P L D 1954 Lahore 594 (PLP)

ABDUL AZIZ KHAN, J.‑This second appeal arises out of a suit filed by Ghulam Muhammad son of Ali (plaintiff respondent) on. 4th October 1951 against Ahmad defendant appellant) and Ghulam Muhammad son of Usman (defendant respondent) to recover possession of 18 kanals 10 marlas of land situated in village Kureshi, district Mianwali. The suit land is comprised of Khasra Nos. 3774/1487/1518/1519 Ghulam Muhammad (plaintiff‑respondent) contended that the land was owned by him and that half of it was mortgaged with Mehar Hussain etc., and the other half was submerged under water on account of river action. He further contended that two‑ months prior to the institution of the suit mortgaged land had been redeemed by him, and that the other half was no longer under water and that the defendants had taken wrongful possession of it. Written statements were filed by both the defendants but later Ghulam Muhammad son of Usman (defendant‑respon dent No. 1) admitted the plaintiff's cases. The suit was, therefore, contested by Ahmad (defendant‑appellant) who denied the plaintiff's title to the suit land and pleaded that, he had been in possession of half the land, as owner, for more than 12 years. He also pleaded adverse possession. The trial Court decreed the suit. Ahmad (defendant‑appellant) went up in appeal. The learned District judge accepted the appeal and remanded the case for redecision after framing the following issue:‑ Was half of the land ‑in dispute submerged under water an was the plaintiff in possession of this part of the land within 12 years of the date of the institution of the suit ? The Senior Civil Judge, Mianwali, who retried the case framed the following issues :‑ (1) Does not the land in suit belong to the plaintiff ? O. P. D. (2) If the first issue is not proved has the defendant No. 2 been in adverse possession of the land ? For what period and with what effect ? O. P. D. (3) Was half of the land in dispute submerged under water and was the plaintiff m possession of this part of the land within 12 years of the date of the institution of the suit? Issue No. 1 was decided against the defendant‑appellant holding that the plaintiff was the owner of the land. The trial judge arrived at this conclusion on the basis of the entries in the Jamabandi relating to the year 1944‑45 (Exh. P. 1). The trial judge decided issue No. 2 also against the defendant. Issue No. 3 was decided in favour of the plaintiff holding that he was in possession of the land submerged under water within 12 years of the institution of the suit. In view of the above finding the trial Judge decreed the plaintiff's suit. Ahmad (defendant‑appellant) went up in appeal and his appeal was dismissed by the learned District Judge. He has now come up in Second Appeal. It was admitted that the case is governed by Article 142 of the Limitation Act. The learned counsel for the appellant strenuously urged that the plaintiff had failed to show that he had been in possession of the land in dispute within 12 years of the date of the suit. There is no force in this contention. According to the Khasra Girdawaris (Exh. D.1) the land is shown to be in the cultivating possession of Ahmad and his brother Isa who are shown to be in possession on account of encroachment and had let it out, on batai rent to one Surab. In the proprietor's column, Ghulam Muhammad (plaintiff‑respondent) is shown as owner. In 1398, Ahmad and his brother Isa are shown in possession of half of the land and the other half is re corded in possession of one Fateh Sher, a co‑sharer. 4 kanals and 10 marlas out of the suit land is, however, shown as submerged under water. The above entries continued to be repeated until the year 1941. In the year 1942, the land is shown into two separate fields. Half of it is shown in possession of Ahmad (defendant‑appellant) and his brother Isa and the other half is shown in possession of Gamun as a non‑occupancy tenant under the owners. Out of half the field which is shown in possession of Ahmad (defendant appellant) and his brother Isa, 4 kanals and 12 marlas, are recorded as submerged under water. These entries were repeated up to the year 1941. In the year 1945 the names of Ahmad Din (defendant‑appellant) Wand his brother Isa completely disappeared. The whole of the land was shown in possession of Ghulam Muhammad (defendant‑respondent) who during the trial of the suit admitted the plaintiff's title to the property in dispute. However, in the second half of 1945, Ahmad and Isa are again shown in occupation of half of land and the other half is shown in possession of Ghulam Muhammad (defendant‑respondent No. 1) out of which 4' kanals and 12 marlas is shown as banjar. These entries continued but in the year 1948 Ahmad's (defendant -appellant's) name disappeared and Abbas son of Isa is shown in possession of that land. Ahmad's name reappeared in 1949 when he is shown to be in possession of half of the land and the other half is shown in possession of Abbas son of Isa and these entries continued up to the institution of the suit. A persual of the entries referred to above shows that Ahmad (defendant‑appellant) is shown in posses sion between the years 1938‑1944. He is being shown, however, in possession of the landin1948and 1949 and has been shown completely out of possession for some time during the years 1945 and 1948. In order to be more clear it may be stated that during a part of year 1948 and a part of 1949 his name does not exist anywhere in the Khasra Girdawaris. His possession, therefore, is not a continuous one. The question for determination is the effect of the discontinuance of Ahmad's (defendant‑appellant's) possession during the period referred to above. The leading case on the point is The Trustees, Executors and Agency Co. v. Short ((1888) 13 A C 793.). In that case their Lordships of the Privy Council observed as follows:‑ "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." From the above it is clear that on the abandonment or the relinquishment of the property by the adverse posses sor, the possession automatically revests in the owner and that no act is necessary on his part to bring about such revesting. Hence, on such abandonment or relinquish ment, limitation ceases to run against the true owner. In Secretary of State v. Krishnamoni Gupta (29 I A 104 (116)), their Lordships of the Privy Council, relying upon the case "The Trustees. Executors and Agency Co. v. Short" ((1888) 13 A C 793.), held that there was no difference in principle, between the break in the continuity of possession by, the voluntary abandon ment by the wrong‑doer and a break in the continuity of possession caused by vis major, for example, by the submersion of the land. Keeping in view the above authorities it has to be held in the case under consideration that the land revested in the plaintiff‑respondent when Ahmad (defendant‑appellant) was out of possession during the period stated above. The learned counsel for the appellant urged that there was no evidence on the record to show that Ahmad left possession with the intention of not returning to the‑land in suit. This in my opinion is not at all material. In Bhabani Prosanna Lahiri and another v. Manindra Chandra Roy Choudhury and others (A I R 1935 Cal. 760.) it was held :‑ " If in fact the trespassers discontinued their possession it is immaterial whether they intended to return or not". The learned counsel for the appellant next urged that his client was entitled to tack on the adverse possession of others who got into possession on the cessation of the appellant's possession arid from whom he regained posses sion subsequently. There is no force in this contention. In Abdul Latif and others v. Hamed Ghazi and others (A I R 1933 Cal. 898,) Mukeri J. observed:‑ "It is true that the plaintiff or his father Nawab Ali was in possession of the land through his under‑raiyat Kanai Khan, so long as the latter was alive. It is also true, that when Kanai Khan died his heirs were but trespassers. But if defendant 2 granted a settlement to defendant 1, on the strength of which the latter dispossessed the trespassers, and came into possession, then, although it was the trespassers who were dispossessed in the first in stance, the effect of this dispossession, in my judgment, was nothing else than the driving out of the plaintiff and the getting into possession of defendant 1 at the instance of defendant

2. This, in my opinion; follows from the principle that one trespasser cannot tack on his possession with that of another, who preceded him, and that between the departure of the first trespasser and the advent of the second the law will assume an interval during which the plaintiff was in possession." (Page 900 of the Report). It was held by Raza, J. in Sukhdeo v. Mst. Ram Dulari. (A I R 1926 Oudh 313.) "One trespasser cannot add to his own possession the previous independent possession of another trespasser. When the possession passes from the first to the second trespasser, there is a constructive restoration, even if a momentary restoration, of the true title to possession." (Page 314 of the Rerport). After a perusal of the above authorities, I am of the opinion that if an intruder without title holds possession for less `than 12 years, and is then dis‑possessed by another trespasser, who does not hold for the statutory period, the title of the rightful owner is unaffected by the statute. I have already referred to the evidence on the record which shows that the defendant‑appellant was dispossessed more than once between 1945 and 1948. Every time he was dispossessed, the possession of the property automatically revested in the owner, i.e., the plaintiff respondent who is recorded as the rightful owner.of the land in dispute. In the circumstances, it must be held that the plaintiff has been repeatedly in possession of the land in dispute on account of the break in the possession of the defendant‑appellant within the last 12 years and, therefore, the suit has been rightly decreed by the Courts below. For the reasons stated above I dismiss the appeal with costs. K. M. A. Appeal dismissed.