' Haji Nazal Shah and his two sons brought a suit against Mian Dad, his brother, mother and sisters for possession of Khasra No, 3979/851 measuring 8 kanals 16 marlas situate in village Sawaldher, Tehsil Mardan. It was alleged in the plaint that they were the owners of the suit land which was in possession of the defendants as tenants-at-will paying `Bata?. A suit for produce and ejectment was brought by plaintiff against the defendants in the Revenue Court but they denied his title and the latter was directed to bring a suit in the Civil Court. The defendants 1 and 2 in their written statements denied the title of the plaintiffs and inter alia claimed to have prescribed title to the suit land.
2. The pleadings gave rise to the following issues :"(1) Whether the suit is within time ? 0. P. P.
(2) Whether the plaintiffs have got a cause of action ? 0. P. P.
(3) Whether the suit is hit by the principle of res judicata ? 0, P, D, 1 and 2,
(4) Whether the rights of defendants Nos. 1 and 2 are protected through adverse possession for more than 12 years ? 0. P. D. 1 and 2.
(5) Relief."
' The suit was dismissed by the learned Senior Civil Judge, Mardan on 24-7-1977 and the plaintiffs took an appeal to the learned Additional District Judge, Mardan who per his order dated 27-2-1979 allowed it and decreed the suit. Aggrieved from the judgment and decree Mian Dad, one of the defendants, has come on revision.
3. It was held by the learned trial Judge that the suit was barred by limitation and the defendants had prescribed title to the suit land. The learned appellate Court, however, was of the view that the adverse possesssion of the appellant and the co-defendants had commenced from their written statements dated 20-8-1975 in that suit brought against them in the Revenue Court and, as such, the suit was well within time and the claim of adverse possession had not been established. The learned counsel for the petitioner strenuously contended that the parties were joint owners of a piece of land which was partitioned in 1946 whereafter Zardad, predecessor-in-interest of, the petitioner, remained in exclusive possession thereof. His possession 'spread over a period of more than 12 years and the plaintiff-respondents took no steps to take possession of the suit land allotted to them in partition within a period of 12 years. The learned counsel for the plaintiff- respondents, on the other hand, maintained that possession of the petitioner and co-defendants was permissive in nature and since they had never asserted their hostile title to the knowledge of the plaintiff-respondents the suit was within time inasmuch as it was instituted within 12 years from the date of the repudiation of the title of the plaintiff-respondents in the Revenue Court by the petitioner and his co-defendants. It would be profitable to have a look into the revenue record pertaining to the suit land as it would facilitate the appreciation of the contentions of both the learned counsel for the parties.
4. A look at the jamabandi 1942-43 shows that Khasra No, 851 measuring 24 kanals 11 marks was owned by Nazal Shah, Allah Dad and Zardad in equal share. It was partitioned by Mutation No, 3078 attested on 18-1-1946 whereby Khasra No, 851/2 measuring 16 kanals 7 marlas was allotted to Nazal Shah and Zardad in equal share whereas Khasra No, 851/1 measuring 8 kanals 4 marlas fell to the share of Allah Dad. Khasra No, 851/2 was further partitioned by Mutation No, 3550 attested on 9-6- 1950 into two portions. Khasra No, 851/2/1 measuring 8 kanals 4 marlas was allotted to Nazal Shah and No, 851/2/2 measuring 8 kanals 3 marlas to Zardad per Mutation No, 3550 attested on 9-6- 1950. These mutations were incorporated in the jamabandi 1949-50, wherein Nazal Shah was recorded as sole owner of Khasra No, 3979/851 measuring 8 kanals 4 marlas and Zardad was shown in possession of it as tenant-at-will through his tenant Azim Gul. The possession of Zardad was described as 'Hissadari prior to the partition'. In the jamabandi 1953-54 Zardad is shown in possession as without payment of rent I on account of 'Hissadarr through his tenant Saeed. In the following jamabandis 1957-58, 1961-62 and 1965-66 Zardad remained in exclusive possession as tenant-at-will without payment of rent on account of possession. On his death his heirs Mian Dad and others who were arrayed as defendants in suit replaced him in the column of cultivation. Thus it is abundantly clear from the revenue record that the plaintiff-respondent Nazal Shah became the sole owner of the suit land by virture of partition effected in 1950 and Zardad remained in exclusive possession thereof since then,
5. The question that arises for determination is whether the possession of Zardad became adverse to Nazal Shah since partition Mutation No, 3550 attested on 9-5-1950. The nature of possession of the erstwhile joint owners of land subsequent to the partition made amongst them came up for discussion in Gulab Din and others v. Radar Din and others and at page 112 it was observed as under :- The order of partition put an end to the jointness of the property and from that day onwards, each of the co-sharers was to hold the property in severalty. Section 122 of the Punjab Land Revenue Act may be referred to in this connection. This is as follows :- 'An owner or tenant to whom any land or portion of a tenancy, as the case may be is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives and a Revenue Court shall on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section give effect to the instrument so far as it concerns the applicant as if it were a decree for immovable property.'
' The joint character of the property was destroyed and each of the co-sharers had become the separate owner of the portion of the property that fell to him. He could, within three years from the1 date recorded in the instrument of partition, apply to be put into possession of the property which was his, and could, if necessary, bring a suit for possession in the Civil Court within the further period of nine years. Where any person failed to take advantage of the partition proceedings or omitted to take into exclusive possession his own share in the property, the possession of any other person would be considered adverse from the date from which he had acquired the title to the possession of the property. Where nothing further was done, it would not follow that the partition of the joint property never took place. The partition was a fact and it could not be obliterated by the negligence or carelessness of the co-sharers."
' A similar view of the matter was taken in Haji Ajun Khan v. Abdul Raziq and others. There were partition proceedings between joint owners and the Revenue Officer prepared an instrument of partition under section 121 of the Punjab Land Revenue Act and stated therein that effect would be given to the partition after the 'Rabi? Crop was harvested, i,e, some time in May, 1943. One kanal 16 marlas fell to the share of Fazal and his brother Bahadur equally. Bahadur transferred his share to Ajun Khan in 1954 and on 8-2-1955 Ajun Khan brought a suit against Abdur Raziq, the erstwhile co- sharer in possession of the land, for possession of 18 marlas purchased by him. It was observed that under section 121 of the Punjab Land Revenue Act an instrument of partition was to be prepared and the date on which the partition was to take effect was to be recorded therein. A co- sharer could seek possession of the land allotted to him on the basis of instrument of partition and under section 122 of the Act he could apply within three years from the date on which the partition is to take place for possession of the share allotted to him. The observation made in para. 12 of the judgment is reproduced as under :- ' But if he fails to apply for possession under that section within that period, he can bring a suit against the person in possession in a Civil Court for the recovery of his share, if the person sued was a party to the partition proceedings. In that case he has come to Civil Court within 12 years from the date on which the partition according to the instrument is to take effect. That is the date on which he becomes entitled to the possession of the land and limitation against him runs from that date. He does not acquire title to possession under the proposal for the allotment of share. He becomes entitled to it after the instrument of partition is framed and time for its taking effect is indicated in it. Support for this view is obtainable from 1894 Punjab Record No, 63.
If follows that it was incumbent for Nazal Shah to have applied to the Revenue Officer within three years from the date on which the partition was to take effect, for possession of the suit land allotted to him under the instrument of partition. If he failed to apply within the aforesaid time he could come to the Civil Court within 12 years from the date on which the A partition was to take effect. It transpires that he neither applied to the Revenue Officer nor came to the Civil Court within the period specified above and Zardad continued in possession of the suit land exclusively without any right whatsoever in it.
6. The learned counsel for the plaintiff-respondents spot-alighted another aspect of the case and strenuously contended that the initial possession of the petitioner and co-defendants was permissive as joint owners and that after partition of the joint land their possession could not be treated as adverse to the respondents merely for non-payment of rent to them. He in this context referred to Shamsur Rehman v. Mst. Sher Bano and others. The facts were that `shamilat' of village Kala, Tehsil Swabi was partitioned per mutation No, 1015 attested on 13-6-1941 and the disputed land fell to the share of Hukmat Khan but Shamsur Rehman and 7 others remained in possession of the land. Hukmat Khan brought a suit for recovery of rent in the Revenue Court alleging that Shamsur Rehman and others were in possession of the disputed land as tenants but had discontinued paying the rent. Shamsur Rehman and others denied his title and the Revenue Court directed him to establish his title in the Civil Court. He brought a suit in the Civil Court but the same was dismissed on the ground of limitation. The appeal of Hukmat Khan was accepted by the Senior2 3 Civil Judge, Mardan and the revision of Shamsur Reh man was dismissed by the High Court.
Shamsur Rehman took an appeal to the Supreme Court and it was observed by their Lordships as under :- ' As pointed out already the initial possession of appellant and the codefendants with him is preferable to their lawful title as co-sharers in the Shamilat in which Hukmat Khan and his brother were also co-sharers. Therefore, the possession of the defendants including the appellant could not be regarded as adverse merely because they failed to pay rent to Hukmat Khan and his brother after the partition of Shamilat until they had expressly repudiated Hukmat Khan's title which they did in the Revenue Court by asserting a hostile title in themselves. This same principle is deducible from another judgment of this Court in Fazl-e-Ghani v. Khatib Gul 1968 SCMR 1040.
It can be gathered from what has been reproduced above that the possession of co-sharers after partition would not become adverse to the co-I Sharers to whom the property was allotted in partition until the former' expressly repudiated the title of the latter.
7. The facts of the above precedent case are to some extent similar to those of the instant case. In the Jamabandi 1942-43 Nazal Shah, Allah Dad and Zardad were the joint owners of Khasra No, 851 measuring 24 kanals 11 marlas and it was partitioned amongst them per mutation No, 3078 attested on 18-1-1946. Khasra No, 851/2 measuring 16 kanals 7 marlas which had fallen to the share of Nazal Shah and Zardad was further partitioned per mutation No, 3550 attested on 9-6-1950 and Khasra No, 851/2/1 measuring 8 kanals 4 marlas fell to the share of Nazal Shah who was recorded as its sole owner in the Jamabandi 949-50 and the following Jamabandis up to the year 1969-70.
Zardad, however, remained in possession of it during his lifetime arid on his death his legal representatives replaced him in the Jamabandi 1969-70. The possession of Zardad in the Jamabandi 1949-50 was on account of `Hissadari before partition' whereas in the Jamabandi 1953-54 he was shown in possession 'without payment of rent on account of Hissadari'. In subsequent Jamabandis his possession was described as without payment of rent on account of possession. It is clear that his possession was permissive in its inception as a co-sharer and mere non-payment of rent or 'batai' on assertion of ownership would not change the nature of his possession into adverse possession. Had he expressly repudiated the title of the true owner the entry in the column of rent of the aforesaid Jamabandis would have been without payment of rent on account of assertion of ownership (Bila Lagan Bawaja tasawar malkiyat ). It appears that the petitioner and the co-defendants repudiated the title of the plaintiff-respondent Nazal Shah for the first time in the suit brought by him in the Revenue Court on 22-3-1975. The plaintiff-respondents brought the suit in the Civil Court on 27-7-1976. It follows that the suit was well within time and the petitioner and his co-defendants had failed to establish their adverse possession in the light of the dictum of the precedent case of the Supreme Court referred to above. The conclusion arrived at by the learned lower appellate Court is well-founded and merits no interference.
' In the result, the revision fails and is dismissed with costs.
Petition dismised.
PLD 1951 1,4h, 111 PLD 1960 Pesh, 90 1974 SCM R 427 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.