1989 PLP 3102 (MLD)

(1) Whether the suit is within time ? OPP (2) Whether the plaintiffs have no cause of action and no locus standi ? OPD (3) Whether suit has been wrongly valued for the purposes of Court-fee ? OPD (4) Whether the right of plaintiffs stands extinguished due to adverse possession of defendant No. 1 for the last more than 12 years? OPD No. 1. (5) Whether the suit is not maintainable in its present form ? OPD (6) Whether the registered sale deed dated 10-7-1956 is illegal, collusive and void to the extent of share of plaintiff ? OPP (7) Whether the plaintiffs are owners of the suit land ? OPP (8) Relief. . In support of their case respondent Nos. 1 to 3/plaintiffs examined Muhammad Anwar s/o Asghar Ali as PW. 1, Abdul Haq s/o Muhammad Din as PW.2, Ghulam Rasul s/o Fazal Din as PW.3, Taj Din s/o Chaghata as PW 4 and Imam Ali examined himself as his own as PW.5. Apart from that they produced registered sale deed in dispute dated 10-7-1956 as Ex. P.1, copy of parcha khatuni as Ex. P.2, another copy of parcha khatuni as Ex. P.3, copy of Mutation No. 302 as Ex. P.4 and copy of register haqdaran for the year 1951-52 as Ex.P.5. As against this evidence the present petitioner examined himself as his own witness as DW.1, Jan Muhammad s/o Bulaki as DW.2, Shahab-ud-Din s/o Khair Din as DW.3 and Nawab Din s/o Allah Bakhsh as DW.

4. In addition to this oral evidence he also produced copy of register haqdaran for the year 1959-60 as Ex.D.3/1, copy of order dated 24-9-1978 as Ex. D 4/1, copy of Khasra Girdawari as Ex.D.5/1 and copy of Mutation No. 326 as Ex. D.7/1. The learned trial Court after considering the evidence produced by the parties answered issues Nos. 4 and 7 against respondents Nos.1 to 3/plaintiffs whereas the other issues were answered in their favour. It was held that the petitioner had become owner of land by way of adverse possession. The suit was dismissed by the learned trial Court through judgment and decree dated 8-5-1985. This was assailed in appeal filed by respondents Nos. 1 to 3 before the learned District Judge, Kasur. The petitioner filed cross-objection challenging the correctness of the decision on the issues decided against him. The learned District Judge through judgment and decree dated 7-10-1986 impugned in this revision petition accepted the appeal filed by respondents Nos. 1 to 3 and rejected the cross-objections filed by the petitioner and decreed the suit which has been challenged in this revision petition.

3. Learned counsel for the petitioner stressed that even if the sale of land of the shares of respondents Nos. 1 to 3 made by their brother Wali Muhammad deceased and mother i.e. respondent No.4 was void in its inception, the possession of the petitioner thereunder was adverse to respondents Nos. 1 to 3. rightful owners, respondents Nos. 1 to 3 could not have been held by the learned District Judge to hold the ownership rights in the land as co-owners with e petitioner, therefore, the finding so recorded was not sustainable under the w.

4. On the other hand learned counsel for respondents Nos. 1 to 3 maintained that respondent No.4 and Wali Muhammad deceased were only the dc facto guardians of respondents Nos. 1 to 3 who were not authorized or competent under the law to sell their shares, as such, the sale qua their share in favour of the petitioner was ineffective and shall be deemed to have never been made and it did not affect their ownership rights and the petitioner was holding i he land as joint owner with respondents Nos. 1 to 3 he having become owner of the only shares held by Wali Muhammad deceased and respondent No. 4 in the `and in dispute. His precise argument was that this being so no co-owner could pct up a case of adverse possession against another co-owner as under the law Possession of one co-owner is deemed to be on behalf of all the co-owners and the other co-owners shall be deemed to be in constructive possession of the land through the co-owner who is in actual possession.

5. I have considered the arguments. In my opinion the contention of the learned counsel for respondents Nos. 1 to 3 is plainly unsound. No doubt the position of respondent No. 4 and Wali Muhammad deceased at the relevant time when they executed sale deed and sold the shares of respondents Nos. 1 to 3 was that of de facto guardians of the said respondents, as such, the sale made by them regarding the shares of respondents Nos. 1 to 3 was void and nullity. There can be no cavil with proposition that respondent No. 4 and Wali Muhammad deceased were neither natural guardian of respondents Nos. 1 to 3 nor they were duly appointed guardian by the Court of the person and property of respondents Nos. 1 to 3, as such they were not competent to dispose of the property of respondents Nos. 1 to

3. So far as the finding of the learned District Judge to the effect that the sale of respondents Nos. 1 to 3 was void and nullity is concerned, it is unexceptionable. But the learned District Judge while holding that the petitioner became joint owner with respondents Nos. 1 to 3 or that respondents Nos. 1 to 3 retained their ownership rights and were joint owners with the petitioner is not supportable from the firmly settled law, which is to the effect that the possession of property held by a person under a void transaction is adverse to the rightful owner. In this respect reference with benefit can be made to judgment reported as Ahmad Khan v. Rasul Shah and others (PLD 1975 S C 311). The facts of this reported case are somewhat similar to the facts of this case. In this reported case the mother as de facto guardian disposed of the property of minor and the purchaser who came in possession under the said sale was held to hold possession adverse to the owner. In view of the law so declared by the Supreme Court it was not possible to hold on any principle of law that the possession of the petitioner under the sale deed in dispute over the land in dispute was not adverse to respondents Nos.l to 3 and principle regarding possession of one co-owner as against the other co-owner was not at all applicable and could not have been invoked. The learned District Judge has failed to follow the law declared by the Supreme Court, therefore, the findings recorded by him are not sustainable.

6. Before parting with this part of the judgment it will be appropriate if the regarding acquisition of ownership rights m the property by one co-owner against the other co-owner by way of adverse possession is briefly stated. Among the co-owners themselves, the accepted principle is that possession of one co- owner is the possession of other co-owner and in such a case if any co-owner claims adverse possession he must assert his title notoriously, openly and unequivocally, so that the other co-owner against whom it is claimed may know it to the case of co-owners themselves the possession of one co-owner, however long it may be, could not be construed as adverse possession against the other co- sharer. In the case of a purchase by a stranger of an undivided share in the land jointly owned by different persons with possession of specific khasra numbers of such land in possession of such a co-sharer/vendor though the purchase was not made of specific khasra number, his case also stands on the same footing. However, the legal position is altogether different where a stranger purchases a property from a person who was co-sharer but sold the entire property including the share of other co-owner also and the purchaser got possession of the said property on the basis of the said purchase and possessed it openly as of right without any effort to conceal that possession and any person interested knew about his exclusive possession in assertion of his title, such a purchaser shall be deemed to be in adverse possession.

7. The very fact that Mst. Raj Bibi and Wali Muhammad unauthorisedly sold the share of respondents Nos.1 to 3 and the petitioner got possession thereunder and continued in possession of the land in assertion of his title on the basis of said purchase which was void, his possession was adverse and the limitation in favour of the petitioner began to run from the date of his possession. Respondents Nos. 1 to 3 were under disability being minors, therefore, they were bound to bring the suit within 12 years from the date on which their this disability ceased as provided in Section 6 of the Limitation Act. A concurrent finding of fact has been recorded by both the Courts below that respondents Nos. 1 to 3 became major in 1963-64, as such, the suit filed by them on 28-3-1979 was clearly barred by time under Article 144 of the Limitation Act. The petitioner had become the owner of land by way of adverse possession and ownership rights of respondents Nos. 1 to 3 in the land stood extinguished.

8. Having realized this difficulty learned counsel for respondents Nos. 1 to 3 attempted to overcome it by arguing that it was not proved that the possession of the petitioner was unequivocal and open in assertion of his title, therefore, he did not become owner by way of adverse possession. The fallacy - of this contention consisted in assuming that holder of adverse possession was required to bring it to the knowledge of the person against whom it was being asserted by giving him notice of such assertion in writing, or otherwise or through any other mode. It was sufficient under the law if the hostile title was asserted by the petitioner and he possessed the property openly and the person affected i.e. respondents Nos. 1 to 3 could know it if they cared to know. Examining the case from this angle it is manifest from statement of respondent No. 1 when he appeared as PW. 5 in which he admitted that they alongwith Wali Muhammad and Raj Bibi had been living together at Faisalabad, therefore, their plea that they did not come to know about the sale of their shares having been made by Raj Bibi and Wali Muhammad cannot be believed and given any credence. There is nothing in this statement that they ever made any effort to go at the land or to inquire from the Patwari as to which land was given in consolidation in lieu of the original land. He also admitted that he never paid any land revenue and did not also inquire about the payment of the land revenue from his brother. It is in the plaint that the petitioner got his khata separated and was given land in consolidation which was larger in area than the land originally purchased by him due to inferior quality of this land: From this it can safely be inferred that the petitioner had been dealing with the property as owner thereof openly so much so that he got the khata separated in his own name and obtained land in consolidation. There is no evidence on record produced by respondents Nos. 1 to 3 to establish that the petitioner concealed his possession in assertion of title from them or that they could not know it had they cared to know. In the-plaint the respondents averred that they settled of Faisalabad about 18/19 years prior to the filing of the suit and that Wali Muhammad deceased' their brother had been receiving their share of the produce and did not tell them that their shares had also been sold and even after the marriages of respondents Nos. 1 to 3 he did not tell them. Even the mother i.e. respondent No. 4 alongwith the deceased brother concealed this fact and had been telling them that they had been receiving their share of produce. By these averments respondents Nos. 1 to 3 attempted to make out a case of concealment of this fact of sale from them by their mother and the brother. Whereas while appearing as PW. 5 respondent No. 1 Imam Ali admitted that they i.e. plaintiffs have been living together with their brother Wali Muhammad deceased and the mother and he came to know of the sale of their shares about six years back. This statement was made on 1-12-1984. He also deposed that on coming to know of the sale at that point of time, when he asked his mother and brother they told them that they had sold only their own shares. It is significant that he also admitted that before coming to know of the sale as stated above i.e. about six years prior to the making of this statement on 1-12 1984 the plaintiffs never inquired about this fact from their mother and the deceased brother and they also never went at the land in dispute before that. This was wholly inconsistent plea from the case made out in the plaint, as noted above. No evidence thus was produced in proof of their averment to the plaint that their mother and brother had been telling them that they had been receiving their shares of the produce from the land. The other evidence produced by respondents Nos. 1 to 3 which has been carefully perused by me does not establish their case or that they could not come to know about the possession of the petitioner in assertion of his title under purchase if they cared to know it.

9. Learned counsel for the respondents lastly argued that since the land purchased by the petitioner was share in khata, therefore, his possession could not be hostile and adverse. The argument is misconceived and does not merit serious consideration inasmuch as the petitioner purchased whole of the land owned by the respondents and Wali Muhammad deceased and claimed ownership rights qua the whole of their said land on the basis of possession under a void sale, therefore, he was holding adverse to the plaintiffs and no exception car be taken on this account.

10. For the foregoing reasons the impugned judgment and decree passed by the learned District Judge thus suffers from material irregularity and illegality. The revision petition is accepted, the impugned judgment and decree of the learned District Judge is set aside and that of the learned trial Court restored I with the modification that issue No. 1 is also decided in favour of the petitioner. M. Y. H./G-254/L Petition allowed.