1. ' ANWARUL HAQ, J.-This appeal, on a certificate of fitness granted by the High Court, has arisen out of a suit filed by the appellants for a declaration to the effect that they had acquired title to the disputed properties by adverse possession for over 12 years. The suit was dismissed by the trial Court on 26-3-65, but this decree was reversed in first appeal by the learned Additional District Judge, Lyalipur, on 29-7-66, and the suit was decreed. Accepting the second appeal filed by the defendants, the High Court has dismissed the suit by its judgment dated the 12th of September 1969.
2. ' The following pedigree-table will assist in understanding the relationship between the parties:- {{TABLE}} Jamal Din Rahmat Bibi (daughter)
3. Ali Bakhsh (Pre-deceased son) Amir Bibi (daughter)
4. 1 1 Abdul Majid Abdul Hamid Rehmat Bibi
(son) (son) (widow) {{TABLE}} ' Jamal Din died on 7-7-48, leaving behind substantial areas of agricultural land as well as a residential Ahata in Chak No, 192, R. B., Tehsil and District Lyalipur. On the 21st of July 1948, mutation No, 321 (Exh. D. 24) pertaining to land measuring 109 kanals and 19 marlas, comprised in Sq. No, 82, was entered by the Patwari in the name of Mst. Rehmat Bibi widow of Ali Bakhsh, the predeceased son of Jamal Din, on the basis of an alleged oral will made by the deceased in her favour on the 4th of July 1948. Mutation No, 320 (Exh. D. 23) was simultaneously entered, in respect of the rest of the properties, in favour of the appellants, Abdul Majid and Abdul Hamid, sons of the said Ali Bakhsh, on the basis of the same oral will. However, both these mutations were rejected by the Naib Tehsilder on the 13th of October 1949.
5. ' On the 25th of February 1950, a fresh mutation bearing No, 341, was entered according to the Muslim Personal Law, and sanctioned by the Revenue Officer on the 27th of June 1950. According to this mutation, the two daughters Rehmat Bibi and Amir Bibi were each given 1/3 share in the estate of their father Jamal Din, and the remaining 1/3 was divided equally between the two sons of All Bakhsh as residuaries. Mst. Rehmat Bibi, the widow of Ali Bakhsh, was excluded.
6. ' In August 1950, the two sons of All Bakhsh filed a suit for a declaration that they were owners of land measuring 225 kanals in Sq. No, 21, 107 kanals 15 marlas in Sq. No, 48 and a residential Ahata on Khasra No, 93, in accordance with a written will of their grand-father executed on the 4th of July 1948. The widow Mst. Rehmat Bibi also brought a similar suit in respect of 109 kanals and 19 marlas of land comprised in Sq. No,
82. Both these suits were decreed by the trial Court on 31-3-1952. These decrees were, however, reversed by a Division Bench of the High Court, in first appeal, on 7-6-56, holding that the will relied upon by the sons and the widow of Ali Bakhsh had not been executed by Jamal Din deceased in his lifetime and had been brought into existence long after the first two mutations had already been rejected on the 27th of June 1950. This judgment of the High Court was challenged by way of two appeals in the Supreme Court, but both the appeals were dismissed by this Court on 21-1-1964.
7. ' During the pendency of their appeals in the Supreme Court, the widow Rehmat Bibi and her two sons Abdul Hamid and Abdul Majid jointly instituted a suit on 16-11-1961 for a declaration that they had become owners of these properties by adverse possession for more than the prescribed period of 12 years. They asserted that they had entered into possession of the suit.Property as owners under the will of the 4th of July 1948, that since then they had continuously remained in possession by themselves or through their tenants, and their title having matured into ownership, the defendants, namely, the daughters of Jamal Din had no right to continue with partition proceedings.
8. ' It may be stated that on 2-11-1956 the two daughters of Jamal Din had initiated partition proceedings before the Revenue authorities. The present appellants had made an application for a stay of these proceedings, but the same was dismissed by the Assistant Collector. Their appeal was dismissed by the Collector, and their first revision met the same fate at the hands of the Divisional Commissioner. However, a learned Member of the Board of Revenue accepted their second revision and stayed the partition proceedings pending decision of the original suit as to title.
9. ' Another fact which also needs to be mentioned is that on 21-8-1950, the two daughters of Jamal Din had filed a suit against the appellants in a Revenue Court for rendition of accounts of the produce of the land in suit. This suit was decreed ex parte, but the ex-pane decree was later set aside, and a written statement was filed by the appellants on 25-1-1960. Proceedings in this suit were also stayed by the learned Member, Board of Revenue by his order dated 17-1-1963.
10. ' The appellants' suit was resisted by Mst. Rehmat Bibi, the daughter of Jamal Din, and the legal representatives of the other daughter Mst. Amir Bibi, who had died in the meantime. The learned Senior Civil Judge, Lyallpur, who tried the suit, found that the plaintiffs before him had entered upon the properties in suit as heirs of Jamal Din, and, therefore, they had become tenants in common with the defendants, with the result that their possession was not adverse to the defendants at the time of its inception. He took note of the fact that the will relied upon by the plaintiffs had been rejected, in the previous litigation, up to the level of the Supreme Court. After analysing the oral and documentary evidence relied upon by the appellants, he observed that the lease deeds, the revenue receipts, and the Khasra Girdawaries produced by the plaintiffs, in order to prove their exclusive possession, were all subsequent to the crucial date, namely, the 16th of November 1949, the suit having been filed on the 16th of November 1961. He further observed that, in his opinion, the first overt act of the plaintiffs was the filing of the two civil suits in August 1950, but that action fell within 12 years of the institution of the present suit. On this view of the matter he reached the conclusion that the plaintiffs had failed to establish their adverse possession for more than 12 years prior to the institution of the suit, and accordingly dismissed the suit. He also awarded Rs, 1,000 as special costs against the plaintiffs.
11. ' In appeal by the plaintiffs, the learned Additional District Judge, Lyallpur, took the view that after the rejection of the two mutations entered in their favour on the basis of the alleged oral will, their possession became adverse to the true owners, especially for the reason that the widow Mst.
12. Rehmat Bibi was not a Muslim Law heir of her father-in-law Jamal Din. He further observed that even the two sons, namely, Abdul Majid and Abdul Hamid, of Ali Bakhsh were not the heirs of their grand-father as their father Ali Bakhsh had pre-deceased Jamal Din. He concluded by saying that the adverse possession of the plaintiffs bad, therefore, commenced from the 7th of July 1948, i. e.,,the date of Jamal Din's death and not from August 1950, when the plaintiffs had filed two separate suits for a declaration on the basis of a will. On this view of the matter, he decreed the suit in favour of the plaintiffs.
13. ' In second appeal, preferred by the defendants, a Division Bench of the High Court expressed the view that the two Courts below had not examined the revenue records in detail separately with respect to all the different items of the properties in suit, and it was, therefore, necessary for the High Court to undertake this examination in order to arrive at a correct conclusion. As a result of this examination, the learned Judges found that land measuring 215 kanals 7 marlas comprised in Sq. No, 21 was shown in the Jamabandi for the year 1957-58 as jointly belonging to the appellants Abdul Majid and Abdul Hamid, as well as the defendants in proportion to their shares under the Shariat law, and its possession was with plaintiffs. Abdul Hamid and Abdul Majid, as co sharers, as well as tenants-at-will on behalf of the other co-sharers. The Khasra Girdawaries for this land for the years Kharif 1954 to Kharif 1961 and onwards also reflected the same position. The learned Judges rejected the oral evidence of adverse possession in respect of this land.
14. ' As regards the residential Ahata measuring 2 kanals 13 marlas comprised in Khsara No, 193, they found that in the Jamabandi for the year 1957-58 this land was shown as ghair mumkin in the joint possession of the defendants as well as the plaintiffs, Abdul Majid and Abdul Hamid. Their mother's name was conspicuous by its absence in so far as this land was concerned.
15. ' As regards land measuring 107 kanals comprised in Sq. No, 48, the learned Judges found that it was recorded, in the Khasra Girdawari from Rabi 1954 to Kharif 1958, in the possession of two persons named Mohammad Shafi and Fateh Mohammad, and none of the parties to this suit were shown to be in possession thereof. However, in the Khasra Girdawaries from Rabi 1958 to Kharif 1961, for the first time, this land was entered as partly in the possession of appellants, Abdul Majid and Abdul Hamid, as co-sharers through different tenants. The learned Judges found that these entries could not lend support to the plaintiffs' claim to adverse possession of this piece of land.
16. ' The High Court also took note of the fact that at the time of Jamal Din's death his grandsons Abdul Hamid and Abdul Majid were minors, and their guardian could not hold the property adversely either on their behalf or against them.
17. ' Lastly, with regard to land measuring 102 kanals 17 marias and comprised in Sq. No, 82, after analyzing the oral and documentary evidence produced by the plaintiffs, the learned Judges reached the conclusion that Mst. Rehmat Bibi widow had failed to prove that she had in fact remained in continuous possession of land comprised in Sq. No, 82 on the basis of the alleged will in her favour by Jamal Din deceased. The learned Judges observed that most of the oral witnesses were not worthy of credit, as some of them had falsely deposed to the existence of the will which was declared to be forged by the High Court in the previous round of litigation. They also found that Khasra Girdawaries relating to Kharif 1954 and Rabi 1955 clearly showed that this piece of land was in the possession of plaintiffs Abdul Hamid and Abdul Majid as co-sharers, and their mother's name was not mentioned. This position was also reflected in the Jamabandi for the year 1957-58.
18. ' In support of the present appeal, it is contended by Sh. Ghias Mohammad that the first appellate Court having recorded a finding as to the continuous adverse possession of the appellants for over 12 years prior to the institution of the suit, it was not open to the High Court, acting in second appeal, to interfere with that finding. It is next submitted that the appellants having entered on the lands in dispute under a will set up by them, and having continued in that position, in spite of the will having been found to be forged or non-existent, their possession clearly became hostile to the respondents' right from the date of Jamal Din's death, and they could not, therefore, be regarded as being tenants in common with the other heirs of Jamal Din. The learned counsel further submits that in any case such a position could not arise in respect of 109 kanals and 19 marlas of land comprised in Sq. No, 82 which the widow Rehmat Bibi was claiming under the alleged will, as she was not an heir of Jamal Din.
19. We regret we see no merit in these submissions. The finding of fact recorded by the learned Additional District Judge, Lyallpur, in first appeal, was based merely on the two mutations which were entered in favour of the appellants at the instance of Lambardar Amir Din on the death of Jamal Din, but these mutations were rejected by the Naib Tahsildar on the 13th of October 1949. The learned Additional District Judge failed to examine, in depth, the oral and documentary evidence in support of the appellants' contention that in spite of the rejection of these two mutations, and the attestation of a proper mutation of inheritance, according to the Muslim Personal Law, on the 27th of June 1950, they remained in continuous adverse possession for the prescribed period. We have already stated that the trial Court found that the documents relied upon by the appellants did not take their possession back to the crucial date, namely, the 16th of November 1949; on the contrary, they fell considerably short of the prescribed period of 12 years. The learned Additional District Judge failed to examine this aspect of the matter. His findings were, therefore, vitiated owing to non-consideration of material evidence, and were not binding on the High Court in second appeal.
20. ' The learned counsel for the appellants was not in a position to refer us to any single document which could support the appellants' claim of being in exclusive and hostile possession as against the true owners. The High Court has rightly remarked that in all the revenue documents the possession of the appellants Abdul Hamid and Abdul Majid is recorded as co-sharers with others, and their mother is not shown as being in exclusive possession continuously even in respect of the land comprised in Sq. No,
82. It is also clear that the two sons of Ali Bakhsh being minors at the time their grandfather Jamal Din died in July 1948, they could not have assumed hostile possession of these lands as against their aunts, i. e., and the daughters of Jamal Din. There is no support for the proposition that the mother or guardian of minor sons could assume hostile possession of any property on their behalf; she could act as guardian only in respect of property which belonged to the minors. Of course, she could be in adverse possession in her own right, but in the present case such continuous adverse possession has not been proved on the record.
21. It is also interesting to observe that on 2-11-1956, the two daughters of Jamal Din had made an application to the revenue authorities for partition of their share in the land, and earlier, on 21-5-50 they had filed a suit in a revenue Court for the rendition of accounts of their share of the produce.
22. Both these matters were pending, and proceedings were ultimately stayed therein by a learned Member of the Board of Revenue. The suit for rendition of accounts of the share of the produce was even decreed ex pane B at one stage. During the pendency of these proceedings, amounting to an assertion of the right of ownership by the heirs of Jamal Din, and a repudiation of any adverse interest which may have been acquired or asserted by the present appellants, it is difficult to see how the possession of the appellants could continue to mature into prescriptive title.
23. ' The simple position which stands proved in this case is that although the widow and the two sons of Ali Bakhsh, the predeceased son of the last male owner of the property, did set up a false title under alleged oral and written wills said to have been made by Jamal Din in their favour, yet this claim was rejected by the revenue authorities as well as by the Courts, right up to the level of the Supreme Court. The two sons came into possession as heirs of Jamal Din, and the documentary evidence establishes their possession only in that capacity, there being no evidence of any hostile or overt act such as could give rise to an inference of adverse possession as against the true owners. The oral evidence adduced by the appellants has been rightly rejected by the High Court.
24. The two sons being minor at the time of their grand-father's death, there could be no question of their possession being adverse, right from its inception, as against the other heirs. The claim of the widow Ramat Bibi to exclusive possession of land comprised in Sq. No, 82 also stands negatived by the revenue records. In these circumstances, the High Court was right in dismissing the appellants' suit. For the same reasons, the present appeal fails and is hereby dismissed with costs.