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Regular Second Appeal No. 127 of 1955, decided on 27th March 1958, from the decree of the Court of Khan Muhammad Afzal Khan, Senior Civil Judge, with Enhanced Appellate Powers, Mianwali, dated the 18th February 1955.
(a) Civil Procedure Code (V of 1908), Order VII, r. 3 and Order XX, r. 9‑Object is to ensure identification; of property in suit.
The object of Order VII, rule 3 and Order XX, rule 9, Civil P. C. is to ensure the identification of the property so that there may be no difficulty in executing the decree.
Held, the plaintiff had bona fide described the land by reference to killa numbers. The Patwari in his statement had given the original khasra numbers, of this land, which were also given in the copy of the jamabandi of the year 1945‑46. The land was, therefore, definitely known and both the parties knew which land was in dispute. The identity of the property was; in fact, not in dispute. Of course, it would have been better if in view of the setting aside of the killabandi, the plaint had been amended and khasra numbers had been incorporated, but as the khasra numbers of the land in suit were known, it was really immaterial whether the land was described by killa numbers or khasra numbers. In fact, the lower appellate Court had already. incorporated the khasra numbers of the land in the judgment and as such there could be no difficulty in identifying the property and in executing the decree.
(b) Adverse possession‑Permissive possession‑Party in. per missive possession claiming adverse possession in judicial proceeding ‑Claim having no foundation‑Plea rejected by Court‑Permissive possession will continue at least till date of decision of case. .
An unsuccessful claim to ownership in a judicial proceeding which claim has no foundation whatsoever, cannot change the character of the possession: If the possession at the time of the institution of the suit is permissive, if would remain permissive, if the claim to ownership is negatived in the judicial proceedings, unless after the decision of the suit the tenant does some overt acts which may have the effect of denying the title of toe landlord.
Singaravelu Mudaliar v. Chokka Mudaliar A I R 1923 Mad. 88 ; Akbar v. Tabu 45 P R 1914 ; Hansraj v. Maulu 63 1 C 881 ; Muhammad Ibrahim v. Shaida Muhammad A I R 1930 Lah. 297 and Jaimni Das v. Phulla Khan A I R 1930 Lah. 472 ref.
Muhammad Mumtaz Ali Khan v. Mohan Singh A 1 R 1923 P C 118 ; Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande A I R 1923 P C 205 ; Nainapillai Marakayar v. Ramanathan Chettiar A I R 1924 P C 65 ; Bhadal Nathabhai v. Kalansang Gulabsang A I R 1927 Bom. 667 Sohwa Singh v. Kesar Singh A I R 1932 Lah. 586 and Dalip Singh v. Rannia 25PR1915rel.
Mahmud Shah for Appellants.
Abdul Haq Qureshi for Respondents.
Date of hearing : 17th March, 1958.
This second appeal has arisen out of a suit instituted by Malik Hakim Khan, respondent No. 1, on the 1st of July 1953, against Sarwar and Anwar appellants and Ghulam Akbar Shah and Murid Shah respondents, for possession of 438 kanals and 8 marlas of land situate in Mauza Dag Goda, Tehsil Bakkar, bearing killa numbers given in the heading of the plaint. It was alleged in the plaint that the plaintiff was the owner of 7/8th share in the land detailed in the plaint and Anwar and Sarwar defendants were owners of 1/8th share, and that these defendants were in possession of the land in suit as tenants at will, but had repudiated the tenancy, three or four years before the institution of the suit. The suit was resisted by Sarwar and Anwar defendants on several grounds. They denied that the plaintiff was the owner of the land or that they were his tenants at will. They pleaded that in any case they had been in adverse possession of the land for more than twelve years before the institution of the suit. On the pleadings of the parties, the following issues were framed :‑
(1) Is not the plaintiff owner of the land in suit
(2) Whether the plaintiff gave this land to the defendants as tenants‑at‑will, if so, when
(3) If issue No. 2 is proved against the defendants was their adverse possession for a period of more than 12 years
(4) If issue No. 2 is not proved, whether the plaintiff was in possession of the land in suit within a period of 12 years before the institution of the suit
(5) Whether the killabandi of which the killa Nos. are given in the plaint has been set aside, if so what is its effect
(6) Relief.
The trial Court gave its decision on issues No. 1, 2, 3 and 5, against the defendants and holding that issue No. 4 did not arise in view of its decision on the other issues, decreed the suit. Sarwar and Anwar defendants went up ‑ in appeal before the Senior Civil Judge, who upheld the findings of the trial Court, but modified the decree passed by the trial Court by granting to the plaintiffs a decree for joint possession of the land as described in the plaint and in case that land could not be traced by killa numbers, then for joint possession of khasra No. 2206, 392 /2146, 3941/2151, 3948/2158, 2236 and 2232 as entered in copy of jamabandi (Exh. P. 2) for the year 1945‑46.
Sarwar and Anwar defendants have now come up in. second appeal to this Court.
2. Before dealing with the points raised in this appeal, it seems desirable to give the background of this case. The land in suit was originally the property of Ahmad Yar, father of Sarwar and Anwar appellants, and their uncle, Muhammad Yar. In the year 1923, Ahmad Yar and Muhammad Yar gifted this land in favour of Riasat Shah and Muhammad Shah, and on the 24th of August 1925, mutation in respect of this gift was sanctioned in favour of the donees who were shown in the revenue records in possession of this land as their khud‑kasht. For a long time they remained in cultivating possession of the whole area which was barani. In the year 1931‑32, they let it to tenants. Three of these tenants were Sarwar and Anwar appellants the two sons of Ahmad Yar and their uncle Muhammad Yar and they were paying batai to the donees. Later on, the land remained uncultivated for a few; years as banjar jadid and banjar qadim, but in the year 1940 it was again shown in the revenue papers as khud kasht under the cultivation of the successors of the original donees. In July 1940, Sarwar and Anwar appellants brought a suit for a declaration that they were the owners of the land, which included the land, originally gifted and its corresponding share in the shamilat. They ignored the gift altogether. They also prayed that in case they were found not to be in possession they should be granted a decree for possession of land. This suit wap dismissed by the trial Court and on appeal by Sarwar and Anwar the District Judge partially accept ed the appeal and granted 'them a declaration in the terms sought by them, with respect to Sheran Shah's share, i.e., 1 /8th of the land in suit and dismissed their appeal in respect of the remaining portion of the land. Their second appeal having been dismissed, Sarwar and Anwar appellants filed Letters Patent Appeal No. 255 of 1943, where two questions were raised on their behalf namely: (1) that the gift was void and could be ignored by Sarwar and Anwar and they were entitled to recover possession of the land, and (2) that the adverse possession of the donees had not matured because during the period of twelve years the land had been shown as banjar jadid and banjar qadim. The learned Judges who heard the appeal repelled both the contentions and held that the gift was valid and that the adverse possession of the donees had also matured. They accordingly dismissed the appeal vide, copy of the judgment, Exh P. 4. Except for the copy of the decree passed by the District Judge in that case and the copy of the judgment in Letters Patent Appeal, no other material has been placed on the record to show the exact circumstances under which the suit had been filed.. Suffice it to say that Malik Hakim Khan, plaintiff in the present suit, was also a party to that suit. He had succeeded to the original donees by then.
3. It appears that in spite of the decree having been obtained by Sarwar and Anwar to the extent of 1/8th share in the land, this decree was never executed, and the revenue papers produced in this case not show any change in the entries on the basis of that decree. However, the present suit was instituted by Malik Hakim Khan on the 1st of July 1953, for possession of 7/8th share in the land. He recognised the claim of the appellants to the extent of 1 /8th share in the land. The Courts below have held that he was the owner of 7/8th share in the land in suit, and that the possession of the land by Sarwar and Anwar was not adverse to the plaintiff and, at any rate, had not matured by the time the suit was instituted. The suit was accordingly decreed.
4. The learned counsel for the appellants urged two points before me: (1) that the killabandi numbers given in the plaint, having been set aside, the plaint should have been returned to the plaintiffs for amendment, and that a decree should not have been granted in terms of killabandi numbers and (2) that the appellants had been in adverse possession of the land for more than twelve years before the, institution of this suit and, therefore, the suit should have been dismissed.
5. As regards the first point, it was contended that Order VII, rule 3, Civil P. C. provides that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Order XX, rule 9, Civil P. C. is similar to Order VII, rule 3, and it provides that a decree for recovery of immovable property shall specify such boundaries or numbers as are mentioned in that rule. It is clear that the object of these rules is to ensure the identification of the property so that there may be no difficulty in. executing the decree. From the evidence of Ashiq Hussain Shah Patwari (P. W. 1), and Ch. Muhammad Anwar killabandi officer (D.W.5), it transpires that killabandi was originally sanctioned in the year 1949, and in lieu of khasra numbers of the land in suit given the jamabandi for the year 1945‑46, a copy of which, is Exh. P. 2. killa numbers as given in khatauni‑killabandi, 1Jexh: P. 1; and described in the heading of the plaint were given, arid that sub sequently the killabandi sanctioned in the year 1919 was set aside and fresh killabandi was ordered. It 'is therefore; clear that the plaintiff had bona fide described the land by reference to killa numbers. The Patwari in his statement has given the original khasra numbers of this land, which are also given in the copy of the jamabandi for the year 1945‑46, Exh. p. 2. The land is, there fore, definitely known and both the parties knew which land was in dispute. The identity of the property is, in fact, not in dispute. Of course, it would have been better if in view of the setting aside of the killabandi, the plaint had been amended and khasra numbers had been incorporated, but as the khasra numbers of the land in suit are known, it is really immaterial whether the land is described by killa numbers or khasra numbers In fact, the lower appellate Court has already incorporated the khasra numbers of the land in the judgment and. as such there can now be no difficulty in identify ing the property and in executing the decree. This contention has, therefore, no substance in it.
6. The second point raised on behalf of the appellants involves the determination of a question of some importance and interest. According to the revenue records produced by the parties, One thing is clear that right from the year 1939 up to 1953, the appellants were shown to be in possession of most of the land in suit as tenants‑at‑will at the owners rate The copies of the jamabundis for the years 1941‑42 and 1945‑46. Exh. D. 1 and D. 2 and the copies of khasra girdmvaris from 1939 to 1953, Exhs. D. 3 to D. 5 establish this fact beyond any dispute. These documents and Exhs. P. 1 and P. 2 also show that the plaintiff was the owner of this property. Although it is not clear but it appears that the plaintiff had acquired this property from the original donees, and as such was impleaded as a party in the previous suit.
It was contended by the learned counsel for the appellants that in the year 1940, the appellants had asserted that they were the owners of the land and had instituted a suit for a declaration to that effect and although their suit was dismissed in respect of the land involved in the present suit, yet because they had asserted ownership in respect of this land, their adverse possession com menced in the year 1940, and, consequently, their title by adverse possession had become matured in the year 1952 long before the present suit was instituted.
7. The question which falls for determination is whether a mere assertion of ownership of land in a judicial proceeding, which ex hypothesis was unfounded at the date when it was made, can convert the nature of the possession, which prima facie was that of a tenant‑at‑will into that of adverse possession. The learned counsel for the appellants maintained that such an assertion changed the nature of the possession into that of adverse posses sion. In support of this contention, he placed reliance on Singaravelu Mudaliar v. Chokka Mudaliar (A I R 1923 Mad. 88), Akbar v. Tabu (45 P R 1914); Hansraj v. Maulu (63 I C 881); Muhammad Ibrahim v. Shaida Muhammad (A I R 1930 Lah, 297) and Jaimni Das v. Phulla Khan (A I R 1930 Lah. 472). In the first case, a Division Bench of the Madras High Court held that the judgment of a Court declaring that one of the parties has no legal title to the properties in suit cannot have the effect of causing his possession to cease to be adverse to the opposite party, from the moment of its pronouncement so long as possession remains undisturbed. In Akbar v. Tabu, it was laid down by a Division of the Punjab Chief Court that a decree not accompanied by actual effective assertion of rights and taking of possession of these rights does not help to stop adverse possession running. The same view has been taken by the Lahore High Court in Hansraj v. Maulu, Muhammad Ibrahim v. Shaida Muhammad and Jaimni Das v. Phulla Khan. A perusal of the aforesaid rulings shows that in all these cases, the question was whether the adverse possession of the party prior to the institution of the suit could be tacked with such possession after the decision of the suit. This, however, is not the situation in the present case. The previous suit filed by Sarwar and Anwar appellants was not based on their adverse possession. These rulings are, therefore, not of any assistance in determining the point involved in the present suit.
8. The learned counsel for Malik Hakim Khan respondent contended that the assertion of ownership by the appellants in the previous suit, which ex hypothesis was unfounded, is of no avail to the appellants and could not have converted the character of their possession which was undoubtedly permissive, into that of adverse possession. He relied in this connection on Muhammad Mumtaz Ali Khan v. Mohan Singh (A I R 1923 P C 118), where their Lordships, while dealing with such a question observed as follows :‑
"The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesis was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under‑proprietor. It is true that the defendant, might if he had chosen, have at once instituted proceedings for a declaratory decree that the plaintiff was not an under‑proprietor, but such a course was equally open to the plaintiff. Each party had had his supposed rights judicially challenged by the other, the plaintiff by the notice of a ejectment, of which he had obtained cancellation, the defendant by the assertion in the proceedings, for cancellation of the notice for ejectment that he was not liable to be ejected because of his rights as under‑proprietor. The Board, however, do not consider that it was the duty of either party to institute such a suit if they were content that possession should remain on the same footing as before the notice of ejectment was served. They are unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve , years without that assertion having been successfully challenged, obtain a title as an under‑proprietor to the lands. Such a judgment might have very far‑reaching results and would almost certainly lead to a flood of litigation. It is notorious that in actions for rent or enhancement of rent or for ejectment, the persons in possession are prone to maintain rights which they do not possess, and if for any reason, as in the present case, no judicial determination is arrived at, but the parties continue on the original footing, the mere lapse of so short a period as six or twelve years (which might be amply explained upon other grounds) would deprive the landlord of his proprietary rights unless in the time he had brought a declaratory suit to settle once and for all the terms on which possession was held. The case might have been different if, in addition to the judicial assertion by the plaintiff there had been any change in the money payment which he thereafter made to his landlord. There is however, no suggestion that the same money payment which had been made before the notice of ejectment was not continued thereafter. The possession by the plaintiff therefore remained on precisely the same footing as at the time when he was held by the Court to have merely an occupancy title, the precise nature of which it is not necessary to consider in his case."
From the above observations of their Lordships, it becomes clear that no title to ownership of the land could have been acquired by prescription in such a case as the present.
The aforesaid view was confirmed by their Lordships in Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpade (AIR 1923 P C 205), and was given an extended meaning in Nainapillai Marakayar v. Ramanathan Chettiar (AIR 1924 P C 65
), where their Lordships laid down the following proposition :‑
"No tenants of lands in India can obtain any right to a perma nent tenancy by prescription in the against his landlord from whom he holds the lands."
This view was adopted by a Division Bench of the Bombay High Court in Bhailal Nathabhai v. Kalahsang Gulabsang (A I R 1927 Bom. 667).
A similar question arose in Sohwa Singh v. Kesar Singh (A I R 1932 Lah. 586), where a Division Bench of the Lahore High Court had an occasion to refer to the aforesaid Privy Council rulings. Currie J., after taking note of these rulings held as follows :‑
"In my judgment therefore in the present case the mere assertion in 1911‑12 by Amar Singh of the claim to ownership as em bodied in the Revenue Records would not of itself alone suffice to afford a starting point for adverse possession. It was not accompanied by any change in the money payment, in this case revenue and cesses, made by Amar Singh. It was pointed out in Dalip Singh v. Rannia (25 P R 1915), that the mere a fact that the plaintiffs never paid any rent except land revenue and cesses would not of itself constitute them proprietors.' In my opinion therefore no question of adverse possession arises in the present case."
Bhide J., who delivered a separate judgment in the case, did not refer at all to the Privy Council rulings and taking into consider ation the relevant provisions of the Tenancy Act observed as follows :‑
"But the assertion of an adverse title would in my opinion terminate the tenancy at the end of the agricultural year during which it was made, for it must at any rate be looked upon as a notice to the landlord that the tenant no longer intends to hold the land under him."
9. After carefully going through all these authorities, I am of the view that an unsuccessful claim to ownership in a judicial proceeding, which claim has no foundation whatsoever, cannot p change the character of the possession. If the possession at the time of the institution of the suit is permissive, it would remain permissive, if the claim to ownership is negatived in the judicial proceedings, unless after the decision of the suit the tenant does some overt acts which may have the effect of denying the title of the landlord.
10. In the present case, the previous suit was instituted by Sarwar and Anwar appellants in year 1940, when they were entered in the revenue records as tenants‑at‑will. This suit was finally decided by the High Court in the year 1944 and the claim of the appellants to ownership was negatived. The legal implication of the judgment in that suit is that the appellants were relegated to their original status of tenants‑at‑will. Sarwar and Anwar appel lants never cared to execute the decree which they had obtained from the District Judge, in respect of 1/8th share of the land. They continued as tenants‑at‑will paying only owners rate that is land revenue and cesses right up to 1953,when the present suit was instituted. They were never entered in the revenue papers as being in possession of the land "bawajah qabza mukhalifana" or "bawajah uzre milkiyat.". There is no such entry in the revenue papers that no rent was being' paid on account of assertion of ownership by the tenants. Having regard to all these circumstances, 1 am of the opinion that the appellants have failed to establish that their possession had ever been converted into that of adverse possession. No overt acts have been proved which might have amounted to their denial of the title of their landlords. It appears to me that after the dismissal of the previous suit, the parties con tinued on their original footing as tenants and landlords.
11. For the aforesaid reasons, I do not find any force in this appeal and dismiss it, but in view of the fact that the point involved was not free from difficulty, I would leave the parties to bear their own costs.
K. M. A. Appeal dismissed.
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