2. The suit founded on adverse possession of occupancy rights in the suit land in the absence of the landlord/landlords is, admittedly not properly constituted. No plea was, however, raised in this' regard and no issue claimed, with the result that the suit proceeded in the absence of a necessary party. Further, even if it be held that there can be adverse possession of a limited interest (see Swarnamoyi and another v. Sourindra Nath Mitra and others 89 I C 747 and Umar Said , and others v. Faiz Muhammad Khan and others P L D 1961 Pesh. 110, the application of this principle has to be confined to the limits enunciated by the provisions of the Punjab Tenancy Act, because if the bar of non-acquisition of right of occupancy by mere lapse of time (section 9) is not given full effect, the land lord may occasionally have an occupancy tenant thrust on him without any laches on his part, and that would be a result entirely foreign to the spirit of the Tenancy Act (Jummnn v. Allah Rakha P L D 1951 Lah. 85). This objection also does not appear to have been taken in the written statement and it is difficult to give a finding in the absence of a specific issue having been framed and tried. Learned counsel for the respondent argues that the suit may be remanded to the trial Court after framing issues on the aforesaid two points and the suit tried afresh. Mr. Aziz Ahmed Bajwa, Advocate, counsel for the appellant, however, argues that independently of the aforesaid two pleas, which were omitted to be agitated by the appellant before the trial Court, since the respondent has no case even on merits, the remand suggested will be an exercise in futility. Since the question of adverse possession is a mire question of law and fact and can be gone into in second appeal, I find for in the contention of learned counsel for the appellant and proceed to examine the case on merits.

3. The claim in the suit is that the respondent's father Mehdi had pur chased the occupancy tenancy rights from the appellant with whom he was a co-occupancy tenant of other land of the shamilat deh, that Mehdi purchased the occupancy tenancy rights from Muhammad Din and had been in posses sion thereafter all these years and that on the death of Mehdi, the three sons of his, namely, the respondent, Mehr and Noor, have been in possession of the suit land as occupancy tenants in their own right and they have parti tioned the land according to their shares. There is no proof of any sale of the occupancy tenancy rights by Muhammad Din in favour of the respondent's father. The suit land was in possession of Sardara, father of Mehdi, as a tenant. After the death of Sardara, it was cultivated by Mehdi, the respon dent's father. During the continuation of that tenancy, there was an agree ment to sell between the parties which sale never materialised and thereafter Mehdi continued on the land and on his death the tenancy was for some time with the respondent and then with his brother Mehr. A perusal of the entries in the lagan column of the Jamabandis Exhs. P. 2, P. 3, P. 4, P. 5 and P. 7, right from 1918-19 to 1944-45, would show that in the first instance Sardara and then Mehdi is a tenant-at-will on payment of batai. It is only in the Jamabandi for the year 1923-24 that the entry of bila lagan bawaja bai' appears, and then in 1927-28, 1931-32 and 1939-40 the words are bila adru lagan bawaja takrar mustaqali khud az bai'. In 1944-45, Ghulam Muhammad respondent is shown as tenant, presumably Mehdi having died in between and the entry bila lagan ba takrar mustaqali khud' is again repeated. The question that arises is whether non-payment of rent coupled with these entries in the Jamabandis would make possession of the respondent in any manner adverse in view of the fact that the claim for purchase has remained unproved. learned counsel for the appellant has invited my attention to the provisions of section 36 of the Punjab Tenancy Act and the judgment in Mst. Bhag Bhari, etc. v. Mst. Bhagan and another P L D 1954 Lah. 356, which has been approved of in L ala and another v. Mst. Jante 1968 S C M R 31. Attention has also been invited to section 116 of the Evidence Act. Another judgment of the Supreme Court reported as Fazal Ghani and others v. Khitab Gul and others 1968 S C M R 1040 has also been relied on. It has been contended that because the possession of Sardara, thereafter of Mehdi and then of Ghulam Muhammad has been permissive from the very inception, mere non-payment of rent and the entry 'bila adai lagan bawaja takrar mzistaqali khud az bai' in the lagan column would not alter the position. On these grounds, it is argued that the status of Mehdi being of a tenant, his possession was permissive and the intervention of agreement to sell would in no manner change that relationship. Learned counsel for the respondent, on the other hand, argues that the respondent's father and thereafter the respondent has been in continuous possession of the land openly and in a hostile manner and the entries in the Jamabandis Exhs. P. 2, P. 3, P. 4, P. 5 and P. 7 in the lagan column are indicative of the fact of this assertion of disclaimer of the relationship of landlord and tenant and the possession being adverse to the landlord to his knowledge. No authority or rule of law has been cited before me to show that where a person is in possession as a tenant and the landlord enters into an agreement to sell with such a tenant and thereafter the sale transaction does no materialise, the possession of the tenant becomes adverse to the landlord. Cases may be conceived of the nature where after the sale transaction, to possession of the alienor or the alienee may be adverse to either in certain circumstances, but that does not happen in the case of a tenant who does not enter on the premises under the agreement to sell. He is already on the premises and if the sale transaction falls through, the nature of tenancy is not affected. The entries in the lagan column have to be considered in the context of the case and the assertion of 'bai', which is not proved and which is non-existent in the eye of law and non-payment of rent because of any such assertion, would not ma ice the possession of the tenant in any manner hostile. Under section 36 of the Punjab Tenancy Act a tenant has to surrender possession and also to give notice to the landlord. This has not been done. The possession of the tenant cannot be considered to be adverse, especially in view of the fact that the landlord brought a suit for recovery of batai of land. He even brought a complaint against the respondent for cutting of trees and was successful in both the civil action and the criminal case. Following with respect the dictum in Lala and another v. Mst. Jante. I reverse finding of the Courts below on the question of adverse possession.

4. For the reasons above, the appeal succeeds and is allowed and the suit dismissed. However, the parties are left to bear their own costs.

K. B. A. Appeal accepted.

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