' This second appeal is directed against the judgment and decree dated 8-5-1964 of the learned District Judge, Multan, confirming the preliminary decree dated 29-3-1961 passed in a partition suit by the Administrative Civil Judge, Multan.
2. In a suit for possession by partition the respondents-plaintiffs, Muhammad Yar (now dead) and Mst. Bhawan, collectively claimed as heirs 24/84 share out of the property in dispute which, once belonged to Muhammad Bakhsh. The cause of action was said to have accrued to them when the appellants defendants refused to partition the property and deliver separated possession to them.
3. The appellants-defendants, Ahmad Bakhsh (now deceased) and Mst. Khurshid, the surviving heir of Allah Ditta contested the suit claiming that they were the owners of the suit property on account of a gift deed allegedly executed in their favour by the original owner, Muhammad Bakhsh. It was urged in the alternative that they continued in adverse possession for a period of more than 12 years and had thus acquired ownership.
4. After recording evidence of the parties a preliminary decree was passed by the trial Court holding that the gift deed mark "Y" did not stand proved and the solitary statement of the donee Ahmad Bakhsh made in his own favour was not sufficient. It was otherwise held that the document was inadmissible in evidence for want of registration. The trial Court was of the view that redemption of mortgages, being in respect of an undivided property, was for the benefit of all the heirs jointly, and that appropriation of the property by creating different leases by the appellants did not exclude the other co-heirs. In the circumstances the alleged adverse possession was held to have not been made out.
5. The learned District Judge went through the evidence and observed that the property in dispute belonged to Muhammad Bakhsh and that the appellants had failed to show that it was gifted away to them by Muhammad Bakhsh in his lifetime. He however pointed out that the gift deed did not indicate that possession was given over to the said donees. He at the same time observed that the appellants had, on account of redemption of mortgages, come in possession but that possession was for the benefit and on behalf of all the co-heirs. He was of the view that ouster was not established and for that reason the plea of adverse possession did not succeed. The appeal was consequently dismissed. Hence this appeal.
6. It is a common point between the parties that Muhammad Bakhsh was the last owner of the property in dispute. Muhammad Bakhsh was said to have mortgaged a portion of the property namely the shops in dispute No 1768 to Atma Ram and Bhai Bhamba Ram for a sum of Rs, 1,000 and the other portion namely Shop Nos, 1863 to Kishan Das and Tola Ram for a sum of Rs, 800.
These mortgages were redeemed by the alleged donees Allah Ditta and Ahmad Bakhsh vide documents dated 20-6-1924 (Exh. D 3) and dated 20-7-1925 (Exh. D 4) res- pectively. It was alleged on behalf of the donees that they had made all efforts to redeem the property because of the fact that Muhammad Bakhsh the original owner had by that time alienated the property in dispute to them by way of the gift deed dated 4-7-1922. The appellants by production of different rent deeds tried to establish that they had always been treating the property as their exclusive ownership and even if title had not passed to them they had by continuous use become the owners.
7. It was pointed out by the learned District Judge that the finding of fact with regard to Issue No, 2 was not contested by the appellants. Besides that the gift deed was not registered, it was held that its execution by the donor was not proved. The document of gift mark "Y" was shown to have been thumb marked by Muhammad Bakhsh and attested by a few witnesses, but no attesting witness was produced to prove it.
8. Adverse possession means possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession. If by this adverse possession the statute is set running and it continues to run for twelve years, then the title of the true owner is extinguished and the person in possession becomes the owner. In order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent of area to show that it was adverse to the real owner. The appellants by producing various rent notes have tried to show that after redeeming the property from the mortgagors they remained in possession continuously for a period of more than twelve years. Rent note mark "X" which purported to have been executed by Bodh Raj in favour of Ahmad Bakhsh was signed by the marginal witness Abdul Aziz. It was not correct to say that the document having been executed for a period of less than a year required registration. It was also not correct that the document was not formally proved. Bashir Ahmad D. W. 1, being the son of the marginal witness, was well capable of recognising the signature of his father Abdul Azir. Bashir Ahmad had formally proved the document and as such it could not be excluded from evidence. The document mark "X" was executed on 20- 4-1939 and served as evidence that the shops in dispute were rented out to Bodh Raj for a period of eleven months at the rate of Rs, 2 per month and that Bodh Raj entered into and remained in possession of the shops by permission of Ahmad Bakhsh during the said period. But in the absence of any evidence it cannot be said that the period of possession was ever extended by mutual consent, In other words, the permissive possession ceased to continue after lapse of eleven months shown in the document, The next document Exh. D I dated 16-4-1947 is a rent note in favour of Aziz-ur-Rahman. This too is for a period of eleven months and can at the most be indicative of possession for that period alone and no more than that. Abdul Waris D W 5 acknowledged the correctness of the rent note Exh. D 2 dated 12-4-1951. He stated that he continued in possession even until February 14-1959, the date he had made his statement before the Court. These rent notes, collectively perused, do not show that the appellants had continuously been renting out the property in dispute to different persons from the date of redemption to the date of institution of the suit. The occasional appropriation with intermittent break of possession does not make out adverse possession. Even if the appellants were leasing out the property to different persons, and even continuously, the possession, so long as ouster of the other co-heirs was not established, could not be deemed to be adverse. It is well settled that mere occupation or enjoyment or management of joint property by one co-sharer does not constitute adverse possession as against the other co-sharers unless there is a disclaimer of the latter's title by open assertion of a hostile title by the former, or unless there is actual ouster or some act equivalent to ouster. It may be pointed out that no hostile title by the appellant was ever said to have been Asserted. Ahmad Bakhsh has appeared as D. W. 6 but he did not say anything which would even give an indication that he claimed to be in adverse possession to the exclusion of the other co-heirs.
9. Documents of redemption Exh. D.3 and Exh. D, 4 are also on file, but they do not lead to show that possession obtained by the appellants was to the exclusion of the co-heirs. It comes in the documents that redemption of mortgages was made by the appellants as heirs of the original, owner and not as donees. This would show that there was no ouster or assertion of a hostile title from the very beginning. Simple possession, however continuous it may be, cannot be deemed to be adverse. The question whether the appellants have acquired ownership by adverse possession is one of fact which, if decided by both the Courts of tact concurrently cannot be agitated in second appeal. No material misreading or substantial error of law has been pointed out. Adverse possession was thus not made out.
10. For the reasons aforementioned, I see no force in the appeal and the same is therefore dismissed with costs.