P L D 1957 (W. P.) Lahore 43
Before B. Z. Kaikaus, J
FAZAL HUSSAIN‑Defendant‑Appellant
Versus
NOOR KHAN‑Plaintiff‑Respondent
Second Appeal No. 446 of 1954 decided on 1st October 1956, from the decree of Bashir Ahmad, Senior Civil judge with enhanced Civil Appellate Powers, Jhelum, dated the 12th October 1954, reversing that of Muhammad Sharif, Civil Judge, II Class, Chakwal, dated 26th January 1954.
Muhammad Amin Khan for Appellant.
Nemo for Respondent.
JUDGMENT
KAIKAUS, J.‑This is a second appeal by the defendant in a suit for possession which was dismissed by the trial Court but was decreed on appeal by the District Judge. The Plaintiff‑respondent, Nur Khan, is owner to the extent of one‑half of the land in dispute. He filed the suit on the usual allegation that the defendant was in possession without right or title, Two issues were framed by the trial Courts the first whether the plaintiff was in possession of the suit land within 12 years of this suit, and the second whether the defendant has become an owner by adverse possession for more than 12 years. The trial Court found the adverse possession of the defendant proved. The suit had been filed on the 1st of June 1953. The earliest Girdawari relating to the possession of the defendant was dated 10th of October 1941, and related to Kharif 1941. Possession throughout had been recorded in the revenue papers as “without rent on account of possession without permission”. Had possession of the defendant started from the 10th of October 1941, the suit would have been within time. The trial Court held, however, that the entry of Kharif 1941 would mean that the possession of the defendant started on the 15th of May, and, at any rate, before the month of June, because the land is prepared for cultivation of the Kharif crop during that time. On appeal the learned District judge agreed with this finding of the trial Court. He decreed the suit, however, because the other co‑sharer in the land, the brother of the present plaintiff, had already got a decree against the defendant‑appellant for possession of one‑half share of the land on the 20th of August 1952. The learned District judge was of the opinion that the decree for possession in favour of one co‑sharer would interrupt the adverse possession of the trespasser even against the other co‑sharer.
It is true, as has been observed by the learned District Judge, that in the suit brought by the brother of the plaintiff (Muhammad Dorez) the decree should have been not for joint possession but for possession of the whole of the land. A co‑sharer has a right to possession of every inch of the land as against the rest of the world and when he sues for possession against a trespasser, the trespasser has to be ejected. Joint possession can be decreed only against a person who is himself a co‑sharer or represents a co‑sharer’s interest. A decree for joint possession against a ‑trespasser looks like an inconsistency in itself. However, that decree is in this case only for half share and the mere passing of a decree does not by itself interrupt adverse possession. The decree has first to be executed and it is only when in execution of the decree the decree‑holder enters into possession that adverse possession of the trespasser is interrupted. Even after execution of the decree the trespasser will continue prescribing for a title which is not inconsistent with the decree. The reason, therefore, for the learned District judge’s decision is not correct. However. I would dismiss this appeal on the ground that I do not find any justification for the inference drawn by the trial Court, an inference which has been confirmed by the learned District Judge, from the fact that the possession of a person is entered in Kharif 1941, that the land was in his possession on the 15th of Mayor at least some time in the month of June. Learned counsel for the appellant was himself unable to support this conclusion which is not justified either by the record or by any treatise on the subject. It is not essential, in order that a person may sow the Kharif harvest, that he should have prepared the land in May. There is no material before me upon which I may hold that in the ordinary course land for Kharif is prepared in May. To make a presumption in favour of a wrong doer I will need strong proof of ordinary course of events. It will be observed that even according to the lower Court, the land may have been prepared for the Kharif in the end of May. This suit was filed on the 1st of June. So even if the trespasser had begun preparation only a few days later than what the lower Courts regard as the usual time, he would not be perfecting his title. I cannot see why I should make a presumption to this extent in favour of a trespasser. Also the land, it will be observed, was ghair mumkin till Rabi 1941. I will assume it to be in the possession of the true owner till such time as it may be shown to have been taken possession of by the defendant. As there is no necessary inference as to the possession of the defendant in May 1941, both the issues framed in the suit have to be decided in favour of the plaintiff.
This appeal is dismissed, but there is no order as to costs.
A.H. Appeal dismissed.
