1989 PLP 791 (CLC)

4. Keeping in view the pleadings of the parties, the learned trial Judge framed the following issues in the case:‑‑ (1) Whether the plaintiffs have got a cause of action? (2) Whether the suit is competent in its present form? (3) Whether the plaintiffs are estopped to bring the present suit? (4) Whether the suit is hit by the principle of res judicata? (5) Whether the suit is within time? (6) Whether the defendant has matured his title by adverse possession? (7) Whether the plaintiffs are the owners of 2/3 share in the suit property. (8) Relief.

5. After recording such of the evidence as the parties wished to adduce, pro and contra, on the above issues, the learned Trial judge dismissed the suit of the plaintiffs /petitioners on the ground that it was hopelessly barred by time and that the defendant had also acquired prescriptive title to the suit property through adverse possession for more than 12 years. The appeal filed against it by the plaintiffs/ petitioners before the learned District Judge, Swat also met the same fate and hence the present revision petition. 6.I have heard' the learned counsel for the parties and have perused the record of the case with their assistance. 7.The learned counsel for the plaintiffs /petitioners vehemently argued that the parties derived title to the suit property through inheritance from their predecessor‑in‑interest namely Said Shah and that they being co‑heirs, the possession of one, in law, is deemed to be the possession of all and no co‑owner in possession of any part of the joint property can assert hostile title against the other co‑owners and that the mere non‑payment of the share of produce by the co‑owner in possession to the absentee co‑owner, will not convert his possession into that of trespasser. He further contended that the plaintiffs /petitioners were not parties to 'the previous litigation, copies of which have been exhibited by the defendants/ respondents on the file and, therefore, the said documents can neither operate as res judicata nor can be considered for the purposes of start of period of limitation against the plaintiffs /petitioners with regard to their claim for adverse possession of the suit property. The learned counsel for the defendants /respondents on the other hand controverted these arguments by submitting that the deed, copy EXh.DW.l/3, was the decision given by Qazi Muhammad Zaman, on 4‑10‑1959, in the presence of Saidan Shah father of plaintiff /petitioner No.l and Hussain Shah father of plaintiff /petitioner No. 2 and Mir Ahmad Shah defendant No.l and their thumb‑impressions and signatures, in token of the correctness of the decision, appear on the deed. According to them the limitation started running against the plaintiffs/ petitioners in the year 1933 initially from the decision in case No.34 decided on 20‑6‑1933 (EXh.DW.l/1) and then from 1939 from another decision in Case No.159, dated 4‑12‑1939 (copy EXh.DW.l/2) and lastly from 4‑10‑1959 from the document (copy EXh.D.W.l/3) referred to above when the defendant No.l made an exclusive claim to the ownership of the suit property and denied the title of every body including the plaintiffs/ petitioners.

8. I have given my anxious thought to the arguments of the learned counsel for the parties. In this case the material document is EXh.DW.l/3 and the careful perusal thereof reveals that Qazi Muhammad Zaman (D.W.2) who was seized of the dispute between Saidan Shah and Hussain Shah fathers of the plaintiffs/ petitioners on the one hand, and Mir Ahmad Shah defendant on the other, after hearing the parties and their witnesses and administering oath to them, gave his verdict, whereby the defendant was held as the exclusive owner of the property, fully described therein, including the property in suit. It is specifically mentioned therein that the fathers of the We abandoned their claim to the disputed property. The original of EXh.DW.l/3 was produced by Said Ahmad Shah (D.W.1) and exhibited its copy on the file. No objection to its validity, correctness or admissibility was raised by the plaintiffs /petitioners at the time of its production and, as such, a presumption can legally be drawn against them that they accepted the documents as genuine Anyhow, the defendant, besides the said presumption available to him, also produced Muhammad Zaman (D.W.2) who not only testified to the execution of the said document (EXh.D.W.l/3) but categorically stated that he alongwith three other Qazis and one 'HAKIM' had been appointed to settle the dispute between the parties and after proper enquiry, had given their award as per EXh.D.W.l/3. His veracity cannot be doubted because he is totally disinterested person and the plaintiffs /petitioners have failed to bring anything on record to show that he is in any way inimical to them or privy to the defendants/ respondents. This document was specifically referred to in the written statement and the plaintiffs/petitioners have not been able to lead any evidence to disprove the execution or the contents thereof. Consequently the defendant had proved himself to be the owner of the suit property and the plaintiffs /petitioners have no right or interest therein.

9. As regards the plea of limitation and adverse possession, suffice it to mention, that Mir Ahmad Shah defendant No.l, now dead, represented by Said Ahmad Shah and other respondents herein, never asserted to be in possession .of the suit land as co‑owner alongwith the plaintiffs/ petitioners but openly denied the title of every body including the plaintiffs /petitioners in 1933, then in 1939 and lastly in 1959 as is evidenced by the documentary evidence placed on the record, copies EXh.D.W.l/1 to EXh.D.W.l/3. His possession was hostile, exclusive, visible, in open denial of title of the plaintiffs/ petitioners to their knowledge, and embraced all the ingredients of adverse possession, as enunciated in several judicial pronouncements. The claim of the plaintiffs /petitioners that they, being co‑sharers with the defendant No.l, now represented by the respondents herein, should be presumed to be in joint possession with them cannot be legally accepted because, even a co‑owner, in exclusive possession for the statutory period of 12 years, in denial of the title of other R co‑owners to their knowledge, acquires title by prescription if he is able to establish ouster. Ouster would not only mean physical ouster of the co‑owners but would also include the exclusion of the other co‑owners from the enjoyment of the usufruct of the property through brazen denial of their title. In the case in hand the element of ouster is apparent from the conduct of defendant No.l as is evident from the documents Exh.DW.l/1, EXh.DW.l/2 and particularly EXh.DW.l/3 which is a decision made in the presence of the fathers of the plaintiffs/ petitioners declaring deceased defendant (predecessor‑in‑interest of the respondents) as the exclusive owner of the suit land. Thus the possession of the defendant/ respondents at least after 1959, was in assertion of their exclusive title, in denial of the alleged rights of the plaintiffs/ petitioners to their knowledge. He having remained in such possession for more than 12 years over the suit property without let or hindrance on behalf of the other co‑owners, acquired prescriptive title to it and the title of the plaintiffs/ petitioners got extinguished on the expiry of statutory period of limitation from the decision vide EXh.DW.l/3. The plaintiffs/ petitioners have miserably failed to establish that the deceased defendant (predecessor‑in‑interest of the respondents herein) ever admitted them as co‑owners or paid any share of produce to them. The learned lower forums have, therefore, rightly thrown away the suit of the plaintiffs /petitioners on the ground of limitation and adverse possession.

10. Moreover, there is concurrent finding of fact of the two Courts below regarding the ownership of the suit land in favour of the deceased defendant (predecessor‑in‑interest of the respondents herein). The lower forums have also held that the deceased defendant,1I predecessor‑in‑interest of the respondents herein, had acquired title to the suit land through adverse possession for more than 12 years. This Court, under its revisional powers under section 115, C.P.C., cannot interfere with the concurrent finding of facts of the two Courts below, unless it is established that the judgments suffer from jurisdictional error or some patent illegality or material irregularity or, are the result of misreading or non‑reading of evidence. Nothing of the sort has been pointed out by the plaintiffs /petitioners to justify interference by this Court in the exercise of its jurisdiction.

11. The upshot of the above discussion is that there is no‑ merit in the present revision petition and the same is, therefore, dismissed, with no order as to costs. A . A . /697/13 Revision dismissed.