P L D 1990 Lahore 193 (PLP)

This R.S.A. arises out of a suit for declaration with consequential relief for possession filed by the appellants in the Court of the Civil Judge, Muzaffargarh. The appellants had challenged the entries of Jamabandis for the year 1921‑22 and claimed ownership of the land. The parties belong to village Bait Mohta Tehsil Muzaffargarh in which consolidation proceedings started in the year 1955 and the consolidation scheme was confirmed on 30‑6‑1955. Before consolidation, the disputed land formed part of Khata Nos.2, 3, 4 and

5. It was alleged by the plaintiffs/appellants that their predecessors‑in‑interest and those of the defendants/respondents were joint owners of the said Khatas as per the entries of Jamabandis from the years 1901, 1902 to 1916‑

17. However, subsequently, a change was brought about in the Jamabandi pertaining to the year 1921‑22 which reduced the share of the predecessor‑in‑interest of the appellants from 2,950 kanals 5 marlas to 1204 kanals 9 marlas. Resultantly, the share of the defendants/respondents was increased. The error continued in the subsequent Revenue Records and the consolidation scheme was also finalized on the basis of the erroneous entries of the Revenue Record.

2. The defendants/respondents resisted the suit in the trial Court which led to the formation of the following issues:‑‑ 1 .Whether the suit is not maintainable in its present form? And what is its effect on its jurisdictional value?

2. Whether the suit is bad for misjoinder of parties and causes of action? 3 .Whether the suit is time‑barred?

4. Whether the plaintiffs are owners of the land in suit?

5. Relief.

3. The parties were allowed to produce oral as well as documentary evidence. After considering evidence of the parties, the trial Court passed decree for joint possession holding appellants/plaintiffs to be owners to the extent of 1,773 kanals and 17 marlas of land vide judgment and decree dated 6‑2‑1964.

4. Respondents/defendants challenged the decree of the trial Court by was of an ppeal which was allowed by the learned Additional District Judge Muzaffargarh, vide his judgment and decree dated 3‑6‑1965. The appellate Court held the suit to be barred by time and on that finding reversed the judgment an decree of the trial Court, hence, this appeal.

5. I have heard the learned counsel for the parties. The learned counsel for the appellants contended that the plaintiffs had filed the suit on 1‑11‑1962 which was within time if reckoned from the last attack on the appellants' rights which took place through consolidation operations in the year 1955. He urged that the suit could be filed within a period of 12 years as laid down under Article 144 o the Limitation Act. He placed reliance on Gul Khan v. Said Hassan Khan PLI: 1968 Pesh. 148 and Brojendra Vishore Roy Chaudhry v. Mohini Mohai Chowdhury and others 1909 SCMR 347, Shahna v. Khushi Muhammad 198 SCMR 407, Mst. Suhagpuri v. Baloach Khan 1989 CLC 407, Fateh Sher v. Shar Khatoon 1986 CLC 320, Ahmad Bakhsh v. Ghulam Rasool 1989 MLD 1034. 0 the other hand, the learned counsel for the respondents urged that the entries o Jamabandis for the year 1921‑22 were challenged in 1962, hence, the suit was clearly barred by time. It was also pointed out that the matter was governed b., Article 120 of the Limitation Act, which provided a limitation of six years. Th plaintiffs/appellants were out of possession since the consolidation of holdings i the village which took place in the year 1955 resulting in confirmation of the scheme on 30‑6‑1955. Even if the period is reckoned from 30‑6‑1955, the sui could have been riled upto 10‑6‑1961. Lastly, it was urged that the date of cause of action mentioned in para 13 of the plaint was 30‑6‑1955, hence, applying Article 120 of the Limitation Act, the suit was rightly held to be barred by time b the first appellate Court.

6. The appellants had sought a declaration of title in respect of the suit land and challenged the correctness of the entries made in the Jamabandi pertaining to the year 1921‑22 as well as the subsequent Jamabandis. The said suit falls within the provision of section 42 of the Specific Relief Act (read with section 45 of the Land Revenue Act). The limitation for obtaining a declaration of the kind prayed for in the plaint is governed by Article 120 of the Limitation Act, which provides a period of six years for the said purpose. It was so held in a Division Bench judgment of this Court in the case of Fateh Ali Shah and others v.' Muhammad Bakhsh and others AIR 1928 Lah. 516. 'An that case, the entries of record of rights made on 4th January, 1917, were challenged in the suit filed on 10th December, 1921. It was contended that the right to sue, had accrued to the plaintiff on 11‑11‑1913 when the Collector, Multan, had ordered that the mutation in the name of Mst. Rani be substituted by one in favour of the two widows of Muhammad Hamid Shah deceased. The Court was pleased to hold that the suit could be riled within a period of six years from the date when the rights of the plaintiffs were really jeopardized by any action taken ,by or at the instance of the defendants. As the rights of the plaintiffs were put to jeopardy by the adverse entries made in the record of rights on 4‑1‑191.7, the suit was held to be within time. The learned counsel for the appellants also relied on Gul Khan v. Said Hassan Khan PLD 1968 Pesh.

148. In the said case, it was held that the plaintiff could file a suit within a period of six years as provided under Article 120 of the Limitation Act from the open denial of his right and not merely from a wrong entry in the revenue record. Even if time is reckoned from the date when the appellants' rights were actually put to jeopardy or openly denied and not from the date of wrong entries, the present suit is still barred by time. Admittedly, the consolidation operations started in the village in the year 1955 and all the right holders consciously claimed lands according to their entitlement during the said proceedings. Basing the consolidation scheme on the entries made in the Revenue Records, the appellants were given land according to the entries made in the Jamabandi for the year 1921‑22 and onwards. They appear to have made no objection to the area proposed in their names during the consolidation proceedings. The scheme was finalized on 30‑6‑1955. It is not the case of the appellants that they were unaware of the confirmation of the consolidation scheme. They never filed any appeal or revision against the consolidation scheme before the Consolidation authorities. In para 13 of the plaint, the appellants specifically mentioned that the cause of action had accrued to them on 30‑6‑1955. This was the date when their title to the land in excess of the land specified in the consolidation scheme was openly denied and definitely put to jeopardy. The appellants were bound to institute the suit within a period of six years as provided under Article 120 of the Limitation Act. They could have instituted the suit till 30‑6‑1961. However, the suit was actually filed on 1‑11‑1962, which was clearly barred by time. A similar view was expressed in the case of Ahmad Bakhsh v. Ghulam Rasool and two others 1989 MLD 1034 by my learned brother Sajad Ahmad Sipra, J. It was held that a fresh cause of action bad accrued to the plaintiffs when they were threatened of deprivation of their rightful shares through consolidation proceedings. Hence, the suit for declaration in respect of the shares claimed by the appellants could have been filed within a period of six years as provided under Article 120 of the Limitation Act. I do not agree with the contention raised by the learned counsel for the appellants that the limitation in the present case was governed by Article 144 of the Limitation Act; and that the suit could be filed within twelve years. The suit filed by the appellants was not. I essentially, one for possession but for a declaration of title and possession was prayed for as a consequential relief. The appellants could not straightaway claim possession because the Jamabandis from the year, 1921‑22 onwards and the orders of confirmation of the consolidation scheme stood in their way. ' To B remove the said hurdles, a declaratory decree for title was essential. The appellants ought to have approached the Court within a period of six years provided under Article 120 of the Limitation Act. Having failed to do so' they cannot fall back on the provision of Article 144 of the Limitation Act. The case of Brojendra Kishore Roy Cbowdhury v. Mohini Mohan Chowdhury and others 1969 SCMR 347 has no application in the present case because it involved the question of adverse possession on the part of a trespasser who had challenged the tide of the owner on the bases of lapse of time. While dealing with the question, the Court was pleased to hold as under:‑‑ In order to defeat a title‑holder under Article 142 of the Limitation Act by dispossessing him acts must be done by the trespassers which prevent the owner from enjoying the property for the purposes for which he intended to use it. It is necessary to look at the position in which the former owner stands towards the property, as well as the acts done by the dispossessor. What acts of the defendant are sufficient to establish the termination of the former owner's possession must be judged from the circumstances of the case and from the nature of the property in question. The suit was one for possession and instituted within a period of 12 years. It was held to be within time. The case of Shahana v. Khushi Muhammad and 2 others 1987 SCMR 1295 is also distinguishable on facts. It was laid down that mere entries in the Revenue Record were not sufficient to prove adverse possession. There is no cudgel with the said proposition of law. The parties in the present case, being joint owners, are deemed in law to be in joint possession of the land. However, when the appellants' title was clearly denied and possession of land delivered to the respective share‑holders on the basis of the consolidation scheme, they ought to have approached the Court for a declaration of title within the period of six years.

7. In view of the above discussions, I hold that the learned Additional District Judge had rightly accepted the appeal riled by the respondents and set aside the judgment and decree of the trial Court. I find no merit in this appeal and dismiss the same leaving the parties to bear their own costs. M.BA./W‑81/L Appeal dismissed.