1972 PLP 34 (SCMR)

SALAHUDDIN AHMED, J.‑This petition is from the judgment of a Division Bench of the Lahore High Court (Bahawlpur Circuit) allowing the respondent's appeal and decreeing their suit for possession. The property in dispute consists of 8 field numbers, covering an area of 56 kauals, and it had been purchased on 7th June 1950, by Jam Ghazi (plaintiff No. 1) father of respondents Nos. 1‑5, from two persons, Allah Ditta and Ahmad Bakhab, by a registered deed of sale. Respondents Nos. 1 to 4 are sons of Jam Ghazi. The plaintiffs claim to be owners of the disputed land. From the aforesaid mutation proceeding they came to know that the defendants were trying to assert adverse prescriptive title to the land and the plaintiffs, therefore, filed a suit for possession against the defendants on 24‑5‑1956. The defendants admitted the registered sale deed as also the title of the plaintiffs but set up prescriptive title alleging adverse possession for more than 12 years, which according to them, had matured long before the date of sale. They admitted inter alia the existence of the said registered deed of sale but alleged that it was collusive and without consideration. They, however, failed to prove that the said sale deed was collusive and without consideration. The trial Court held that the plaintiffs were the owners of the land in question but the defendants had acquired prescriptive title by adverse possession long before the aforesaid sale and, therefore, the sale deed conferred no title on Jam Ghazi, plaintiff No.

1. The plaintiffs' suit was accordingly dismissed. Plaintiffs' appeal was dismissed by District Judge, Rahimyar Khan. In second appeal before the High Court the High Court found none of the defendants in continuous possession of any particular field number for any particular prescriptive period. As an example it had been stated that if in one harvest or say for some period, possession was of one defendant, in the other harvest and for some other period the same field number was found in possession of another defendant or even in possession of persons not shown to be connected with the defendant or defendants in any manner: In the mutation proceedings started by the defendants -respondents the Naib‑Tehsildar had held that it was not proved as to which defendant was in possession of which field number and for which prescriptive period. He further found that in the revenue records the ownership and title of the various co‑owners was duly shown. The defendants' appeal from the order of the Naib‑Tehsildar was dismissed by the Assistant Commissioner, Bahawalpur on 6‑7‑1955. The learned Advocate appearing in support of the petition has contended that adverse possession of one defendant could be tacked to the adverse possession of another defendant for the purpose of acquisition of title by prescription. In support of this contention he has relied on the cases of Padhu Miav.Rahimuddin (P L D 1964 Dacca 655) and Ramayya v. Kotamma acid others (I L R 45 lead. 370). In both these cases the question was whether the suit was filed within the prescribed period of limitation, i.e., 12 years from the date of dispossession. In the first case the ratio decidendi was‑ that the plaintiffs and their predecessors were not in possession of the suit land within 12 years from date of institution of the suit and it was barred under Article 142 of the Limitation Act. In the second case again the question was whether the suit was barred by limitation. In this case, too, Article 142 of the Limitation Act was applied. It was observed that in all cases where the person who was in possession at one time was discontinued in possession or was dispossessed, he had to show that he was in possession within 12 years before the institution of the suit. The plaintiff in that particular suit having failed to prove that he or his predecessor in title was in possession of the property within 12 years before the date of the institution of the suit, it was held that the suit was barred by limitation. In the present case, however, the question in issue is whether title by prescription is acquired by a person in adverse possession of the disputed property by tacking the adverse possession of another so as to complete the requisite period for acquisition of a prescriptive title. The High Court, on a consideration of the documentary evidence, found that none of the defendants was in continuous possession of any particular field for any particular prescriptive period and accordingly held that none of the defendants succeeded in establishing adverse possession. The title of the plaintiffs having been admitted by the defendants and the defendants having failed to establish their title on the basis of adverse possession, the suit was bound to succeed and the High Court, therefore, acted rightly in decreeing the suit. No issue on limitation was ever framed in the present case. On the facts of the present case we do not think we are called upon to express any definite opinion on the aforesaid question. It is quite evident that the respondents have failed to discharge the onus which lay heavily upon them and the case was concluded by findings of fact. We see no reason to interfere with the order of the High Court and the petition is accordingly dismissed. Leave refused.