Through this constitutional writ petition the order, dated August 23, 1983, passed by respondent No.l whereby the decree passed by Deputy Custodian Kotli on March 8, 1982 in favour of the petitioners was partly set aside.
2. The facts briefly stated are that the petitioners sought declaration through a civil suit filed by them in the Court of Deputy Custodian Kotli on October 26, 1980, to the effect that land measuring 40 Kanals and two Marlas comprising Surveys Nos. 205, 208 and 208/1 which according to the measurement of the present settlement is 25 Kanals and 7 Marlas comprising Surveys Nos. 667, 668, 669, 680 and 695, situate in village Sagyam Tehsil Kotli was sold to non-Muslims by Sahib Din and 'the said non-Muslims sold it to Kaka and Allah Ditta in the year 1983 Bk through an 'Iqrarnama' dated 13-1-1983 Bk and on the basis of it Mutation Order No. 166 was attested and entry of this sale was incorporated in the annual record. The plaintiffs are in possession of this land, therefore, the decree may be passed in their favour and it may be declared that this land is not an evacuee property and the allotment made in favour of Muhammad Waris Khan was illegal and inoperative as against their rights.
3. The respondents contested the claim of the petitioners and the Deputy Custodian Kotli after trial of the suit found the claim of the plaintiffs to be genuine, therefore, the decree prayed for, was passed on March, 8, 1982 and it was submitted to respondent No.l for confirmation as required by law.
4. The respondent No.l after hearing the parties, found that sale of the suit land to the extent of one-half was valid and the claim of the petitioners with regard to the rest of the land was false, thus he confirmed the decree passed by the Deputy Custodian Kotli to the extent of one-half of the suit land and dismissed the suit for the rest of it.
5. The petitioners have challenged the order passed by the respondent, No. l and stated that he has failed to exercise the jurisdiction vested in him as required by law and has arrived at a wrong conclusion, therefore, through an appropriate writ, the order, dated August 23, 1983, may be declared to be of no legal effect..
6. The respondents through objections filed on July 17, 1984, contested the claim of the petitioners and stated that it was within the competency of the respondent No.l to grant declaration on the basis of facts proved and in exercise of the powers vested in him, and keeping in view the evidence brought on the file, he held that the suit land, to the extent of one-half was an evacuee property, therefore, this Court in exercise of its extraordinary jurisdiction, cannot interfere into it.
7. The learned counsel for the petitioner has assailed the impugned order and pointed out that the land in dispute was purchased by Kaka and Allah Ditta through an 'Iqrarnama' dated 15-1-1983 BK and Mutation order No.166 of village Sagyam was attested on the basis of it by a competent Revenue Officer and the entry of the sale in question was incorporated in the annual record. The petitioners remained in possession of it and appropriated whole of its produce within the knowledge of Dhera .Mal and other respondents from 1983 to 2004 Bk but Dhers Mal neither questioned the right of Jagat Ram and Barkat Ram to make sale of this land through 'Iqrarnama' nor Mutation Order No.166 was challenged thus, the petitioners are the owners of the whole of the suit land and the allotment order, whereby this land was allotted in favour of Muhammad Waris, was illegal. In the alternative, the adverse possession of the petitioners over the suit land has ripened into ownership and they have become owners thereof.
8. The learned counsel for the respondent controverted the stand taken by the learned counsel for the petitioners and stated that the land measuring 40 Kanals and 2 Marlas was the joint property of Jaggat Ram and Barkat Ram and Dhera Mal. Dhera Mal who had one-half share in it, did not sell his share and the sale of the whole of the land by Jaggat Ram and Barkat Ram through the aforesaid 'Iqrarnama' was illegal consequently Mutation Order No. 166 did not have any validity as against the rights of Dhera Mal. The claim of the petitioners that they held this land in adverse possession is also incorrect. Kaka and Allah Ditta after the sale of the suit land by Jaggat Ram and Barkat Ram became co-sharers with Dhera Mal and held the possession of the suit land in the capacity of co-sharers. Thus, the claim of adverse possession is baseless and in support of his connection he cited case reported in PLD 1960 Azad J a K 70.
9. I have taken into consideration the respective stands of the learned counsel for the parties, have gone through the record of the petition and have also perused the authority cited at the Bar and have found that the following two points are required to be determined in this case, namely:-
(i) Whether Jaggat Ram and Barkat Ram sons of Mahana Shah who held one-half share in the suit land could transfer good title of whole of its to Kaka and Allah Ditta; and
(ii) In case the sale of the land made by Jaggat Ram and Barkat Ram, was valid to the extent of one-half of it, whether the possession of Kaka and Allah Ditta over the rest of one-half of the suit land i.e. Share of Dhera Mal, was adverse in nature and had ripened into ownership before 1947 A.D.
10. It cannot be denied that the land in dispute was jointly owned by Jaggat Ram and Barkat Ram and Dhera Mal Dhera Mal held one-half share in it as was evident from the entries made in 'Jamabandis' for 1991-92 and 1999-2000 Bk and Mutation Order No. 166 and it is also evident that through Mutation No.166 the sale of the entire suit land was sanctioned in favour of Kaka and Allah Ditta on the basis of an 'iqrarnama' executed by Jaggat Ram and Barkat Ram.
11. The law of transfer of ownership of the property through sale etc., is that only an owner of the property can transfer good title to the vendee and when the validity of sale of entire suit land made by Jaggat Ram and Barkat Ram is considered in the light of the law of sale of land, the sale made by Jaggat Ram and Barkat Ram remains valid to the extent of their share only but there is an exception to this rule that a co-sharer in exclusive possession of a joint land, can transfer good title of the said joint land to the vendee provided it was within his exclusive possession and was within his share if whole of the joint land of the 'Khewat' was kept in view, but this rule too could not be of any help to the petitioners because the land sold through aforesaid 'lqrarnama' was not in exclusive possession of the vendors at the time of sale as was evident from the entries of Mutation Order No.166. I, therefore, hold that the sale of the land made by Jaggat Ram and Barkat Ram was valid to the extent of their share i.e. 22 Kanals and one Marla.
12. The second point which is needed to be resolved is as to whether Kaka and Allah Ditta who purchased the entire suit land but the sale was found to be valid to the extent of one-half only, remained in possession of the land which fell to the share of Dhera Mal as co-sharer or held it as an absolute owner thereof, in denial of the ownership of Dhera Mal. The stand of the learned counsel for the respondent is that after valid purchase of the share of Jaggat Ram and Barkat Ram, Kaka and Allah Ditta became co-sharers with Dhera Mal, therefore, their possession over the suit land owned by Dhera Mal would be presumed to be in the capacity of a co-sharer and he has placed reliance over the entries of 'Jamabandi' which reads as under:- "KAASHAT KAKA AND ALLAH DITTA HISSA DARAAN"
This stand, I believe, is not correct. The nature of possession of Kaka and Allah Ditta over the suit land will have to be adjudged keeping in view the attending circumstances of the case. It is the case of the petitioners and not denied by the respondents that Kaka and Allah Ditta entered into possession of the entire suit land after it was purchased by them from Jaggat Ram and Barkat Ram and they remained in possession of it till 1947 A.D. The nature of possession is, however, a matter of dispute between the parties.
13. The copies of annual record for 1983-84, 1991-92 and 1999-2000 Bk show that Kaka and Allah Ditta remained in possession of this land in the capacity of vendees, paid its land revenue and appropriated whole of its produce which demonstrated that they asserted their ownership over the whole of the land and this position remained unaltered till 2004 Bk i.e. For bout 21 years.
14. In the present case, Kaka and Allah Ditta purchased the land measuring 40 Kanals and 2 Marlas and took possession of it in the capacity of the vendees but it was found that the sale was valid to the extent of one-half of it. The effect of this situation will be that the possession of Kaka and others over the land measuring 20 Kanals and one Marla will be on account of a valid sale, and over the rest of it, i.e. 20 Kanals and one Marla, on the basis of an invalid sale but in any case, the basis of possession will be on account of a sale whether valid or invalid and this situation continued for 21 years. Dhera Mal neither challenged the right of Jaggat Ram and Barkat Ram to sell the land of his share nor took any step for the cancellation of Mutation Order No. 166 or restoration of the possession or for produce of the land.
15. To determine the nature of possession for the purpose of adverse possession whether it was on account of a valid sale, invalid or without sale, would not matter, all that matters is the attitude of the person who is in possession of it. If he asserted his possession as an owner in denial of the right of the true owner and such assertion was open and continuous and it continued for more than 12 years in the same position would be adverse as is provided in section 28 of the Limitation Act and was held in a case reported in AIR 1940 Nag. 49 (F.B.) and the relevant observations are reproduced below:- "The question is whether that possession exceeding the prescribed period of limitation confers upon him the original tenants right. S. 28, Limitation Act no doubt speaks only of extinction of right but as pointed out by their Lordships of the Privy Council in 11 M.I.A. 345 at page 363, after the expiry of the prescribed period of limitation not only is the remedy barred but "the title is extinct in favour of the possessor."
17. As I have come to the conclusion that Allah Ditta and Kaka took possession of the land measuring 40 Kanals and 2 Marlas comprising Surveys Nos. 205, 208 and 208/1 which according to the measurement of present settlement, is 25 Kanals and 7 Marlas comprising Surveys Nos.667, 668, 669, 680 and 695, situate in village Sagyam Tehsil Kotli as vendees through the sale which was valid only to the extent of one-half of it but they continued to hold the possession of the whole of the land in the capacity of owners till 1947 A. D. i.e. About 21 years, therefore, their adverse possession had matured into ownership l) before the year 1947 A.D. And the right of Dhera Mal had extinguished., I, therefore, hereby declare that the order impugned in this writ petition whereby one-half of the suit land was declared to be evacuee property, by respondent No.l, to be illegal and of no legal effect as such, the allotment made on October 28, 1979 of this land, in favour of Muhammad Waris Khan is also invalid. The writ petition stands accepted with costs.