' This Second Appeal is directed against the judgment and decree dated 10-9-1959, passed by the learned District Judge, Gujrat, whereby the appellant's first appeal was dismissed and the judgment and decree of the learned trial Court dismissing their suit was upheld.
2. The facts giving rise to this litigation are that the appellants and their three brothers, namely Ghulam Muhammad Saee Muhammad and Bagga, filed a suit for possession of land measuring 16 kanals bearing khasra Nos, 539 and 558, Khewat Khatuni No, 168/697, as per jamabandi for the year 1953-54, for village Chak Fateh Shah, Tehsil Phalia, District Gujrat. The appellants claimed that they are owners of the suit-land and that the respondent occupied the same without any legal right.
3. The respondent resisted the suit and claimed ownership of the suit lands and alternatively adverse possession extending over a period of more than 12 years. So far as the land comprising Khasra No, 558 is concerned, they contended that the suit was barred by res judicata.
4. The appellants primarily relied on copy of the Jamabandi for the year 1953-54, Exh. P.
1. In this document they were mentioned .As owner in the column relating to ownership whereas the respondents were shown as tenants in the relevant column and described as tenants at will.
Therein is an also an entry which reads as under{{URDU TEXT}} ' Respondent No, 1 Shashoo appeared in the witness-box as his own witness and deposed that the respondents were in possession of the land for the last 40 years. He said that even previously the land belonged to them, and that earlier a suit was filed regarding 1/2 of the suit land which was decided in favour of the respondents. They also examined Budha (D. W. 2) who corroborated the testimony of Shashoo that the respondents were in possession of the land for the last 40 years.
They also tendered in evidence copy of the jamabandi for the year 1952-53, Exh, D. 1 copy of the kasra girdawari for the period from 1940 to 1957 ' Exh. D. 2, copy of the order dated 14-2-1930, passed by the Sub-Judge, Phalia Exh. P. 3, copy of the judgment dated 24-4-1930 of the District Judge, Gujranwala, Exh. D. 4 and copy of the plaint dated 2-4-1929 (Exh. P. 5) filed by one Hukam Chand against respondent No, 1 and the appellants' father, namely, Muhammada.
5. The learned Civil Judge relying on the copy of the jamabandi Exh. P. 1, held that the appellants were owners of the suit land. However, on the issue regarding adverse possession he referred to Exh. D. 2 and came to the conclusion that the respondents remained in continuous possession of the suit land from Kharif 1940 to Rabi 1957 ; they cultivated it appropriated the whole of the rent and paid the revenue as owners of the land. By placing reliance on the documents Exhs. D. 3, D. 4 and D.
5, the learned Civil Judge observed that the appellants father Muhammada was fully apprised of the Shashoo's possession over the land comprising Khasra No, 558, which had matured into adverse possession. The fact that the appellants did not assert in the plaint that the respondents occupied the land as tenants also weighed with the learned Civil Judge in holding that the respondents were in adverse possession of the land. As regards the entry "ghair maroosi" the learned Civil Judge was of the view that it was made in routine. Consequently, he dismissed the suit on 15-4-1959.
6. In the first appeal, the appellants raised the plea that the respondents occupied the land as tenants-at-will. As in the plaint this ground was not taken up, rather the respondents' possession was described as "Bilaa Istahqaq" the learned District Judge did not accept the appellants' this contention. He held as both the parties belonged to the same village, the respondents' possession was open to the knowledge of the appellants which also ripened into ownership by efflux of time.
7. The first appeal was filed by Khushi Muhammad and Salehoon minor. The other three plaintiffs were impleaded as respondents. During the pendency of this appeal Khushi Muhammad, appellant No 1 as well as Shashoo, respondent No, 1, died. These deaths took place before the enforcement of the Law Reforms Ordinance, 1972. No application was made to bring their legal heirs on the record. Thus in addition to the merits of the case the question as to whether the appeal had abated, also requires determination.
8. There is yet another ancillary issue. Salehoon appellant No was minor at the time of institution of the appeal. His brother Khushi Muhammad, appellant No, 1, acted as guardian ad litem and filed the appeal on his behalf as well. Salehoon attained majority during the pendency of this appeal and executed power of attorney in favour of A his learned counsel. He will therefore, be deemed to have elected to proceed with the suit and as Khushi Muhammad, died, there was no question of his discharge in contemplation of Order XXXII, rule 12 of the Civil Procedure Code.
9. The learned counsel for the appellants submitted that respondents Nos, 1 and 2 had put up common defence ; even if respondent No, 1 died, the appeal did not abate and relied on Allah Rakha and others v. Nur Hussain and others, for the proposition that failure to bring on Record the legal representatives of one of the defendants-trespassers, the suit does not abate. As regards Khushi Muhammad's death he submitted that Muhammada was survived by 5 sons, namely, the two appellants, and respondents Nos, 3, 4 and 5 who on the death of their father inherited the suit land in equal shares under the Muslim Law of Inheritance, and that therefore, the appeal abated only to the extent of Khushi Muhammad's share. The learned counsel further contended that he was also instructed by respondents 3, 4 and 5 to represent them in the appeal.
10. Conceivably, because of the unimpeachable documentary evidence brought on the record by the respondents, regarding land bearing Khasra No, 558 and the finding of the two Courts below with regard thereto, the appellant's learned counsel did not press the appeal in respect of this Khasra number and confined his submission only to Khasra No, 539. He contended that in the copy1 of the jamabandi, Exh. P. 1, the names of the appellants and respondents Nos, 3 to 5 alongwith Khushi Muhammad, deceased were shown in the column of ownership and respondents Nos, 1 and 2, were mentioned as tenants-at-will in the tenancy column. Regarding entry (URDU TEXT)
' He urged that this entry was reconcilable with the entries in the ownership column. In his submission since the respondents were recorded as tenants, the entry relating to the payment of the land revenue, will mean that the respondents paid the land revenue on behalf of the landlord.
He cited Fazal Ghani v. Khitab Gui, Lala and another v. Mst, Janie and Muhammad and others v.
Salehoon and others in support of his submissions.
' The learned District Judge's finding that the. Appellants did not take up the plea that the respondents occupied the land as tenants-at will was also assailed by the learned counsel. It was argued that this plea was already on record as it was borne out from the documents produced by both the parties.
11. The learned counsel for respondents Nos, 1 and 2 who contested the appeal, on the other hand, argued that on account of the death of Khushi Muhammad, appellant, and Shashu respondent, the appeal abated in its entirety as their heirs were not brought on the record. He further urged that the entry in the Jamabandi Exh. P. 1, showing the respondent as "Ghair Maroosi", was to be read in conjunction with the other entry, 1. e. (URDU TEXT).
' It was contended that respondents did not pay "Lagan" to the appellants for a period exceeding more than 12 years, who could not have been unaware of this entry which was a clear evidence of the respondents' hostile title. In the submission of the respondents' learned counsel they acquired a title by prescription. In support of these submissions he relied on Mst. Bhag Bhari, etc. v. Mst.
Bhagan. As regards the appellant's contention that the respondents occupied the land as tenants-at-will, the learned counsel strenuously argued that this case having not been set up by the appellants in the plaint they could not be permitted to raise this plea at the appellate stage.
12. So far as abatement is concerned, there are two aspects of the matter, one is the effect of death of appellant No, 1 and the other is the consequence arising out of the demise of respondent No,
1. As regards the death of Khushi Muhammad, appellant, there is substance in the submissions of the learned counsel for the appellants that after the death of Muhammada, the land in dispute devolved on his legal heirs in equal shares as absolute owners, resultantly, each of the five plaintiffs became owners thereof to the extent of 1/5th share. The two appellants therefore, did not hold a joint and indivisible right and were absolute owners of the land falling to their share. The appeal can thus proceed without the heirs of the deceased appellant having been impleaed as a party. It abated only in respect of the share of the deceased appellant.
13. The question as to whether an appeal can be proceeded against a surviving respondent, in the absence of the legal representatives of the deceased respondent, depends upon the nature of each case. The appeal shall abate only if the nature of the suit is such as to require presence before the Court of all the parties interested in the subject matter of litigation. No material has been brought on the record to substantiate that the respondents held such interest that the appeal could not proceed in the absence of deceased respondent. In S. Hillan and others v. Allah Mehr and others, Suleman, C. J. Held that in a suit for possession against trespassers, failure to substitute heirs of one of them on his death does not make it impossible to pass a decree in favour of the plaintiff against the other trespassers and that such a decree would be against the surviving defendants in their personal capacity. This judgment was looked with favour by this Court in Allah Rakha's case cited by the appellants' learned counsel. The circumstances of the case in hand do not present any difficulty in hearing the appeal against respondent No,
2. It will be only when it is not possible to go on with the appeal in the absence of the heirs of the deceased respondent that the appeal must fail in its entirety. Such a sitution is not countenanced this case. The objection of the learned counsel for the respondents is thus overruled.2 3 4 5 6
14. The facts of Mst. Bhag Bhari's case relied upon by the respond dent's learned counsel are that in the cultivation column of Record of Rights, the entry was "Ghair Maroosi", but in the column of rent the entry made was "Naqdi Ba Sharah Malikana Bila Malkiat". The learned Single Judge of this Court, who heard this appeal, was of the view that a mere entry of "Ghair Maroosi" did not mean that the person so described was really the tenant. In his opinion the patwari used these words in respect of every person who may have been in possession irrespective of his right or title to the land in dispute. He observed that the entries in the cultivation column should be read with the entries in the "Lagan" Column and further maintained that the expression "Naqdi Ba Sharah Malikana Billa Malkiat" was the assertion of the hostile title though to signify adverse possession, the "patwaris" usually use the expression of "Ba Tusawar Malkiat Khud Ba Waja Qabza". However on the facts of that case, the learned Judge found that the defendants did not succeed in establishing their title by adverse possession.
15. In Lala and another v. Mst. Dante the defendant resisted the suit for possession and advocated their adverse possession on the strength of an entry in the record "Ba Sharah Maikana Bawaja Qabza", which existed in the Jamabandi for a number of years. The report in PLD 1954 Lah. 356 as well as another case Sheva Singh v. Qaisar Singh and others, were cited before the Supreme Court in support of the respondent's acquisition of ownership by prescription. But their Lordships of the Supreme Court were of the view that :- "In none of these cases, it will thus, be seen has it been laid down that such an entry in the revenue records is by itself sufficient to lead to the inference that the possession is necessarily adverse.
' We are in agreement with the views expressed in the case of Mst. Bhag Bhari v. Mst. Bhagan and another and approve of the same. Such an entry as therein pointed out, is not an unequivocal assertion of a hostile title and, therefore, one has to interpret this entry in each particular case in the light of the facts and circumstances of that case."
16. Under section 36 of the Punjab Tenancy Act, 1886, a tenant can relinquish his title by giving notice to the landlord. In Muhammad and others v. So/eh on and others while repelling the assertion of title raised on the basis of an entry in the Jamabandi in the following terms :- "Ba Sharah Malkana Bila Maikana Bawaja Qabza". Bila Malkana Bawaja the view taken by this Court was that without relinquishment of tenancy in pursuance of notice under section 36 such assertion of title by a tenant how-longer-so-ever did not make his possession adverse to the landlord. This view was approved by their Lordships of the Supreme Court in Lala's case, referred to above."
17. Let the instant case be examined in the light of this case-law. The entry in Jamabandi quoted above is the main plank of the respondent's arguments. But this entry by itself does not establish the respondent's title. The suit was filed on 12-9-1959 and from Kharif 1940 to Rabi 1957, as per copies of the Khasra Girdawari, Exh. D. 2, they were continuously described as "Ghair Maroosi". Their status was thus that of a tenant. It has not been claimed that the respondents served any notice on the appellants in contemplation of such section 36 of the Punjab Tenancy Act and relinquished tenancy in pursuance thereof. In the case of agricultural land the tenancy, if once created is determined by efflux of time or by consent of the parties or in accordance with one of the manners prescribed by the Punjab Tenancy Act. None of these modes was adopted in this case. It is therefore, difficult to strip the respondents of their status as tenants under which they originally; entered upon the land. The entry in question, no doubt reflects that the respondents did not pay any rent to the appellants but it is now well established that mere non-payment of rent does not determine they tenancy. The law on the point of tenant's title by prescription as enunciated in Fazil Ghani and others v. (Khitab Gui and others, is that Mere non-payment of rent or batai on assertion of ownership, could not therefore, change the nature of their possession which was permissive in its inception into adverse possession."7 8
18. I may now proceed to deal with the respondent's objection that the appellants did not take up the plea in the plaint that they occupied the land as tenants, and therefore, could not be permitted to set up a new case at the appellate stage. It is to be noticed that the respondents' documentary evidence itself demonstrated that they occupied the land in question as tenants. The appellants in law could base their case on the respondents' evidence without specifically raising a plea to this effect in the plaint. This view is fully supported by Lala's case. The view' taken by the learned District Judge, in this respect, was obviously erroneous.
19. The burden of proof lay heavily on the respondents. I am of the opinion that the material on the record does not establish that they acquired the title by adverse possession. As the learned counsel for the appellants did not press the appeal in respect of the land bearing Khasra No, 558, the judgment and decree of the learned appellate Court in so far as this piece of land is concerned cannot be disturbed.
20. As a result of the above discussion this appeal is accepted. The judgment and decree under appeal are varied qua the land comprising Khasra No, 539, only to the extent of share of appellant No, 2, and the learned trial Court's decree in so far as it relates to his share is restored. As no application was filed on behalf of respondents Nos, 3, 4 and 5, foil their being arrayed as appellants, no relief can, therefore, be given to them. In view of the circumstances of the case there shall be no order) as to costs. PLD 1967 Lab. 594 1968 SCMR 1040 1968 SCMR 131 PLD 1955 Lah. 483 PLD 1954 Lah. 356 AIR 1934 All. 716 AIR 1932 Lah. 586 1968 SCMR 1040 (2)