P L D 1974 Karachi 235 (PLP)

2. At the hearing of the appeal, the title of the respondent to the dis puted land was admitted by the appellant. The respondent, on her part, raised no objection to the award of Rs. 900.00 only as mesne profits up to the date of the decree for the disputed land under the impugned judgment. The only issues on which arguments were addressed at the bar before us were whether the appellant had acquired title to the disputed land by adverse possession, and whether the respondent's suit was barred by limitation. Both these issues are, in a way, inter‑connected, for the suit would be barred by limitation if the appellant is held to have acquired title by adverse possession to the disputed land, or the respondent or her late husband are found to have been dispossessed from the land more than twelve years immediately before the date of the suit. The two articles of the Limitation Act, which could have application in the present case, are Articles 142 and

144. Under Article 142, the period of limitation for possession of immovable property when the plain‑1 tiff, while in possession of the property, has been dispossessed from, or has discontinued possession of, is twelve years from the date of the dispossession or discontinuance of possession. Under Article 144, the period of limitation for possession of immovable property or any interest therein, not provided for under any other Article of the Limitation Act, is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. The applicability of the two articles to suits for recovery of possession of immov able property has often presented difficulties to the Courts. But the practical and convenient distinction between the two articles is this‑Article 142 is applied to suits where the cause of action is dispossession from, or discon tinuance of possession of, immovable property, whereas article 144 would apply where the cause of action for the suit is based on the plaintiff's title to immovable property. For authority for this distinction, reference may be made to the judgment of Sajjad Ahmad Jan, J., in a Division Bench decision of the former High Court of West Pakistan in Khisro Nawaa v. Khanimullah and others (P L D 1962 Pesh. 124). Under Article 142, the plaintiff must prove dispossession from, or discontinuance of possession of, immovable property within twelve years preceding the date of the suit. But under Article 144, the plaintiff must bring his suit within twelve years from the date when the possession of the defen dant becomes adverse to the plaintiff. The respondent has principally rested her case both on her title to the disputed land as the sole heir of the late Mr. Dinshaw, as well as on her dispossession from the disputed land, the act of dispossession being the act of the appellant in setting up his own title to the land in his reply dated 20th April 1960 to the respondent's notice of 6th April 1960. The original title of the respondent's late husband to the disputed land was admitted before us, the appellant's contention being that this title became extinguished by his own adverse possession for the duration of the statutory period prescribed for this purpose in the Limitation Act.

3. The principal controversy between the parties before us centred on the question whether or not the appellant had acquired title to the disputed land by adverse possession. According to the appellant, he and Pir Muhammad. his late father, together with other members of his father's family, migrated to Pakistan in 1947 on the partition of India, and that, in the same year, his father took possession of the disputed land and began cultivation, and even constructed some cattle sheds on the land, and that, on his father's death on 11‑I1‑1956, the appellant came into possession of the disputed land, apparen tly to the exclusion of the other heirs of his father, these other heirs bein,‑‑,, the respondent's mother, his two brothers, Sultan ‑Ali and Sadruddin, and his two sisters, Maryam Bai and Choti Maryam. The appellant contends that the respondent's suit having been filed in August, 1960 he, the appellant, had acquired title by adverse possession, and the suit was barred by limitation.

4. The way the contest between the parties proceeded before us has made it necessary for us to discuss some aspects of the law of adverse possession. The rule is now well established that possession follows title, that is, where the question arises as to who is in possession of land, the presumption is in favour of the true owner. Rarnsay v. Margrett ((1894) L R 2 Q B 18). This presumption' is all the greater in case of open, uncultivated or jungle land, or land which does not admit of enjoyment of acts of ownership. This is what the Judicial Committee of the Privy Council held in Maharaja Jagadindra Nath Roy Bahadur and others v. Rani Hemanta Ku mari Debi and others (11 I C 572), Basanta Kumar Roy v. The Secretary of State for India (I L R 44 Cal. 858) and Jahandad Khan v. Abdul Ghafar Khan (A I R 1930 P C 281) and by the Federal Court of Pakistan in Brojundra Kishore Roy Choudry v. Mohan Choudhry (1969 S C M R 547). We have stated above that the title of the respondent/plaintiff to the land in dispute was admitted at the bar before us. The legal consequence of this admission is that the title of the respondent must be deemed to carry with it the legal possession, and must be deemed to subsist, unless and until there is an open and hostile assertion by another of title, accompanied by proof of exclusive possession of an effective nature. In this connection, as noted above, the nature, the situation and user !' the property must be kept in consideration. The appellant's contention is that his late father Pir Muhammad, and after his death, the appellant him self asserted a hostile claim to the disputed land and this claim was accom panied by exclusive possession. The appellant, in effect, claims that by adverse possession of the disputed land on the part of his father and on the hart of the appellant himself, the appellant acquired title to the land in dispute, and the title of the real owner, that is, the late husband of the respondent, and after him of the respondent, thus became extinguished. We have, therefore, now to consider whether the appellant's father, the late Pir Muhammad, and the appellant, or either of them, have established adverse possession of the disputed land for the period prescribed by the Limitation Act, so as to lead to the extinction of the real owner's title thereto. l he law is that a person who claims title to immovable property by adverse possession must show that his possession was open, and adequate in continui ty, in publicity and in extent, and that his entry upon, or occupation of, the p immovable property was with the intention to assert hostile title thereto. Thus, regard must, in the first instance, be had to the intention with which the wrong‑doer entered upon and continued to be in possession of the property to which the dispute relates. If the entry upon and possession of the land lacks the intention on the part of the wrong‑doer to acquire title by prescription, then no question of adverse possession would arise. This requirement is implicit in the following observation of the Judicial Committee of the Privy Council in Ejas Ali Qidwai and others v. The Special Manager, Court of Wards, Ralrampur Estate and others (A I R 1935 P C 53) in the following words:‑ "The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amount ed to a denial of his title to the property claimed." 'The Oudh Chief Court stated this rule in Suraj Bali v. Lala Mahadeo Prasad(A I R 1932 Oudh 46) in this way: "The claim of the person in possession of the disputed land must he irreconcilable with the plaintiff's ownership of the land". In Jassa Ran? v. Puran Bhagat (A I R 1938 Lah. 440), the Lahore High Court held that a person may be in possession of land, but if he does not assert any hostile title thereto and if r his acts with regard to the disputed land do not evidence an intention to claim hostile title, then such a person cannot be said to be in adverse possession of the land in dispute. From this follows the rule that permissive possess ion of land cannot constitute adverse possession, whether the permission is express, or may be implied from the circumstances of the case; .See Padarath Tevari v. Baz Singh and others (A I R 1915 All. 312), Puttu Mal and another v. Bharat India and others (A I R 1917 All. 182) and Bhoj Raj v. Hardeva and others (A I R 1923 All. 140).

5. The possession, to constitute adverse possession, must not only be open with intention to assert hostile title to property in denial of the real owner's title to property in denial of the real owner's title but must be open, and adequate in continuity, in publicity and in extent. For authority in support of this proposition, reference may be made to Radhamoni Debi v. The Collector of Khulua and others (27 I A 136), A. R. R. M. V. Arunacha'lan Chetty and others v. Venkatachalapathi Guruswamigal (A I R 1919 P C 62), The Secretary of State v. Debendra Lal Khan (A I R 1934 P C 23) and Meharaja Srichandra Mandy and others v. Baij Nath Jugal Kishore (Firm) (A I R 1935 P C 36). As regards the continuity of possession, the rule is that if there is a break in the adverse possession of the wrong‑doer, limitation ceases to run against the lawful owner of the property. Thus, in The Trustees, Executors, and Agency Company, Limited v. Short (13 A C 793), the Judicial Committee of the Privy Council had to say this on this point: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant." This rule was reiterated by the Judicial Committee in The Secretary of State for India in Council v. Krishnamoni (29 I A 104) and Basant Kumar Roy and others v. The Secretary of State for India.

6. One material question which has arisen in this case, and which generally arises in cases of adverse possession, is with regard to onus of proof. The determination of this question is dependant on whether a case comes under article 142, or article 144 of the Limitation Act, though in this case arguments have been addressed with reference to both these articles. The, distinction between these two articles was very aptly brought out by Sajjad Ahmad, J., in Khisro Nawaz v, Khadimullah and others. The Judicial Com mittee of the Pi ivy Council also took the same view in Chowdhury and another v. Gabar Ali Khan and others (18 I C 17), that is, if a suit comes under Article 142, the plaintiff has to prove that he had been dispossessed from, or had discontinued possession of, the disputed land within twelve years immediately preceding the commencement of the suit. On the other hand, if a suit comes under Article 144 of the Limitation Act, that is, if it is based on the title of the plain‑1 tiff to the land, then the plaintiff must prove that he is the real owner of the disputed property, and, on such proof being given, the burden shifts to the defendant, who is then required to prove that his possession became adverse to that of the plaintiff more than twelve years before the date of the suit. In this connection, we would reproduce the following observation of the Judicial Committee of the Privy Council in The Secretary oj' State for India v. Chelli kani Rama Rao and others (A I R 1916 P C 21): "Nothing it better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say, "I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfill all the legal conditions. .It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession. In an ordinary suit for a declaration it cannot be doubted that the onus of establishing possession for the requisite period would rest upon the plaintiff Nothing further as needed than the acknowledgement of the undisputed fact that these islands formed in the sea belonged to the crown. That fact is funda mental: until adverse possession against the crown is complete, that is to say, is for the period of sixty years, that fundamental fact remains, and that fact forms subsisting title." In another case, Kuthali Moothavar v. Peringati Kunharan Kutty (A I R 1922 P C 181), the following observation was made: "Standing a title in A, the alleged adverse possession of B must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. The onus of establishing these things is upon the adverse possessor. Accordingly when the holder of title proves that he too has been exercising, during the currency of his title, various acts of possession, then the quality of these acts, even though they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds." The same view was taken by the Privy Council in Basant Kumar Roy and others v. The Secretary of State for India and others; Mst Allah Bakhi and others v. Shah Muhammad Abdur Rahim and others (AIR 1934 P C 77) and Raja Rajgan Maharaia Jagatjit Singh v. Raja Partab Bahadur Singh (A I R 1942 P C 47). Thu"' under Article 142 of the Limitation Act, the plaintiff has to prove dispossession from or discontinuance of possession of the disputed land within twelve years immediately before the institution of the suit. But, under Article 144 of this Act, it is enough if the plaintiff proves his title as real owner of the land, and then the onus is on the defendant to prove that this title became extinguished more than twelve years before the date of the suit.

7. This leads us to the question of the nature of evidence sufficient to prove or disprove adverse possession. It has been stated above that open, uncultivated and jungle land does not ordinarily admit of acts of enjoyment, of ownership, and, with regard to such lands, there is a strong presumption of possession in favour of the real owner. In this connection, reference has been made above to the Privy Council decision in Sunder Singh and others v. The Collector of Shahjahanpur (11 I C 514) and Basanta Kumar Roy v. The Secretary of State for India; Jahandad Khan v. Abdul Ghoffar Khan and the Federal Court decision in Brojendra Kishore Roy Choudhry v. Mohini Mohan Choudhry. In Basant Kumar v. The Secretary of State, it was held that temporary "Utbani" cultivation was not sufficient to exclude the plaintiff from the land. In Jahandad Khan v. Abdul Ghafjar Khan, Privy Council observed that where land is uncultivated jungle land which produces nothing beyond self‑grown trees and a seasonal crop of wild grass, there is special difficulty in establish ing that possession was adequate in continuity, in publicity and in extent, so as to become adverse to the competitor. In Brojendra Kishore Choudhry v. Mohini Mohan Choudhry, Abdur Rashid, C. J., speaking for the Federal Court, made the following observation: "I would like to emphasize one other factor before examining the docu mentary evidence in this case. In order to defeat a titleholder under Article 142 of the Limitation Act by dispossessing him, acts must be done by the trespassers which prevent the owner from enjoying proper ty for the purposes for which he intended to use it. It is necessary to look at the position at which the former owner stands towards the property, as well as the acts done by the alleged disposses sor. What acts of the defendant are sufficient to establish the termina tion of the former owner's possession must be judged from the circums tances of the case and from the nature of the property in question. It is clear that in order to apply the provisions of Articles 142 and 144 of the Limitation Act we must attach a great deal of importance to the nature of the property which forms the subject‑matter of the litigation. If the property consists of wastelands, or large areas of jungle, or big sheets of water, the onus on the plaintiffs would be a light one. If, on the other hand, the property consists, of houses, shops, or cultivated land‑, different considerations would be applicable." Thus, a very onerous burden is placed on the person who claims title by adverse possession to open and waste land. Such person must give clear, full and definite evidence relating to different points of time for the whole of the statutory period requisite for completing title by adverse possession. The evidence must be of acts which must establish that such person was, in fact, in adverse possession of the land. Further, acts which are sufficient to constitute possession in the real owner may not be sufficient to constitute posses sion in the trespasser. Mere user of the land cannot be taken as definite assertion of proprietary rights and does not constitute adverse possession. There must be some definite quality in the possession before it can be called adverse. Mere user of land in a village as a "convenient adjunct" does not amount to assertion of hostile title; See Mst. Gulab Devi v. Monji Ram (A I R 1919 Lah. 156). Likewise, mere tethering of cattle and storing of logs on waste land does not amount to denial of the real owner's title; See Lala Asa Ram v. Lala Ram Chander (A I R 1939 All. 161). No importance can be attached to the evidence of witnesses who come and swear that the land was in possession of some body or otter; See Gajadhar Prasad and others v. Mst. Dulhin Gulab Kuer and others (A I R 1921 Pat. 234). Possession of receipts for Government revenue, or payment of Government revenue is not evidence of such acts as would constitute adverse possession; See Lallee Singh v. Mussamat Amrit Kooer ((1872) 17 S W R 490) and Baghuraj v. D. B. Yallabha das (A I R 1923 Nag. 95). Nor is the entry in village records of the name of the person who claims adverse possession as; bila faisla" tenant, without reliable evidence to prove that such person dispossessed the true owner or ever asserted hostile title to the disputed land, proof of adverse possession of the disputed land; See Ram Kishan Lai v. Mohammad Baqar Khan (A I R 1931 Oudh 144), and Mathura Prasad v. Uma Datt (A I R 1939 Oudh 106). Reference may here be made to two more cases, one of Sind and the other of Bombay. In the Sind case, Jamiatrai Manjimal v. Goumal (A I R 1931 Sind 1), the person claiming adverse possession had been using the roof belonging to another as a courtyard and had been sleeping there by night and sitting there by day and also used it on occasions for family festivals. Such mere user was not held by the Court as definite assertion of proprietary rights so as to constitute adverse possession. In the Bombay case, Framji Cursetjf v. Goculdas Madhowjf ((1892) 16 Bom. 338), the person who claimed adverse possession of a piece of land built a privy on the land and also erected sheds there for goats, cows and other animals and even a but for a "ghariwallah", all being tem porary structures. It was held that these acts did not constitute adverse possession.

8. We will now examine the evidence led by the parties at the trial of the suit. In this connection, reference may first be made to the letter dated 20th April 1960 of the appellant in reply to the respondent's letter dated 6th April 1960. In this letter, the appellant set up a claim that he and his late father, Pir Muhammad, had been in continuous, uninterrupted and undisturb ed possession of the disputed land since 1947, and that this possession was still with the appellant. The appellant denied that his late father approached Mr. Dinshaw N.E. Dinshaw for the lease of the land or that the appellant or his late father ever recognized any right whatsoever either of Mr. Dinshaw or any other person in the land in dispute. In this letter, the appellant's claim is that of joint possession with his father of the disputed land from 1947. This stand was reiterated in paragraph 4 of the written statement, where the appellant further pleaded that land revenue with regard to the disputed land had been paid by the appellant and his late father on their own behalf, and not on behalf of any one else. But in his deposition in Court the appellant made the following statement, which was quite contrary to his earlier stand: "My father had taken some private land on lease. That plot belonged to one Rustam Kharas. Exh. 20 is the lease deed in respect of it. We took possession of this land and cultivated it as a lessee. This land adjoins the land in suit. The land in dispute was lying without cultivation. My father took possession of it and cultivated it. He had cultivated grass there. In 1949, he had raised some construction for the purpose of dairy farm. These were the sheds for tethering cattle there. All these sheds were pucca construction. ..At no time my father had cultivated vegetables in the land in suit. It was with my father when he took possession of the land in suit. Some time I visited it and managed the cultivation. Even at present this land is cultivated with grass. We have engaged haris for cultivating grass, and he is Hajoo Hashim." In cross‑examination, the appellant said that he was fifteen to sixteen years old when he came to Pakistan in 1947, and that he was then schooling and continued schooling for about three years. When asked about payment of land revenue, the appellant stated that he had seen the receipts, which were given to his father, for payment of land revenue, but that he and his father only knew the survey numbers of the land in dispute and the amounts paid by them whi‑,h were mentioned in the receipts, and that he did not find it necessary to find out the owner of the land. The appellant had produced in Court bills for payment of land revenue, which are Exh. 19 to Exh.

27. But, in cross‑examination, he stated that he had never seen these bills. At the same time, however, he went on to say that similar bills were still being received by him, but that they were in his name. But he failed to produce any bill in his name for payment of land revenue. With regard to construc tion of sheds on the disputed land, the appellant stated that a sum of Rs. 40,000 had been spent in this connection by his father, though he admit ted that no accounts had been maintained with regard to this expenditure. The bills for payment of land revenue have come from the custody of the appellant, but as noted above, he disclaimed knowledge of these bills in his evidence, these bills being Exh. 19 to Exh.

27. The bills for land revenue produced by the appellant are for the years 1947‑48, 1948‑49, 1951‑52, 1954‑55, 1955‑56, 1956‑57, 1958‑59 and 1959‑

60. All these bills are in the name either of the late Mr. Dinshaw, or in the name of the respondent, except one bill, Exh. 25, which is for the year 1956‑57, and in the name of the appellant, but this bill related to agricultural land bearing Survey Nos. 714 and 715, whereas the land in dispute in the suit comprised Survey Nos. 668, 719 and

720. The appellant also produced receipts for pay ment of land revenue as Exh. 8 to Exh. 18, for the years 1947‑48, 1948‑49, 1949‑50, 1950‑51, 1951‑52, 1952‑53, 1954‑55, 1956‑57 and 1958‑

59. All these receipts were issued either to Pir Muhammad or to Nur Ali, but in the name of the late Mr. Dinshaw. In the first receipt, for the year 1947‑48, Pir Muhammad has been described as garden manager of the late Mr. Dinshaw and this would suggest that either he entered upon the land as licensee or he had no intention to set up any adverse title thereto. No receipt has been produced for the years 1953‑54 and 1955‑56, nor any bill for land revenue for 1952‑53 and 1953‑54, which could show that for these years no land revenue was at all paid by either Pir Muhammad or Noor Ali. This fact raises a strong inference that during these years neither Pir Muhammad, nor Noor Ali had raised grass or any other crop on the land, and therefore did not exercise any act of possession with respect thereto. It would be reasonable to draw the further inference that there was interruption in the possession of these persons of the disputed land during these years.

9. The appellant, Noor Ali, stated in his evidence that a sum of Rs. 40,000.00 was spent in constructing sheds over the disputed land. In this connection, he examined one Fakiro (Exh. 44) who is said to be the contractor who supplied labour for the construction of the sheds. This witness stated that he received Rs. 8,000 only for the supply of labour under an agreement executed in 1949, which he produced as Exh. 34/1. The witness, however, admitted that he did not know the survey numbers of the land over which the sheds were constructed, nor did he know who was the owner of this land, though he did admit that he was himself residing in Memon Village, which is about two miles from the disputed land. Though the agreement, Exh. 34/1, was executed on 17‑10‑1949, it was produced in Court in 1965. Fakiro is an illiterate person, and he admitted that he did not maintain any accounts of the payments which he received from Pir Muhammad. It is difficult to believe that Fakiro kept safe this agreement, which does not bear his signature, but only his thumb mark, for all these years. The other witness examined by Noor Ali is Hajoo Hashim (Exh. 35), who stated that he was a hail engag ed by Pir Muhammad to cultivate the land in question. He stated that he grew only grass on this land. He was not aware as to who was the owner of the disputed land. Neither the appellant, nor Fakiro, nor even Hajo6 Hashim have said that the late Pir Muhammad made any proprietary claim with regard to the land in dispute and Hajoo Hashim's evidence shows that all through the years from 1947, only grass was grown on the land. It is not under standable why, if Pir Muhammad and Noor Ali had proprietary claim to the land, no other crop was raised on the land. Noor Ali claims that sheds of the value of Rs. 40,000.00 were constructed on the land by Pir Muhammad for the purpose of dairy fUning. But no one has said as to how many cattle were kept on the disputed land, and whether dairy farming was still being carried on there. No account of expenditure of Rs. 40,000.00 has been produced. Nor is there any evidence as to whether the sheds were permanent or temporary constructions. There is also no evidence whether the land was at all developed for cultivation. On the other hand, the evidence of Hajoo Hashim would suggest that the land was used only for growing seasonal grass. In cases where title by adverse possession is claimed, it is ordinarily expected that evidence of owners of adjoining properties and of such acts as would indicate assertion of proprietary rights, would be produced by the person who claims such title. But there is complete absence of such evidence. No neighbouring land‑owner has come to support the appellant's claim. The only evidence as to user of the land is that of Hajoo Hashim, but he said that only grass was grown on the land. Thus, the evidence led by Noor Ali does not satisfy the tests which have been laid down in the cases referred to above. The evidence does not establish that possession of the land of Pir Muhammad or of Noor Ali was open and adequate in continuity or publicity. The evidence does not even show that Pir Muhammad's possession or user of the land was in denial of the title of this late Mr. Dinshaw or of the respondent. On the other hand, the evidence strongly suggests that, in fact, Pir Muhammad did not assert any proprietary claim to the disputed land, nor had he any in tention to do so. Noor Ali has stated that his father took on lease adjoining land, that is, Surveys Nos. 475, 476, 477, 498, 499, and 701 from Mrs. Bano Bai Rustamji Kharas under agreement Exh. 28, which was executed in Decem ber, 1947. The question arises why Pir Muhammad should not have thought of taking the disputed land also on lease. In view of Pir Muhammad's con duct with regard to the land of Mrs. Bano Bai Rustamji Kharas, no inten tion can be attributed to him to assert any proprietary right over the disputed land. It is in the light of this conduct that the evidence of D. W. Mr. Vania, produced by the respondent, should be considered. Mr. Vania was in the employment of the firm of Messrs Edulji Dinshaw, and, in this capacity, looked after and managed the properties of this firm as well as the properties belonging to the late Mr. Dinshaw. According to Mr. Vania, Pir Muhammad used to approach Mr. Nadirshah in connection with the lease of the disputed land. Mr. Nadirshah demanded half the share in the produce, and further that Pir Muhammad should pay the land revenue assessed on the land. Mr. Vania stated that . Pir Muhammad was not prepared to give half the share in the produce of the land on the ground that the land was virgin and required development. Not withstanding the failure of Pir Muhammad and Mr. Dinshaw to reach agreement, Pir Muhammad was allowed to use the land. On the return of Mr. Dinshaw from Europe, according to Mr. Vania, Pir Muhammad contacted Mr. Dinshaw and informed him that he had paid the land revenue assessed on the land regularly. According to Mr. Vania, Pir Muhammad also occasionally brought vegetables and Papaya to Mr. Dinshaw. The evidence given by Mr. Vania would appear to be more consistent with the respondent's version in the case and with the conduct of Pir Muhammad, and with the appellent's failure to bring any evidence of creditable witnesses that Pir Muhammad asserted any proprietary claim to the disputed land.

10. According to the appellant, it was Pir Muhammad who was in adverse possession of the disputed land up to the time of his death. Pir Muhammad left several heirs, namely, his widow, his three sons, including the appellant Noor Ali, and two daughters. But none of these heirs, except Noor Ali, has come forward to lay adverse claim to the disputed land. Noor Ali claims the land to the exclusion of all the heirs of his late father. It is not his case that his possession is on behalf of all the co‑heirs. The question arises that, if Pir Muhammad had asserted or made any pro prietary claim to the land in question, then why did all the heirs of Pir Muhammad not come forward to claim title to the land. The only possible answer is that Pir Muhammad, in fact, did not make any such claim, probably it was after I1‑11‑1956, when Pir Muhammad died, or in 1960 when Noor Ali received notice from the respondent and replied thereto by his letter dated 20th April 1960, that he decided to make an adverse claim to the disputed land. If so, then Noor Ali's possession commenced either on the death of his father, that is, on 11‑11‑1955, or on receipt of the respondent's letter dated 6th April 1960. In either view of the matter, Noor Ali's possession was not continuous for twelve years to enable him to claim any title to the disputed land by adverse possession. Thus, if Article 144 of the Limitation Act is applied, then Noor Ali has failed to prove his adverse possession of disputed land for twelve years preceding the suit. If the case is viewed in the light of Article 142 of the Act, then the suit having been filed in 1960, is within the limitation period, as Noor Ali can only be said to claim adverse possession either from 11‑11‑1956, when Pir Muhammad died, or from 20th April 1960, when in his reply to the respondent's notice he set up an adverse title to the land.

11. Much arguments were addressed at the Bar on the question as to whether or not Noor Ali was entitled to "tag" or add his adverse possession to that of his father, Pir Muhammad, so that the adverse possession of either of them, even if less than twelve years, but in the aggregate exceeding this period, would enable Noor Ali to acquire title adverse to that of the respon dent. But we do not consider it necessary to decide this question, as we have found, on evidence, that Pir Muhammad's use of the land was not at all adverse to that of the plaintiff, and therefore no question of tagging of possession arises in this case.

12. We have discussed at length all the arguments put forth by Mr. Afzal Nabi in support of this appeal. But we find no substance in the appeal, which, in our opinion, should be dismissed. Mr. Afzal Nabi did not address us on the question of mesne profits awarded under the impugned judgment, which mesne profits, as we have noted above, amount to Rs. 900.00 only up to the date of the decree. The learned Single Judge on the original side has, however, directed that mesne profits after the decree be determined in execution proceedings. It is doubtful whether this direction L could be given under Order XX, rule 12, C. P. C. In our view, either an enquiry should have been ordered to ascertain the mesne profits from the date of the decree, or the order should have been to dispense with such enquiry, and then pass a final and executable decree in respect of the mesne profits from the date of the decree. The learned Single Judge has fixed mesne profits at the rate of Rs. 300.00 per 'year. This amount, in our opinion, would appear to be on the low side. However, the respondent has failed to file any cross‑objections or any appeal on this question. Further, in our opinion, the mesne profits having been fixed at Rs. 300.00 per year up to the date of the decree. It was unnecessary to direct an enquiry to ascertain the mesne profits from the date of the decree. In this view, we are supported by two decisions, one of Madras and the other of Calcutta. The Madras case is Vella Veeran Chetti v. Veeran Chetti and another (A I R 1938 Mad. 727) and the Calcutta case is Ganeshi Lal Sharma v. Sm. Shehlata Dass (A I R 1947 Cal. 68). While affirming the judgment, we would, therefore, direct that mesne profits from the date of the decree should be paid by the appellant at the rate of Rs. 300 per year until he delivers the possession of the disputed land to the respondent. The appeal; therefore, fails and is dismissed with costs, but with this modification that mesne profits from the date of the decree until delivery of possession of the disputed land by the appellant to the respondent shall be calculated and paid by the appellant at the rate of Rs. 300 per year.