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Civil Regular Second Appeal No. 178 of 1955, decided on 3rd December 1957, from the decree of Khan Muhammad Afzal Khan, Senior Civil judge, with enhanced Appellate Powers, Mianwali, dated the 6th April 1955, affirming that of Mr. Saeed Ahmad, Civil judge 2nd Class, Bhakkar, dated the 6th January 1955.

S. 47‑Court passing decree for joint possession‑Decree not executed and execution becoming barred by time‑Judgment‑debtor continuing in posses sion adverse to the decree‑holder‑Second suit for possession is barn ed‑Adverse possession.

Mir Akbaralt v. Abdul Ajij I L R 44 Bom. 934; Bhogilal Kripashankar v. Ratilal Balkrishna A I R 1939 Bom. 261 and A. S. S. Subbaiya Pandaram v. Muhammad Mustafa Maracayar A I R 1923 P C 175 ref.

Mahmood Shah for Appellants.

Abdul Haq Qureshi for Respondents.

Dates of hearing: 27th November and 3rd December 1957.

This is a second appeal arising out of a suit by the respondents against the appellants. In order to appreciate the point involved in this appeal it is necessary to state certain facts which led up to the present suit. One. Khanna, Nabbu and Jumma were in joint possession of an area of 47 kanals and 10 marlas of land in Khata No. 177 in Mauza Dullewala, Tehsil Bhakkar, District Mianwali. Khana died in 1896 and two mutations were made on the 2nd of April 1896 in respect of his property. By mutation No. 459, 22 kanals and 4 marlas in the Khata was mutated in the name of one Lal on the basis of an oral sale which was alleged to have been made by Khana about 12 years before. The mutation does not say whether any share of Khana in the shamilat land dad also been sold. By mutation No. 458 of the same date, the remaining property of Khana was mutated in the names of Nabbu and Jumma. In the year 1936 there was a partition during which Lal's representative got, on the basis of the sale by Khana in favour of Lal, a proportionate share of shamilat land belonging to Khana, measuring 317 kanals and 4 marlas. The partition proceedings were finally attested by the Collector on the 13th of June 1937. On the 24th of November 1948, the present plaintiffs‑respondents, who are the heirs of Khana, filed against the defendants‑appellants a suit for possession of the shamilat land which had been awarded to Lal's representatives in the .partition proceedings on the allegation that Khans had not sold the shamilat land. The: suit was decreed on the 8th of February 1949. The relevant portion of this decree runs as follows:

"It is ordered that a decree for joint possession of 317 kanals 4 marlas of land detailed in the plaint is passed in favour of plaintiffs 1 to 5 and plaintiff No. 7 against defendants Nos. 1 to 11.

Admittedly this decree was never executed by the decree‑holders.

On the 18th of March 1954, the plaintiffs‑respondents filed the present suit alleging that after the decree of the 8th of February 1949 one Malik Hakim Khan Lambardar of Dullewala and others persuaded the plaintiffs to give half of the property decreed to them to tire defendants and after getting the possession of the remaining half delivered to the plaintiffs gave it to the defendants for cultivation as tenants. The plaintiffs further alleged that since about six months prior to the suit the defendants had denied the tenancy and had refused to give them their share of the produce, they are entitled to a decree for possession of 164 kanals 14 marlas in Khata No. 2248 measuring in all 3833 kanals. It is not denied that the shamilat owned by Khana lies in this Khata. The defendants denied the alleged compromise .through the intervention of Malik Hakim Khan and others and pleaded that the limitation for executing the decree of 1949 had expired and set up adverse possession for more than twelve years. Upon the pleadings of the parties five issues were framed out of which the following three alone are of importance in this appeal

(1) Are the plaintiffs owners of the land in suit

(2) Did the parties make any compromise in 1,949 to the effect that the defendants would become owners of the half of the decreed land and as such took possession of that land

(3) Did the defendants remain as tenants‑at‑will of, the suit

The learned trial Court found the second and the third issues against the plaintiffs; but found the first issue in their favour and granted them a decree for joint possession of the land in suit. On appeal, the learned Senior Civil Judge, Mianwali, upheld the findings of the learned trial Court on all the three issues and by his judgment and decree dated the 6th of April 1955 upheld the decree of the first Court. The defendants have come up to this Court in second Appeal.

It is difficult to understand how the plaintiffs‑respondents suit could, in the circumstances of this case, have been decreed after the second and the third issues had been found against them. The reasons for that decision are stated by the learned lower appellate Court in the following passage of its judgment:‑

"The Court, while passing the decree Exh. P. 2, muse be taken to have declared on 8th February 1949 that the plaintiffs‑respondents' were joint owners of the land with the defendants to the extent of 317 kanals 4 marlas. Since that declaration, possession by the defendant of that land would in the first instance be referable to their capacity as co‑sharers and it will be for the defendants appellants to plead ant establish that their possession was hostile. They did allege in the written statements that their possession was hostile. Possession prior to Suit No. 103 of 1948 had been tendered ineffective by the decree, dated 8th February 1949. Further, defendants did not prove that their possession since 8th February 1949 was strictly hostile to the plaintiff‑respondents. Even if the possession were hostile, it did' not mature into title through prescription. It would thus follow that the equities of the parties to‑day are exactly what they were on 8th February 1949".

This statement of the legal position between the parties is obviously based upon a misconception of law. Title and possession are two different juridical concepts. While title to a certain property may be with one person, the actual possession may be with another who may be claiming it as of right adversely to the former. The decree of 1949 only recognised the plaintiffs' title to the property in dispute and also their then existing right to its possession jointly with the defendants But it did not say, and indeed could not have said, that the defendants were not in exclusive and hostile possession and were not keeping the plaintiffs out of it; otherwise there would have been no necessity for a decree for joint possession. On the contrary, that decree shows that from some time before the institution of the suit in which it was passed the defendants had been in adverse possession of the property and had deprived the plaintiffs of their right to joint possession. If, therefore, the defendant Possession was hostile to the plaintiffs before the passing of the decree, it continued to be sc. even afterwards. The questions whether the defendants at any time lost the posses sion or whether their possession ceased to be adverse to the plaintiffs are questions which have to be determined with reference to actual facts and cannot be affected by their mere passing of a decree. It was open to the plaintiffs to have interrupted, or altered, the possession of the defendants by executing the decree in their favour but this they did not do. The defendants thus remained in unbroken and uninterrupted possession of the property even after, and iii spite of, the decree for joint possession against them.

Learned lower appellate Court was again in the wrong in thinking that the possession of the defendants would after the decree of 1949 "be referable to their capacity as co‑sharers". This would be so only in the absence of any proof of adverse possession on the part of the defendants. Here the defendants had admittedly been in adverse possession before the decree and in the absence of any proof that they, thereafter, ever acknowledged the plaintiffs' right to possession or permitted them to participate in the possession, the presumption would be in favour of the continuance of the kind of possession which the defendants .had been enjoying before the passing of the decree. The plaintiffs made an attempt to prove that the nature of the defendants' possession had been changed by setting up an arrangement whereby the defendants accepted half of the property as owners and the other half as tenants; but in this "they failed even according to the finding of the learned lower appellate ‑Court itself. There is no allegation by the 'lower that they obtained actual possession, or a recognition by the defendants of their right to possession, in any other manner after the decree of 1949.

In view of what I have said in the preceding para graphs, the contention that the decree of 1949 had the effect of interrupting the adverse possession of the defendants is devoid of all substance. Learned counsel for the plaintiffs‑respondents tried to substantiate that proposition by referring to a ruling of the Bombay High Court in Mir Akbar Ali v. Abdul Ajij (I L R 44 Bom. 934). That ruling undoubtedly supports the plaintiffs‑respondents; but it was demonstrated by the pronouncement of their Lordships of the Privy Council in A. S. S. Subbaiya Pandaram v. Muhammad Mustafa Maracayar (A I R 1923 P C 175) that that case‑as some other similar cases was decided upon an erroneous principle of law. Dealing with that argument their Lordships delivered themselves of the following observations:‑

"Now the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the trust had been validly created and that the property was, in fact, trust property, and it is suggested that this effects res judicata as against the respondents and prevents them from now asserting that the property is their own. Their Lordships do not think that the decree had that effect. At the moment when it was passed, the possession of the purchaser was adverse, and the declara tion that the property had been properly made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse: No further step was taken in consequence of that declara tion until the present proceedings were instituted, when it was too late."

In a subsequent case decided by the Bombay High Court Bhogilal Kripashankar v. Ratilal Balkrishna (A I R 1939 Bom. 261) it was observe that the ruling in Mir Akbar Ali's case was no longer good law.

The present suit of the plaintiffs is liable to dismissal on the simple ground that the cause of action alleged by the plaintiffs has not been proved. Even if it were possible to consider the suit as founded merely upon the title of the plaintiffs, it would, on account of the decree of 1949, be barred by the provisions of sections 11 and 47, Civil P. C. I, therefore, set aside the judgments and decrees of the Courts below, allow this appeal and dismiss the plaintiffs‑respondents' suit with costs in all the three Courts.

K. M. A. Appeal accepted.

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