P L D 1952 Lahore 483 (PLP)

CORNELIUS, J.‑This judgment will dispose of two appeals under clause 10 of the Letters Patent between the same parties, namely, Pira and others defendants now appellants and Hakim and others plaintiffs now respondents. The two suits were brought by Hakim and others plaintiffs to establish their title in two separate pieces of land, for the purposes of obtaining partition thereof by proceedings before the revenue authorities. In respect of one plot, namely, Khata No. 187 in village Tibba Mustaqil, the plaintiffs' share appeared in the Jamabandi as one‑third, and in the other field, viz., 188, as 5/9th. The remaining shares in these two fields are shown to belong to the defendants. The plaintiffs first applied for partition in 1925, but the Revenue Officer terminated the proceedings by an order dated the 8th January 1926, by which he required them to get their title established in a Civil Court. Reference to section 117 of the Punjab Land Revenue Act, 1887 will show that a Revenue Officer has power to decline to grant an appli cation for partition "when there is a question as to title in any of the property of which partition is sought" and may at the same time himself proceed to determine the question of title as though he were a Civil Court, or may simply direct that he will not grant the application until such question has been determined by a competent Court. All that is necessary is that there should be such a question raised; the Revenue Officer's action is not made dependent on there being a prima facie case in favour of one party or the other, or on any other circumstance of a tendentious character. Therefore, from the making of an order such as that of the 8th January 1926, no conclusion can be drawn having any bearing on the merits of the opposing claims, except that a dispute was raised as to the title of the person claiming the partition. The plaintiffs did not choose to pursue the matter there after. until they filed the suits in 1948 out of which the present appeals arise. Throughout that period, the position inter se of the parties remained, both in the revenue records, as well as in actual fact, what it had been before the making and rejection of the partition application, except in one particular which will be mentioned presently. Before the partition application the defendants had been in possession of the land and they continued to retain possession thereafter on exactly the same terms as before, except that in the jamabandi of 1940‑41, the plaintiffs were shown as being in possession of a small area of the land. This circumstance, for what it is worth, goes definitely in favour of the plaintiffs, since the matter lies as between co‑sharers. The suits were resisted by the defendants, whose principal plea was that the shares, in which title was now claimed by the plaintiffs, had been gifted by a predecessor‑in‑interest of the defendants to a predecessor‑in‑interest of the plaintiffs, in consideration of the donee giving a daughter in marriage to the donor. A deed of transfer‑not of gift‑was duly executed and registered, which mentioned the passing of consideration. Later, the matrimonial arrangements fell through, and posses sion was not relinquished in favour of the donee in conse quence. The defendants contended that their possession had throughout been adverse to the plaintiffs, and in any case since the 8th January 1926, when they had openly denied the title of the plaintiffs before the Revenue Officer. The trial Court dismissed the suits as time‑barred, but on appeal it was held that they were within limitation and; on retrial, the suits were again dismissed, it being held that the defendants had established their plea regarding the alleged gift of 1918, and their title had been perfected by adverse possession extending over a period of more than twelve years. On appeal, the learned District Judge reversed the decision of the trial Court. He held that the evidence in support of the alleged gift of 1918 led by the defendants was "most hopeless" and that, on the other hand, the defendants had allowed the plaintiffs, on the basis of the registered‑deed in their favour, to continue to be shown in the revenue records throughout as co‑sharers, and further that the plaintiffs could rely upon the entries in the proprietary column in the jamabandis of 1940‑41 and 1944‑45, which were in their favour, as carrying a presumption of accuracy. Appeals were preferred from these decisions and were decided by a learned Single Judge in Chambers who found that on the question of title, the presumption of accuracy carried by the jamabandi entries had not been rebutted by any satis factory evidence, and as to the claim of adverse possession, that was put out of Court by a clear entry, also in the jamabandis of 1940‑41 and 1944‑45, that the plaintiffs were in actual possession of certain portions of the suit land. Accord ingly, both appeals were dismissed, and the learned Single Judge having granted a certificate, the defendants have preferred the present appeals under the Letters Patent. On the finding of the learned Single judge that the plaintiffs are in possession of certain portions of the suit land, it must be held that complete ouster, which is necessary for establishing a plea of title. by adverse possession against a co‑sharer, has not been established. The question is, however, one of fact, on which neither the first Court, nor the District Judge had recorded any finding and it appears that in those Courts, the case was allowed by the plaintiffs to proceed on the basis that possession had throughout remained with the defendants, as claimed by the latter. Learned counsel for the appellants before us has presented his argument on this basis, and we propose to deal with that argument, and to make no reference to the above‑mentioned finding of the learned Single Judge, beyond saying that we do not expressly disagree with it. The contention of learned counsel for the appellants is that, as between co‑sharers in land, if one is in possession and the other .is out of possession, it is sufficient in order to provide a starting point for prescription for title that there should be a clear denial by the co‑sharer it. possession of the claim of title advanced by the other co‑sharer. In the present case, it is said that such a clear denial was made before the Revenue Officer prior to the 8th January, 1926, and from that time onwards it should be held that tire de fendants' possession of the land was open. exclusive, and hostile, to the claim of title: if any, vested in the plaintiffs. In support of this argument, reference has been made to four authorities of different High Courts, each being a judgment by a Single Judge. In the case Ghulam Nabi v. Thakar Singh A I R 1926 Lah. 238, which also was a case arising out of action by a Revenue Officer under section 117, Punjab Land Revenue Act, certain observations of a general nature were made which might go to support the view advanced for the appellants. There, upon a dispute as to title being raised before a Revenue Officer, a suit was instituted which was tried in a Revenue Court, and a decree was obtained for possession on satisfaction of certain conditions. This was affirmed on appeal by a District judge but on appeal to the High Court, a learned Single judge dismissed the suit holding that the only power given by section 117, Punjab Land Revenue Act, to a Revenue Officer acting as a Court is to determine the question of title, and that in awarding a decree for possession, the Revenue Officer had exceeded his powers. Consequently, the observations contained in the judgment relating to rebuttal of the presumption that a co‑sharer in possession is holding on behalf of all the co‑sharers must be regarded as obiter. That case is also distinguishable on the ground that the exclusion of the co‑sharer out of possession was conditional, i.e., the co‑sharer in possession in conse quence of having redeemed a possessory mortgage, refused to allow the other co‑sharers to enter into joint possession until they had paid him their share of the encumbrance which had been raised by him. Another Lahore authority relied upon is Muhammad Hassan v. Sohara A I R 1924 Lah.

389. In that case the conflict of interest between the claimants was open and long standing. The claimants were descendants of a single proprietor through two wives, and the senior branch had throughout characterised the junior branch as illegitimate, and had refused to surrender possession of the disputed land to them on that ground. When eventually, as a result of mutation proceedings the junior branch was also included in the column of proprietor ship, the senior branch continued to hold possession adversely to the others. The case was not one of mere assertion before the revenue or other authorities, like the present; the hostility of the rival claimants had been clear from the outset when the estate fell into possession originally, and there could be no presumption that possession of one branch was on behalf of the other branch as well. In an Allahabad case reported as Mst. Jaidevi Kauri v. Dakshini Din. A I R 1937 All. 300, such hostility was established by the fact that the parties had been before a Criminal Court in proceedings under section 145, Criminal Procedure Code, in which proceedings, one of the parties had been declared to be in exclusive possession of the land. More than twelve years having expired from the date of such declaration and, consequential action by the Criminal Courts, without the other party having taken steps to establish their title or to gain possession, it was held that the party in possession had gained an exclusive title by prescription. The facts of the present case are entirely dissimilar. The last case cited was Jwala Prasad v. Lachhmi Narain A I R 1941 Oudh 415, where a conflict arose between the successor‑in- interest to one Ram Charan, donor, and the donee Ram Saran, of certain land, Ram Saran was obliged to sue for possession, and only succeeded in appeal, upon admission by the heir of Ram Charan. Apparently Ram Saran's name was included among the proprietors by virtue of a mutation but it seems that he did not succeed in getting possession of the gifted land, which was an undivided share in an estate. When Ram Saran died, his son Lachhmi Narain was a minor and Ram Saran's name had been shown in the revenue papers for about twenty‑four years after his death, before Lachhmi Narain applied that his name should be brought on the revenue records in place of Ram Saran. The opponents being in possession, the application was resisted on the ground that Lachhmi Narain had no title and was out of possession. The objection prevailed, it being declared on the 30th March 1925 by a Revenue Court that possession was with one Manik Ram, and Lachhmi Narain's application was dismissed. On the 30th March 1937, Lachhmi Narain filed the suit in a Civil Court which gave rise to the appeal in the Oudh Chief Court. The learned Single judge of that Court who decided the case observed that "it cannot be denied in this case that the posses sion of the defendants‑appellants after mutation in favour of the father (i.e. Manik Ram) has been adverse". The ground upon which this conclusion is based is that in the mutation proceedings, the plaintiff's title had been denied. Speaking with great respect, we are unable to accept the correctness of this conclusion, and in this view we have the strong support of the decision of their Lordships of the Judicial Committee in the case Muhammad Mumtaz Ali Khan v. Mohan Singh 50 Ind. App. p.

202. That was a case between a landlord and a person who was eventually held to be a tenant but who had been claiming, and had attempted to establish by prescription a title as under‑proprietor. On the first occasion when the landlord attempted to eject the claimant as a tenant, under the Oudh Rent Act, 1886, he had been unsuccessful, the final Revenue Court viz., the Board of Revenue concluding the proceedings by an order cancelling the notice of ejectment and upholding the objection of the claimant. As is clear from the judgment of the Privy Council, the latter order meant no more than the Board of Revenue found that there was prima facie evidence on which the state of possession should be maintained until the rights of the parties had been declared in a competent Court. This order of the Board was made in 1893, and after that certain pro ceedings took place in 1906 and again in 1910. The earlier proceedings were in a Civil Court by the landlord, and they eventually failed on the ground that the matter lay exclusively within the jurisdiction of the Revenue Courts. The latter proceedings were in a Rent Court and resulted in a decree for payment of rent by the claimants, not as payable by under- proprietors, but as payable by tenants. Thereupon, the claimant brought suits in a Civil Court in 1913 for a declara tion that he was under‑proprietor and not a tenant. The Courts in India had unanimously found that the claimant had failed to establish the under‑proprietary right which he claimed, but held that by adverse possession as against the landlord, from the year 1893 onwards, the claimant had perfected a title as under‑proprietor, as against the landlord's proprietary title. On appeal, this finding was reversed by the Judicial Committee, from whose judgment the following observations may be quoted with advantage :‑ "The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesi was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under‑proprietor. It is true that the defendant might, if he had chosen, have at once instituted proceedings for a declaratory decree that the plaintiff was not an under‑proprietor, but such a course was equally open to the plaintiff. Each party had had his supposed rights judicially challenged by the other, the plaintiff by the notice of ejectment, of which he had obtained cancellation, the defendant by the assertion in the proceedings for can cellation of the notice for ejectment that he was not liable to be ejected because of his rights as under‑proprietor. The Board, however, do not consider that it was the duty of either party to institute such a suit if they were content that possession should remain by the same footing as before the notice of ejectment was served . . . The case might have been different, if, in addition to the judicial assertion by the plaintiff, there had been any change in the money payment which he thereafter made to his landlord. There is, however, no suggestion that the same money payment which had been made before the notice of ejectment was not continued thereafter. The possession by the plaintiff therefore remained on precisely the same footing as at the time when he was held by the Court to have merely an occupancy title, the precise nature of which it is not neces sary to consider in this case . . . . . ." Here also there was a simple assertion before the Revenue Officer in the partition proceedings of 1925‑26, that the plaintiffs had no title in the land, and the case is to this extent stronger than the precedent case, that the order of the Revenue Officer declining to grant partition did not expressly or by implication convey any finding as to the strength of the rival claims. There is exact similarity with the precedent case in the circumstance the both parties were content, after the making of the order of the 8th January 1926, that possession should remain on the same footing as before. No overt act of any kind by the co‑sharers in posses sion is suggested to have been performed after that date, which would have the effect of casting a doubt on the plaintiffs' claim of title. As for the defendants' claim, it has been found by the Courts below (and in our opinion rightly) that the allegations of fact upon which it was based have not been established at all, and consequently, in this respect also, the case is on all fours with the precedent case. Consequently, even if the change in the revenue papers showing the plaintiffs' possession in respect of small areas of the disputed land from 1940‑41 onwards, be ignored, it is clear that the defendants have failed to establish adverse possession for any period, much less for a period exceeding twelve years. On the facts proved, it must be held, following the decision of the Privy Council cited above, that the possession of the defendants never became adverse to their co‑sharers, the plaintiffs. The suits would therefore appear to have been rightly decreed and we hereby dismiss these appeals with costs. A. H. Appeal dismissed.