' The subject-matter of dispute in this case is the agricultural land comprised in Khasra No, 936 measuring 13 kanals and 1 marlas situate in village Kaniza, Tehsil and District Peshawar.
2. On 16-10-1956 Amanullah etc. Sued Mohib Ali for possession of the disputed land claiming that they were owners of the same and that the defendant was continuing in possession thereof without any right. The defendant Mohib Ali contested the suit and the written statement filed by him gave rise to the five issues out of which the following three are relevant :- "(1) Whether the suit was within time?
(2) Whether the plaintiffs were the owners of the suit property?
(3) Whether the defendant had matured his title to the suit land."
' By his order dated 21-5-1957 the Civil Judge held, on Issue No. 1, that the suit was not within time and consequently without discussing the other issues he dismissed it. In appeal the Senior Civil Judge came to the contrary view and held that the suit was within time. As the trial Judge had not decided the other issues, the case was remanded under rule 23, Order XLI, C. P. C. For a decision on the remaining issues. This of order remand was challenged in revision before this Court but the revision petition was dismissed on 20-6-1960.
3. After the dismissal of the revision petition the matter again went to the Civil Judge who, by his order dated 17-12-1960, decided all the issues in favour of the plaintiffs and against the defendant and thus decreed the suit, The matter again went in appeal, this time before the District Judge who by his order dated 1-3-1961, held under Issue No, 3 that the defendant had matured his title by adverse possession and consequently the appeal was accepted and the suit was dismissed. The plaintiffs came to the High Court in second appeal where a Judge of this Court, by his order dated 22-6-1977, set aside both the orders and remanded the case for retrial.
4. After the remand from this Court the suit was again decreed on 21-1-1970 and the first appeal was dismissed on 5-1-1972. In this second appeal it is these decrees which the defendant has challenged.
5. The learned counsel appearing for the appellant has not questioned that the plaintiff- respondents are the owners of the disputed land. This fact is borne out from the revenue record right from 1929-30 wherein they have been shown to be the owners of the property. It is, however, vehemently argued that the findings of the Courts below that the suit is within time and that the defendent-appellant has not become owner by efflux of the time are erroneous on facts as also on law. It was argued on behalf of the appellant that this is a case where the plaintiffs are claiming that they have been dispossessed from the property and that in this view of the matter Article 142 of the Limitation Act (IX of 1908) would be applicable and that it was incumbent upon the plaintiffs to establish that they had been in possession of the property within twelve years of the institution of the suit.
6. The above argument was first met by the learned counsel for the respondents by arguing that the question of limitation covered under issue No. 1 had not been challenged before the District Judge in appeal nor in the grounds of second appeal the finding thereon has been specifically questioned. In second appeal there is no reference to Issue No. 1 but it has been stated in ground No, 2 that the finding of the trial Judge on issue No, 3 relating to please of limitation and adverse possession are. The mere omission to mention issue No. 1 specifically in the grounds does not mean that the question of limitation has not been challenged, It appears to be an inadvertent omission and this technicality should not come in the way of the appellant to plead that the suit has wrongly been held to be within time.
7. As far as the first appeal is concerned, the findings on Issues No. 1 and 3 were specifically challenged in ground No, 3 but at the time of arguments, it appears that only Issue No, 3 was argued. The failure on the) part of counsel for the appellant to argue Issue No. 1 which is an issue of law though arising out of facts would not bar the appellant to agitate the same in second appeal.
8. The learned counsel for the appellant has urged that the plaintiffs' case was that they were in possession of the property and they have been dispossessed by the defendant-appellant. In these circumstances, it was argued, the provision of Article 142 of the Limitation Act (IX of 1908) would be attracted and the burden of proving that the plaintiffs were in possession within twelve years before the institution of suit was heavily on them. A reading of para. 2 of the plaint, however, shows that the plaintiffs never claimed that they had been in possession of the property but had been dispossessed therefrom by the defendant-appellant. The learned counsel for the appellant urges that by artistically drafting the plaint, the plaintiffs could not take themselves out of the application of Article 142 ibid and that their real claim is in fact that they had been dispossessed from the property. It is true, as held in the case of Jawahar La! v. Mathura Prasad (1) that the evasion of law cannot be tolerated simply because the phraseology of the plaint has been carefully B selected but then this is not a case in which the plaintiffs have stated that they had been in possession of the property. In fact prior to the defendant's taking possession of the property the land was unculturable being banjar qadeem and no one was in actual physical possession thereof. This is borne out from the annual record for the year 1929-30. In my view, therefore, it is for the defendant to establish that he has become owner of the property by maturing his title by adverse possession and the residuary Article 144 of the Limitation Act (IX of 1908) would be attracted. In this particular case, however, whether Article 142 on Article 144 applies the result would be the same as the revenue record is the only evidence on which the parties have relied.
9. According to the annual record for the year 1934-35 (Exh. P. W. 1/2) Habibullah son of Gul Muhammad is shown to have entered into possession of the property claiming ownership thereof.
At that time the land was banjar qadeem and as such not capable of actual physical possession.
In the year of 1938-39 as the revenue record (Exh. P. W. 1/3) shows the land became nehri doam and Habibullah remained in possession without payment of legan claiming his own ownership. The same is the position in the annual record for the year 1942-43 (Exh. P. W. 1/4). For the first time in 1948-49 (Exh. P. W. 1/5) the defendant comes into possession and his possession is through his father who is the son of Habibullah who was previously in possession. The nature of possession remains the same inasmuch as the person in possession was claiming full ownership to the rightful owner. In the annual record for the year 1952-53 (Exh. P. W. 1/6) the defendant is shown to be in possession and the land is recorded as nehri doam.
10. W. A copy of Khasra Girdawari (Exh. P. W. 1/7) has been placed on file. This shows that in Kharif 1944 a part of the land was nehri and a part was Taraddadi. In Rabi 1944, however, that part which was Taraddadi was not cultivated. This continued in Kharif 1944 and Rabi 1945. In Kharif 1945-46 the entire land remained vacant and was not cultivated by anyone. The same is the position in Rabi 1946. This shows that in October 1945, as also in March 1946, the land was lying vacant and was not {{FOOT NOTE}}
(1) AIR 1934 All. 661 {{FOOT NOTE}} ' under cultivation. It is settled law that when a property is not capable of physical possession or is otherwise not in possession of anyone then it is the rightful owner who shall be presumed to be in possession thereof. The possession of vacant site or vacant land naturally goes with the title of the rightful owner. In case of doubt the presumption always is that possession follows, title, It is will established that in case of lands which for one reason or the other are not occupied by anyone the legal possession must be supposed to be that of the actual owner. I have, therefore no hesitation in holding that in March 1946, the plaintiff, who are the owners of the property, were in constructive possession of the property and the defendant-appellant was not in possession thereof. Even if it is presumed that thereafter the plaintiffs were dispossessed, the suit having been brought on 16- 10.1956 is within time as it falls within twelve years of dispossession. Likewise the defendant has failed to prove that he was in possession for twelve years continuously ; for in October 1945, and March 1946, he was not occupying the land and the land shall be presumed to be in the constructive possession of the rightful owner, To the same are the findings of the two Courts below which I uphold.
11. There being no merit in this appeal, it is dismissed with costs.