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P L D 1958 (W. P.) Lahore 99

 

Before A. R. Changez, J

 

ABDUL HAMID KHAN and 5 others-‑Defendants‑Appellants

 

Versus

 

INAYAT KHAN and 2 others‑Plaintiff‑Respondents

 

Regular Second Appeal No. 488 of 1956, decided on 25th November 1957, from the decree of Malik Muhammad Aslam Khan, Additional District Judge, Montgomery, dated the 14th August 1956.

 

Daulu Mal v. Rawal Bakhsh A I R 1930 Lah. 608 ref.

 

Ghias Muhammad for Appellants.

 

S. M. Zafar and Ziaullah for Respondents.

 

Dates of hearing: 3rd and 4th October 1957 and 11th and 25th November 1957.

 

JUDGMENT

 

A. R. CHANGEZ, J.‑–This second appeal arises out of a suit brought by the plaintiffs‑respondents in the year 1955, for a declaration that they were entitled to secure allotment of evacuee land in Pakistan in lieu of one half share of 1155 Kanals of land left by them in village Karyam Tehsil Nawan Sbehr, District Jullunder. It was alleged by the plaintiffs that two brothers Sondhi Khan and Samand Khan owned some land in village Karyam. Samand Khan had no male issue. He made a gift of his share of the land in favour of Jhande Khan, father of the present plaintiffs, by means of a registered deed, dated the 6th of July 1888, A copy of this registered deed of gift is Exh. P. 1. On the basis of this gift, the land was mutated in favour of Jhande Khan, vide copy of the mutation Exh. P. 2. The mutation was attested on the 12th of April 1890. The plaintiffs further alleged that since then the defendants had been giving the share of the produce of this land to the father of the plaintiffs and after his death to the plaintiffs up to the year 1947, when they migrated to Pakistan, they were allotted some agricultural land under the temporary settlement scheme in District Montgomery. They also preferred their claim for permanent allotment, but as the land left in village Karyam had not been recorded in their names so their claim was rejected by the Rehabilitation Authorities. In their written statement, the defendants alleged that the land which had been gifted away by Samand Khan to Jhande Khan was subsequently transferred in the name of Miran Bakhsh, ancestor of the defendants, in the year 1895, and thereafter the names of the plaintiffs had never been recorded in the revenue records. They also alleged that the land which was in their possession in village Karyam at the time of their migration to Pakistan had been inherited by them from their ancestors and that the plaintiffs had nothing to do with it and were never given any share of the produce of that land On the pleadings of the parties, the following two issues were framed:‑

 

(1) Whether the suit is within limitation?

 

(2) Whether the plaintiffs were the owners in possession of one‑half share of the land situate in village Karyam and detailed in the plaint?

 

The trial Court decided both the issues against the plaintiffs and dismissed the suit with costs. On appeal by the plaintiffs- respondents, the learned District judge reversed the finding of the trial Court on both the issues and granted them the declaration which they had prayed for in the suit. It is against this decision that the defendants have now come up to this Court in second appeal.

 

The learned counsel for the appellants has challenged the findings of the lower appellate Court and has urged that the suit was barred by limitation and that the plaintiffs had failed to prove that they were the‑owners in possession of one‑half share of the land in dispute at the time of the establishment of Pakistan. The learned counsel for the respondents has, however, maintained that the onus had been wrongly placed upon the plaintiffs and that in view of the circumstances of the case the onus should have been placed on the defendants to prove that they had been in adverse possession of the property for more than twelve years.

 

The question, therefore, which requires to be determined is whether the suit is governed by Article 142 or 144 of the Limitation Act. It being a suit for a declaration, in its terms these two Articles have no application to the suit. Their application, however, can be considered only on the assump tion that if this land had been situated in some village in Pakistan then obviously, the plaintiffs would have sued for possession of the land, and would have asked for the ejectment of the defendants from that land. In my opinion, in the peculiar circumstances of the case, the point shall have to be decided on the basis of the aforesaid assumption. According to the plaint, the plaintiffs were the owners of the property because of the registered deed of gift, a copy of which is Exh. P. 1. They also claimed that they had been in construc tive possession of the property for they had been receiving the produce of the land from the defendants, and, therefore, the defendants were in permissive possession of the property up to the year 1947. It is admitted by Inayat Khan plaintiff (P. W. 1) that the plaintiffs had not received any share of the produce of this land since the year 1932. In fact, there is no evidence on the file except for the solitary statement of Inayat Khan to prove that the plaintiffs had ever been given any produce of this land since the same had been gifted to Jhande Khan. Except for the proof of the title to the property in the years 1888 and 1890 there is no proof whatso ever that the plaintiffs or their ancestor had ever been in possession of this property after the year 1890. As pointed out above, if the land had been situated in Pakistan the plaintiffs would have sued the defendants for possession of the land by ejectment of the defendants. There is ampler authority in support of the proposition that if it is in essence a suit for ejectment on the strength of title, the plaintiff should not only make out his title to the property sought to be recovered, but should also establish that he has a subsisting’ title, i.e., he or his predecessor bad been in possession whether direct or constructive within twelve years prior to the date of the suit. It was so held by a Division Bench of the Lahore High Court in Duni and another v. Maleri Ram etc., (A I R 1922 Lah. 432). It was similarly held by a Full Bench of the Madras High Court in Official Receiver of East Godavari v. Chava Govinda raja and another (A I R 1940 Mad. 798). In this ruling all the relevant autho rities were considered and it was held that a plaintiff who is suing for possession of property in the occupation of another cannot rest his case on title alone. He must show that he has exercised the rights of ownership by being in possession within twelve years of the suit. This decision was arrived at after reviewing a large number of authorities including the decisions of the Privy Council in Mohima Chunder v. Mohesh Chunder (16 Cal. 473), Mohammad Amanullah Khan v. Badan Singh and others (17 Cal. 137) and Dharani Kanta Lahiri v. Gauhar Ali Khan (25 M L J 95).

 

To the same effect is the ruling as Kamu Menon and others v. Suppukutti Menon and others (A I R 1950 Tra‑Co. 46). In U. Maung Gvi v. Maung On Bwin and another (A I R 1929 Rang. 153), it was held by Brown, J. that where in a suit for possession of land what is proved is that the plaintiff was at one time the owner, but that for the last fifteen or twenty years the defendants had been in posses sion, and the plaintiff claims that they had obtained possession from him the suit is one under Article 142 and if the plaintiff fails to prove the permissive nature of the occupation the burden would lie on the plaintiff that he had been in posses sion within twelve years of bringing the suit. This decision was based on the observations of their Lordships of the Privy Council in Mohima Chunder v. Mohesh Chunder (16 Ind. App. 23). Suleman C. J., who delivered the judgment of the Full Bench of the Allahabad High Court in Bindnyachal Chand and others v. Ram Gharib Chand and others (A I R 1934 All. 993), while dealing with this question, referred to the various authorities and observed as follows:‑

 

“It is therefore quite clear that none of these cases furnish any authority for the proposition either that Article 142 cannot apply to a suit based alone on title which proposi tion is contrary to that laid down by their Lordships of tile Privy Council in the two cages mentioned earlier) or for the proposition that in all suits for possession of property as soon as title is either admitted or proved, the burden or proving adverse possession either lies on or shifts to the defendants.”

 

Dalip Singh, J., who delivered the judgment of the Full Bench of the Lahore High Court in Behati Lal and others v. Narain Das and others (A I R 1935 Lah. 475), while dealing with this question, referred to the case as Daulu Mal v. Rawal Bakhsh (A I R 1930 Lah. 608), and observed as follows

 

“I venture to disagree from the decision if it lays down that in all cases Article 144 is to govern the case once the plaintiff has proved a title to the property.”

 

After carefully considering the authorities referred to above, I am of the opinion that on the allegations made in the plaint this suit is governed by Article 142 of the Limitation Act and as such the plaintiffs had not only to prove their title to property at the time of the institution of the suit, but they had also to prove that they were in possession of this property within twelve years before the institution of the suit. As I have already pointed out, the plaintiffs failed to establish that they had ever been possession of this property after the year 1890 or that they had ever received any share of the produce of this land after that year. In fact, they failed to establish that the defendants were in possession of the property with their permission. I am, therefore, in entire agreement with the findings arrived at by the trial Court on both the issues. I wish to add that, as a matter of fact, the plaintiffs have also failed to establish their title to the property. It is true that once a portion of this land was gifted to Jhande Khan but the plaintiffs themselves produced the copy of the mutation which is Exh. P. 3 which clearly shows that Miran Bakhsh, ancestor of the defendants, had filed a suit for possession of the land which had been gifted to Jhande Khan and the suit was decreed and on the basis of that decree the mutation was entered by which the names of Jhande Khan donee and other mortgagees were scored off and the land was mutated in the name of Miran Bakhsh. It was urged by the learned counsel for the respondents that in fact the land dealt with in this mutation was not the same land which had been gifted by Samand Khan to Jhande Khan, In my opinion, this contention has no substance in it. 262 Kanals and 7 Marlas of land had been gifted to Jhande Khan and 262 Kanals and 7 Marlas of land standing in the name of Jhande Khan, donee had been mutated in the name of Miran Bakhsh, vide copy of the mutation Exh. P. 3. It is therefore, quite clear that Exh. P. 3 refers to the same land which had been gifted to Jhande Khan. Besides, it is admitted by Inayat Khan plaintiff in his statement as P. W. 1 that the land which had peen gifted to Jhande Khan had been mutated in the name of Miran Bakhsh. This concludes the matter. The plaintiffs, in fact, lost their title to the property in the year 1895, when the land was mutated in favour of Miran Bakhsh. ancestor of the defendants.‑ It may also be pointed out that the plaintiffs‑respondents brought a suit in forma pauperis in the year 1931 in respect of this very land and the suit was dismisses This is admitted by Inayat Khan. Under the circumstances, even if the onus had been placed on the defendants to prove their adverse possession, then I have no doubt in my mind that they had successfully discharged that onus, Admittedly, the defendants had been shown in the revenue records as exclusive owners of this land since the year 1895, and since then’ they had not given any produce of this land to the plaintiffs. Besides, the suit of the plaintiffs in respect of this very land had been dismissed in the year 1932.

 

For the aforesaid reasons, I accept this appeal and setting aside the judgment and decree of the lower appellate Court restore the decree passed by the trial Court, whereby the suit of the plaintiffs‑respondents had been dismissed with costs. The appellants are entitled to realise their costs throughout from the respondents.

 

K.M.A. Appeal accepted.

 

 

 

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