P L D 1965 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This is a Letters Patent Appeal 'from the judgment of a learned Single Judge on the original side of this Court in Suit No. 282/1950, dated 6th June, 1961. By this judgment the suit of the appellant for of the property in dispute was dismissed.

2. The dispute between the parties is in respect of four agricultural plots of land bearing Survey Nos. 580, 611,612 and 641 situated in Deh. Thano Malir, measuring about 27 Jiribs. The parties are related to each other through Mukhi Bhanji their common ancestor who died on 20th May 1918, two sons Mohammad and Devji. Devji died on the 1st of November, 1918. Mohammad died later on 20th July 1932. The appellant is the son of Devji and the respondents are the grand‑sons of Mohammad by his son Ismail. The suit was filed against Ismail, who died on 12th September, 1950. The respondents were impleaded as his legal representatives during the pendency of the suit.

3. The appellant's case as set out in the plaint is that the properties in dispute are joint properties. The parties were governed by Hindu Law in matter of succession and inheritance. They had joint business. Respondents' grand‑father, after the death of the appellant's father, was managing the above‑mentioned joint properties as head of the family, and after his death in 1932, Ismail, his son, in that capacity managed the properties. He alleged that Ismail surreptitiously got his own name entered as sole owner of the said properties in the Revenue Records. In 1940, he wanted to dispose of the properties without his consent but this attempt was frustrated due to the re‑conciliation brought about between the parties through the Khoja Jamaat. He further alleged that before the filing of the suit he came to know that Ismail was again, trying to dispose of the properties. Consequently, he filed the above‑mentioned suit for partition and separate possession of his share in the plots in dispute.

4. The suit was contested on behalf of Ismail and later on by his legal representatives. They denied the claim of the appellant in the property in dispute. On the other hand, they contended that the properties in dispute were purchased by Muhammad and belonged to him solely. His brother Devji and the appellant have nothing to do with them. They also contested the suit on the ground that the suit is barred by time as the appellant was never in possession of the properties in dispute. They also pleaded adverse possession.

5. On the pleadings of the parties the following issues were struck:‑ "(1) Was Devji joint owner with Muhammad in Survey Nos. 611, 612 and 641 ? (2) When was the plaintiff born? (3) Did the deceased Ismail and his father look after the property on behalf of the plaintiff and his father? (4) Is the plaintiff in possession, if not, is proper court‑fee paid ? (5) Is the claim time‑barred? (6) General."

6. At this stage it may be noted that the appellant was able to obtain an ex parse decree on 1st August, 1956. Letters Patent Appeal No. 13 of 1956 against it was dismissed on 23rd September, 1958. The respondents challenged these decisions in the Supreme Court in Civil Appeal No. 75 of 1960, which was allowed by judgment dated 23rd November, 1960. Their lordships remanded the case with the following observations:‑-- "On the essential points in the case bare allegations were Made, without an attempted explanation, as to how the defendant's father alone figured as owner in the revenue records and by what process the plaintiff's father came to own a half share jointly with the deceased, Mohammad in the property in suit. There were, further no details given as to how the plaintiff‑respondent had maintained joint possession of the property in suit. There was no assertion that the plaintiff had been in receipt of any share in the income of the land all these years. Questions about the form of the suit and, limitation had been raised by the defendants besides the denial of title of the plaintiff. We are therefore, constrained to the finding that the matter was disposed of in the High Court in a manner inconsistent with the safe dispensation of justice in such cases."

7. On remand the parties examined a number of witnesses and proved several documents in support of their case. Appellant examined P. W. 1 Juma Peru, P. W. 2 Chulam Hussain, P. W. 3 Qasim Ali, P. W. 4, Ghulam Hussain Ladak, P. W. 5, Khoja Mawji (appellant) and P. W. 6 Mst. Fatima (real sister of the appellant). The respondent examined D. W. 1 Nooruddin as the only witness in support of their case. The learned Single Judge on issue No. 1 held that the appellant's father was not joint owner of the properties in dispute with Muhammad the grand‑father of the respondents. On issue No. 2 the finding is that the appellant was born sometime in 1912. On issues Nos. 1 and 3 the finding is that Devji was not the joint owner with Muhammad in the plots in dispute. It was further held that Ismail and his father did not look after the properties on behalf of the appellant or his father. Issue No. 4 was not pressed, which was decided against the respondents. No finding was given on issue No. 5 in view of the finding that Devji was not joint owner with Muhammad in the plots in dispute. On these findings the learned Single Judge dismissed the suit. The appellant has challenged those findings in this appeal. Before considering the contention of the parties it may be noted that both the parties admitted that there is no dispute between them in respect of S. No. 580, which admittedly belongs to some stranger.

8. In support of the appeal Mr. B. J. Desa, the learned counsel for the appellant has urged: that there was reliable evidence on the record to show that Devji, the father of the appellant was joint owner with Mohammed in the property in dispute. He contended that he had half share in the property in dispute and both in his life‑time and after his death Mohammad looked after the property on their behalf. He urged that the learned Single Judge in arriving at this finding was much influenced by the fact that the appellant has changed the basis of his claim during the trial, which according to him was not based on proper appreciation of the facts. According to the learned counsel the appellant's case throughout was that he was equal co‑sharer with Muhammad Bhanji in the land in suit. He never set up a case that Muhammad Bhanji and Devji Bhanji were joint owners. The grievance of the learned counsel is illusory because the learned Single Judge only made a passing reference to this fact and has fully discussed all the points raised in the case.

9. The main grievance of Mr. Desa is that the learned Single Judge has not given due weight to some important documents proved on the record. In this connection he referred us to three documents (i) (Exh. 56/1) a sale deed executed by Mohammad Bhanji, the grand‑father of the respondents dated 20th April, 1916 of half share in the property in dispute in favour of Kanji; (ii) agreement to sell (Exh. 16), dated 18th August, 1917, by Kanji in favour of Devji, the father of the appellant and (iii) Exh. 20, in which the half share of deceased Devji in the property in dispute is alleged to have been admitted by Mohammad as belonging to them before the local Khoja Jamaat.

10. In order to appreciate the contention of the parties it may be stated that originally the property in dispute was purchased by Mohammad Bhanji from Madal Jokhio by sale deed dated 26th July. 1912 (Exh. 41). Later on he sold his share in it to Kanji Poonja under a registered sale deed (Exh. 56/1), dated 20th April, 1916. It cannot, therefore, be disputed that Mohammad had disposed of half of this property in April, 1916. The appellant has made no claim about the remaining half share that remained with Mohammad Bhanji. His case is that Devji Bhanji, his father, purchased the disposed off share in the property in dispute from Kanji Poonja under an agreement dated 18th August, 1917, (Exh. 16). But unfortunately this document being unregistered by itself could not confer any title on Devji Bhanji. It is for this reason that the learned Single Judge discarded this piece of evidence.

11. In order to meet this difficulty Mr. Desa, contended that this document can be looked into as it was acted upon. The learned counsel urged that there is ample evidence on the record to establish that Mohammad Bhanji accepted the title of his brother Devji Bhanji after his death in the meetings of the Jamaat, which fact was also recorded in the minutes of the proceedings (Exh. 20) of the local Khoja Jamaat. He further urged that in pursuance of this decision the right of the deceased Devji was recognised in the property in dispute and his heirs' possession was also accepted. This plea was rejected by the learned Single Judge on the following observation:‑-- "There is no direct documentary evidence to prove that Devji and Muhammad held the plots in question jointly. Reliance is placed on two pieces of documentary evidence namely, Exh. 20 and Exh.

16. Exh. 20 is the minutes of the Jamaat. This is the proceeding of the meeting of the Jamaat held on 22nd January, 1919 at 11 a.m. at the residence of Mukhi Bhanji. This meeting of the Jamaat was held at the request of the widow of Devji. The relevant portion of the proceeding reads as under:‑ `Plots at Malir at Deh Thano, purchased from Madal, Survey Nos. 580, 611, 612, 641 in partnership with Mohammad Mukhi Bhanji. That has been obtained by Devji Mukhi Bhanji from Kanji Poonjani 13 Jarebs all at Deh Thano. The agreement to that effect was produced in the meeting. The remaining half share i.e. 13 jarebs are the property of Mohammad Mukhi Bhanji.' Reliance was placed particularly on the words in partnership with Mohammad Mukhi Bhanji'. This is not very clear to support the contention of jointness of Devji with Mohammad in the disputed plots. All that it means is that Muhammad Mukhi Bhanji had purchased these plots in partnership with someone. It does not mean in partnership with Devji. The fact is that Muhammad had not purchased these plots in partnership with any one: It would appear from Exh. 41 that Muhammad purchased plots Nos. 580, 611 and 612 from one Madal for Rs. 400 only. As I have already said there is no direct evidence of joint ownership of the plots in dispute. The second piece of documentary evidence is Exh.

16. It is an agreement dated 18th August, 1917, between Devji and Kanji. Kanji agreed to sell half share in plots Nos. 580, 611 and 612 to Devil for a sum of Rs. 1,

200. From a perusal of this document it would appear that Devji had paid the whole of the sale consideration to Kanji. Kanji had agreed to execute the sale deed whenever he was called upon. Exh. 16 being an unregistered document in respect of sale of property for more than Rs. 100 cannot confer any title on Devji". It will thus be noticed that the learned Single Judge has not attached any importance to the proceedings recorded in Exh.

20. His view is that the contents of the proceedings do not support the contention of joint ownership of Devji with Muhammad in the disputed plots. All that it means is that Muhammad Bhanii had purchased these plots in partnership with someone.

12. Mr. Desa contended that the learned Single Judge has not properly appreciated the contents of Exh.

20. It is, therefore, necessary to examine its contents. This document appears to be a memorandum of the minutes of the proceeding maintained by Mukhi Bundeali, of local Khoja Jamaat. It shows that a meeting of the relatives of Devji Mukhi Bhanji was convened on 22nd January 1919, which was attended amongst others by Muhammad Bhanji and certain decisions noted in it were taken. Under the heading "the details of work carried" it is stated that "documents and papers left by the late Devji Mukhi Bhanji were scrutinized and papers that were found important and necessary were handed over to the widow Hirbai of late Devji Mukhi Bhanji." Item No. 2 refers to certain hundis which were taken over from the papers and were filed separately. Under a separate heading pertaining to the property the details of the properties are mentioned. In item No. 3 the following appears:

"Plots at Malir at Deh Thano; purchased from Madal, Survey Nos. 580, 611, 612 and 641 in partnership with Muhammad Mukhi Bhanji. That has been obtained by Devji Mukhi Bhanji from Kanji Poonjani 13 Jarebs all at Deh Thanoo. The agreement to that effect was produced in the meeting: The remaining half share i.e., 13 Jarebs are the property of Muhammad Mukhi Bhanji." It is thus quite apparent that certain documents were only scrutinized in this meeting. One of the documents related to the property in dispute, which was of the effect stated above, but it does not in the least show that any decision was taken about the property in dispute or that Muhammad had agreed to what was stated in it. In our opinion, this document does not in the least show that there was any decision of the Jamaat about the right of Devji in the property in dispute or that Muhammad had accepted the ownership of Devji derived through Kanji Pooniam in the property in dispute to the extent of half share. It is noteworthy that it is not signed by Muhammad. Besides the appellant admitted in cross‑examination that "Jamaat did not give any decision as Muhammad has himself produced the agreement of August 1917, (Exh. 16)". But the record of the proceeding does not support him in this respect. On the contrary his sister P. W. 6 Fatima stated that "Agreement Exh: 16 was produced by my mother before the Jamaat". Thus no reliance can be placed on this explanation. In these circumstances it is difficult to accept the contention` of the appellant that the Jamaat in this meeting decided the title of the predecessor‑in‑interest of the parties. No such inference can be raised.

13. The next contention of the appellant's counsel that the property in dispute was thereafter managed by Muhammad Bhanji under the instructions of the Jamaat on behalf of the appellant or was leased out on his behalf under the direction of the Jamaat is also without force. Mr. Desa referred us to the record of meeting No. 3 stated to have been held on 4th February 1919, which shows that Muhammad Mukhi Bhanji attended it. In this connection Mr. Desa has relied on the following portion of his document‑-- "It was decided that Messrs Visram Vali and Ladak Poonjani be entrusted to work of leasing the plot at Malir for cultiva tion purposes to Natho Khimani for 4 or 5 years. A `Pacca' agreement to this effect be drawn upon by these persons and got signed." According to the learned counsel this decision referred to the property in dispute. He then referred us to the record of the meeting No. 4 held on 8th February 1919, and placed reliance on the following portion of this document: "It was decided, that the plots of land now in charge of Muhammad Mukhi Bhanji, be leased out to Kamaria Natho Khimani for three years at an annual rent of Rs. 150." It further shows that this work was entrusted to Messrs Ladakbhai Poonjani, Muhammad Tharwani and Muhammad Mukhi Bhanji. Mr. Desa further placed reliance on the record of the meeting No. 8 in which it is stated that "grass worth Rs. 300 grew on the field. Half of the amount went to Devji as his half share therein and Rs. 100 were given to Ladak's representative and the balance of Rs. 50 was given to Mukhi Bhanji". It is further recorded in the minutes of the proceeding that the meeting was postponed and Muhammad Mukhi Bhanji was asked to present certain accounts. On the basis of these proceedings the appellant contended that it was sufficient evidence to establish that Muhammad Bhanji accepted the title of Devji to the extent of half share in the property in dispute and managed it later on under the directions of the Jamaat by leasing it out on behalf of the deceased heirs.

14. After going through the entire evidence on the record, we are satisfied that the contention of the learned counsel in this respect too is without force. The contents of these proceedings might have been of some help to the appellant had the property in dispute been the only property at Malir owned by Devji Bhanji and Muhammad Bhanji. Unfortunately, for the appel lant there was another joint property owned by them at Malir. This fact is sufficiently borne out from the notice given by the appellant on 3rd August 1939 (Exh. 38) to Muhammad Ismail the predecessor‑in‑interest of the respondents. In this notice the appellant alleged as under: "That my client and yourself are cousins. Your father late Muhammad Bhanji and my client's father late Mr. Devji Bhanji were brothers. My client's father and your father owned jointly some immovable property, inter alia 27 Jarebs of agricultural land on restricted tenure in Deh Thano Taluka Karachi, bearing Nos. 580, 611, 612 and 641: and a garden at Malir known as Bawa‑waro‑Bagicho, and some land at Drigh Road. My client learns that Malir property was disposed of by your father though no share of the sale proceeds was given to my clients. All the joint property of late Muhammad Bhanji and late Mr. Devji Bhanji now stands in your name. My client is entitled to a half shale in the said property as the sole heir of his father, late Mr. Devji Bhanji." The appellant admitted this fact even in cross‑examination and stated that Bawa‑waro‑Bagicho was sold in 1923, for about Rs.

800. It is, therefore, perfectly clear that Muhammad Bhanji and Devji Bhanji had another property at Malir which was joint between them. The possibility, therefore, that reference to Malir property in the minutes may be in respect of Bawa‑waro Bagicho at Malir, cannot be ruled out. The admission of P. W. 6 Mst. Fatima that the Malir plot was never cultivated further supports this inference. In our opinion, this piece of evidence is not of much evidentiary value and cannot be of any help to the appellant unless there was further evidence showing that there after the property in dispute remained in possession of the appellant or any of his relatives on his behalf. But there is no documentary evidence worthwhile to support this fact. For this purpose the appellant has relied on the oral evidence led by him at the trial and on the admission of D. W. 1 Nooruddin. According to his version the income was between Rs. 800 or Rs. 1,000 out of which the deceased Muhammad Bhanji used to pay ‑Rs. 30 or Rs. 35 per month to his mother as expenses. About Ismail he admitted that he used to pay Rs. 10 per month. On the other hand his sister P. W. 6 Mst. Fatima (Exh. 39) admitted that there was a shop at Empress Market and her mother did not ask more than Rs. 30 though the income was between Rs. 400 to Rs.

500. She further admitted that Malir plot was never cultivated except that grass used to grow of its own after rain. Thus besides there being great discrepancy in the statement of the appellant and his sister, this evidence is also not of much value because the income referred to is not of Malir property but of the alleged joint business. It is really surprising that appellant's mother was content to receive Rs. 30 per month though the income was much more. The so‑called admission of a D. W. 1 Nooruddin is also not of any help to the appellant on this point. He merely stated that his father had told him that Muhammad during the minority of the appellant used to pay something to his mother for their support out of his own income. This admission only shows that Muhammad used to support his sister‑in‑law, not out of the income of Devji's share, but out of his own income. As stated earlier there is no evidence on the record that the property in dispute has ever yielded any income. In the light of the above discussion it is abundantly clear that there is no reliable evidence on the record to establish that Devji Bhanji or any of his heirs in pursuance of the agreement of sale by Kanji Poonjani ever came into possession of the property in dispute or enjoyed its profits and in this way perfected their title.

15. On the other hand, the evidence produced on behalf of the respondents conclusively proves that Muhammad Bhanji, right from the very beginning, had been in exclusive possession of the property in dispute. He had been paying the land revenue and other charges to the Government in respect of the plots in dispute. Admittedly, the plots in dispute belonged to the Government and were granted from time to time to several parties on temporary basis. In this connection Mr. Muhammad Sadiq, the learned counsel for the respondents has referred us to Exh. 47, a notice for payment of assessment, issued by the Mukhtiarkar, Karachi in the year 1921, by which Muhammad Bhanji in case of default was threatened of the forfeiture of the lease. The most important document which supports the respondents case is Exh. 57/2, an extract of Deh Form I. G. maintained by the Government. It shows that at first plots Survey Nos. 611, 612 and 641 were granted by the Collector to Mandal son of Noor Muhammad in the year) 1913‑

14. On account of non‑payment of arrears these were granted to Muhammad Bhanji on temporary basis. By order of the Collector of Karachi vide grant No. T, 2146, dated 30th November 1923, from the year 1923‑24 these were perpetually granted to him and continued in his name up to his death. Exhibit 47, Exh. 45 and Exh. 46, further show that the Mukhtiarkar demanded assessment and other Government dues from him and he made those payments. In June 1925 (vide p. 70) the Mukhtiarkar Karachi threatened to forfeit the grant in case the Government assessment amounting to Rs. 39‑15 was not paid. After his death the same position continued. Exhibit 44 and Exh. 43 show that Ismail, his son paid the Government dues in July 1934 and July 1940, respectively. Considering these documents the contention of Mr. Muhammad Sadiq, the learned counsel for the respondents, that the plots in dispute were regranted exclusively to Muhammad Bhanji and no question of co‑ownership of these plots arises, cannot be said to be without force. The only conclusion that can be reached on this evidence is that from the very beginning the property was exclusively dealt and treated by Muhammad Bhanji as his own. He obtained the re‑grant of the land in his own name and paid Government dues. After his death Government dues were paid by Ismail, his son. In these circumstances, it is not possible for us to hold that the learned Single Judge committed any error in holding that Muhammad Bhanji and Devji Bhanji were at no time joint owner of the property in dispute. We are satisfied that the finding of the learned Single Judge on this aspect of the case is based on proper appreciation of the evidence produced by the parties.

16. The contention of Mr. Desa that the appellant had acquired any right in the property in dispute under any family settlement is also devoid of any force. In the first place, no such family arrangement recognising the appellant's father's title has been established. Secondly, under any such arrangement ordi narily each party takes a share of or interest in family property by virtue of an independent title which is to that extent admitted by the other parties. The appellant has failed to establish any such independent title and there is no reliable evidence on the record to show that any such right was admitted by the opposite party or acted upon. In this connection too Mr. Desa relied on Exh. 20, the minutes of the local Khoja Jamaat. We have already discussed its evidentiary value and have no hesitation in repelling this contention.

17. Even if for the sake of argument it is assumed that the appellant had any share in the property in dispute, the suit for partition filed by him is clearly barred by time. There is overwhelming evidence on the record to show that the appellant had slept over his right for much more than twelve years. The appellant was born in 1912, and became major in 1930 A Muhammad Bhanji died in the year 1932. After his death Ismail his son was dealing with the property in dispute exclusively. In a notice (Exh. 38), dated 3rd August 1939, addressed to Ismail appellant himself alleged that Muhammad Bhanji had disposed of some of the joint property in his life‑time and gave no share of the sale proceeds to him. He further admitted that all the joint property of Muhammad Bhanji and Devji Bhanji stood in Ismail's name and claimed partition of these properties. The appellant's own case is that Ismail stopped paying him the profits of the income for about 12 or 15 months prior to this notice. It was at the intervention of the relatives, that the parties compromised. According to him he did not file the suit as Ismail started paying him Rs. 10 per month. Except his bare statement there is nothing else to support this allegation. In our view no reliance can be placed on such a weak piece of evidence for accepting his title to the property. In any case one fact is quite clear that his title in the property in dispute had been denied much before August, 1939, but in site of this he did not assert his right in the property in dispute till May, 1950, when the suit out of which this appeal has arisen, was filed.

18. The allegations made in the plaint show that the appellant has based his claim on the basis of title. He also pleaded dispossession. This is quite clear from para 7 of the plaint iii which he alleged that the defendant had fraudulently and surreptitiously got his name entered in the record of rights as sole owner of the lands in dispute. In such case Mr. Muhammad Sadiq has rightly contended that Article 142 of the Limitation Act would apply. In Bindhyachal Chand v. Ram Gharib Chand (A I R 1934 All. 993) a Full Bench of the Allahabad High Court dealt with the question of the applicability of Article.142 of the Limitation Act is suit by co‑sharer and came to the conclusion that it was applicable to their cases. In this connection Sulaiman, C. J., observed at page 995 of the report asunder:‑-- "Article 142 is an Article applicable to suits for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or‑has discontinued his possession. Such a suit must be brought within 12 years of the date of the dispossession or discontinuance. The Article is very general in its scope, and the only conditions necessary are that the suit should be for possession of immovable property and that the plaintiff while in possession of the property must have been dispossessed or must have discontinued his possession. Obviously, the word `plaintiff' in this Article includes his predecessor‑in‑title as well. There are no words in this Article which would confine its applicability to suits based on possessor title only, or confine it to plaintiffs who claim the property wholly, and are not co‑sharers or co‑owners with the defendants. Reading Articles 142 and 144, it would appear that the Legislature has drawn a distinction* between a mere dispossession or discontinuance of possession of the plaintiff and the defendant's adverse possession, otherwise there would be no occasion for having two separate Articles." The learned C. J. further observed at page 99& of the report: "But it cannot be denied that one co‑owner can dispossess another co‑owner and can exercise adverse possession over a joint property. If, therefore, the plaintiff a co‑owner admits that he has been dispossessed and that, at any rate, for a short period prior to the suit the possession of his co‑owner was adverse to him, then he cannot fall back on a mere presumption of joint possession in his favour and succeed without showing any other circumstances whatsoever. But if the co‑owner, who has been dispossessed, were to satisfy the Court that he was actually dispossessed on some date within twelve years, he discharges his burden; or even if he proves that prior to that period the parties were on good terms with each other with9ut any denial of title and without any quarrel, the Court may record a finding that the possession of the plaintiff prior to the period of actual possession was constructive. In such an event the finding would be that the plaintiff has succeeded in establishing that he was in constructive possession of the property within 12 years of the suit. This decision was followed by Sind Court in Deumal Ramumal v. Asharam Shewaran (I L R 1939 Kar. 793). It was also followed in a Lahore Full Bench decision in Behari Lai v. Narain Das (A I R 1935 Lah. 475). In Karim Bakhsh v. Shadi (I L R 1935 Lah. 558). Bhide, J., followed this decision and applied Article 142 to a suit filed by a co‑sharer. In this connection the learned Judge observed as under:‑-- "The learned counsel for the appellants has strongly relied on a Full Bench ruling of the Allahabad High Court reported as Bindhyachal Chand v. Ram Charib Chand. That was also a case in which the parties were co‑sharers and yet it was held that when a plaintiff comes to Court with an allegation that he was in possession of certain property and was dispossessed the case is governed by Article 142 of the Indian Limitation Act and it is necessary for the plaintiff to prove his possession within 12 years. The mere fact that the defendants have been held to be co‑sharers in the property cannot, in view of this authority, help the plaintiff. in the circumstances of this case." This view was also followed in Mulla Haider Hussain v. Muhammad Subhan Khan (A I R 1940 All. 428) and Sher v. Phuman Ram (42 P L R 497).

19. But Mr. Desa strongly contended that Article 142 has no application to the case of co‑sharers. He relied on Dipnarain Rai v. Pundeo Rai (A I R 1947 Pat. 99). This case can be distinguished on the ground that it was conceded before the High Court that it was a case to which Article 144 of the Limitation Act applied. In that case the sole question for consideration was whether the defendants have acquired title by adverse possession.

20. In the light of the above discussion it appears to us that the appellant's suit would be governed by Article 142 of the Limitation Act. In order to succeed it was incumbent on him that he was in. possession of the property in dispute at any time within 12 years of the institution of the suit, or that the parties during this period were on good terms with each other without any denial of title or without any quarrel. This the appellant had failed to prove. On the other hand, the evidence produced shows that his title in the property in dispute on his own allegation was derived much before 1939. The appellant clearly admitted thin fact in a notice given by him in the year 1939. In reply to this notice his title was denied in unequivocal terms by notice (Exh. 51) dated 7‑8‑1939. In this reply he was informed that he had nothing to do with this property and Ismail was in its possession in his own , right since 1932. We have already disbelieved the appellant on the question of the alleged compromise. In these circumstances it is perfectly clear to us that neither the appellant's father was ever in possession of the property in dispute nor was he in its possession within twelve years of the institution of the suit and the suit is barred by time.

21. Thus from whichever angle the appellant's case is considered, there is not the slightest doubt in our mind that the appellant has failed to establish his valid title in the property in dispute. Further the suit filed by him was also liable to be dismissed on the ground that he had failed to establish that he was in possession of the property in dispute within 12 years. In these circumstances, we are constrained to hold that the learned Single Judge was perfectly justified in dismissing the suit for partition of the property in dispute.

22. In the result we find no force in this appeal which is dismissed with costs. S.A.H. Appeal dismissed.