This is defendant's appeal from the judgment and decree of the District Judge Hazara, whereby the District Judge accepted the appeal of the plaintiff respondent and granted him a decree for possession of the suit land.
2. The points for determination in this appeal are, firstly, whether the plaintiff's suit is within time, and secondly, whether the defendant has acquired a prescribed title by adverse possession. The learned trial Judge by his judgment dated 24-6-69 applying Article 142 of the Limitation Act, held that the plaintiff's suit is hopelessly barred by time. He also found that the defendant has failed to establish his prescribed title. The appellate Court by his judgment dated 13-5-1970, affirmed the finding of the trial Court that the defendant has not been able to prove the possession beyond 12 years adverse and hostile to the plaintiff-owner. He, however, held that the suit of the plaintiff would be definitely governed by Article 144 and not Article 142 of the Limitation Act, since the continuous and hostile possession of the defendant has not been proved, nor admitted by the lower Court, and as such the plaintiff's suit could not be dismissed on the question of limitation, as it is a case of Article 144 of the Limitation Act.
3. The facts bearing on the points are summarised below: By mutation No, 1804, attested on 24-3-45, Abdus Sattar Khan himself and on behalf of his son Jehangir Khan sold land including suit Khasra No, 1890 "bahifzi rehn bila hissa shamilat" to Dr. Masdar Ali Khan. Rustam Khan appeared before the Revenue Officer for the identification of Abdus Sattar vendor, The suit Khasra No, 1890 measures 3 kanals 15 marlas and is situate in the area of Kolka, ilaqa Agrawar, Tehsil Mansehra. It appears that a dispute had arisen between the alienee and alienors that the suit khasra had not been transferred to the alienee. However, Masdar Aii Khan vendee entered into possession of the land. The jamabandi of the year 1946-47 (Exh. P. W. 1/2) shows that Masdar Ali Khan himself cultivated the suit land. Soon after Abdus Sattar vendor entered on the suit land and took possession of it. In the jamabandi of the year 1950-51 (Exh. P. W.
1/D. 3) Masdar Ali Khan is recorded as owner while in the column of cultivation Abdus Sattar is entered "ghair dakhilkar" through Math Shah "ghair dakhilkar shikmi". In the column of lagan the entry is : "Yaftani malikan bila lagan batassavvir-i-mulkiat yaftani ghair dakhilkar awwal az ghair dakhilkar shikmi bila lagan bawaja rehn."
By a receipt Exh. D. W. 1/1 (under stamped and unregistered) Abdus Sattar purports to have sold the suit khasra number to Abdur Rehman son of Muhammad Nur for Rs, 865 on 7-8-1954. It is alleged by Abdur Rehman defendant-appellant that he paid off the mortgage money with respect to the suit khasra to Madi Shah and entered into possession of the suit khasra. In the Jamabandi of the year 1954.55, Exh. P. W. 1/D. 1, Masdar Ali Khan is shown as owner of the suit khasra, while in the column of cultivation Abdus Sattar Khan "ghair dakhilkar" through Gohar Rehman and Abdur Rehman sons of Muhammad Nur "Oak dakhilkaran" is shown. In the column of lagan the entry is.
"Yaftani Malikan bila lagan ba tasavvir-i-mulkiat yaftani ghair dakhil kar awwal az dakhil kar-i- shikmi daswa n hissa ghalla."
In the jamabandis of the year 1959-60, Exh. P. W. 1/D2, and 1962-63, Exh. P. W. 1/0. 4, the entries of the previous jamabandi of the year 1954-55 are repeated. However, in the jamabandi of the year 1966- 67 (copy Exh. P. W. 1/1) Masdar Ali is shown as owner while in the column of cultivation Abdur Rehman, son of Muhammad Nur, is shown as ghair dakhilkar with respect to the suit khasra. In the column of lagan the entry is "yaftani malik bila lagan batasavvir-i-mulkiat".
4. On 23-1-1969 Dr. Masdar Ali Khan sued Abdur Rehman for possession of the suit Khasra No, 1890, measuring 3 kanals 15 marias. The averments in the plaint are that he had purchased the suit land and that since three years the defendant has forcibly taken possession of it.
Abdur Rehman defendant contested the suit, denying the title of the plaintiff to the suit land. He pleaded that Abdus Sattar Khan owner has sold the land to him, and that he is in possession of the land as owner for more than 12 years. On the averments of the parties as many as six issues were framed out of which issue No, 4, "whether the suit is within time", and issue No, 5, "whether the defendant has acquired prescribed title by adverse possession", are the subject of discussion.
Entries with regard to the suit khasra number in the revenue record have been reproduced above.
P. W. 1 Wali Muhammad Patwari stated in cross-examination that the possession of Abdur Rehman starts from Rabi, 1955 and that Abdur Rehman is entered in possession of the suit land as "bila lagan ba tasavvir-i-mulkiat" from 1954-55 up-to-date, according to the entries of the jamabandis.
Ghulam Hussain (P. W. 2) mukhtiar of the plaintiff also appeared as a witness. He testified that the suit property is the ownership of the plaintiff and that Abdur Rehman is in possession of it as non- occupancy tenant for the last 4 or 5 years, but now he claims his adverse possession over the suit land and is not prepared to pay rent to the plaintiff nor does he hand over the possession to him. In cross-examination Ghulam Hussain stated that the plaintiff has purchased the suit land from Abdus Sattar along with other property, and that Abdur Rehman had been paying rent but he did not obtain any receipt for the same. He denied Abdus Sattar and Jehangir having sold the suit land to Abdur Rehman.
Abdur Rehman D. W. 1 (defendant) deposed that the land originally belonged to Abdus Sattar and his son Jehangir Khan in equal shares. Madi Shah was paid the mortgage amount of Rs, 65 by him at the time when he purchased the land from Abdus Sattar Khan for Rs, 865 by means of receipt Exh. D. W. 1/1. He also states that at the time of his purchase the suit land was possessed by Madi Shah alias Muhammad Shah as mortgagee under Abdus Sattar, and that he is in possession of the suit land after he had purchased it. Jehangir Khan (W. D. 2) son of Abdus Sattar, who is now dead, appeared in support of the allegations of Abdur Rehman. Rustam Khan (D. W. 3), who appeared before the Revenue Officer at the time of the attestation of mutation in favour of Masdar Ali Khan on behalf of Abdus Sattar Khan, testified that even at the time of the attestation of the mutation the father of Jehangir Khan (Abdus Sattar Khan) had objected that he would not sell the suit khasra number.
5. Article 142 of the Limitation Act provides a period of 12 years for possession of immovable property, when the plaintiff while in possession of the property, has been dispossessed or has discontinued the possession, from the date of dispossession or discontinuance. Where a plaintiff brings a suit on the allegation that he was in possession and was subsequently dispossessed within 12 years prior to the suit, the case is governed by Article 142. It is not the form of allegations of the plaintiff which will determine the nature of the suit, it is the substance and actual facts found by the Court which will go to decide whether the suit is one which comes within the purview of Article 142 or Article 144. Reliance is placed on Badri Khatik v. Narain Singh and others . In the present case the plaintiff has averred in his plaint that he has purchased the suit khasra number and that he had been dispossessed three years prior to the institution of the suit. From the entries in the revenue 4 record, we find that the suit land was Khud Kasht of the plaint in the year 1946-47 but he was dispossessed of the suit land by Abdus Sattar Khan since the year 1950-51, about 20 years prior to the institution of the suit. In para. 8 of his judgment the learned District Judge observed:-- "The question for determination is whether the entries in favour of respondent as 'bila lagan ba tasawar-e-milkiyat' by itself prove the adverse possession of the respondent. 1968 SCMR 1040 is very illuminating on this point wherein it has been held by their Lordships that mere entries as non- payment of rent 'ba tasawar-e-milkiyat' are not sufficient to prove adverse possession. After all these entries do find place and are made on some information or factual facts. Now it is to be seen after the sale in favour of Dr. Masdar Ali when he took the possession of the land and he was shown in the jamabandi of 1946-47 as 'kid kasht' why the sale entries should not be repeated in the subsequent jamabandis up-to-date. Why in the column of possession the name of Abdus Sattar first and then the name of Gohar Rehman and Abdur Rehman appear. Although the plaint of the plaintiff is that he has been dispossessed only three years back but the revenue record does not support him on this contention: rather the non-possession of the plaintiff in the light of the revenue record is for the last 20 years."
As a result of this discussion, I agree with the finding of the learned trial Court that the suit of the plaintiff is governed B by Article 142 of the Limitation Act and is hopelessly barred by time.
6. The learned counsel for the appellant next argued that the adverse possession of Abdur Rehman defendant-appellant when tacked with the adverse possession of Abdus Sattar Khan extends to a period beyond 12 years, and as such can defeat the right of Dr. Masdar Ali Khan plaintiff- respondent under Article 144 of the Limitation Act. The learned counsel for the plaintiff-respondent repelling this argument urged that Abdur Sattar and Abdur Rehman defendant-appellant are independent trespassers on the property and their possession cannot be tacked together for the purpose of computing the period of limitation under the said Article. Precedent decisions were produced by both the counsel in support of their contention. The argument of the learned counsel for the appellant appears well founded when looked into with regard to the facts and circumstances of the case.
Article 144 of the Limitation Act lays a period of 12 years for a suit for possession of immovable property or any interest therein not hereby otherwise specially provided for, when the possession of the defendant becomes adverse to the plaintiff. be section (4) of section 2 of the Limitation Act says that "defendant" includes any person from or through whom a defendant derives his liability to be sued. It is well settled that in a suit governed by Article 144 the defendant has to show that he has been in continuous adverse possession for 12 years. In view of the definition of "defendant" in1 section 2(4) of the Limitation Act in computing the period of 12 years of adverse possession, the adverse possession of a defendant can be tacked on to the adverse possession of the person from or through whom the defendant derives his liability to be sued. Thus a trespasser claiming through another trespasser can defeat the right of the owner by tacking on the periods of their adverse possession, though the possession of each one of them has been only for a period of less than 12 years. In Mst. Ram Piari and others v. Budh Sen and others , it has been held:-- "A person, who is in possession of land without title has, while he continues in possession and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but that interest is liable at any moment to be defeated by the entry of the rightful owner; and if such person is succeeded in possession by one claiming through him who holds till the expiration of the statutory period, such a successor has then as good a right to the possession as if he himself had occupied for the whole period."
In Baijnath and another v. Ram Bilas and others , it is ruled:-- "One trespasser succeeding another can tack his possession on to the former's even in case of an invalid transfer; especially so where the second trespasser stepped into the shoes of the first with the latter's consent."
In Sajjad Hussain v. Qurban All Beg , it has been held that the tacking of the periods of possession by two successive trespassers is permissible where one derives title from the other. It has been stated at page 698 :- "The only question is whether one person who is in adverse possession of immovable property without title can tack on to his period of adverse possession the period of another person from whom he derives title who has previously been in adverse possession without title. In the present case, Usmani Begum must be regarded in the light of a trespasser in regard to the plaintiff's share and she transferred her rights to defendant No, 1, who has been in possession ever since. In the case of Ram Piari v. Budhsain AIR 1921 All. 389 the previous ruling in the case of Babu Ram v. Banke Behari Lala (1906) 3 A L T 424 was approved in which it was held that if a period of possession of a trespasser and his predecessor-in-title who is also a trespasser extended over period of 12 years, he acquired an absolute title to the property of which he had thus been in possession. In short the tacking of the periods of possession by two successive trespassers is permissible where one derives title from the other as in the present case."
In Nomula Narasimha v. Vasam Mangamma , it has been ruled:-- "A sucession of trespassers claiming through one another (e. g., as heir, legatee, assignee, or otherwise) can, though the possession of each of them has extended to less than 12 years, add and tack the periods of their possession so as to defeat the right of the true owner."
In Karmat All Majhi and others v. Halima Khatun and others , it is ruled:-- "The decision of the question as to whether the last trespasser can tack on the possession of the previous trespassers, turns on the question whether they are independent trespassers or not. Under Article 144 of the Limitation Act, limitation begins to run when the possession of the defendant becomes adverse. By section 2, subsection (4) of the said Act `defendant includes any person from or through whom a defendant derives his liability to be sued. To decide whether the trespasser can add the possession of the previous trespasser the test is whether he claims from or through him. If he does, then he can add; if he does not, he cannot add, to his possession the possession of the previous trespassers."
Reviewing the facts of the case partaining to the factum of adverse possession claimed by Abiur Rehman defendant-appellant through Abdus Sattar, it is proved on record that Dr. Masdar Ali Khan purchased land including suit Khasra No, 1890 from Abdus Sattar and his son Jehangir previous owners through mutation No, 1804 attested on 24-3-1945, Dr. Masdar Ali Khan took possession of the suit khasra after the sale in his favour and cultivated the suit khasra himself as is evident from2 3 4 5 6 the jamabandi of the year 1946-47. The jamabandi of the year 1950-51 shows that Abdus Sattar vendor ousted Masdar Ali Khan completely from the possession of the suit khasra and held the suit land in possession adversely to Masdar Ali Khan. The defendant-appellant Abdur Rehman claims to have purchased the suit khasra from Abdus Sattar by an invalid transaction on 7-3-1954. The jamabandi of the year 1954-55 reveals that Abdur Rehman appellant and bis brother Gohar Rehman entered into possession of the suit land as tenant-as-will under Abdus Sattar, who was still holding the suit land adversely to Masdar Ali Khan. The entries in the jamabandis of the years 1959-60 and 1962-63 repeat the entries of the jamabandi of the year 1954-55, showing that Abdus Sattar held the suit land adversely to Masdar Ali and that Abdur Rehman and Gohar Rehman were in possession of the suit land through Abdus Sattar. Finally in the jamabandi of the year 1966-67 Abdur Rehman appellant is recorded as adverse holder of the suit khasra solely against the title of Masdar All plaintiff-respondent. The Patwari halqa has testified that the possession of defendant- appellant commences from Rabi 1955. The present suit was instituted on 23-1-1969. Following the rule of law of tacking discussed in the above decisions, the adverse possession of the defendant- appellant though for period of less than 12 years in itself when tacked to the adverse possession of Abdus Sattar, constitutes adverse possession of the suit land for over 12 years, and in this way the suit of the plaintiff is barred by time under Article 144 of the Limitation Act also.
7. The upshot of the above discussion is that the suit of the plaintiff-respondent is barred by time and that the defendant-appellant has acquired prescribed title by adverse possession over the suit land. I, therefore, accept the appeal, and while setting aside the judgment and decree of the learned appellate Court, dismiss the plaintiff-respondent's suit. The parties are to bear their own costs. AIR 1946 Pat. 185 AIR 1921 All. 389 AIR 1924 All. 738 AIR 1926 All. 697 (1925) 91 I C 556 PLD 1953 Dacca 243