P L D 1954 Peshawar 92 (PLP)

MUHAMMAD SHAFI, J.‑This revision petition arises out of a suit brought by the ‑petitioners Rahim Shah ‑and Musammar Shah, against Muhammad Ishaq and six others, for possession of 14 Canals 31 Marlas of land, out of Khasra Nos. 940, 945, 946, and 947, situated in Mahal Khan Killi, Tahsil Mardan. It was alleged in the plaint that the Khasra numbers in dispute prior to the settlement of 1925‑26, had for their numbers 253, 254 and 255, and were shown to be situated in village Jalala. In the above settlement, however, another village out of village Jalala was formed ; it was called Khan Killi, and the new Khasra numbers were shown to be situated in that village. The plaintiffs asserted that Muhammad Ishaq defendant No. 1 and Abdul Wahab defendant No. 2, the two brothers jointly owned these four Khasra numbets. Muhammad Ishaq by a sale deed dated 12th March 1926, sold his share of them in favour of Rahim Shah plaintiff No. 1, and Mahfuz Gul, the father of plaintiff No.

2. They claimed that the possession of the property was given to them, but on account of some mistake in the revenue papers, the mutation in their favour could not be attested. Subsequently it was alleged that Muhammad Ishaq defendant without any right whatsoever passed away his share of the‑e Khasra numbers in favour of his' sons, who are defendants Nos. 3‑

6. This transfer was ineffective, and the plaintiffs consequently claimed a decree for posses sion of the property in suit against all the defendants with costs. The defendants contested the plaintiffs' claim and con tended inter alia that their suit was barred by time: The following issues were framed in the case :‑

1. Whether the suit is within time ?

2. Whether the suit in its present form is maintain able ?

3. Whether the plaintiffs have forfeited their right by lapse of time, and as such are estopped by acquiescence ?

4. Whether the suit is barred under the principle of res judicata ?

5. Relief ? The learned trial Judge on issue No. 1 found that' the plaintiffs' suit was barred by time. He held that it was the duty of the plaintiffs to bring a suit for the possession of the property within twelve years of the sale, and since they had not done so, their suit, which was instituted on 7th May 1947, was barred by time. Issues Nos. 2 and 4 were given up by the defendants. On issue No. 3, the learned trial judge arrived at the conclusion that no conduct of the plaintiffs was shown whereby under section 115 of the Evidence Act, the plaintiffs might be deemed to be estopped to bring the present suit. Having found issue No. 1 against the plaintiffs, he‑dismissed their suit with costs. The plaintiffs went up on appeal against the above order to the Court of the Senior Sub‑Judge Mardan, who by a very short order, which should best be reproduced here, written on 23rd February 1951, dismissed the appeal, but left the parties to bear their own costs throughout. "The present appeal is directed against the judgment and decree of the Court of Sub‑Judge 4th Class Mardan, dated 20th November 1950 whereby‑ the plaintiffs' suit for possession of 14 Kanals 3 Marlas of land situated within the limits of Khan Killi village was dismissed with costs. All the contentions raised before me in this appeal have been dealt with logical accuracy in the closely‑reasoned judgment of the Court below. I need not, therefore, repeat those contentions and my, separate reasons for rejecting them. I find no reason to disturb the judgment and 'decree of the lower Court and accordingly dismiss the appeal. Having regard to, the circumstances of the case I leave the parties to bear their ocean costs throughout". Under Order 41, rule 31 C. P. C. the ‑judgment of the appellate Court has to state the following (a) the points for determination ; (b) the decision thereon ; (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The judgment of the learned lower appellate Court re produced above obviously neither gives the points for determination nor the decision thereon. The lower appellate Court, thus, has, in writing the judgment, not complied with` law and the judgment is therefore bad and illegal. I am, however, not willing to remand the case, because it would: be unnecessary waste of time, and apart from that the lower appellate judge, who wrote the judgment has since been transferred from Mardan' and it would, therefore, serve no useful purpose to send the case back for writing the judgment according to law. The fact that 15 Kanals 7 Marlas of land out of 30 Kanals 14 Marlas of land bearing Khasra Nos. 253, 254 and 255, was sold by Muhammad Ishaq, one of the two co‑sharers of this land, in favour of Rahim Shah and Mahfuz Gul is proved by the production of a registered deed dated 12th March 1926. The entire consideration of Rs. 400 was paid in presence of the Sub‑Registrar. The plaintiffs allege that after the execution of this deed the possession of the property was delivered to them. They have, however, not said that they were given physical possession, which obviously could not be given to them because the property was joint and had not been partitioned. All that they could be delivered was constructive possession, and I see nothing on the record to contradict their statement, that it was in fact given to them by Muhammad Ishaq defendant. From 1926 up to Kharif 1935, there is no evidence on the record as to who was in possession of the property. From the girdawari of Kharif 1935, which took place on 7th November 1935, Muhammad Ishaq and Abdul Wahab jointly, sometimes themselves and sometimes through tenants or lessees, have been shown as in possession of these four Khasra numbers right up to the institution of the suit. During this time Muhammad Ishaq and Abdul Wahab, however, instituted a suit against Shahbaz and seven others for a declaration that they were the owners of Khasra Nos. 945, 946 and 947, which had been wrongly entered in the revenue papers as belonging to Mst. Sabro Jan. This suit was decreed on 24th November 1937. As a consequence of this decree, the entries in the revenue records were corrected. The position then which can be gathered from the material placed on the record is that the property in suit was sold in favour of the plaintiffs by a deed dated 12th March 1926. There is no evidence to indicate as to who remained in possession of this property from 1926 up to'. November 1935. Normally, b if there is no evidence on the record to show as to who remained in possession of a certain property, then the possession would be taken to be that of the real owner. It, thus, necessarily follows that up to November 1935, the plaintiffs jointly remained in possession of this property along with Abdul Wahab, and it was only subsequently, that Muhammad Ishaq came to be entered in the revenue papers as in possession of it with his brother. The present suit was instituted on 7th May 1947, it was, therefore, well within twelve years of . the plaintiffs' ceasing to be in possession of the property in suit. There is, however, no evidence on the record to show that Muhammad Ishaq defendant in fact remained in possession of this property 'even after November 1935'. His possession is shown only along with his brother Abdul Wahab. After the plaintiffs had purchased the property from Muhammad Ishaq, they had become co‑owners with Abdul Wahab in this property. Having become co‑owners with Abdul Wahab, the latter definitely cannot claim to hold the property adversely to them on account of the well‑established principle of law that a co‑owner cannot assert a hostile title against another co‑owner, and his possession of the property alienated cannot be adverse to the alienee. Abdul Wahab, who certainly was in possession of the property; therefore cannot be said to be in possession adversely to the plaintiffs. No evidence has been produced to show as to how Muhammad Ishaq along with Abdul Wahab exercised the right of possession over the joint property during the period that he has been so shown in the revenue papers. In the absence of such evidence Muhammad Ishaq cannot be said to have done any act asserting his hostile title to the property. The learned trial judge in giving issue No. 3 in favour of the defendants has quoted the Commentary to Mitra's Law of Limitation, and Rustamjis Law of Limitation in his judgment. From the quotations which he has given in the judgment it appears that they were cases in which an exclusive owner of a certain property had sold it in favour of ..another person, but in spite of sale had remained in possession of it for more than twelve years. Under these circumstances the learned commentators observed that the alienor would be considered to be in possession of the property adversely to the alienee and no suit by the latter for the recovery of possession after twelve years will be maintainable. This observation would obviously not apply to the facts of the present case, which are abso lutely different from the cases mentioned in the commentary. I might observe here that the practice of the Courts to give quotations from certain commentaries must be discontinued as bad. It is true that the observations made in certain commentaries by authors of unquestionable integrity and of great renown as jurists are entitled to the highest weigh that can be given to them, but if those observations are based on some other legal authority, on cases decided by the different High Courts, then the Courts should much rather refer to that authority on the cases on which the observations in the commentary are based than the observations them selves. In the case before me on issue No. 1, I find that the plaintiffs' suit was well within time, and Muhammad Ishaq has not shown that he had remained in possession of the property in suit adversely to the plaintiffs for a period exceeding twelve years. I consequently accept this revision petition, set aside the judgments and decrees of the two Courts below, and grant plaintiffs the decree prayed for with costs throughout. Orders announced. A. H. Petition accepted.