1991 PLP 1791 (CLC)

‑‑‑‑Art. 144‑‑Adverse possession ‑‑‑Co‑sharers‑‑‑Plea of adverse possession against co‑sharers could succeed only in presence of a definite claim of ouster of such co‑sharers from joint property‑‑‑Mere allegation that a co‑sharer and after him/his sons had never remained in possession of property in question, would not by itself be enough to constitute an act of ouster against co‑sharers‑‑‑Mere allegation of exclusive possession of joint property by some co‑sharers for any length of time would not make out a case of adverse title: ‑‑[Co‑sharer]. P L D 1957 SC (Ind.) 251 distinguished. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), Art.144‑‑‑Adverse possession Revisional-jurisdiction; exercise of‑‑‑Suit for possession through partition of land was resisted by defendants on plea of adverse possession‑‑‑Two Courts below had fallen into error by non‑suiting plaintiff on grounds of adverse possession and limitation on misreading of evidence and had thus, acted in exercise of jurisdiction illegally or with material irregularity‑‑‑Judgments and decrees of Courts below were set aside‑‑‑Suit filed by plaintiff before Trial Court would succeed and he would be granted a preliminary decree‑‑‑Trial Court was further, to proceed in accordance with law. Sardar Hafiaur Rehman for Petitioner. Nemo for Respondents. Date of hearing: 5th June, 1991. Jumma son of Qaim Din filed a suit on 2‑1‑1985 (No.5/1 of 1985) in the Court of Civil Judge, Haripur against Mir Ahmad etc. and asked for the grant of a decree for possession through partition of 1/4th share from a certain house. Defendants Nos. l to 5 resisted the suit while defendant No.6 was placed ex parte. On the receipt of the written statement of the replying defendants the learned trial Judge settled various issues between the parties and after recording evidence on both sides dismissed the suit on 10‑2‑1986 in view of his decision on the issues relating to limitation and adverse possession. An appeal filed by the defeated plaintiff also met the same fate on 13‑12‑1986 before the Addl. Distt. Judge. Hence this revision petition under section 115, C:P.C.

2. It is proved from the evidence on record and also not disputed by the respondents, that the case property was originally owned by one Manga on whose death it devolved upon two sons named Qaim Din and Noora. Jumma the petitioner‑plaintiff and Hussain (who was defendant No.6 before the trial Court) are sons of Qaim Din. Noora was survived by his two sons named Ditta the father of respondents 1 to 4 and Sheikh Ahmad whose son is respondent No.l. All these persons came into possession of the joint property as owners on the death of the aforesaid ancestors. Allah Bakhsh respondent No.2 has appeared in evidence before the trial Court. In his statement recorded on 3‑12‑1985 this defendant has admitted the original ownership of the suit house by Manga who was survived by two sons named Qaim Din and Noora, who had left behind the present parties as their descendants. Allah Bakhsh has, however, stated that all the common properties between the parties had been partitioned and these respondents are presently in occupation of the suit house as full owners. This allegation has not been, however, proved through any evidence. On the contrary Muhammad Hussain a witness of the contesting respondent in his trial Court statement has admitted that the plaintiff and defendants are collaterals, their property is joint and he is not aware as to whether their houses are partitioned. In this view of the matter the allegation that the suit house had fallen into the share of respondents Nos. 1 to 5 on partition of the total joint property between the parties could not be proved.

3. The plea of adverse possession advanced by these respondents against the other co‑sharers could succeed only in the presence of a definite claim of ouster of the plaintiff and defendant No.6 from the joint property. The mere allegation that Qaim Din and after him/his sons had never remained in possession of the suit house would not by itself be enough to constitute an act of ouster against the co‑sharers. Similarly, a mere allegation of exclusive possession of the joint property by some co‑sharers for any length of time would not make out a case of adverse title. The learned trial Judge has placed reliance on a precedent case reported in P. L D 1957 SC (India) page

251. A careful perusal of this judgment would show that the principle laid down by the Supreme Court of India in the said case cannot be made applicable in the instant one where the facts are quite distinguishable. The two Courts below have evidently fallen into error by non‑suiting the plaintiff in his case on the grounds of adverse possession and limitation on misreading of the evidence and have thus acted in the exercise of jurisdiction illegally or with material irregularity.

4. In this view of the matter which I take, I would be constrained to accept this petition by setting aside the judgments and decrees impugned with the result, that the suit filed by the petitioner‑plaintiff before the trial Court shall succeed and he would be granted a preliminary decree for possession by partition of 1/4th share out of the house in dispute. It may be mentioned that respondents stated in this petition have not attended the Court in spite of service and the matter has been heard ex parte. No order as to costs. AA./1230/P Revision accepted.