This Regular Second Appeal arises from the judgment and decree dated 7--12-1966 passed by the learned District Judge, Gujranwala, whereby the first appeal brought by the appellants-plaintiffs was dismissed.
2. It was a suit for declaration to the effect that the appellant had become owners of the disputed land by having occupied it adversely to the respondent for the last 60/65 years. They asserted that a suit for possession of the land in dispute brought by predecessor of the respondent was dismissed on 4-8-1924 and that ever since the appellants' possession being adverse in nature had matured into a rival title in their favour. They alleged that the respondent had obtained a fake entry in the Jamabandi of 1956-57 showing his own cultivation as Hissadar and had even wrongly got attested mutation No. 662 dated 21-5-1968 about relinquishing possession of the land on their part in his favour. They averred that all these entries were ineffective particularly because they occupied it adversely to the respondent and had become its full owners.
3. The suit was resisted denying the adverse nature of the appellants possession and observing that dismissal of the previous suit was of no consequence as it did not hold as to who was in adverse possession.
4. Appropriate issues out of these pleadings were framed by the trial Judge who dismissed the suit and so was dismissed the appeal upholding that the parties being co-sharers could not possibly assert adverse possession against each other. There was a further finding of fact that the appellants possession discontinued during 1952-53 when the land cultivated by someone else under the respondent.
5. No point of law was involved to support the present R.SA. As to who occupied the land was essentially a question of fact and the concurrent findings thereon against the appellants could not be interfered with in the second appeal. The further finding of fact was that the appellants' possession was not continuous inasmuch as in the year 1952-53, the land was cultivated by tenant attorning to the respondent. This is what was demonstrated by the Jamabandi for 1952-53 FxP, P.I.
Even if, therefore, the appellants were in possession for a long time earlier, the break appearing in the continuity of their possession in the year 1952-53 disproved their assertion that they were availing possession of continuous twelve years before the institution of the suit, that is on 16-10- 1963. Apart from this, aspect, it was common case between the parties that they are both co- owners in the land. It is a long established rule that one co-owner accepts the property for himself as also the entire body of co-owners. Ordinarily, in such an event there is no exclusion by one of the others and his possession enures for all of them. The plea of limitation is as a matter of course not available against a co-owner. In Shamas-ud-Din v. Mst. Jewan and others (1986 MLD 764) and Mst. Zarifan v. Mst. Rehmati (1987 SCMR 66) suit were filed many years after attestation of mutations by which the affected co-sharers were excluded. The plea of lapse of limitation was as spurned on the premises that a co-sharer in possession held and even on behalf of those who were out of possession. If limitation was inapplicable, correspondingly there may be no claim for adverse possession because both were cognate questions. Still further, there had been consolidation proceedings in the estate. The old Khasra No. 398 was changed into Khasra No. 242.
The appellants-plaintiffs could not insist to retain it. No cause of action lies to seek such a relief.
There is abundant authority on the point, for example Ghulam Qadir v. Member, Board of Revenue, West Pakistan, Lahore and 4 others (1970 SCMR 292), Raja Rahim Dad and another v. Ziaur Rehman and others (1984 SCMR 149), Ahmad and others v. Karam Hussain and another (1985 SCMR 1984) and Alam and others v. Member (Consolidation) Board of Revenue and others (1988 SCMR 310). For this reason too, the suit was untenable. It was rightly dismissed by the Courts below.
The R.S.A. Is also dismissed leaving the parties to bear their own costs.
H.B.T./N-302/L