1. ' This is a second appeal by the defendants-appellants against the judgment and decree of the Court of District Judge, Mirpur, whereby the plaintiff-respondent's appeal was accepted and his suit was accordingly decreed.
2. ' Fazal Dad, plaintiff-respondent brought a declaratory suit thereby seeking a declaration for the land in suit in the Court of Sub-Judge, Mirpur, wherein it was asserted that the suit land is actually owned by him and his brothers who are the pro forma defendants to the exclusion of the appellants and their predecessor-in-interest and that entries in respect of the same in the revenue record in their name, were incorrectly made by the revenue officials in league with his opponents and apt to correction. Alternatively, adverse possession over the land in dispute was also pleaded.
3. ' It was during the pendency of the suit that land measuring 23 kanals and 181 marlas situate in village Bhalyala, Tehsil Mirpur was sold by Reham Dad since dead, to Nawab since' dead, through a registered sale-deed.
4. The suit was resisted by the defendants-appellants alleging that the land in suit is in their ownership and possession thereof and that the entries in the revenue record were correctly made by the revenue officials in performance of their function and that there was no truth in the suit of the plaintiff-respondent.
5. ' The trial Court framed the following issues :-
(1) Whether the suit land is in the ownership of the plaintiff and pre forma defendants and the entries in the name of the defendants in the revenue record are incorrect ? 0. P. P.
6. (2)In case issue No, 1 is not proved in affirmative, whether possession of the plaintiff has become adverse (by prescription) ? 0. P. P.
7. (3)Relief.
8. ' The parties examined their witnesses for and against the above-stated issues. The documentary evidence consisting of revenue record prepared by the revenue officials was also produced.
9. ' The learned Sub-Judge dismissed the suit of the plaintiff as, according to him, the plaintiff was unable to prove his case so as to be entitled to the relief sought for. On appeal to the District Judge, the plaintiff-appellant succeeded in obtaining a decree in his favour on proof of issue No, 1, according to the District Judge. Issue No, 2 was unanimously decided by both the Courts below against the plaintiff-respondent but the finding on this issue was given incuriously. The learned Sub-Judge says that as the plaintiff is an owner, he cannot make a claim of adverse possession over the land in suit. It was held by the Sub-Judge under issue No, 1 that the defendants are the owners of the suit land and not the plaintiff-respondents. How could then he say that the plaintiff being an owner could not claim adverse possession. The adverse possession is to be claimed upon the land of others if it could be established as such by way of prescription. The District Judge's reasoning was also very flimsy one. The defendants then came up to this Court in second appeal.
10. ' The learned Chief Justice was in seisin of the appeal who partly accepting the same, framed two additional issues to the following effect :-
(1) Was there litigation between the parties about the land in dispute, during Dogra Regime and if so, what was the result of the litigation ?
(ii) In the light of the finding on issue No, 1, what is its effect on the present suit ? ' and remanded the case to the trial Court for their trial alongwith the trial of Issue No, 2 already framed by the trial Court. After trial of these issues, findings thereon were to be submitted to the High Court ; on submission of which the appeal was to be brought out from the record room for hearing and disposal according to law.
11. ' The Sub-Judge tried the issues remitted to him and submitted his findings to this Court. At first, the Sub-Judge, after remand of the case, gave his finding even on issue No, 1 which to that very effect was done by his predecessor but in appeal, was upset by the District Judge and so, the plaintiff appellant being dissatisfied from the finding arrived at by the Sub-Judge who, instead of submitting the findings to the High Court as directed again dismissed the suit of the plaintiff- appellant, had to go to the District Judge again who upset the order of the Sub-Judge which was not warranted and kept the position of the case as it was after the remand of the case and directed the Sub-Judge to submit his findings as directed by the High Court. Accordingly, the findings were submitted to the High Court by the Sub-Judge. Thus, the appeal was re-taken up by the High Court on receipt of the finding given by the Sub-Judge which is now to be disposed of by me as the learned Chief Justice did not like to complete the decision of High Court which was half- way given by him. Therefore, this judgment to be partly written by me shall make a part of judgment dated 27-12-1975 delivered by the learned Chief Justice.
12. ' The learned counsel for the parties were heard and a careful study of the record of the case was accordingly made.
13. ' Issue Nov 1 was found by the learned Chief Justice against the plaintiff-respondent. The reasons for determination of the same were very well given by him to arrive at an opinion which was expressly given by him and as such this issue already stands decided against the plaintiff- respondent. I cannot sit in judgment over his adjudication in respect of issue No,
1. Thus, I am proceedings to give finding on issue No, 2 in relation to adverse possession as welt as on additional issues which were remitted to the Sub-Judge by this Court for trial and findings thereof.
14. ' The learned Sub-Judge found issue No, 2 against the plaintiff-respondent and further came to the conclusion that there had been a previous litigation between the plaintiff-respondent and predecessors-in-interest of the defendants-appellants and so additional issue No, 1 was answered in affirmative but he failed to determine the effect of finding in respect of additional issue No, 1 on the suit which was to be seen in light of the finding on additional Issue No, 1.
15. ' A copy of the decree-sheet pertaining to the land in suit was found as a genuine document originating from a decree obtained by Phatta and Phalla, predecessors-in-interest of the defendant-appellants. Though the original file of the Dogra Regime relating to the decree contained in copy of the decree-sheet could not be traced out, yet a register of entry of civil suits pertaining to the suits filed in the Court of Sub-Judge, Mirpur of Dogra Regime was found from the record-room wherein the suit against Fazal Dad plaintiff-respondent for the land in suit is found entered. It was a suit for possession which was instituted on 2-1-2001 Bk. And decided on Powh 28, 2001 Bk. By Mr. Munna Lal, the then Sub-Judge of the Dogra Regime. That was a suit for possession filed by the said Phatta and Phalla. This copy of the decree-sheet was produced by the defendant- appellants themselves which shows that Phatta and Phalla were not in possession of the land in suit and so they had to file a suit for possession. Thus, it cannot be held that according to the Jamabandi, 1998-99 Bk., they were even in possession of Survey No, 1263, alongwith the other co- owners, as was pointed out by the learned Chief Justice in his partial judgment forming part of this judgment. After the decree was obtained by Phatta and Phalla, no effort appears to have been made either by Phatta and Phalla or their successors-in-interest for possession of the land in suit in execution of the decree obtained or otherwise. The Sub-Judge of the Dogra Regime directed the decree-holders of the land in suit to approach a revenue Court so as to obtain the possession of the land in suit. No steps were taken by them even so far after obtaining the decree of the land in suit against the plaintiff-appellant. That decree in a way was for joint possession of the land in suit and direction to Phatta and Phalla was given therein to obtain possession by way of partition to be effected by a revenue Court. Before they or their successors-in-interest could go to the revenue Court, the decree for possession should remain alive to save the limitation but no steps were taken by them to get the decree executed as required by law under Order XXI, rule 35(2), C. P. C. Read with section 48 of the same Code and Article 182 of the Limitation Act to have a symbolic possession of the joint property. After obtaining the symbolic possession, there could have been no question of limitation if there were no hostility on the part of Fazal Dad respondent to oust the decree-holders from possession to be presumably enjoyed even constructively by them.
16. ' There are some khasra Girdawaris of Azad Rule on record in which cultivation of a few survey numbers in suit is shown to be in dispute between the plaintiff-respondent and Reham Dad appellant who is now deceased There is some oral evidence to say that Phatta and Phalla were in possession of the land in suit and thereafter Rehamdad was in possession of the suit land but they are unable to say as to how they were able to take possession of the land in suit after a decree was obtained Phatta and Phalla.
17. ' From the evidence of Fazal Dad, Abdul Rashid, Nawab, the vendee and Chiragh Din, the witnesses of the defendants, it is evident that the plaintiff-respondent is at present in possession of the land in suit and according to them, it was near-about March, 1968 that possession of the land in dispute was taken over by the plaintiff-respondent. But their saying so does not appeal to the mind that such a thing ever happened in relation to taking of possession of the land in suit by the plaintiff- respondent. He has been in possession of the land since a long stretching out to a period even long before a suit for possession was filed by Phatta and Phalla during Dogra Regime. There is a copy of record-of-rights pertaining to the year 1998-99 Bk. Attached with the sale-deed executed by Rehamdad in favour of Nawab, the vendee. As a matter of fact, this Jamabandi depicts the entries relating to Jamabandi of 1968-69 AD but a mischief was committed by the patwari showing it in relation to the Dogra Regime wherein Rehamdad is appearing as one of the co-owners. That could not be in 1998-99 Bk. Because Phatta was then alive. The possession of Rehamdad over Survey No, 1263 was not proved to the satisfaction of the Court as was shown in the revenue record. A copy of record-of-rights pertaining to the year 1968-69 shows that Rehamdad was in possession of Survey No, 1263. How it could be when his very witnesses say that he was deprived of possession near about March, 1968 A. D. Nawab, the vendee deposed that no possession was delivered to him at the time of sale and as such entries in the revenue record i,e, Jamabandi and Khasra Girdawaris after March, 1968, are frivolous and bear no testimony. Such like entries in favour of Rehamdad in the revenue record do appear just an effort on paper to show that the defendants were in possession of some of the survey numbers of the suit land. Such an attempt cannot be of any use to the defendants unless they are in physical possession of the land in suit or they have a symbolic possession of the property being joint in pursuance of decree obtained but no proceedings for execution of the decree were taken by them. That being so, the decree cannot be treated as alive after the lapse of a period of 12 years, the maximum period prescribed by law that can be given to a decree-holder for execution of the decree and after that limitation cannot be saved. The decree was passed in the year 2001 Bk. And the instant suit was lodged against the defendants-appellants in the year 2024 Bk. Evidently, the plaintiff-respondent had earned a prescribed period for adverse possession over the land in suit as there is now no remedy available to the defendants-appellants to obtain possession of the land in suit after the lapse of prescribed period of limitation in respect of execution of decree obtained by their predecessor-in-interest. At present, the plaintiff- respondent is admittedly in possession of the suit land. It was so deposed by the witnesses of the defendants named above. It was stated by the witnesses that it was forcible possession taken over by the plaintiff-respondent, most probably in March, 1968 but there was no complaint brought to the notice of the trial Court while in sitting that it was during the pendency of the suit that possession was taken by the plaintiff-respondent and as such it cannot be held that it was in the month of March, 1968 or a month or so afterwards that possession was taken by the plaintiff- respondent. His possession over the suit land is found to have been long before the previous suit lodged by Phatta and Phalla, decree-holders and they and even their successors-in-interest were not able to reap the fruit of the decree obtained by them from the Court of Sub-Judge of the Old Regime. Even after March, 1968, it was tried to show that Rehamdad defendant was in possession of some of the survey numbers, as mentioned by the learned Chief Justice in the first part of the judgment. It shows that there was a futile exercise on the part of Rehamdad to get some of the entries changed without real fact with regard to the possession in his favour in the revenue record.
18. In view of the above circumstances, the Sub-Judge was absolutely wrong in deciding issue No, 2 framed by him against the plaintiff-respondent because after the lapse of the period of limitation prescribed for the execution of proceedings of a decree obtained by a person, the adverse possession of the party in possession starts automatically and if he is able to retain his possession after the period of limitation which was to be availed of by the decree-holder and that for not being availed of by him, possession still continues of the judgment-debtor for a period of more than 12 years without any consent of the decree-holder, then he would be entitled to a decree for adverb possession. Here in this case, no consent was made apparent by the defendant-appellants under which possession could be treated as permissive. That being so, the sale-deed of some of the land in suit in favour of Nawab the vendee is void ab initio as it was made during the pendency of the suit and as such declared void and of no legal effect, whatsoever.
19. ' For the reasons above, the appeal is dismissed for the findings on issues No, 2 framed by the trial Court and additional issues framed by this Court and a decree for adverse possession of the land in suit comprising Khewat No,
9. Khata No, 46, Survey Nos. 1278, 1288, 1313, 1327, Khata No, 47, Suryey Nos. 1271, 1272, 1279, 1291, 1292, 1348 and Khata No, 48, Survey No, 1263 and Khewat No, 53, Khata No, 273, Survey Nos. 1259, 1268, 1318 and Khata No, 274, Survey Nos. 1260, 1262, 1269, to the extent of share of the defendants-appellants is passed in favour of the plaintiff-respondent and pro forma- defendants and to that extent the suit of the plaintiff-respondent stands accepted, without affecting the right of other co-sharers who were not a party to this suit.