P (PLP)

Muhammad Amin Khan, for Respondent. JUDGMENT.‑The plaintiffs, eleven in number, together with Allah Rakha defendant No. 1 and Kake Shah deceased, were occupancy tenants of certain land in the village Josan of Pasrur Tahsil. The share of Allah Rakha defendant and Kake Shah deceased was together one‑forth and they sold this share to defendants Nos. 2 to 5 who are also landlords of the land in suit. The plaintiffs brought a suit for a declaration that they were occupancy tenants of the land in question, that Allah Rakha and Kake Shah deceased had no such right in it and that, if they or their ancestors had any such right, it had been extinguished by reason of the plaintiffs' adverse possession. Both the lower Courts have found against the plaintiffs who have, therefore, come to this Court in second appeal. The revenue records show that Allah Rakha and Kake Shah were throughout occupancy tenants. This position is not denied, but it is contended that in 1935, when Allah Rakha and Kake Shah applied for partition of their share to the Assistant Collector, the plaintiffs denied their title and the Assistant Col lector, accepting that denial, referred the applicants in that case to a civil remedy. The only record of that case made avail able on this file is Exhibit P. 1, copy of the order of the Assistant Collector. This order may be profitably translated so far as it is relevant to our present purpose :‑ " Allah Rakha in person and as next friend of Kaka minor, his brother, applies for the partition of 160 kanals and 4 marlas of land in village Kotli Josan of Pasrur Tahsil. While the proceedings were in the Tahsil, Rehman and Hashim, co- sharers, objected that the applicants had not been in posses sion of the land sought to be partitioned since the time of their grandfather and that consequently they were not entitled to seek partition. For this reason, the file was sent up from the Tahsil. I have summoned the parties. Both the objectors are still objecting. Their objections come under section 117 of the Land Revenue Act within the question of title. So long, therefore, as the applicants do not obtain possession through proper proceedings, the partition proceedings cannot take effect". This order is dated the 20th February 1936 and, since the present suit was filed on the 20th of March 1948, the suit is not within twelve years of the final decision of the objections. I cannot agree with the learned District judge that this objection did not amount to an assertion of title. When the objection was made, it was made with the object of preventing a partition of the land on the apparent ground that the appli cants had no right to it, and that is how the Assistant Col lector must have understood the objection if he thought a question of title had arisen. If, therefore, the question is whether the plaintiffs' predecessors‑in‑interest openly asserted adverse possession in 1935 and 1936, it must be answered in the affirm ative, and on the date of the suit the plaintiffs should be regarded as having acquired title by adverse possession. There are, however, two other problems to be faced. The first is that in most of the land in suit the plaintiffs, together with Allah Rakha and Kake Shah, are shown to be the mort gagors with various other parties as mortgagees. In certain cases, someone or other of the plaintiffs is himself the mortgagee. In some other cases, someone or other of the plaintiffs, in addition to being the mortgagor, is also a tenant‑at‑will under the mortgagee. All these mortgages are apparently with pos session and, so long as they do not become redeemable, there can be no adverse possession against any of the mortgagors, including Allah Rakha and Kake Shah. This would leave out a small fraction of the land which would have to be ascertained if the plaintiffs had not to face a second problem. This problem is contained in section 9 of the Tenancy Act which is as follows:‑ "No tenant shall acquire a right of occupancy by mere lapse of time". In sections 5 to 7 the different, modes in which occupancy rights can be acquired are stated. Section 8 says that nothing in the foregoing sections shall prelude any person from establish ing a right of occupancy on any ground other than the grounds specified in those sections, and, in order that mere lapse of time should not be pleaded as a ground under section 8, it was found necessary to enact section

9. In Ganda Singh v. Kaim Khan (60 P. R. 1908), where adverse possession of an occupancy tenant was pleaded in favour of the acquisition of an occupancy tenancy, it was held that section 9 prevented such contention from being raised. In that case the last male occupancy tenant had died in 1872, leaving two widows who became joint occupancy tenant. Ultimately only one widow was left and she died in 1906. In 1883, however, before her death, a certain relation of the widow, whom she had adopted, effected a mutation in his own favour. One of the landlords objected to this mutation but he was referred to the Civil Court. He did not go to the Civil Court, but within a few months of the death of the widow in 1906 lie brought a suit for resumption of the tenancy on the ground that no heirs were left. The adopted son thereupon pleaded adverse possession as a tenant. The Chief Court repelled this contention with the following observation: The contention that section 9 of the Act deals only with acquisition of rights in land in which occupancy rights did not previously exist, and does not deal with a claim; by adverse possession as successor to an occupancy tenant, has in my opinion no force. The appellant's claim is to occupancy rights only, and his case is that he .was a tenant until his adverse possession had continued long enough to vest in him a right by adverse possession". The same view was taken in Shib Sahai v. His Highness Maharaja Balbir Single of Faridkote (8 P. R. 1905) (Rev.) where a mortgagee of an occupancy tenant pleaded against the landlord that he had acquired occupancy rights by adverse possession after the death of the mortgagor. If section 9 is interpreted differently, the landlord may occa sionally have an occupancy tenant thrust on him without any laches on his part, and that would be a result entirely foreign to the spirit of the Tenancy Act. Holding that the plaintiffs could not acquire the occupancy tenancy of Allah Rakha and Kake Shah by adverse possession, I dismiss the appeal with costs. A.H Appeal dismissed.