' SARDAR SAID MUHAMMAD KHAN, J.--This appeal against the judgment and decree of the High Court, dated 17-3-1973, was originally filed before the Division Bench of the High Court under the provisions of the Courts and Laws Code Act, 1949, but subsequently on the establishment of Supreme Court, it stood transferred to this Court by operation of law.
2. The brief facts giving rise to the present appeal are that the appellants instituted a declaratory suit in the Court of Sub-Judge, Bhimber, on 14-12-1962, challenging the Mutation No.1128 attested on 25-11-1962, whereby the suit land left by one Mst.Makhni, an occupancy tenant, had been mutated in the name of Noor Alam and Muhammad Alam, respondents, who happened to be the sons of Mst. Makhni's daughter. It was alleged in the plaint that Mst. Makhni inherited the occupancy rights as limited owner on the death of her husband, Nek Alam, and her limited interest terminated on her death. The land stood reverted back to the plaintiff and pro forma-defendants as owners by virtue of the operation of provisions contained in section 67 of the Tenancy Act of 1980 BK. The defendants-respondents, in their written statement, claimed adverse possession over the suit land.
However, they admitted that Mst. Makhni, who was an occupancy tenant, died in Dogra Regime without leaving behind any male heir. It was also contended in the written statement that the suit filed by the plaintiffs was not only time-barred but it was also improperly constituted because the land being 'Shamlat Deh' all the persons who owned land in the village were necessary parties and they had not been impleaded as party, in the suit. The trial Court decreed the suit of the plaintiffs- appellants. On appeal to the District Judge, the judgment and decree of the trial Court were affirmed. The learned Single Judge in the High Court, on second appeal, reversed the judgments and decrees of the Courts below and dismissed the suit of the plaintiffs-appellants holding that respondents had acquired occupancy rights in the suit land because they were treated as such by the plaintiffs-appellants after the death of Mst. Makhni; and that they also acquired the occupancy rights through prescription.
3. We have heard the arguments and gone through the record. A preliminary objection was raised by the learned counsel for the appellants that the judgment passed by the learned single Judge in the High Court is bad in the eye of law because the memorandum of appeal filed in the High Court was not accompanied by the copy of the judgment of the trial Court and as such the appeal was incompetent. The learned counsel has cited some authorities in support of his contention.
' In Azad J & K Government v. Syed Muhammad Younis Shah Gillani PLD 1966 A J & K 31, the memo. of appeal was not accompanied by the copy of the judgment of the trial Court and it was opined that as the filing of the copy of the trial Court's judgment had not been dispensed with by a specific order, the appeal was incompetent.
' In Muhammad Shafi v. Mst. Jamila Bibi 1980 CLC 1130, it was observed that memorandum of appeal filed in the High Court was not accompanied by the copy of the judgment of the Sub- Judge, as such the appeal was invalid and was no appeal in the eye of law.
4. In reply the learned counsel for the respondents has argued that a perusal of memo, of appeal reveals that a note was made by the Reader that the memo. of appeal was not accompanied by the copy of the judgment of the trial Court; but despite that notices were issued to the respondents by the Court which means that the Court impliedly dispensed with the copy of the judgment of the trial Court. The learned counsel has further argued that if, despite being conscious of the absence of the copy of the judgment of the trial Court, the appellate Court issues the notices to the respondents; it would be deemed that the defect of non-filing of the copy of the judgment of the trial Court was condoned. In support of his contention he has relied on Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359, wherein despite the note by the Reader on the file about the non-filing of the copy of the judgment of the trial Court, the High .Court issued the notices to the respondents.
An objection was raised in this Court that the appeal in the High Court was filed without the copy of the judgment of the trial Court but the same was overruled on the ground that under the circumstances it would be presumed that the defect was condoned by the High Court by dispensing with the copy of the judgment.
5. The learned counsel has also relied on cases reported as G.I.P. Railway Co. v. Radhakisan Jaikisan and another AIR 1926 Nag. 57 and Mst. Fazl-ul-Nissa v. Didar Hussain AIR 1927 Lah. 451, wherein it was held that where the Court being conscious of absence of copy of the judgment of the trial Court admits the appeal and issues notices to the opposite party, it would be deemed that the factum of non-filing of the copy of the judgment of the trial Court was condoned.
6. After giving due consideration to the authorities cited at the bar, we are of the opinion that the principle laid down in All Haider Shah v. Ghulam Muhammad 1981 CLC 359 is fully applicable to the facts of the present case, because in the present case too, despite the note of the Reader to the effect that copy of the judgment of the trial Court was not filed with the appeal, the Court issued the notice to the opposite party. This implies that the High Court dispensed with the copy of the judgment of the trial Court. It may be further stated that it depends upon the circumstances of each case as to whether the Court impliedly dispensed with the copy of the judgment of the trial Court or not. Where despite the note of the Reader to the effect that the memo. of appeal was not accompanied by the copy of the judgment of the trial Court, the Court chooses to issue notice to the opposite party; it would be deemed that the Court condoned the defect, which, of course, it has the power to do under Order XLI, rule 1 of the C .P . C .
7. Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, has argued that the defendants-respondents did not take up the plea in the written statement that they had acquired the occupancy tenancy on 'other grounds' as visualised in section 9 of the Tenancy Act. He has further maintained that in fact this has never been the case of the defendants-respondents either in the trial Court or in the first appellate Court that they had acquired occupancy interest in the suit land because the plaintiffs-appellants, after the death of Mst. Makhni, the maternal- grandmother of the defendants, treated them as occupancy tenants or promised them not to eject them from the land. The learned counsel for the appellants argued that the learned Single Judge in the High Court should not have dismissed the suit of the plaintiffs-appellants on the ground that they had been treating the defendants as occupancy-tenants and as such the defendants acquired the said rights by the operation of provision contained in section 9 of the Tenancy Act.
8. We have given our due consideration to the points raised by the learned counsel for the appellants as well as to the arguments advanced on behalf of the respondents in defence and we are of the view that the learned Single Judge in the High Court has committed an error in declaring that defendants-respondents had acquired occupancy tenancy in the suit land because they had been treated as such by the plaintiffs-appellants by accepting the same amount of rent as was paid by Mst. Makhni. A plea which had not been raised by a party in his pleadings; especially a plea which relates to the question of fact needing proof, cannot be permitted to be raised at the appeal stage. Not only that there is no such plea or issue but there is no evidence on the record to substantiate the finding that defendants were treated by the plaintiffs-appellants as occupancy tenants after the death of Mst. Makhni. The defendants-respondents _are entered in the Revenue record as 'Ghair Mauroosi"{{URDU TEXT}}'which means that they were tenants-at-will and not occupancy tenants. The mere fact that they were paying same rent which Mst. Makhni had been paying to the plaintiffs-appellants or their predecessors in interest, would not imply that the plaintiffs-appellants treated the defendants-respondents as occupancy tenants and not tenants- at-will. We see no logic in the argument that the defendants respondents must be presumed to have been treated as occupancy tenants by the plaintiffs-appellants merely because that they (defendants) have been paying the same rent to the plaintiffs-appellants which Mst. Makhni had been paying to them.
9. The next point which falls for determination is as to whether the defendants-respondents have acquired occupancy rights through adverse possession. Irrespective of the fact as to whether occupancy rights can be acquired through adverse possession in view of the provisions contained in section 8 of the Tenancy Act, firstly; it is to be seen as to whether the nature of the possession of the defendants-respondents was such that it could be termed as hostile to the plaintiffs- appellants. It is on the record that defendants-respondents have been paying rent to the plaintiffs- appellants. The learned Single Judge in the High Court has himself recorded in the impugned judgment that defendants-respondents had been paying rent to the plaintiffs-appellants, till as late as year 1963. We are at a loss to understand that when the possession of the defendants- respondents has been admittedly as tenants under the plaintiffs-appellants then how it can be said that the nature of their possession was adverse to the plaintiffs-appellants. It is paradoxical to say on one hand that defendants-respondents were paying rent to the plaintiffs-appellants and on the other hand to term their possession as hostile to the plaintiffs-appellants. It hardly needs any authority that possession for being adverse should be hostile, notorious, open and continuous.
It is also settled law that even if a tenant does not pay anything to landlord in cash or coin, his peaceful possession howsoever long it may be, cannot be regarded as adverse to the landlord.
The learned counsel for the respondents has cited some authorities in support of his contention that in fact the nature of possession of defendants-respondents would be deemed to be adverse to the plaintiffs-appellants.
' In Municipal Board, Matura v. Mansa AIR 1951 All. 634, it was held that where certain persons come into possession as tenants, they cannot acquire proprietary title by adverse possession unless adverse possession had been asserted by them to the knowledge of their landlords. Evidently this authority does not support the contention of the learned counsel for the respondents; rather it rebuts the proposition propounded by him.
' In Sahabu Mahton and others v. Ram Mahto and others AIR 1952 Pat. 43, it was held that right of a tenant can be obtained by permanently occupying land only by a custom or by a grant from the owner, if the latter has power to grant such a right or under an act of the Legislature. Where, therefore, no custom is pleaded and there is no Act of the Legislature conferring permanent rights on the persons occupying the land, it is not open to the Court to hold that they had acquired the right of tenancy by prescription. It is evident that this authority also goes against the case of the respondents; rather than helps them.
' Again in Maharaj Singh and another v. Budhu Chamar and others AIR 1952 Pat. 46, it has been opined that if the owner has been receiving rent from the lessee, the possession of the lessee may not be adverse to the owner so far as his right to receive rent is concerned but if the lessee has been paying rent in assertion of a permanent tenancy right, his possession must be adverse to the true owner so far as his right to 'khas' possession is concerned.
10. As had already been pointed out that there is not an iota of evidence on the record to show that defendants-respondents paid the rent to the plaintiffs-appellants not as tenants-at-will but they did so in assertion of their right of occupancy tenancy. Thus, the proposition laid down in the aforesaid authority has also no application to the case in hand.
11. The learned counsel for the respondents has also argued that the case filed by the plaintiffs- appellants was time-barred as in his estimation it falls under the provisions of section 142 of the Limitation Act. We are of the view that Article 142 had no application whatsoever F to the instant case because the suit has been brought not on the basis of dispossession but on the basis of title and unless defendants-respondents prove their adverse possession, the plaintiffs-appellants must succeed on the strength of their title.
12. The learned counsel for the respondents has also argued that the case was not properly constituted and should have been dismissed as, according to him, all the owners in the village should have been impleaded as party because the land was comprised of the 'Shamlat Deh'. It may be stated that the findings of the Courts below are that Mst. Makhni was occupancy tenant under predecessors-in-interest of the plaintiffs and after the death of Mst. Makhni, the plaintiffs- appel lants had been receiving rent from the defendants-respondents, which means that the disputed portion of land had fallen to the share of the plaintiffs-appellants as co-owners in 'Shamlat Deh' and the defendants-respondents have been treating them as owners of the suit land. There fore, the argument that all the owners of the village should have been impleaded as party because they are co-sharers in 'Shamlat Deh' is without any substance and is hereby repelled.
' In the light of what has been stated above, we accept the appeal with costs, set aside the impugned judgment and decree of the High Court and restore the decree passed in favour of the plaintiffs-appellants by the trial Court, which was also confirmed by the first appellate Court.