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Regular First Appeal No. 61 of 1954, heard on 16th March, 1960.

S. 90‑Document 41 years old‑Scribe and marginal witnesses dead‑Execution proved by other evidence‑Nothing suspicious suggested about document Document relied upon by High Court as genuine.

S. 19‑Grant acquired in name of R‑R executing agreement in favour of his brothers H and Q that they were joint owners in grant‑H and Q's association in cultivation and expenses‑Grant, held, acquired in pursuance of an antecedent agreement between three brothers.

S. 19‑Grant of tenancy rights amounts to transfer of land within meaning of Crown Grants Act (XV of 1895) Conditions of tenancy have force of law‑Grant only to one person‑Succession by rule of primogeniture.

Benamidar, when a trustee‑A purchasing property in his own name with funds contributed jointly with B‑A becomes benamidar for B‑A becomes trustee for B if A was not acting honestly at time of purchase‑Principle of benami not applicable to acquisition of horse‑breeding tenancy under S. 19, Colonization of Government Lands (Punjab) Act (V of 1912).

(e) Colonization of Government Lands (Punjab) Act (V of 1912), S. 19‑Horse‑breeding grant acquired (by agreement) in name of R but money contributed also by R's brothers H and Q --Cultivation and expenses shared by R, H, & Q‑H and Q "legally" not entitled to rights in land nor to rents and profits thereof-- F subsequently acquiring proprietary rights in land‑H and Q entitled to sue R for specific performance of R's agreement or to sue R as trustee calling upon him to convey their shares of land to them‑Suit for mere possession not competent‑Limitation Act (IX of 1908), Arts. 113 or 120 applicable respectively to such suits and not Art. 144‑[A I R 1931 P C 196 ; Ranjit Singh Bahadur v. Maharaj Bahadur Singh I L R 46 Cal. 173 ; Waryam Singh v. Sundar Singh and others A I R 1936 Lah. 576 ; Preman v. Hardit Singh and others A I R 1930 Lah. 835 ; Dalip Singh v. Jagat Singh A I R 1938 Lab. 721 and Allah Ditta v. Jhanda P L D 1951 Lab. 244 distinguished].

Ghulam Abbas Jafri and Sajjad Raza Jafri for Appellants.

Munir Ahmad for Sardar Muhammad Iqbal for Respondents.

Dates of hearings : 11th, 15th and 16th March, 1960.

This first appeal arises out of a suit brought by Husain Bakhsh plaintiff for possession of one‑third share of land which stood originally in the name of his brother and now stands in the names of his brother's sons.

2. The plaintiff alleged that he and his two brothers Qadir Bakhsh and Rahmat Khan jointly purchased a mare in order to acquire land from the Government on horse‑breeding conditions and that two squares of land were in fact jointly acquired in Chak No. 82, Tehsil Sargodha, but in view of the law relating to colony land, the grant was in the name of one only of the three brothers, i.e. Rahmat Khan. However, the expense incurred on bringing the land into cultivation was shared equally and all the three had equal rights in the land in dispute. On the 11^th of May 1911 Rahmat Khan executed a document in favour of the other two brothers accepting that all the three had equal rights in the land and would continue to have such equal rights. Rahmat Khan lived in Chak No. 82 where the land was situate while the plainti8' and Qadir Bakhsh continued to live at Haripur, District Sialkot, which was their original place of residence. In order to help Rahmat Khan in cultivation, they used to send kamas (servants). The profits of the land were being divided equally among all the three brothers. Qadir Bakhsh died and his share passed to his sons. The grant was subsequently exchanged for land in Chak No. 86‑Shamali, and of this land too as of the land in Chak No. 82 the parties con tinued to share the produce equally. In 1931 Rahmat Khan died and the grant was entered in the name of his eldest son, Muhammad Alam, in accordance with the conditions relating to horse‑breeding grants. In 1940 the land was freed from horse breeding conditions and the tenants were allowed to pay the amount required for acquisition of ownership rights. In November 1942 Muhammad Alam acquired proprietary rights and got 2/3rd share of the land mutated in favour of. his two brothers, Muhammad Hussain and Sultan, although to plaintiff was entitled to 1/3rd share of the land. Muhammad Alam and his two brothers refused to give the plaintiff his share which necessitated the filing of the suit. The defendants to the suit were only the three sons of Rahmat Khan and their mother. The sons of Qadir Bakhsh who would be entitled to one‑third share, though mentioned in the plaint, were not made parties.

3. The defendants traversed all the allegations made in the plaint. They denied that the mare or the grant had been jointly acquired. They denied too that Rahmat Khan had ever executed any agreement or that the plaintiff or Qadir Bakhsh had ever received a share of the produce. At the same time they pleaded that if the plaintiff had any right, he had lost it through abandon ment. It was also alleged that the defendants and Rahmat Khan had in any case been in adverse possession and the suit was barred by time.

4. The following issues were framed by the learned Senior Civil Judge :‑

(1) Whether Hussain Bakhsh, Rahmat Khan and Qadir Bakhsh had initially agreed to jointly acquire the mare and the grant and to enjoy the same as alleged in the plaint

(2) Whether on 11^th May 1911, Rahmat Khan executed the agreement alleged in para. No. 4 of the plaint recognising the joint title of the plaintiff in the said grant

(3) Whether the aforesaid agreement, dated 11th May, 1911, contravened Colonization of Government Lands Act and whether the same is not enforceable

(4) Whether the exchange of the original grant with the grant in dispute was subject to rights of the plaintiff in the first grant

(5) Whether plaintiff jointly enjoyed the grant and discharged the liabilities

(6) Whether plaintiff had abandoned or waived his rights

(7) What is the effect of the acquisition of proprietary rights by Muhammad Alam

(8) Whether plaintiff's suit is within time

(9) Whether defendants have become exclusive owners through adverse possession for more than 12 years

(10) Relief.

The first issue was answered by the learned Senior Civil Judge in the negative for want of sufficient proof. Issue No. 2 was similarly decided against the plaintiff. The finding on issue No. 3 became unnecessary. Issue No. 4 was decided in favour of the plaintiff. Issue No. 5 was found unproved. On issue No. 6 it was found that the plaintiff had not been in enjoyment of the land for 34 years which fact pointed to abandonment. The suit was, however, held to be within time. On issue No. 9 ix was found that adverse possession was not proved On these findings the suit was dismissed. This is an appeal by Hussain Bakhsh plaintiff.

5. The first question to determine is whether the mare was in fact purchased jointly and the grant was intended to be a joint acquisition. In support of his case the plaintiff led some oral evidence and relied on the document Exh. P. 1 which is alleged to have been executed by Rahmat Khan. So far as oral evidence is concerned, Husain Bakhsh plaintiff made his own statement in the witness‑box wherein he deposed that the mare had been purchased jointly by him, Rahmat Khsan and Qadir Bakhsh for Rs. 300 from his own brother‑in‑law Sahi Nathu. The agreement Exh. P. 1 was read out to him and he said that it was the same as was executed by his brother. He is himself an illiterate and also has a weak eyesight. He stated at first that he had been getting the produce of the land till about 6 years before this suit which was filed on the 23rd of December 1952. Later, however, he agreed that after the death of Qadir Bakhsh (which occurred in the year 1918) he had not received any produce of the land. He said that in the beginning for about a year he had remained on the land. Then he used to send Qadir Bakhsh sometimes and sometimes he used to come in person to Chak No. 82 till Qadir Bakhsh died. The plaintiff produced also Allah Wadhaya who is his brother‑in‑law and Jalal Din, his own son, both of whom stated that the document Exh. P. 1 had been executed and thumb marked by Rahmat Khan in their presence. At the same time Allah Wadhaya deposed to the fact that the mare had been purchased jointly by the three brothers. Jalal Din stated that his father had been getting the produce of the land upto 1946. Nabi Bakhsh Lodhra, a resident of Chak No. 86, stated that the plaintiff had been coming to take the produce of the land from his nephews. Maulvi Ghulam Hussain, a Zamindar of Chak No. 82‑N. B., stated that his uncle Nathe Khan had given a mare to the three brothers, and that it was the same mare on account of which the present grant had been secured.

6. A number of witnesses were examined by the defendants to prove that the mare was not purchased jointly and that the plaintiff had not been receiving produce of the land. Mehr Din (D. W. 1), an Arain of Chak No. 86, stated that he had never seen Hussain Bakhsh cultivate land at Chak No. 82. The witness had formerly been residing at Chak No. 82. Nabi Bakhsh (D. W. 2) stated that his father Nathe Khan had provided the mare to Rahmat Khan deceased on account of which the horse breeding grant in Chak No. 82‑N. B. had been acquired. At the time when the mare was given, there was no payment but three years later Rahmat Khan had paid his father Rs. 300, the price of the mare. He admitted that Muhammad Alim defendant had two wives, one after the other, and both of them were his sisters, and he himself had married twice and both his wives were the sisters of Muhammad Alam. His son was married to the daughter of Muhammad Alim. Mst. Muhammad Bibi, defendant No. 4, made a statement in the witness‑box supporting the case of the defendants. Fateh Ali (D. W. 4), a Zamindar of Chak No. 98‑N. B. stated that Rahmat Khan had got the mare r from Nathe Khan who was his real uncle, and that no price of the mare had been fixed at that time, but three years later Nathe Khan had received Rs. 300 from Rahmat Khan, Muhammad Alim defendant also made his own statement in the witness‑box. He said that the plaintiff had never demanded any share of the produce of the land from him and had at the same time never assisted in the reclamation or cultivation of his land. He had acquired proprietary rights from the Government on payment of Rs. 2,200 and the plaintiff had made no con tribution towards that amount.

7. After considering the whole evidence on record, we had) come to the conclusion that there was an antecedent agreement) between the three brothers, Rahmat Khan, Qadir Bakhsh and the plaintiff for sharing equally the benefits of the grant, and that the mare was purchased jointly. We may, state here that the plaintiff did not specifically plead in the plaint an antecedent agreement but this is implied in the allegation that the mare had A been purchased jointly, and that the property was mutated in the name of Rahmat Khan, because of the law relating to the colony land. Our conclusion with respect to this agreement is based mainly on the document Exh P. 1, in the light of which we had accepted the evidence produced by the plaintiff in preference to that produced by the defendants. The learned Senior Civil Judge held that the execution of this document had not been proved. The scribe and the marginal witnesses of this document are (lead. The plaintiff had sought to prove its execution by his own statement, the statement of his son' Jalal Din and the statement of his brother‑in‑law Allah Wadhaya. At the same time the plaintiff relied upon the presumption which can be drawn under section 90 of the Evidence Act. The learned Senior Civil Judge found the evidence of the plaintiff, Jalal Din and Allah Wadhaya to be unreliable being the evidence of interested persons, and so far as section 90 of the Evidence Act is concerned he refused to draw a presumption relying upon certain judgments wherein it had been held that the mere production of an ancient document unless supported by some corroborative evidence is not sufficient for invoking section 90. The learned Senior Civil Judge found such corroborative evidence to be lacking. There were no entries in the revenue records showing the association of the plaintiff in cultivation. He also relied on the fact that Inayat Ullah and Umar Din sons of Qadir Bakhsh had no sought to enforce their rights.

8. It is true that there are no entries in the revenue record showing that Qadir Bakhsh or the plaintiff had been cultivating the land in dispute. But it is not the case of the plaintiff that he had been associated in such cultivation except for the first year of the grant. The allegation was that he and Qadir Bakhsh had been receiving their share of the produce of the land and this fact would not find mention in the revenue records. We do not find it unsafe to draw a presumption of genuineness of this document when we consider all the relevant circumstances. Such documents were generally being executed by a brother in whose name a horse breeding grant was acquired in favour of other brothers. Nothing suspicious in the document has been pointed out. The plaintiff and two witnesses have deposed to its execution by Rahmat Khan and there is nothing in this cross‑examination which may cast a doubt on the genuineness of this document. Then, there is an application submitted by the defendants which is of some significance. They applied to the trial Court for taking a photograph of this document so that the thumb impression on it may not in any way be tampered with and they did actually get it photographed by an expert but after having it photographed they did nothing further in the matter. Their application suggested that they wanted to compare the thumb impression on the document with some other thumb impressions, the existence of which was not at all improbable considering that the deceased being a Government tenant may have executed some document in favour of the Government. We questioned learned counsel for the respondent as to why this application was put in and he gave no direct answer to this question at all. Another relevant circumstance is that Qadir Bakhsh had died in Chak No. 82. He was admittedly residing at Haripur in Sialkot Tehsil and while it is not impossible that he should have come to Chak No. 82 only to see his brothers and there fallen ill and died (as suggested by the learned counsel for the respondents) but that is not very probable. Also the respondents have land at village Haripur and as appears from the revenue records produced by the appellant their land in Haripur which is about 40 kanals in area and is abi land is in the possession of the plaintiff, who appropriates its produce without paying anything to the respondents. There is no explanation as to why the plaintiff is being allowed the benefit of the produce of this land.

9. The material portion of the contents of the document may here be reproduced:‑

"My real brothers Hussain Bakhsh and Qadir Bakhsh who live in village Haripur are equal co‑owners in the land, i.e. I own one share, one share is owned by Hussain Bakhsh and one share by Qadir Bakhsh and both the brothers have been providing kamas (servants) for assisting in cultivation. Should I die, all the three brothers will be equal owners in the land. The sum of Rs. 1,200 which has been spent had been provided equally by all the three brothers. Should I today or tomorrow refuse share in the land to my brothers. I will pay them the sum of Rs. 800 and for this I and my property will be responsible."

10. This document does not expressly refer to any agreement antecedent to the acquisition or even to the joint purchase of the mare, but it concedes that the money and labour spent on the grant was joint and in the light of this agreement we are quite prepared to accept that the grant was acquired in pursuance of an agreement as to joint acquisition.

11. Although the acquisition was intended to be joint, there is the fact that since the death of Qadir Bakhsh which occurred in 1918 the plaintiff' has not been in receipt of his share of the produce of the land. The present suit was filed in December 1952. For a period of no less than 34 years the plaintiff took no action whatsoever in connection with the grant.

In the meantime the original grant had been exchanged for a grant of land in Chak No. 86. This was in the year 1921. Then in November 1942 Muhammad Alam who, as the eldest son of Rahmat Khan, had on Rahmat Khan's death succeeded to his rights, deposited the amount of money required for the acquisition of the proprietary rights in the grant in Chak No. 86 and on the 1st of July 1944 even a formal deed of transfer of proprietary rights was executed in his favour by the Collector. The question is as to what is the effect of this continued inaction for a period of not less than 34 years in which the plaintiff' was neither getting the produce of the land nor sending any kamas for assistance in cultivation. There are issues in this suit regarding limitation and abandonment of rights and we have to consider the effect of this inaction on these issues. In order to consider the effect it will be proper to state what exactly are the rights of a person who enters into an agreement for joint acquisition of a grant like a horse‑breeding grant, which was by law intended to vest only in one person.

12. According to the conditions attaching to horse‑breeding grants, the tenant right, which is the right conferred on the grantee in the first instance, is to vest only in one person and on his death the tenants' right is to descend, according to the rule of premogeniture, on the eldest son or the eldest collateral. The grant of any tenancy in accordance with any statement of con ditions issued under the Colonization of Lands Act (or the Government Tenants Act) is to be deemed to be a transfer of; land within the meaning of Crown Grants Act, 1895 and to be governed by the provisions of that Act. As a result, the statement of conditions acquires the force of law and has effect in spite of anything to the contrary contained in any other law.

13. Ordinarily when two or more persons agree to acquire land jointly, the land, though purchased in the name of one, would belong to all of them, if the person who acquired the property in his own name was acting honestly and intended to acquire it on behalf of all. In such a case he would be a benamidar. If, on the other hand, the person who purchased property in his own name, with joint funds which were con tributed on the understanding that the property was to be joint, was not acting honestly at the time when he actually made the L purchase, be would not be a benamidar .for the others but he would. be a trustee for others to the extent of their shares and the beneficial interest to the extent of the shares would belong to the others. This distinction between a benamidar and a person who holds in trust is of importance, as will presently appear. The above consequences will follow, however, only when legally all the persons who agree to a joint acquisition could be the owners of the interest which is being acquired. If they could not be the owners of that interest legally then the property acquired would belong only to the person in whose favour the transfer was made. In the case before we the tenancy could legally stand only in the name of one person. When it was f acquired, therefore, in the name of Rahmat Khan, even the beneficial interest in it could not vest in the other brothers. On point to consider here is whether, although no right as tenants would be acquired by the other two brothers, they could at least, by the agreement acquire a permanent right to rents and profits of the land to the extent of the agreed share. Even this right could not vest in them because this would amount to transfer of an interest in the land itself, and such transfer would be opposed to the combined effect of the statement of conditions which allows only one person as a tenant and section 19 of the Coloniza tion of Lands Act which prevents the transfer of any right or interest in the tenancy or the charging of such interest by any transfer or any contract. The object of the statement of con ditions and section 19 is that without the assent of the Government or its representative no second person could have any interest in a tenancy. One way of looking at the matter is this. At the time when the agreement was entered into between the brothers no right as yet vested in Rahmat Khan and, therefore, he was not capable of transferring any right or interest in the land. After he acquired the rights of a tenant any transfer by him would be opposed to section 19. The fact that he had already agreed to transfer would not make any difference.

14. If the other brothers did not acquire a right to rents and profits or any right or interest in the land itself, then what is the right which they acquired under the agreement We will be prepared to enforce the agreement to the extent to which it is possible to enforce it. The only extent possible, however, is that when Rahmat Khan, or his representative did acquire proprietary rights he may be forced to transfer the agreed share to the other brothers. After proprietary rights are acquired, the statement of conditions would not govern the rights of the person who has become the proprietor. He would be free to deal with the land as he liked and if there is an agreement between him which implies his obligation to transfer to the others their shares, he could be called upon to transfer such shares.

15. Here arises a consideration relating to limitation. The present suit is one for possession. It was brought after the expiry of ten years from the date of payment of money required for acquisition of proprietary rights and more than eight years after the actual transfer of proprietary rights in favour of Muhammad Alam defendant. In the plaint the cause of action is said to be the transfer by Muhammad Alam of shares in the property to his own brothers. This occurred in August 1944, i.e. more than eight years before the suit. The contention on behalf of the plaintiff is that the moment proprietary rights were acquired by Muhammad Alam the plaintiff became a co‑sharer in the land and, therefore, became entitled to sue for possession. As the suit was brought within twelve years of the accrual of the right to sue, the suit is within time in accordance with Article 144 of the Limitation Act. The contention on behalf of the defen dants is that at the most there would be an obligation to transfer the proprietary rights when acquired and it cannot on any principle be said that the plaintiff would become an owner by the acquisition itself. It is pointed out in this connection that even money for the acquisition of proprietary rights was paid by Muhammad Alam alone and the plaintiff has as yet paid no part of it. He had claimed that the money had been paid out of the produce of land to which all were jointly entitled. He has not even made a tender of the payment of his share.

16. It cannot possibly be held that when Muhammad Alam acquired the proprietary rights Hussain Bakhsh automatically became owner of a share. As explained above, when two or more persons agree to acquire land jointly then the acquisition, if intended by the person who actually makes it to be on behalf of all persons, will result in all such persons becoming owners to the extent of their share, so that the person in whose name it stands is only a benamidar, and in a case where the person who actually makes the acquisition does not intend at that time that it should be on behalf of all, still, funds having been supplied by all in pursuance of an agreement, he will hold the property as a trustee to the extent of shares of the others. Here the person acquiring could not become a benamidar, for the law prohibited transfer of shares to more than one person. He could not even hold it for the benefit of others. But when he or his representative did acquire the ownership rights, then the bar that stood in the way of enforce ment of the agreement was removed. The result would, however, be not that Husain Bakhsh automatically became the owner but that Muhammad Alam was under an obligation to transfer the property to Husain Bakhsh on payment of his own share of land. The highest at which the case of the plaintiff can be put is that Muhammad Alam became a trustee for him to the extent of his share. We say it is the highest because there are distinguishing features in this case itself which may stand even in the way of the application of the ordinary principles stated above. Here the acquisition in which a share is claimed is not the original grant but another grant in Chak No. 86 and the person acquiring is not the original tenant but his son who is not even fixed with the know ledge of an agreement executed by his father. Now, if at the most Muhammad Alain was only a trustee, then what precisely is the right of Husain Bakhsh and what is the limitation for filing a suit The precise right is to have the property transferred to him on payment of his share of the price of proprietary rights so that, truly speaking, the suit should not be for possession but for conveyance. However, a suit, for transfer as well as possession, can lie, and we can regard the present suit as one for conveyance and possession even in the absence of a formal prayer as to con veyance or transfer. But this would not affect the question of limitation, for the right to possession would arise only on transfer of the land and the limitation applicable to such a suit would be the limitation applicable to a suit for transfer and not to a simple suit for possession. Whenever a transfer has to be completed before a right to possession accrues, the limitation for filing a suit for transfer or conveyance cannot be avoided by filing a suit for possession. If this suit is to be regarded as one for conveyance, then it is either a suit for specific performance of an agreement which had been entered into by parties antecedent to the acquisition of the horse‑breeding grant, or it is a suit calling upon a trustee to convey the property to the beneficiary. In the first alternative, the suit would be governed by Article 113 of the Limitation Act and the limitation would be three years from the time when specific performance was refused. In paras. 8 and 9 of the plaint it is stated that the defendant refused to transfer 1/3 of the pro prietary rights and to the contrary got a share of such right transferred to his brothers, and that cause of action arose when he effected a transfer in favour of his brothers. This had happened on the 9th of August 1944 though in the plaint it is said to have happened in 1946. In the second alternative the cause of action would arise either when the money for the acquisition of proprie tary rights was paid or at the most when the deed of transfer was executed in favour of Muhammad Alam, which occurred on the 1st of July 1944. In either of the two cases the present suit would be time‑barred, for to the second alternative the Article applicable would be 120 of the Limitation Act.

17. Viewed as a suit for performance of a contract, the question of limitation presents no difficulty. Viewed as a suit for a transfer by a trustee, the matter is concluded by the judgment of their Lordships of the Privy Council in A I R 1931 P C 196. In that case their Lordships held that to a suit by a beneficiary against a trustee the Article applicable was Article 120. Their Lordships pointed out that the beneficiary as such was not an owner, for the .owner was the trustee and there could be only one owner of property. In India, their Lordships said, there were no separate legal and equitable estates, the only owner being the legal owner. Article 144 of the Limitation Act which was relied upon on behalf of the plaintiff was held as inapplicable. It will be convenient to reproduce here a passage from the head note of the case :‑

"The Indian law does not recognise legal and equitable estates, therefore there can be, but one owner' and where the property is vested in a trustee, the owner' must be the trustee. The trustee is the owner' of the trust property, the right of the beneficiary being in a proper case to call upon the trustee to convey to him. The enforcement of this right would be barred after six years under Article 120 unless it is a trust for a specific purpose, and if the beneficiary has allowed this period to expire without suing, he cannot afterwards file a possessor suit, as until conveyance he is not the owner."

18. Generally the distinction between legal and equitable estates is not kept in mind and a number of judgments can be cited wherein the person who was truly only an equitable owner was granted a declaration of ownership or a decree for possession without any transfer in his favour. In cases where the question of limitation is not involved, it is not very material whether the relief prayed for is conveyance and possession or possession only, although, properly speaking, there should be a transfer even in a case where the Transfer of Property Act is not in force, for it must be remembered that a person becomes an owner either by process of law or by a transfer. If property vests in one person it cannot, in the absence of any circumstance which has the legal effect of vesting the property in another, vest it in that other till there is a transfer by the owner. If in a case not governed by the Transfer of Property Act one person agrees to transfer his land to another till the suit has to be for specific performance. A conveyance need not be executed. There may be just an oral transfer by the defendant in enforcement of the decree for transfer passed against him or the Court may on behalf of the judgment‑debtor transfer the property to the decree‑holder without any writing just as the judgment‑debtor could have made a transfer without any writing, but a suit for mere declaration would not be a proper relief in such a case.

19. Some judgments were cited before us in support of the argument that ownership rights would stand transferred to the plaintiff on their acquisition by Muhammad Alam. Ranjit Singh Bahadur v. Maharaj Bahadur Singh (I L R 46 Cal. 173) is a Privy Council case where it was held that rights arising out of a grant which grant was a "contract" within the meaning of section 51 of Bengal Act VI of 1870 would not be merely contractual rights and the suit for their performance would not be governed by Article 113 of the Limitation Act for the rights created were real rights. In that case there was in fact a grant and the mere fact that in accordance with a particular section of Bengal Act VI of 1870 the grant was within the definition of "contract" did not mean that the property itself was not acquired by the grant. In Waryam Singh v. Sundar Singh and others (A I R 1936 Lah. 576), no doubt, all the persons who were parties to the agreement for joint acquisition were held to be owners, but the case is one of joint Hindu family where different consideration apply. Also there is no discussion of this point in the judgment. In Preman v. Hardit Singh and others (A I R 1930 Lah. 835), proprietary rights had been purchased in pursuance of an agreement for joint acquisition although the purchaser was to remain a tenant till all the instal ments were paid. The acquisition had been honestly made on behalf of all the parties to the agreement and therefore, it could very well be said that all the persons were owners in the property. The judgment is a short one and contains no discussion. The following paragraph in Dalip Singh v. Jaggat Singh (A I R 1933 Lah, 721), which was a case dealing with an objection taken under section 19 of the Colonization of Government Lands Act to an agreement like the present, is also relied upon:‑

"By virtue of the contract entered into between the parties, the title to the property vested in all the persons as soon as the purchase was effected, and the plaintiffs became joint tenants with the defendant from the very beginning ; and as they did not acquire any interest in pursuance of any transfer from the defendant, the latter's objection must fail."

With all respect we are not prepared to agree that when a tenancy is acquired in a horse‑breeding grant in pursuance of an agreement for joint acquisition, all the parties will become joint tenants as soon as the grant is acquired. Where the intention of law be that only one person should be the tenant, there can be no valid agree ment between any persons that they will become joint tenants of the property. While this agreement may become enforceable when proprietary rights are acquired, this will have no effect when the person in whose name the grant is acquired is as yet a tenant subject to conditions restricting the tenancy to one person. In Allah Ditta v. Jhando (P L D 1951 Lah. 244) the plaintiffs had filed a suit for a decla ration and injunction and had been granted a declaration as joint owners, but the question before us had not been raised and there being no plea of limitation the point was not material.

20. We have already referred to the plea of the defendant that there is no payment or tender on behalf of the plaintiff of his part of the amount required for acquisition of proprietary rights. Even on this ground it has to be held that the plaintiff had not as yet acquired the proprietary rights when he filed the suit. The plaintiff pleaded that the money paid was out of the joint income of the land, but even this fact was not proved and at the same time we have not accepted that to the joint income the plaintiff is entitled before acquisition of the proprietary rights. Also, it is not even the case of the plaintiff that he was providing kamas to assist in the reclamation or cultivation of the land as was required by the agreement.

21. In view of the fact that we hold the suit to be barred by time, it is not necessary to discuss the legal effect of the inaction of the plaintiff for a period of 34 years. The appeal is dismissed but there is no order as to costs.

I agree with my learned brother that the appeal should be dismissed and the parties be left to bear their own costs. I might add that though I agree with most of the views expressed by my learned brother on the question of law that arise in the case I am not to be deemed to be agreeing with all of them.

A.A. Appeal dismissed.

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