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Regular Second Appeal No. 99 of 1976, decided on 25th November, 1985.

---S. 7--Punjab Limitation (Custom) Act (I of 1920), S. 2--Custom Right to seek possession of land after death of last male owner--Limitation- Possession over land as tenancy at will would not ipso facto be converted into ownership from date of death of last male owner, even if decree holder being heirs of deceased had obtained declaratory decree whereby reversionary rights over land in dispute as reversioners of deceased stood already established-- Unexecutable declaratory decree would give, decree-holder, simply a right to seek possession over land after death of last male owner--Suit for possession, held, could be filed within three years after death of last male owner as prescribed by Act I of 1920--Suit filed to exercise such right beyond prescribed period, being time-barred was rightly dismissed by Courts below.--[Custom (Punjab)].

Ch. Mushtaq Khan for Appellant.

Raja Muhammad Anwar for Respondent

Date of hearing: 25th November, 1985

The facts necessary for the disposal of this regular second appeal briefly stated are that the appellants filed a declartory suit to the effect that they being the heirs of Sardar (deceased) are in possession of the suit land as owners. As a consequential relief it was prayed therein that the defendant-respondent be restrained permanently from interfering with the possession of the appellants over the land in dispute. It was stated in the plaint that the appellants had obtained a declaratory decree, dated 8-10-1954 whereby their reversionary rights in the land in dispute as reversioners of Sardar (deceased) stood already established. The respondent had obtained the land in question in exchange in the year 1953. Sardar died on 17-9-1955 and the present suit was filed on 28-2-1965. It is also pertinent to note that the Punjab Customs Limitation Act, 1920 which provided a period of three years for seeking possession of such land was repealed by Act V of 1962 in December, 1962. The respondent inter alia raised the objection that the suit was barred by time. The learned trial Court dismissed the suit as barred by time and this finding was affirmed by the learned Additional District Judge in appeal which was dismissed vide judgment and decree, dated 1-10-1975. This led to the filing of the present second appeal.

2. I have heard the learned counsel for the parties. The plea of the learned counsel for the appellants was that three years period stipulated by the Punjab Custom Limitation Act, 1920 applies to the suits for possession. According to him the instant suit was within time as it was not a suit for possession but was a declaratory suit wherein declaration as to title was claimed for the reason that the appellants were already in possession of the land in dispute as owners. It was added that such a suit could be brought within a period of 12 years from the acdrual of cause of action which in the instant case accrued on the date of death of Sardar who died on 17th of September, 1955. In view of the aforenoted plea it is necessary to examine the nature of the alleged possession of the appellants over the land in dispute. The finding recorded by the learned trial Court in this respect is that the appellants-plaintiffs were not in possession of the suit land as its owners. He observed that the entries of revenue record, viz., Jamabandi for the years 1958-59 Exh. D.7, copy of Khasra Girdawari Exh. D.8, copy of Jamabandi for the years 1962-63 Exh. P.4 and mutation Exh. D.9 as well as the oral evidence produced by the respondent on the question of possession fully disporve the version of the appellants that they were in possession of the suit land as its owner. According to this evidence the possession of the plaintiff was merely that of tenants at-will under the respondent paying share of rent to him. This finding was challenged before me. The case of learned counsel for the appellants was that by virtue of the decree, dated 8-10-1954 the possession of the appellants over the suit land has to be taken as owners' possession since the date of death of Sardar the last male owner. In other words the plea is that the possession over the suit land as tenants-at-will ipso facto stood converted into owners' possession from the date of death of Sardar. No statutory provision or principle of law was cited in support of this plea. To my mind such a change in the rights of the parties cannot be assumed. The declaratory decree obtained by the appellants was not executable. It just gave the appellants right to seek possession of the land after the death of the last male owner. Such right had to be exercised in accordance with law then prevailing. The suit in the circumstances was rightly held to be barred by time. In view of above the question whether the suit as well as the appeal abated under the Ordinance XIII of 1983 need not be gone into. Learned counsel, however, conceded that in case the petitioners are not treated to be in possession as owners then the suit as well as the appeal stand abated under the aforesaid Ordinance.

3. For the reasons given above this second appeal fails and is dismissed with no order as to cost.

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