1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the true owners of the land to resolve the conflict of opinion on the question whether adverse possession of immovable property is interrupted by the filing of a suit for declaration and possession by the true owner, and especially by they grant of a decree in this behalf, which may or may not be executed within a period of twelve years from the date of the commencement of the alleged adverse possession.
2. The defendant appellants were admittedly the true owners of the land measuring 21 Kanals 19 Marlas situate in Zarbab Garhi, Tehsil Charsadda, District Mardan. They had obtained it in exchange from a co-sharer Fazal Malik vide Mutation No. 488 attested on 12-5-1942. This land fell to the share of the appellants in partition vide Mutation No. 964 attested on 18-2-1943. On 1-10-1945 the appellants instituted a Civil Suit (No. 481/1) seeking possession of this land from the respondent, who set up the plea of adverse possession on it for over 12 years. The suit was contested, issues framed and evidence recorded. The trial Court decreed the suit for possession on 31-1-1947 in following terms :- "According to the Khasra Girdawaris copies Exh. D. C. Plaintiffs have been in possession of the land in dispute in Kharif 1943 and Rabi 1944. They have lost possession after this and hence their suit is within time being within 12 years of their dispossession. In the end I, therefore, grant plaintiff a decree for possession of the land in dispute with costs against defendants".
3. The appeal against this judgment and decree failed on 10-7-1947 and the matter was not pursued in the heirarchy. This decree for possession was, however, not got executed by the appellants.
4. Next, the appellants filed a suit against the respondent before Assistant Commissioner under section 77 of the- N.-W. F. P. Tenancy Act of 1950 for recovery of rent for Kharif 52 to Rabi 1955. The respondent denied his liability to pay rent, claimed adverse ownership over it. The Assistant Collector after trial passed a decree in favour of appellants for Rs. 723-13-6. The. Appeal of the respondent was dismissed by the Collector on 28-3-1957. The revision of the respondent was also dismissed by the Additional Commissioner on 2-6-1957 on the following grounds :- "The existence of a civil Courts decree and the fact that the respon--dents were put in possession of the property in pursuance of partition proceedings conclusively prove that Faizullah Khan and others are, the owners of this property and further that Abdur Razaq is in possession without their consent. The petitioner claims title on the strength of adverse possession. This is a question into which the revenue Court need not go, because the interested party will seek redress in a competent Court. For purposes of deciding a suit under section 7 of Act 25 of 1950 the revenue Court has to satisfy itself whether the plaintiff is the owner a; d whether the person holding the property is in possession without the consent of the former. If these facts are proved the owner would be entitled to a decree in a revenue Court. As has been remarked above it has been established that the respondents are the owners and that the petitioner Abdur Razaq has been in possession, of the property during the disputed harvests without their consent."
5. On 5-12-1956 the appellants filed another revenue suit, this time for rent and ejectment of the respondent. It was decreed on 9-10-1957. An appeal against this order was dismissed on 24-4- 1958. In execution of this decree Abdur Razaq respondent was ejected on 18-5-1958.
6. Abdur Razaq defendant respondent instituted a civil suit on 24-2-1959 claiming back the possession of this land from the true owners on the ground that he had matured his possession over it adversely to the true owners and the decree of the revenue Courts under which he was ejected from the land were void and inoperative on his rights. The suit was contested by the appellants who pleaded that the decree of the revenue Court was legal and effective and that they had obtained possession of the land in execution of the decree. The trial Court decreed the suit on 31-7-1962 holding as follows :- "The sum and substance of my above discussion would be that I shall hold plaintiff' entitled to the possession of the land, because prior to the decree of ejectment he had acquired title to the land by adverse possession and his that position could not be altered by the decree of the Revenue Court. It seems to me and probably will not be wrong in my assumption that the ejectment suit was brought in the Revenue Court to avoid the consequence of non-execution of the decree of the civil Court to which reference has been repeatedly made. The present defendants had failed to execute the decree within the statutory period and no second suit was competent, therefore, they went and knocked the doors of the Revenue Court."
7. The Additional District Judge reversed this judgment and decree on the following alternate reasoning :- "From the evidence on record one cannot be positively sure that they did obtain possession but it does not appeal to reason that having fought a case for two years in a civil Court the appellants should not bother to enjoy the fruits of the decree which they ultimately won. 1n my opinion in the circumstances of this case a presumption arises in favour of the appellants and the appellants case seems to be more reasonable than that of the respondent. 1t appears to me that having lost that case the respondent persuaded the appellants to let *him continue in possession as a tenant and promised to pay them rent. But subsequently finding himself securely in possession of the land as before started denying the title of the appellants again . . . . . . . . . In my opinion this decree washed away the previous adverse possession of the respondent if any and even if the appellants failed. To obtain possession of the land in pursuance of that decree and the respondent remained in possession thereof adversely to the appellant the terminus a quo of his adverse possession should be the date of that decree and not the year 1944. So, I hold that the time started running against the appellants from 31-1-1947."
8. The learned Judge in Chambers set aside the finding of fact recorded in first appeal with regard to delivery of possession after civil Court's decree and held as follows :- "The learned District Judge has proceeded to build a case of his own in spite of holding that it had not been satisfactorily proved by evidence on the record that the defendants were put in possession of the property. It is, therefore, clear that there was no foundation for the premises raised by the learned District Judge in order to give a finding in favour of the respondents. The fact clearly stands that the defendants were never put in possession in pursuance of the decree passed on 31-1-1947 in their favour either through official channels or by private understanding."
9. On the legal question it was held that as a dispute over title was raised, the revenue suits having been filed more than twelve years after the ouster of the possession of true owners, the revenue Court had no jurisdiction in the matter and their decrees were ineffective. It was further held that the civil Court's decree of possession in favour of the true owners did not by itself, without its execution, interrupt the continuity of the adverse possession. The decisions for and against this proposition were examined and the principle supporting the conclusion was extracted. The judgment of the first appellate Court was set aside and that of the trial Court restored.
10. A Letters Patent Appeal filed by the appellants also failed on 1-8-1975. The finding of fact was upheld in the following words :- "In this view we have no option but to disregard the said finding of trial Court in this case and, relying upon the finding of trial Court in the earlier suit of 1945, holding that in consequence of partition --Mutation No. 464 attested on 18-2-1943 the appellants had been put in possession of suit land but after some time (i.e. After 1944), respondent again dispossessed them. Keeping these facts in view therefore, even the first revenue suit, filed by appellants against respondent in 1956 (the date of institution of which, however, cannot be ascertained from record), would be out of time under section 28 of Limitation Act, as it was filed after 12 years."
11. Mr. Abdus Samad Khan, Advocate, the learned counsel for the appellants contended that the appellants, who are the true owners, came to possess this land immediately after its partition in 1943 and remained in its possession in Kharif 1943 and Rabi 1944 as per judgment inter-parties dated 31-7-1947. The possession of the true owners was disturbed for the brief period of less than two years and they again came into possession in 1947 and remained in possession till 1951. The respondent came into possession 1952 and was ejected under a legal decree of the revenue Court in 1958. There was, therefore, according to the learned counsel no question of his perfecting adverse possession at any stage. For recovery of possession in 1947, the learned counsel relied on the so-called admission of the learned counsel for the respondent in appeal and the finding of the Additional District Judge on 10-7-1947. Finally, on the purely legal plane it was contended that the decree for possession, obtained by the true owner, whether executed or not, had the effect of interrupting the adverse possession of the respondent.
12. Mr. Tariq Jamal, Advocate for the respondent on the other hand disputed the factual contention that the adverse possession of the respondent over the land was at any stage interrupted. On the legal plane it was contended that the preponderance of precedent law supported the view taken by the High Court that unexecuted decree for possession by itself did not interrupt the continuity of the adverse possession.
13. After hearing the learned counsel for the parties at some length, we found that their preparation of the case on the law point was less than and adequate called upon them to submit written submissions supported by upto date case-law on the subject. None of the learned counsel has responded to it and no such statement of the case was submitted by them.
14. On the factual plane, the learned counsel for the appellants wanted to bind the respondent by an admission allegedly made by his.Counsel in the first round of litigation which is noted by the District Judge in his judgment dated 10-7-1947 in the following words :- "In appeal it is admitted by the counsel for the defendant appellant that the area in dispute had fallen to the share of the plaintiff respondents. He also conceded that the defendants title on the basis of adverse possession is not complete, but he contended that no decree could be granted because the defendant was not in possession of the dispute area. This is something new. In the written statement the defendant denied the title of the plaintiffs and set up adverse claim in which he failed. If he is not in possession the area in dispute, surely decree against him cannot be executed The decree is for a specific Khasra number and specific area over which the plaintiffs have got the title . And the right to possess. The counsel thus in a way supported the finding of the trial Judge."
15. This is not an admission but an argument based on an alleged fact neither appearing in pleading nor in evidence. It was not availed of even by the appellants in the subsequent litigation or proceedings. So, it is of no consequence at this stage.
16. On the legal question, the learned Judge in Chambers noted the following cases in support of the view that a decree for possession in favour of the true owner interrupts the continuity of the adverse possession :-
(i) Akbar Ali Mir Inayatali v. Abdul Aziz Mirsaheb AIR 1920 Bom. 61.
(ii) Rukhmabai v. Ramchandra Vasudev Rotithor AIR 1921 Bom. 470.
(iii) Anant Ganpati Mithare v. Vishnu Rambhau Dhavle AIR 1934 Born. 273.
(iv) Gagumal Metharam v. Allahbux and others AIR 1932 Sind 35.
17. After examining each the view taken to the contrary in. The following decisions was accepted :-
(i) A. S. S. Subbaiya Pandaram v. Muhammad Mustafa Maracayar, AIR 1923PC175.
(ii) Singaravelu Mudaliar v. Chokka Mudaliar AIR 1923 Mad. 88(2).
(iii) Mulchand v. Hirabai AIR 1930 Born. 400.
(iv) Jaimni Das v. Phulla Khan and others AIR 1930 Lah. 472.
(v) Muhammad Tahir v. Bechey Lal AIR 1936 All. 466.
(vi) Raja Har Indar Singh v. Shiv Ram AIR 1937 Lah. 602.
(vii) Puthia Valappil Ayissa v. Lakshmana Prabhu (1911) 9 1 C 795.
18. In the case of Akbarali Mir (supra) a decision had been rendered against the persons in possession and management of Devasthan of Usthal on 7-7-1896. The decree-holders were remiss in seeking to execute it. The person in possession adversely and managing it remained in continuous possession. Their suit for perfecting title by adverse possession was dismissed and they were not allowed to take on the period of adverse possession before the decree on 7-7-1896. This was refused to them on the following reasoning :- "It is quite possible, after the decree had been passed and after the successful party was so remiss in seeking to execute it, the plaintiffs might have gathered fresh courage, and might have, after a certain period had elapsed from the date of the decree, determined to set up again a title in themselves against the successful party in that suit. But we have no evidence of that and certainly there is no evidence that they took that attitude before 1st August, 1908. But we think that it would require very strong evidence indeed on the part of a losing party to acquire a fresh title by adverse possession against the decree of the High Court or of any Court, and he would certainly have to act in such a way that the parties interested could have no doubt whatever with regard to his motives in order that they might be enabled to take proper steps to stop time from running."
19. In the case of Rukhmabai, a more detailed reason for this view was given in the following words :- "When a decree has been passed against a person in possession directing him to give up possession to the successful party, and the former remains in possession waiting for execution, then it cannot be said that that party is holding adversely holding to the world, although all the time the period of limitation was running out against the successful decree-holder. As we stated in a recent decision, we must assume that the person against whom the decree for possession has been passed recognises the decree, and is not prepared to take up the position that the decree is not binding against him. It can safely be presumed that such a person remains in possession until execution proceedings are taken, but does not thereby assert that he has a title against the decree."
20. The next case of Hampiholi (1) proceeded in the background that symbolic possession had been obtained in execution of a decree for possession. The relevant observations made in the judgment in the alternative were as follows :- "In my opinion, in this case it cannot be said that the question of adverse possession arises in the face of the plaintiff's decree of (1) AIR 1922 Bom. 27(2)
21. February 1914. That would put a stop to any adverse possession prior to the date of the decree, and even if that were not so, considering that the defendants were parties to the execution proceedings, the decision in Radha Krishna v. Ram Bahadur k 1918) 20 Born. L R 502=43 I C 268=34 M L J 97 (P C) would be applicable. The plaintiff, therefore, would be entitled to succeed, and the appeal must be allowed and a decree passed for possession with costs throughout."
22. In the case of Gagumal Metharam (supra) symbolic possession had been obtained but the law was laid down in somewhat general terms in the following words :- "Whether a prior decree to which a defendant is a party operates as breaking the continuity of possession of the defendant or not must necessarily depend on the nature of the decree. Where, however the decree is in favour of a plaintiff for possession as owner and is passed against a defendant who is to possession it would, in tour opinion, break the continuity of the possession of the defendant, and prevent him from relying on his prior possession for the purposes of limitation under Article 144."
23. In the case of Anant Ganpad Mithare (supra), the learned Judge in Chambers decided to follow the law laid down in Akbarall Mir Aaratali (supra) on the ground that "I am, however, bound by the view of our Court".
24. In the case of Achhiman Bibi v. Abdur Rahim Naskar (AIR 1958 Cal. 437it was held that a declaratory decree does not but a decree for possession does interrupt adverse possession.
25. It appears that the predominant view even in the Bombay High Court has been different than what is expressed in the decisions already referred.
26. In the case of Mulchand Chouthmal Marwadi (supra) a different view was taken in the following words :- "There may perhaps be an exceptional case such as Mir Akbarali v. Abdul Ajij (1920) 44 Bom. 934.
27. 53 I C 96, where a decree might be sufficient to cause a change in the adverse character of the possession in the case of a co-manager. This is not, however, the case here, and with the greatest respect, it cannot be held as a proposition of law that a decree of itself necessarily interrupts possession or alters its character. It is difficult to see how the plaintiff who has taken no steps till 1925, can be in a better position than Fakirchand who sued and obtained a decree in 1912 even though he failed to execute it. It is hardly open to the plaintiff to allege that his right remains because he was not a party to the suit of Fakirchand, and yet to rely upon Fakirchand's decree as interrupting the adverse possession."
28. In the AIR 1939 two such cases were reported from Bombay. In the first case of Narayan Jivafi Patil v. Gurunathgouda AIR 1939 Bom. 1), it was held that a judgment of a Court declaring that a party in possession of immovable property has not title to it has not the effect of interrupting the continuity of it as against the real owner. In the second case of Bhogilal Kripashankar v. Ratilal Balkrishna AIR 1939 Bom. 261) not only a contrary view was taken but it was held that AIR 1920 Bom. 61 "is no longer good law" and this decision was followed in Vishnu Janardan v. Mahadev Keshav (AIR 1942 BOM 44) and in Dagadabai v. Sakharam (AIR 1948 BOM 149).
29. So far as the Lahore High Court's decisions are concerned, it has been consistently the view as appears from the following cases, that a decree for possession does not interrupt the running of the time and does not affect the continuity of adverse possession if the decree remains unexecuted and the possession is not otherwise disturbed : -
(i) Akbar and others v. Tabu and others 45 P R 1914.
(ii) Akbar and others v. Tabu and others (1914) 22 I C 805.
(iii) Hans Raj v. Maulu (1921) 63 1 C 881.
(iv) Muhammnd Din v. Muhammad and others AIR 1921 Lah. 83.
(v) Kundan Lai v. Gauri Mal AIR 1928 Lah. 719.
(vi) Bahawal and others v. Ghulam Muhammad AIR 1929 Lah. 524.
(vii) Muhammad Ibrahim v. Shaida Muhammad AIR 1930 Lah. 297.
(viii) Jaimni Das v. Phulla Khan AIR 1930 Lah. 472.
(ix) Raja Har Indar Singh v. Shiv Ram AIR 1937 Lah. 602.
30. The two decisions, one from Lahore High Court, the other from Travancore-Cochin, separated by a span of twenty years, review in detail the precedent law on the subject. The first is the case of Raja Har Indar Singh (supra), wherein the following discussion is relevant :- "There are, however, numerous authorities which have dissented from what is laid down in the above decision. In Jaimni Das v. Phulla Khan AIR 1930 Lah. 472 : Akbaralli Mir Inayatali 44 Bom. 934 was not followed and it was held that a decree not accompanied by actual effective assertion of rights and taking possession of those rights does not help to stop adverse possession running. In Mulchand Chouthmal v. Hira Bai AIR 1930 Born. 400, the same proposition was laid down and 44 Bom. 934 was not followed. In Singaravelu Mudaliar v. Chokka Mudaliar 46 Mad. 525 a Division Bench dissented from the decision in 44 Bom. 934 and held that a judgment of a Court, declaring that a party in possession of immovable property -has no title to it, has not the effect of interrupting the continuity of his adverse possession as against the real owner. There are numerous other authorities on this point, such as Hans Raj v. Maulu 63 I C 881 a decision of a Division Bench of this Court, Bahawal v. Ghulam Muhammad AIR 1929 Lah. 524 another decision of a Division Bench of this Court, Puthia Valapil Ayissa v. Lakshmana Prabhu 9 1 C 795 a decision of a Division Bench of the Madras High Court, Babaji Akoba v. Dattu Laxman 37 Born. 64 and Muhammad Tahir v. Bechey Lai AIR 1936 All. 466. It follows that, though the decision of this Court in Maharaja of Faridkot v.
31. Anant Ram 10 Lah. 447 to the effect that .The property in 1903 belonged to the Maharaja, is binding upon the auction-purchaser, although they were not parties, by the principle of lis pendens, it is not a necessary consequence of that decision that adverse possession, which had commenced to run, was interrupted by that decision."
32. In the other, which is a Full Bench decision in Padmanabha v. Velayudhan (AIR 1957 Trav.-Co.
33. 32the following observations are relevant - "The TravancoreHigh Court alone has been maintaining a view contrary to that taken. By the other High Courts in India on the question of interruption of the adverse possession of a property by one party as a result of the decree declaring that he has no title to the property. The view taken by that Court on this question has not been uniform throughout . . . . . With, all respect to the learned Judges who participated in the decision in 29 Trav L J c09 (F B) (A) we have to hold that the said decision is unsupportable even on the principle of stare decisis. On the questions which the Full Bench had to decide, the earlier decisions of the same High Court were not uniform. In 12 Trav L R 211
(L) it was ruled that a decree merely declaring title'to the property in favour of the plaintiff will not interrupt the defendant's adverse possession of the property . . . . . . Under such circumstances the casual observation made in that case cannot be taken as a considered decision of the question by this Court. In order that it may not be understood otherwise, we wish to make it clear that the casual observation made in the course of the judgment in that case on the question that we are now called upon to decide does not represent the correct exposition of the legal position. We have already explained what the correct position is."
34. In this case the law was laid down in the following terms :- "Even when there is a decree for possession in favour of the title--holder, he may lose his right to get recovery of possession on account of the operation of the law of limitation. If the decree is not executed within the time prescribed by law, the decree-holder will lose his right to get recovery of possession of the property in spite of the existence of the decree in his favour."
35. The nature of the possession of an adverse owner, its continuity and legal effect was considered in Varada Pillai v. Jeevarathnammal (1). It was a. Case where one of the heirs of the donor held possession as donee under imperfect gift and subsequently the donor died and the succession opened to the other heirs also including the donee under an imperfect gift. It was held that the character of the possession of the donee which was adverse did not cease to be so by reason of his becoming a part owner along with others. In another case of Pirthipal Singh v. Ganesh Din Singh (2), a declaratory decree had been obtained denying to the persons in possession proprietary or under proprietary rights. It was considered to be a binding decree on the parties. Nevertheless, the persons against whom the declaration was granted remained in possession and gave themselves out to be proprietors.' The Privy Council concluded as follows :- "In other words, it is plain that whatever may have been the original effect of the decree, from that time down till now this estate has been regulated upon the footing that the defendants possessed the rights that they claimed to enjoy."
36. There was a declaratory decree intervening in the case of Subbaiya v. Muhammad Mustafa (supra) also and the following observations are relevant in the context :- "Now the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the trust had been validly created and that the property was, in fact, trust property, (1)AIRIP19PQ44(2)AIR1922:PQ303 and it is suggested that this effect res judicata as against the respondents and prevents them from now asserting that the property is their own.
37. Their Lordships do not think that the decree had that effect. At the moment when it was passed, the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a trust disposition, and therefore, ought not to have been seized, did not disturb or affect the quality of his possession ; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late."
38. The case-law on, the subject clearly establishes the' principle that a decree for possession emphasises the claim of the plaintiff to be true owner and that of the defendant to be in adverse possession alleging hostile title and interest, and the decree for possession by itself has not the effect of interrupting the adverse possession once commenced. In this case the adverse possession commenced immediately after Rabi 1944 and continued uninterrupted for over twelve years, before respondent's ouster on 18-5-1958. He had, on these findings of fact, perfected his adverse possession so as to successfully claim restoration of the property even from the true owners. In the circumstances, the appeal fails and is hereby dismissed leaving the parties to their costs.