P L D 1956 Lahore 282 (PLP)

I L R 14 Cal. 592, I L R 22 Cal. 324, I L R 29 All. 184, I L R 25 All. 498 and I L R 39 Bom. 399 distinguishable on facts. Sheikh Muhammad Shafi for Appellants. Z. Kitchlew for Respondents. MUHAMMAD YAQUB ALI KHAN, J.‑--This appeal arises out of a suit filed by the plaintiff‑appellants for possession of 6 kanals and 8 marlas of land comprised in fields Nos. 182 and 183 situated in village Pira Ghaib, Tehsil Jhelum. The suit was partly decreed and an appeal taken against it by the plaintiffs has been dismissed by the learned District Judge. Aggrieved by the decrees passed by both the Courts below the plaintiff have come up in second appeal before me. The land in suit originally belonged to Buland Khan and his brothers Diwan Ali and Tikka Khan. Jahan Khan defendant‑respondent No. 1 is the son of Tikka Khan and Inait, defendant‑respondent No. 2, is son of Diwan Ali. Buland Khan alone sold the suit land to Rassu, the predecessor -in‑interest of the plaintiffs and Mat. Baggi, defendant‑respon dent No. 3 by means of a sale deed dated the 6th of May 1882. On the 18th of June 1896, mutation No. 416, relating to this transfer was sanctioned in favour of Rassu. In paragraph 1 of the plaint it is specifically mentioned that Buland Khan had sold the suit land as a co‑sharer and from the revenue records it appears that originally Diwan Ali and Tikka Khan and on their death, defendants No. 1 and 2, have all along been recorded as co‑sharers with the plaintiffs. Some time before the 15th of September 1951, defendants Nos. 1 and 2 applied for partitioning of some land, including the suit land and in the course of those proceedings the plaintiffs raised the contention that they were the exclusive owners thereof. On a question of title being raised, the revenue officer on the 15th of September 1951, directed the plaintiffs to file a civil suit for adjudication of their title to the suit land. In accordance with these directions the plaintiffs filed a civil suit in the Court of Civil Judge, Jhelum, but later on withdrew it with the permission of the Court to file a fresh suit under Order XXIII rule 1 Civil P. C. on payment of conditional costs. The suit was withdrawn on the ground that during its pendency defendants Nos. 1 and 2 had taken possession of the suit land and it had become necessary for the plaintiffs Than to file a suit for possession. The plaintiffs then instituted the present suit on the 24th of December 1951, but failed to pay or deposit the conditional costs payable to the defendants. The defendants Nos. 1 and 2 controverted the claim of the plaintiffs and on the pleadings of the parties the following issues were framed :‑‑ (1) Whether the suit should be dismissed for the non payment or non‑deposit of the costs of the previous suit? (2) Whether this Court has no jurisdiction to hear this suit? (3) Whether Muhammad Amin plaintiff No. 2 had con sented to the partition and is estopped from the suit by his conduct? (4) Whether the plaintiffs are the exclusive owners of the property in dispute? (5) Relief. The trial Court found issues Nos. 1, 2 and 3 in favour of the plaintiffs and issue No. 4 against them. Dealing with issue No. 4 it held that according to the plaintiffs' own showing, Buland Khan was only a co‑sharer to the extent of 1/7th of the suit land and as a co‑sharer he could not alienate more than his own share in it. Relying on the principle that a transferee from a co‑sharer can, at the time of parti tion, claim no more than the share of his transferor, the trial Court granted the plaintiffs a decree for possession of 1 kanal and 1 marla of land comprising field No. 182/2, which had been allotted to them in partition proceedings. This land represented the‑it share as well as the share of Mst. Baggi defendant No.

3. Dismissing the appeal filed by the plaintiff against the decree of the trial Court, the learned District Judge observed that the plaintiffs were fortunate to have obtained a decree for 1 kanal and 1 marla of land because their suit was liable to be dismissed on account of non‑payment of conditional costs, and in the absence of an appeal by the defendants, he could not set aside the decree passed by the trial Court in their favour. On the question of exclusive title of the plaintiffs, he held that Buland Khan was not the exclusive owner of the land which he sold to Rassu. He was only a co‑sharer. Therefore, on the basis of this sale from which the plaintiffs derived their title Rassu merely stepped into the shoes of Buland Khan and became a co‑sharer with Diwan Ali and Tikka Khan. The plea of adverse possession which was raised, for the first time in the course of this appeal, was also negatived by the learned District judge on the ground that in the case of co‑owners in the absence of an open assertion of hostile title by one to the knowledge of the others, there could be no ouster. In support of this finding he relied upon the entries in the revenue records in which the defendants had throughout been shown as co‑sharers along with the plaintiffs and the mutation order dated the 18th of June 1896, in which it is recorded that Diwan Ali and Tikka Khan co‑sharers had objected to Buland Khan having made the sale of the whole of the land but they could in lieu of their share in this land be compensated from the remaining joint land. In this second appeal, Sheikh Muhammad Shafi, the learned counsel for the appellants has confined his sub missions before me to the plea of adverse possession. Accord ing to him, the alienation by Buland Khan amounted to an ouster of his brothers Diwan Ali and Tikka Khan and after the expiry of 12 years from the date of the alienation, Rassu perfected his title to the suit land by adverse possession. In the alternative, be contended that having remained in possession of the land in suit to the exclusion of Diwan Ali and Tikka Khan and their descendants, for a period of nearly 70 years, the plaintiffs had perfected their title by prescrip tion. This plea would have carried considerable weight with me but in my view the plaintiffs are precluded from raising it because in the plaint no such plea was taken up and the, 4 parties went to trial on the question of title simpliciter on the basis of the sale made by Buland Khan on the 6th of May 1882, in favour of Rassu. It was for this reason that the trial Court did not frame any issue on the plea of adverse possession nor was any such issue claimed by the plaintiffs during the trial of the suit. In fact in the grounds of appeal before me no such plea has been taken up. Confronted with this omission, the learned counsel argued that the plea of adverse possession was implied in the plea of exclusive ownership claimed by the plaintiffs in the plaint and in support of this plea he relied upon a number of authorities, I L R 14 Cal. 592, ILR22Ca1.324, ILR29Al1. 184,ILR 25 All. 498 and I L R 39 Bom.

399. I have carefully con sidered these authorities but I find that all of them are distinguishable on facts from this case. No doubt declaration of title may be given on proof of 12 years' adverse possess, on but in accordance with a Division Bench authority of this Court Shrimoni Gurdwara Parbandhak Committee and another B v. Prem Das and another (1) such a declaration cannot be given unless a title based upon adverse possession has been. distinctly set up in the plaint and raised in the issues. Reliance was placed by the learned Judges who decided that case on I L R 2 Cal. 418, 28 All. W N 277 and I L R 31 Mad.

531. I respectfully agree with all these authorities and following the decision in I L R 13 Lah. 677, I have declined to permit the plaintiffs to set up the plea: of adverse possession in the course of this second appeal. The learned counsel for the plaintiffs has urged no other point before me except that the decision in I L R 13 Lah. 677 was not applicable to this case because it was given in a suit for declaration whereas in the present suit the plaintiffs had asked for possession. According to him in a suit for possession based on title it was not necessary for the plaintiffs to set up a distinct plea of adverse possession or to raise it in issues. I find no force in this contention which is neither based on any recognised principle of law of pleadings nor supported by any authority. Consequently this appeal fails and is dismissed with costs. A. H. Appeal dismissed.