' CHAUDHURY RAHIM DAD KHAN, C. J.-This certificated appeal, against the judgment of the High Court dated 10.9-1975, was filed under the provisions of the Judicial Board Act which stood transferred to this Court on amendment of the Interim Constitution.
2. It arises out of a declaratory suit instituted by the present appellants in the Court of Sub-Judge Bap for declaration of their proprietary title over the land measuring 11 kanals under Survey No, 14 situate in village Mohri Farman Shah, Tehsil Bagh. The plaintiffs-appellants asserted that in fact the land in dispute was their ancestral property which was erroneoasly shown in the Revenue Record as property of defendants-respondents. They claimed that they continuously remained in adverse possession of the said land since 1982 Bik. It was also contended that in spite of the fact that though their adverse possession had matured into possessory title by prescription and corresponding title of respondent No, 1 if any, had been extinguished, yet respondent No, 1 transferred the land in dispute vide a gift-deed in favour of respondents Nos, 2 to 4 without any legal right. As the donor had no existing title in the land at the time of the execution of the gift- deed, the gift-deed was null and void and inoperative.
3. The respondents contested the suit on all grounds. Mst. Bilora Bi in her joint written statement acknowledged the execution of the gift-deed and admitted that she had transferred the possession. The suit of the appellent was dismissed by the trial Court which finding was maintained by the first appellate Court as well as High Court. Thus there is a unanimous finding of all the Courts against the appellants on all the points involved in the case.
4, There is no evidence at all in support of the claim that the land in dispute is ancestral, property of the plaintiffs-appellants. As regard to the question of adverse possession, it is entirely a question of fact. Possession in order to be adverse must be actual, open and hostile and continued during the period necessary to create a possessory title in the person holding such possession. The Revenue Record placed on the file consists of a copy of the record of lamabandi 1952 in which the appellants are entered in the column of tenants while Mst. Bilora Bi is shown as proprietor of the land in dispute. The entry in the rent column is in accordance with the rates of tenant ({{URDU TEXT}}). This entry by itself is not sufficient to constitute adverse possession because it cannot be taken to be an assertion of adverse title thereto. A tenant's possession cannot be adverse to his landlord as a tenant cannot dispute the title of his landlord so long he remains in possession under an agreement. Their Lordships of the Privy Council in 'Mohammad Mumtaz All Khan v. Mohan Singh (1), made observation to the following effect:- "They are unable to affirm as a general proposition of law that a person
(I) AIR 1923 P C 118 who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the lands "
' The mere non-payment of the rent or discontinuance of the payment of the rent would not by itself create any adverse possession.
5. The identical question came for decision before the Calcutta High Court in a case entitled Persanna Kumar Mookerfi v. Srikanta Rout (1), Mr Justice Cornelius in Muhammad Hayat v. Batt and others (2), at page 145 observed that:- "A tenant does not become owner by prescription, solely on the ground that for a period exceeding twelve years before the suit, they had been shown to have paid nothing more than the land revenue and ceases, as consideration for holding the land. Tenants who pay nothing more than land revenue and ceases are by no means uncommon."
' In a recent case entitled Fazal Ghani v. Khltab Gul (3), Mr. Justice Yaqub Ali, J. As he then was observed :- "Mere non-payment of rent or bawl on assertion of ownership cannot, change the nature of the possession, which was permissive in its inception, into adverse possession."
' It appears from the revenue record that possession of the plaintiffs in 1952 was in the capacity of a tenant at will. It would be presumed that it continued to be of the same character until and unless there happens something to make it adverse. The onus is on the tenant to show when and how his possession became adverse. In order to acquire a title by adverse possession, it is necessary that the possession of the wrong-doer must be continuous for the prescribed period of limitation. It would follow that where there is a break in adverse possession of the wrong-doer, limitation ceases to ran against the lawful owner of the property. The leading case on the point is The Trustees.
Executors & Agency Co. v. Short (4). In that case, their Lordships of the Privy Council observed : "They are of opinion that if a person enters upon the laud of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment is in the same position in all respects as he was before the intrusion took place."
6. In the instant case, there is no evidence on the record to show that the plaintiffs-appellants were holding the possession of the land in dispute after 1955. Rather the Patwari who was examined by the plaintiffs themselves testifies to the effect that the entries in Girdawari since Rabih 1955 till Kharif 1962 show that Mst. Bilora Bi, the lady donor, herself was in cultivating possession of the land in dispute. Thereafter, the plaintiffs are shown in cultivating possession of the laud and the suit was instituted on 11-2.1967 i,e, within 5 years of the date of their re-entry into the possession of the land In 1962. There is no other evidence on the record from which an inference of adverse possession for statutory period in favour of plaintiffs-appellants can be drawn.
(1) 40 Cal. 17316 I C 165 (2) P D 1952 FC 138
(3) 1968 SCMR1040 (4) (1888) 13 A C 793
7. It was next contended by the learned Advocate for the appellants that gift in favour of respondents Nos, 2 to 4 was not valid because at the time of the execution of the gift-deed, the property that was subject of the gift was in adverse possession of the plaintiffs-appellants, but he was unable to show as to how the factum of non-delivery of possession to the donees would help the plaintiffs who failed to establish their claim of adverse possession. No doubt the property that was subject of the gift-deed, was not in possession of Mst. Bilose Bi, the donor at the time but was being adversely claimed by the plaintiffs. The first thing as such to be considered in the circumstances of the instant case is whether the donor under the gift-deed transferred the proprietary rights or not. As gathered from the words used in the gift deed and subsequent written statement submitted in the Court, the intention is quite clear that the proprietory rights were intended to be conveyed. The exact bearing of the question of seisinon the validity of a gift is important only if the donor does not acknowledge the claim or refuses to do all that is necessary to complete the gift so as to put it within the powers of the done to obtain possession. Actual possession for completion of a gift (Hiba) does not appear to be necessary in a case where the possession of the property I with a tenant or trespasser. In such a case according to Durr-ul- Mukhta "to be in a position to take possession is equivalent to taking possession" in other words, to put the donee in a position to secure possession would be deemed to be tantamount to delivery of possession. By acknowledging the claim in the written statement, the donor in the instant case divcst ed hersel completely of all dominion over the subject of the gift in favour of the donees. She did all that she could do to complete the gift so as to put it within th power of the donees to obtain the possession. She does not controvert th right of the donees in her written statement. The text of the Principles o Mahmedan Law by D. P. Mulls seems to include an identical proposition under Article 146, illustration (b) that reads: "(b) A executes a deed of gift of immovable property in favour of B. At the date of the gift the property is in possession of C who claims to hold it adversely to A. B sues C to recover possession of the property from him, joining A in the suit as a party defendant. A by his written statement admits B's claim. C contends that the gift is void, inasmuch as A was out of possession at the date of the gift, and no possession was ever given to B. The gift is valio though no possession was delivered by the donor to the donee. Their Lordships of the Privy Council said: "But it must be observed that in this case the dispute as to the validity of the gift is not between the donee and the donor. The person who disputes it claims adversely to both. The donor has done all that she can to complete the gift and is a pasty to the suit, and admits the gift to be complete". Kalidas v. Kanhaya Lal (1884)
11 Cal. 121=11 I A 218, 229, a case under the Hindu Law, but followed in Mahomed Buksh v. Hossein: Bibi (1888) 15 Cal. 684, 701s 702, which was a Mahomedan case. In the last-mentioned case, their Lordships of the Privy Council (at p. 93) said, ' In this case it appears to their Lordships that the lady (donor) did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibanamah itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships holds under these circumstances, that there can be no objection to the gift on the ground that Shahzadi (donor) had not possession, and that she herself did not give possession at the time."
' It follows that for the completion of a gift of immovable property, delivery of possession is necessary only if the property that is subject of th gift is in actual physical possession of the donor ; if such property is under the occupation of a tenant. The donor can complete it by requesting the tenant to attorn to the donee or delivery of the title deed etc. In case when the subject-matter of the gift is an immovable property in possession of a trespasser who claims it adversely, the donor can complete it by admitting the claim of the donee and divesting herself completely of all ownership and dominion over the subject of the gift as has been done in this case. The factum of non-delivery of possession under the circumstances of the instant case would neither render the gift invalid nor help the plaintiffs who claim the land adversely to both, the donor and donees. They (plaintiffs) can succeed only if they establish their adverse possession for statutory period w h they have obviously failed to do as discussed above.
' We, therefore, dismiss the appeal with costs. Order a presence of Advocates of the parties.