On 16-9-1987 the respondents Nos.1 to 16 filed a suit against the petitioners and the respondent No.17. In the plaint it was stated that the suit land, described therein, was owned by Ilam Din, the predecessor-in---interest of the private respondents, who mortgaged the land in favour of Fateh Khan, the predecessor-in-interest of the petitioners, vide Mutation No.50 attested on 7-3-1895. The plea was that since the private respondents failed to redeem the mortgage within a period of 60 years, the equity of redemption has been extinguished and they have become owners. A declaratory decree. Was sought accordingly. The private respondents in their written statement denied the factum of mortgage. They further pleaded that they have all along been in possession of the land and as such the said plea is not available to the petitioners. Issues were framed.
Evidence of parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 18-11-1992. A first appeal was tiled by the private respondents which was heard by a learned ADJ, Gujrat, who allowed the same and decreed the suit on 19-12-1993.
2. Learned counsel for the petitioners contends that the evidence on record has been misread by the learned ADJ and that it stood proved rather admitted that the petitioners had been in possession throughout. The learned counsel for the private respondents on the other hand has tried to support the impugned judgment and decree.
3. I have gone through the copies of records, with the assistance of the learned counsel for the parties. P.W.-1 is Akbar Ali, one of the plaintiffs/respondents. He has proceeded to state that the mortgagors had been in possession but they were the tenants under the mortgagors. He also stated that the mortgagors have refused to pay the share in produce. P.W.-2 is Allah Ditta. Now he has proceeded to state that he had been a tenant and prior to him his father had been a tenant and they had been paying produce to the plaintiffs. In his cross-examination he stated that he had left the possession and since the last 13/14 years the petitioners are cultivating the land (this statement was made on 30-10-1989). On the other hand D.W.-2 Ahmad Khan, one of the petitioners and Fiaz Ahmad, D.W.-1 have stated that the land had throughout remained in possession of the defendants/petitioners. The Register Haqdaran for the year 1983-84 is Exh.P.1 which records the possession of the respondents/mortgagors as co-sharers in the suit land.
4. Having examined the said evidence I do find that the learned ADJ has misread the same. The said reading of the entire evidence leads to only one conclusion that possession was never delivered to the mortgagees and it remained with the petitioners. Now the only provision of law which provides for extinction of title of an owner of a property by efflux of time is section 28 of the Limitation Act, 1908. A plain reading of this provision of law would show that a right in a property shall be extinguished only if the owner of the property is required to file a suit for possession of the same and the time prescribed for such a suit stands expired. The petitioners being in possession would not at all require to file a suit for possession of the land admittedly, owned by them. This being so, the said section 28 is not attracted at all to the facts of this case. There being no warrant in law for the impugned judgment of the learned ADJ, the same is wholly without jurisdiction inasmuch as it proceeds to extinguish the title of the petitioners. There is yet another aspect of the case. The said period of 60 years expired in 1955. It stands established that the petitioners have been in possession claiming themselves to be the owner of the land and otherwise being recorded as such in the Revenue Record. Even if some title accrued to the private respondents the same stands extinguished on the principle contained in the said section 28 inasmuch as they were required to file a suit for possession within 12 years of acquisition of title whereas suit was filed in the year 1987 i.e. After 22 years.
5. For all the reasons stated above, this civil revision is allowed. The impugned judgment and decree dated 19-12-1993 of the learned ADJ, Gujrat, is set aside while the one passed by the learned trial Court on 18-11-1992 is restored. No orders as to costs.