The defendants have filed this revision petition against the judgment and decree passed in favour of the plaintiffs by the Civil Judge Ist Class Karak and concurred to by the District Judge, Kohat in a suit for declaration that the plaintiffs were owners-in-possession of the suit land which was transferred to their predecessor-in-interest by way of exchange by the defendants and that the entry in the Revenue record pertaining to the year 1974-75 showing the ownership of the suit land in the name of the defendants was wrong. An alternative prayer was incorporated in the plaint for the possession of the suit land.
2. If we ignore the tendency these days of inartistic drafting, some times deliberately adopted to mislead the Court, the plaint of the respondents, in substance, was for a declaration of their title to the suit land on the basis of exchange and also for possession of the same. In the averments made by the plaintiffs no claim was made that they ever came into possession of the suit land after the alleged exchange was transacted between the parties or they were ever dispossessed of the same. As a matter of fact in their evidence they have accepted the fact that they were not in possession of the suit land. The Revenue officials appearing on behalf of the plaintiffs proved the exchange of the suit land with the help of the Revenue record effected through mutation No.35817 dated 15-3-1947 and also the last entry to this effect in the `Jamabandi' of the year 1958-59 but categorically stated that possession of the said land was never recorded in the name of the plaintiffs. That is precisely the reason that the plaintiffs made, though "alternatively", a prayer for possession of the suit land. So, admittedly the possession of the suit land is with the defendants.
The cause of action, according to the plaintiffs, accrued to them when during `Kharif, 1979 they objected to the defendants having any right in the property and thereupon they came to know that the Revenue officials had unjustifiably excluded them from the record pertaining to the suit land, and that they attached extract from the latest record of rights for the year 1974-75 to prove their point.
3. The only point urged before me by Mr. Saeed Baig, Advocate, the learned counsel for the petitioners, was that if at all any cause of action accrued to the plaintiffs it was from the entry in the `Jamabandi' of the year 1962-63 and that in accordance with Article 120 of the Limitation Act, they ought to have filed their suit within six years of the incorporation of the said entry. On the contrary they have filed their suit in the year 1979 which according to the learned counsel was time-barred.
He argued that the findings on this issue of both the Courts were in disregard of law and facts of the case. According to the learned counsel ratio of the judgment in case Fateh Ali Shah and others v. Muhammad Bakhsh and others AIR 1928 Lah. 516 referred to by the trial Court in support of its findings was misconstrued by the learned Judge. In the said case the plaintiff was in possession of the suit property and it was held that plaintiff in possession need not bring a suit on first denial of his title and that he must take proceedings within six years from the time when his rights are being actually jeopardized. According to the learned counsel, in the instant case the plaintiffs are not in possession or enjoyment of the property in suit and, therefore, the principles laid down in the above-cited case as well as several others decided by the superior Courts are not relevant in determining the question of limitation in this case. Elaborating his arguments, the learned counsel pointed out that in case it was a simple suit for declaration of title and not for possession of the suit property the provisions of Article 120 of the Limitation Act which stipulate six years period of limitation shall be strictly adhered to. But in case the defendants set up a plea that the plaintiffs were never in possession of the suit land and that to their knowledge the defendants were in possession enjoying the suit land to the exclusion of the plaintiffs, the provisions of Article 144 of the Limitation Act shall come into force. According to the learned counsel the suit of the plaintiffs, though couched in deceptive terms was in substance a suit for declaration for the title of the land as well as for the possession of the same. The learned counsel further argued that both the Courts have failed to distinguish between a suit for declaration of title and the suit for possession of the disputed property. According to him the trial Court granted the decree to the plaintiffs without examining their plea for possession of the suit land. The learned counsel cited several judgments from the superior Courts of undivided India which shall be presently dealt with in this judgment.
4. Mr. Abdul Qadir Khattak, Advocate, the learned counsel for the respondents supported the findings of the learned Civil Judge on the issue of limitation by submitting that every successive entry in the Revenue record casting doubts on the title of the plaintiffs in the suit land shall give fresh cause of action to them and that, therefore, the period of limitation for filing their suit commenced from the preparation of the Revenue record in the year 1974-75. Accordingly under the provision of Article 120 of the Limitation Act they were well within time in filing their suit in the year 1979. He did not, however controvert the fact that the possession of the suit land was not with the plaintiffs. He mainly relied on the above-quoted judgment in Fateh Ali Shah's case and also referred to Muhammad Shah and another v. Mir Zaman and another AIR 1943 Pesh.
83. The principles laid down in the judgment in the latter case are also to the same effect as those of the Fateh Ali Shah's case but the learned counsel for the respondents cited the judgment to differentiate between the preparation of Record of Rights and the `Jamabandi'. According to the learned counsel it was the preparation of Record of Rights in the year 1974-75 which gave the plaintiffs their cause of action and not the earlier entries in the `Jamabandis'.
5. It is indeed unfortunate that both the trial Court and the appellate Court whose judgments are being impugned before me, have neither applied their mind to the facts of the case nor to the principles of law relating to the case. It is in these circumstances that today Judges of the High Court, sitting in revision, have to so frequently interfere in the findings of the lower Courts. I, therefore, propose to resolve the controversy in this case m some detail.
6. Property is a many facets concept. Our law recognises different aspects of dominion exercised by a person over his belongings. Possession has always been considered as an essential part of the concept of property. As a matter of fact, in English law all the proprietary rights were based on possession. It was laid down in Damford v. Mc. Anulty, 8-A, C. 456, 462 that possession of land is "prima facie evidence of a seisin-in-fee and he who sues for the recovery of the land of which another is in its possession, must recover on the strength of his own title and cannot find his claim on the weakness of the possessor's title". These principles of common law were translated in the Statutory law of British India A which we have inherited in our concept of property. Possession has been considered by us, as was the case in English Law, as to be so important that the one who actually holds the property and enjoys the same can assert his right to do so after a period prescribed by the Statute as against the one who slept over his rightful entitlement to the said property during that period. In the case in hand we have certain admitted premises. It has been established that the controversial exchange of land between the parties took in the year 1947. It is also admitted by both the parties that the suit land never came into possession of the plaintiffs and the defendants are in possession of the same till today. It is also a fact that the Revenue record which was prepared in the year 1962-63 did not carry the entitlement of the plaintiffs to the suit land and that the suit was filed in the year 1979. Article 120 of the Limitation Act which was found to be applicable to the case of the plaintiffs by the trial Court prescribes a period of six years for filing a suit, described therein. The said period of six years is to be counted from the time B when the right to sue accrues. As to when the right to sue accrues has been exhaustively dealt with by our Courts in different situations and circumstances. One of such situations has arisen in the case in hand when the plaintiffs without being in possession of the suit property have invoked the exchange transaction evidenced by a mutation attested in the year 1947-48 to claim their right to the suit property in the year 1979. In this context the plaintiffs' assertion that their right to sue m the year 1979 accrued to them from the Revenue record prepared in the year 1974-75 being fresh invasion on their title was accepted by both the Courts. Nothing was stated by the learned Judges as to the effect of such an entry on the plaintiffs' admitted position of being not in possession of the suit land. The precedent relied upon by the learned Civil Judges related to a case of a plaintiff who was in possession. Discussing Article 120 of the Limitation Act in Fateh Ali Shah and others v.
Muhammad Bakhsh and others AIR 1928 Lah. 516 Justice Jai Lal stated as follows. "If a plaintiff is in possession or enjoyment of the property in suit he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or at his option may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardized by the action or assertion of the defendant, then he must take proceedings within six years from the date of such action or assertion. It is quite evident from the aforesaid findings of the learned Judge that the entries in the Revenue record are immaterial, so far as his right to sue is concerned, for that plaintiff who is in possession to repel invasion on his right taking the date of such invasion as the commencing period of limitation. Elaborating the nature of invasion the learned single Judge of erstwhile Peshawar Judicial Commissioner's Court in Muhammad Shah and another v. Mir Zaman and others AIR (30) 1943 Peshawar 83 opined that "a suit by the plaintiff for correction of an entry in the Jamabandi papers is governed by Article 120. The cause of action for the suit accrues when the entry is made in the Jamabandi for the first time. The opposition by the opposite party to an attempt by the plaintiff to change the entry in his favour does not amount to a fresh invasion of the plaintiffs right so as to give the plaintiff a new cause of action from the date when his attempt to enter a correction in the Jamabandi failed. There must be some attempt on the part of the opposite party to oust the plaintiff in possession in order to give the plaintiff a fresh cause of action." Thus it was made abundantly clear that the cause of action for the correction of an entry in the `Jamabandi' papers accrues when it appears for the first time. The fresh cause of action after such an entry arises only in the case of that plaintiff whose possession is being threatened by the defendant. Incidentally this judgment was cited by the learned counsel for the respondents in this case. His emphasis was on another observation of the learned Judge on page 85 of the report where a distinction was drawn between the record of rights and the `Jamabandi. Nothing has been brought on the record to support the assertion of the learned counsel for the respondents that the entry in he Revenue record was the result of the preparation of such a record during which the disputed entry was contested and decided by the Revenue officials in the presence of both the parties. In any case in view of the ratio of the judgment in Muhammad Shah's case such an assertion is not relevant in the circumstances of the case in hand. Similar findings as those quoted above were given in several other cases including Raja Partab Bahadur Singh v. Raja Rajgan Maharaja Jagatjit Singh from the jurisdiction of erstwhile Oudh Chief Court 164 Indian Cases 11.8, Ahmad Hosain Depari v. Digindranarayan Singh Ray from the High Court of Calcutta Series, Vo.LXII Page 969: Akhbarullah v. Hasan Ali Khan and others AIR 1937 Pesh. 94, Azizur Rehman Moulvi Hazrat Ji v. Abdur Rahim and others AIR 1938 Pesh. 28.
6-A. The irresistible conclusion drawn from the aforesaid analysis of law and precedent on the subject is that the suit of the plaintiffs was time-barred as their right to sue under Article 120 of the Limitation Act accrued to them from the first evidentiary denial of their title in the `Jamabandi' of the year 1962-63 and as they were not in possession of the suit land and no action threatening their right to it has been alleged against the defendants, any subsequent entry in the Revenue record shall not give them fresh cause of action. The defendants were in possession of the suit land and they did not do anything new to invade the entitlement of the plaintiffs, if any, to the disputed land. Their complacency in ignoring the continued adverse entries in the Revenue record coupled with the admitted position that possession of the exchange land was not handed over to them shall expose the plaintiffs to the bar of limitation prescribed by law. This shall be specially so when the defendants not only denied the title to the suit land by repudiating the exchange transacted in the year 1947-48 but also remained in possession of the suit land since then to the knowledge of the plaintiffs. Even if, somehow, the embargo of Article 120 of the Limitation Act is lifted from the suit of the plaintiffs they could be non-suited on the touchstone of Article 144 of the said Act.
7. 1 may, however, observe that nothing was said about that parcel of land which was to be exchanged by the plaintiffs for the suit land. If the same has gone into the possession of the defendants, the plaintiffs have not cared to make any reference to it. In any case this judgment shall not affect the rights and the liabilities of the parties, if still available to them in law, with regard to the said parcel of land.
8. In the light of the what has been stated above this revision petition is accepted. The impugned judgments and decrees passed by the learned Civil Judge, Karak and the learned Additional District Judge, Kohat are set aside and the suit of the plaintiffs is dismissed as time-barred. There shall, however, be no order as to costs.