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P L D 1957 (W. P.) Lahore 45

 

Before S. A. Rahman, C. J. and Shabir Ahmad, J

 

IBRAHIM and others‑Appellants

 

Versus

 

FAZAL DAD and others‑Respondents

 

Letters Patent Appeal No. 19 of 1951, decided on 21st November 1956, under clause 10 of the Letters Patent against the judgment and the decree passed by Kayani, J. in Regular Second Appeal No. 316 of 1949 on 11th January 1951.

 

Muhammad 1qbal for Appellants.

 

Said Akbar Khan for Respondents.

 

JUDGMENT

 

RAHMAN, C. J.‑—-This is a Letters Patent Appeal from an order of a learned Single judge of this Court by which he allowed Regular Second Appeal No. 316 of 1949 presented against the appellate judgment of the learned Senior Sub Judge, Rawalpindi, who had reversed the decision of Ch. Aziz Ahmad, Sub‑Judge 1st Class, Gujar Khan. The material facts are as follows.

 

The suit land which bears an area of 6 kanals and 10 marlas, is situated in two villages, Dhure and Dhuman, of Rawalpindi District, and belonged to one, Dullah, who on his death, was succeeded by his widow, Mst. Bhari, on the usual life tenure. Mst. Bhari made a gift of this land to Ibrahim, a collateral of Dullah deceased, on the 5th of February 1923, the mutation being sanctioned on the 17th of December 1923. The donor died in 1924. A suit was then brought by Fazal Dad, Muhammad Bakhsh, Muhammad Fazil and Taleh Muhammad, who are also collaterals of Dullah in the same degree as Ibrahim, for possession of their share of the suit land. The suit was resisted by Ibrahim on the basis of the gift in his favour. The plaintiffs succeeded in obtaining a decree in 1925. They took out execution of that decree and symbolic possession was delivered to them on the 4th of May 1929 by the Girdawar, vide his report Exh. P. 21. The land formed part of several joint khatas in the two villages. A mutation was entered on the basis of the decree in favour of the plaintiffs, but that seems to have been rejected by the Revenue Officer on the 15th of June 1932, in the absence of the parties, without assigning any reason. Long after that, another mutation was entered and put up before the Revenue Officer on the 10th of February 1946. This time the parties were present before the Revenue Officer, and as a long time had elapsed from the date of the decree and the delivery of the formal possession and Ibrahim asserted his own right in the land, the Revenue Officer refused to sanction the mutation and directed the plaintiffs to seek their remedy in the Civil Court, A fresh suit for possession was, therefore, instituted by the plaintiffs on the 30th of July 1946. It was decreed by the trial Sub‑Judge, but the Court of first appeal reversed the decision holding that Ibrahim had been in adverse possession of the land for more than twelve years prior to the suit. As mentioned above, the learned Single judge allowed the second appeal and restored the order of the trial Court.

 

Mr. Muhammad Iqbal, who appeared for the defendant appellant, did not contest the finding of the learned Single judge that symbolic possession had been delivered to the plaintiffs in pursuance of the decree is their favour on the 4th of May 1929. He has raised a two‑fold contention before us. His first point is that this was a suit based on allegations of possession and dispossession and, therefore, Article 142 governed the case, making it incumbent on the plaintiffs to prove their possession of the land within twelve years before the suit His second point was that even if the delivery of symbolic possession to the plaintiffs be deemed to have effected a break in the continuity of the adverse possession of Ibrahim over the land in question, it only furnished the plaintiffs with a fresh limitation period starting from that date for getting actual possession by partition. As they had made no effort in that direction for more than twelve years, their suit, he urged, should have been held to be barred by time.

 

The question whether a suit is governed by Article 142 or Article 144 of the Schedule to the Limitation Act depends on the nature of the allegations in the plaint. We have seen the plaint which mentions that the plaintiffs had beer: delivered symbolic possession of the land on the 4th of May 1929, but that on recently the defendant had denied their title before the Revenue Officer and this gave them the cause of action. That denial, as we have noticed above, took place on the 10th of February 1946, the suit being brought on the 30th of July 1946. There is no express plea taken in the plaint that the plaintiffs had been dispossessed by the defendant. However, learned counsel for the appellant argues that the very fact that the plaintiffs had asked for B possession of the land carried that implication. We are inclined to believe that Article 144 was more apt in the circumstances of this case and the nature of the relief asked for was misconceived but even if Article 142 could be invoked, it would not improve the position of the defendant‑. appellant. The plaintiffs could very well urge that as against Ibrahim, judgment‑debtor, delivery of symbolic possession to them was as effective as actual possession, and henceforward Ibrahim, who became their co‑sharer in the land, should be deemed to be in possession on their behalf. Unless sub sequently by an overt act, he asserted his hostile title this position would remain unchanged. For the first time such an assertion took place in 1946 within twelve years prior to the suit. Whichever Article of the Limitation Act, therefore, applies, the position would be that the suit should be held to be within time.

 

The main point in the appeal, however, is as to the true effect of the delivery of symbolic possession to the decree holders who had become joint owners with the appellant in the suit land. In this connection it is significant to note that in the report of the Girdawar, Exh. P. 21, it is recited that Ibrahim was present at the time when symbolic possession was delivered to the decree‑holders and that he G raised no objection. This report constitutes relevant evidences under section 35 of the Evidence Act. This meant that he was acquiescing in the judicial decision which had gone against him. Consequently, we are inclined to hold that from that point of time onwards, the possession of Ibrahim over the land was not adverse to the plaintiff‑respondents but merely as a co‑sharer with them. There is no evidence on the file to show that Ibrahim appellant committed any overt act subsequently, barring the assertion of his title before the Revenue Officer in 1946, which should have impelled the plaintiffs‑respondents to protect their rights by any legal step It is settled law that where possession can be referred to lawful title, it can never be considered adverse. Reference in f this connection may be made to two authorities of the Privy Council reported as Corea v. Appuhamy ((1912) AC 230) and Hardit Singh v. Gurmukh Singh (AIR1918PC 1). It is clear that utter the Court had passed the decree in favour of the respondents which, as admitted by Ibrahim in his statement as his own witness in the trial Court, he did not challenge by an appeal, it was open to him either to submit to the decision or to persist in his assertion of hostile title. The indications are that he adopted the former course. and otherwise too the presump tion should be in favour of that option having been exercised in the absence of any indication to the contrary. That indication was not forthcoming till 1946. as observed above.

 

Mr. Muhammad Iqbal, however, relies or, certain rulings as authority for the proposition that the deliver of symbolic possession to decree‑holders in joint property merely gives them a further period of limitation within which to obtain actual possession, and if they fail to do so, not only would their remedy be barred but their right would be also extingu ished. He cited before us in this connection the following authorities

 

Niranjan Lal v. Jhamman Lal (A I R 1931 All. 234), Sita Ram Dube v. Ram Sunder Prasad (A I R 1928 All. 412), Rajendra Kishore Singh v. Bhagwan Singh (I L R (1917) 39 All. 460 (D B)), Jang Bahadur Singh v. Hanwant Singh (A I R 1921 All. 9 (F B)), Mst. Jan Sultan v. Abdul Manan (A I R 1936 Pesh. 7 (D B)), Ganga Prasad v. Auseri Lal (A I R 1947 All. 296 (S B)), Bagdu Majhi v. Raja Sri Sri Durga Prosad Singha (9 Cal. W N 292 (D B)), Ram Chand v. Gopal Singh (A I R 1930 Lah. 914‑S.B.), Deo Nandan Pershad v. Udit Narayan Singh (23 I C 298 (D B)).

 

In case No. 1 it was held by a learned Single Judge of the Allahabad High Court that delivery of formal possession gives to the person who obtains it, a fresh start in the com putation of limitation, but does not make him owner in possession. The learned judge thought that the decree holder must obtain partition within twelve years of the date of the formal possession or should establish his right in some other manner, and if he fails to do so, he would not be entitled to seek possession after twelve years. The ruling is really based on cases Nos. 2, 3 and 4 noted above and which we proceed to discuss.

 

In case No. 2 a Division Bench of the Allahabad High Court held that joint owners by delaying to sue together for ejectment of a trespasser in wrongful possession of a portion of the joint property or by delaying to have partition it order to assert their separate rights to actual possession it accordance with their shares, cannot stop the running o time in favour of the trespasser. The case is, in our opinion distinguishable inasmuch as the person in possession was; pure trespasser. Here we are dealing with a case of a co sharer in possession. In case No. 3 decided by the same High Court, the plaintiff had purchased at an auction sale, in execution of a decree, an undivided one‑third share in certain muafi land. He obtained formal possession of the property purchased. He subsequently sued for recovery of joint possession of the share. It was held that the suit was within time, having been brought within twelve years of the date of the formal possession. The learned Judges expressed the view that the legal effect of the formal possession must be the same as delivery of actual possession and subsequent dispossession. No authority, however, is referred to in this connection in the judgment, and the point really did not arise for decision in that case.

 

In the Full Bench Allahabad case, mentioned at No. 4 above, the decision was that whereupon an execution sale possession has been delivered in accordance with the provisions of law, that is in accordance with section 318 or 319 of the Old Code as the case may be, having regard to the nature of the property, or under Order XXI, rule 95 or 96, the auction purchaser gets a fresh start for the computation of limitation. But where such possession has not been delivered, the mere fact of formal delivery of possession does not save limitation. There possession was not delivered in the manner required by law and, therefore, it did not avail the plaintiffs to save limitation. The case is distinguishable from the instant case wherein no such point is involved.

 

The Peshawar case, mentioned at No. 5 above, follows the Allahabad view without much discussion of the legal position. The learned judges, however, failed to notice that the case they were considering related to co‑sharers and the previous Allahabad authorities, except for Niranjan Lai v. Jhamman Lal, dealt with different types of cases.

 

In case No. 6, decided by a Single Judge of the Allahabad High Court, the facts were that A in execution of his simple money decree against one of the two co- owners of a house, purchased on the 21st of August 1928, the judgment‑debtor’s share in the house and obtained formal delivery of possession on the 19th of December 1928. On the 11th of January 1943, A filed a suit for possession against the co‑owner in possession and subsequently impleaded the judgment‑debtor’s son as defendant. It was found that the whole house had remained in possession of the co‑owner since the ‘date of formal delivery of possession to A. It was held that the suit was barred by limitation whether Article 142 or Article 144 applied. It was observed that it was open to A to apply for actual possession within twelve years of the date of the symbolical delivery, which he never did and after the expiry of twelve years, not only did he lose his remedy but his right was also extinguished. The position vis‑a‑vis co‑ownership was not really discussed in that case.

 

In the Calcutta case, mentioned at No. 7 above, the learned judges thought that a presumption arises that after symbolical possession had been delivered to the plaintiff, the person in possession continues to hold the land in assertion of his previous title. Limitation, therefore, ran from that date and not from the date or dates on which he made subsequent denial: of the plaintiff’s title. With all respect, we think that the dictum is too widely worded. In our opinion, it would depend on the facts and circumstances of each case whether such a presumption should be raised or not.

 

In the Lahore case, mentioned at No. 8 above, certain observations were made by Jai Lal J. which if anything go against the contention raised by Mr. Muhammad Iqbal. The learned judge expressed himself as follows :‑

 

” It is obvious from what I have stated above that it was on 16th July 1916 that Rawel Singh, having obtained symbolical possession of the one‑fourth share in the house in suit, obtained a perfect title thereto. It is from that day therefore that he became entitled to institute a suit for obtaining actual possession of his share in the house after partition and therefore, there can be no question that his suit is within time. He could not file a suit for partition. before 16th July 1916 and I am unable to understand the plea of defendants that he must establish a subsisting title to the property as his title for actual possession accrued on 16th July 1916, and it is conceded that unless such title he proved to have been extinguished by adverse possession, it must be held to be still sub sisting. By virtue of his purchase he stepped into the shoes of Ladha Singh and, even assuming that his sons remained in possession of the whole house as co‑sharers it was for them to establish that they converted their possession as co‑sharers, into adverse possession by some overt act.”

 

In our opinion, the position in the present case is not dissimilar to the one visualized by Jai Lal, J.

 

In case No. 9, the learned counsel for the appellant relied on the following observation made by the learned judges :‑

 

“Now, of course, formal delivery of possession, as, no doubt, the learned District judge was well aware, is conclusive evidence between the parties that possession was delivered. It is perhaps somewhat of a legal fiction is many cases,, but it is a very valuable one as it affords a starting point for limitation. But it cannot be denied that it is often little more than a fiction, and it is not in the least conclusive evidence that the possession so delivered continued. There may be a presumption that such possession would continue until the contrary was proved, but that is all “.

 

These remarks lend support to our own view that in the absence of any indications to the contrary, it must be, assumed that the possession of the plaintiffs continued after delivery of formal possession and not the reverse. Far from supporting the appellant’s case, these remarks go against him.

 

That symbolic possession avails sufficiently to dispossess the defendants, who were parties to the suit, is well‑settled law. We might only refer to a decision of the Privy c Council in this connection published as Sri Radha Krishna Chanderji v Ram Bahadur (AIR 1917 PC 197(2)). Such delivery of possession effectively interrupts adverse possession of the holder. With due deference we are unable to understand the view of the Allahabad High Court to the effect that such delivery of formal possession is immediately followed by adverse possession of the holder as a matter of course. That that may be the case in certain circumstances may be admitted. But in the absence of any evidence of the assertion of hostile title, it would be too much to presume that fact.

 

In the state of evidence on the record in this case, we are unable to hold that after the delivery of formal possession to the plaintiffs, the appellant continued to hold the property adversely to them. On the contrary, we are disposed to think that he accepted the judicial decision against him and not till 1946 did he think of denying the plaintiff s title. Till actual partition was effected between the joint shareholders, his possession must be deemed to be on behalf of all. We, therefore, consider that then learned Single judge’s order requires no interference. The appeal is dismissed, but, in the circumstances, we leave the parties to bear their own costs.

 

A. H. Appeal dismissed.

 

 

 

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