Decision in a land matter without impleading all co-owners as parties

PLJ 1987 AJK 34 Present: ABDUL GHAFOOS, J GHULAM MUHAMMAD-Appellant versus MUHAMMAD JAN and 4 Others—Respondents Civil Appeal No. 44 of 1936, allowed on 19-1-1987 (i) Civil Procedure Code, 1908 (V of 1908)— ------- S. 99— Proper party — Failure to implead — Effect of — Omission to implead proper parties as co-plaintiffs or proforma defendants not causing any failure of justice—Held : Such default not to bs sufficient to reverse decree. [P. 371A (ii) Adverse possession— ------ Claim of—Appellant remaining in possession of land in dispute in assertion of right of ownership thereof for more* than 12 years on payment of land revenue within knowlege of respondents—Such ap pellant even refusing to part with possession with Sand on demand being made—Held : Appellant held such land in adverse possession for more than 12 years. [P. 40]F (ii!) Advene possession— ------ Mortgagee—Dispossession of—Effect of—Person ousting mortgagee from possession of land remaining in possession of it in assertion of his ownership over it within definite knowledge of mortgagor for period of more than 14 years—Held : Possession of such person to be adverse against mortgagee as well as against mortgagor. [P. 39JD AIR 1927 All. 177 & AIR 1928 Lab. 147 rel. (h) Adverse possession— ------ Mortgagor—Adverse possession against — Principle of — Applica bility of — Person dispossessing mortgagee asserticg hostile title against real owner — Mortgagor, however, taking no step against trespasser for more than 12 years—Held : Mortgagor after mortgag ing land not divesting from his equity of redemption, principle of adverse possession to be fully applicable against his rights (in case of his being fully aware of assertion of hostile title by trespasser). [P. 40]E (v) Ch-sbarer— ___ Suit by—Land in dispute occupied by trespasser—Held : Any one of co-sharers to be competent to alone claim recovery of land without impleading rest of co-sharers as party. [P. 37]B AIR 1930 All. 422 ref. (vi) Mortgage— .--- "Once a mortgage always a mortgage"—Maxim of—Applicability of—H«ld: Maxim "once a mortgage always a mortgage" to be appli cable only to mortgagee or any person claiming under him but not against trespasser holding land in his own right as owner in denial of right of real owner (i.e. mortgagor). [Pp. 40 & 41 ]G (fii) Possession— --------- Suit for—Co-sharer—Competency to file — Held : Any one of co-sharers to be competent to file suit for possession of land (in occupation of trespasser in case) without impieading rest of co- sharer. >P. 3 7 )C Ch, Ria: Akhiar, Advocate fur Appellant. Ch. M. Tat, Advocate for Respondent. Date of Institution : 4-6-!986. JUDGMENT Through tbi> appeal, an ,irder dated !3th of May, 19£6, passed by the District Judge Kotli \vhereby the appeal filed by Muhammad Jan, against the order passed by the Sub-Judge Mirpur on 21st of December, 1986, vvas accepted, has been called in question. 2. The facts of the case which gave rise to this appeal briefly stated are that the appellant sought a declaration from the Court of Sub-Judge Mirpur to the effect that land measuring one kattal and one marla, comp rising survey No. 472, situat; in village Hardo-Ochi, Tehsil Mirpur, was iu his adverse possession and Muhammad Jan and others, respondents have no right or interest in it an J the decr.-e for redemption of mortgage which was got parsed without iinpleadin.si him as a party, is of no legal effect. 3. This suit vvas resisted by Muhammad Jan and others, respondents through written statement filed oa 8th of March, 1976 and it was asserted that possession of the plaintiff over the suit land was in the capacity of a brother of Hassan Muhammad who was the mortgagee of it and the decree for redemption of the mortgage has since been passed in their favour 4. Muhammad Jan an-.] others, respondents, brought a separate suit on 27th of June. 1974 for possession of the land described above, against the appellant on the ground that the land was in possession of Hassan Muhammad as mortgagee which has been redeemed on 30th of April, 1972 and the defendant who is in possession of this land on behalf of Hassan Muhammad has refused to deliver the possession, therefore, a decree for possession, therefore, a decree for possession in their favour may be passed. 5. The appellant resisted the suit through written statement filed on 8th of March, 1976 and claimed that the suit was not maintainable as the principle of res judirata was applicable in this case. He asserted that he was in possession of this land since 40 years and his adverse possession had also ripened into ownership. 6. The learned Sub Judge consolidated both the suits and after hear ing the parties found that the principle of res judicata was applicable in this case and the appellant held the land in adverse possession, therefore, Muhammad Jan and others, respondents were not entitled to the grant of a decree, consequently, through an order dated 28th of December. 1976, the declaration sought for by the appellant was granted and the suit filed by the respondents was dismissed. 7. The respondents challenged the aforesaid order through an appeal in the Court of District Judge Mirpur but as the karned Districut Judge Mirpur had passed the impugned order in the capacity of Sub Judge Mirpur, therefore, it was transferred to the file of District Judge JCoiu who after hearing the parties through an order passed on 23rd of May, 1986, allowed the appeal. He held that the principle of r« judicaia was not applicable in this case because the order dated 19!h of August, 1971 was neither a final order nor it was passed after hearing the case, The Sub Judge through that order had simply rejected the plaint because it did not disclose any cause of action against the appellant. On the point of adverse possession he held that the appellant possessed the land as a relative of Hassan Muhammad who was a mortgagee of it. therefore, the principle that "once a mortgage is always a mortgage" is applicable and the appellant is not entitled to claim adverse possession or deny the title of the mortgagor and this order of the learned District Judge is a suojecf matter of the present appeal. 8. The learned Counsel lot the appellant, to assail the order pat-sea by the learned District Judge, stated that the appellant did not hold the land as a relative of Hassan Muhammad nor he held it on his behalf. He in fact, held the possession of the land in his own right since more thai; 40 years without accepting the title of the respondents, therefore, his adverse possession had ripened into ownership bsfore the respondents filed a suit for possession of it against him. In support of his point of view, he referred to the copy of record of rights, for the years, 1959-60 AD, copy of 'jamabandi' 1965-66 AD and copies of survey register for the year 962 to 1973 (DC to DE) and pointed out that the appellant held the Sand in the capacity of an owner. He also made reference to the statement of Muhammad Jan, respondent, who has admitted that the appellant i hold ing the possession of the land since 30/40 years and mspite of demand, has refused to deliver the possession of it. In support of his point of view, he referred to the cases, reported in PLD 1961 Lahore 85, PLJ 1982 SC 116 and PLD 1968 Lahore 954. 9, The learned Counsel for the respondents, controverting the stand taken up by the learned Counsel for the appellant, argued that the appel lant held the possession of the suit land on behalf of his brother, Hassan Muhammad, who was a mortgagee of the land and when on redemption of the land on 30th of April, 1972, he refused to deliver the possession of it, the suit was filed against him which was within time. He added that during the time, the suit land remained mortgaged, the respondents were not entitled to claim possession of it, therefore, the possession held by the appellant, at the most, can affect the right of the mortgagee and not that of the mortgagors (respondents). In any case, the possession of the appellant over the suit land remained permissive and peaceful, therefore, he cannot claim it adversely. To support his contention, he made reference to cases reported in AIR 1925 Bombay 465. AIR 1927 Allah : 177, 1968 SCMR 131 and PLD 1978 SC (AJ & K) 33. 10. I have considered the arguments advanced by the learned Counsel for the parties, have studied the authorities cited at the bar and have also very carefully gone through the record of the case. 11. Before taking up the point raised by the learned Counsel for the parties, the following point, "what is the effect of non-impleading of Mst, Aisha Bibi and Said Bibi. daughters of Ragsa who hold two-third share in ins suit land on the suit filed by Muhammad Jan and others, respondents, against the appellant ?", has to be gone into. 12 A perusal of the copy of the record of rights for the years W59-6G, AD, copy of 'jamabandi' for the years 1965-66 and copies of survey register for the year 1962 to 1973, show that the land in dispute is owned by the plaintiff-respondents and Mst. Said Bibi and Aisha Bibi, daughters of Bagga, thus it was proper for the respondent to implead those women, a-, proforma defendants if they did not join as co-plaintiffs yet A keepfnp in view the provisions of Section 99, CPC, this default is not sufficient to reverse the decree because it has not caused any failure of justice The possession of the respondents over the suit land, if they :,uccecc to gel it, will be as a co sharer and wi!l be presumed to be for the benefit of Mst, Said Bibi and other co-sharers, therefore, this default can neither adversely affect the suit filed by Muhammad Jan and others, nor tfaf; decree, if it was passed in their favour, I? To take up the point whether the respondents, who hold only one-sixth share in the suit land can file a suit for the recovery of possession of it against the appellant without joining the other co-sharers who holdi 5/6th share us if, it is observed that if the land is held by a tres-passer asj™ is a pGMtiur in the instant case, even one of the co-sharers can alone claims retrieval of it, without impleading the rest of the co-sharers as a party and| this \iew finds support from an authority reported in AIR. 1930 Allahabad 422, the relevant observations are hereinafter reproduced : — "Where property i held in coparcenary, or in co-ownership, it is open to any one of the co-sharers to maintain a suit for possession of the entire property against a trespasser. The reason for the rule is that in the absence of a partition, the right of each co- owner extends to the whole property jointly with the other co- owners and that the attempt to reclaim the property is for the obvious advantage of all the co-sharers." I, therefore, think that the respondents are competent to file the suit fot| c possession of the suit land without impleading rest of the co-sharers. 14. Reverting to the claim of the appellant that he holds possession af the suit land since 40 years, is not even denied by the respondents. The nature of the possession ever the suit land is a point of dispute between the parties. The appellant terms it to be adverse in nature, whereas the respondents call it to be a permissive one. 15. To find out the true nature of the possession of the appellant over the suit land, the entries of revenue record are needed to be seen in the first instance. 16. As recorded in the record of rights for the year 1959-60 (DA), annual record for the years 1965-66 (DB), and copies of survey register for the years 1962 to 1973 (DC to DE), the appellant is holding the possession of the suit land as a tenant-at-will on payment of land revenue, treating it to be his own share. 17. Muhammad Jan, respondent, when appeared as a witness for the respondents, admitted that the appellant is in possession of this land since 30/40 years and at the time of the construction of the Dam, he (the appel lant) refused to part with the possession of it, when demand was made for it The appellant, as a witness claimed that he holds the possession of this land as an owner and denied that he holds it as a tenant of Hassan Muhammad. 18- The question of adverse possession was considered by the Lahore High Court in a case reported in PLD 1954 Lahore 365 and it* was held as under: - "The Patwuri uses these words for every person who n in posses sion without any right or title. The entries In U.u* cultivation column are always to be read along with the entries in the rent column as pointed out in 1928 Lahore 147. 'Here the entry in the htgan column i> takdi-ha-sharah malkan-biia rnalikana. The difficulty in interpretation in the present case arises out of the fact that the Patwari would be using this expression in a Cfise where a tenant is paying only land revenue as well as io a case where a person's possession is without any right or title. There is n.-> doubt that generally when a person is in possession on aa asser tion of hostile title or unlawfully the Patwari, will use some such expression as batasawar malkiat khund, bawajah qabza etc, hut the use of such expression is not necessary and it does not some times happen that even ia the case of a person in adverse posses sion the patwari uses the only words which have been used in the present ease.' 5 19, The Supreme Court'of Pakistan in a case'reported in 1968 SCMR K"T, while dealing with a point of adverse possession, arrived at the follow ing defiisson ;-••- ''Tlu 1 entries in jamabandis '~ba sharah malikan bawajah kaliza*" by itself is not sufficient to constitute adverse possession. Such an entry is not an unequivocal assertion of a hostile title and, therefore, one has to interpret this entry in each particular case in the light of the facts and circumstances of that case." 20. The Supreme Court iu a case reported in PLD 197d SC (AJ&K) 33, whils considering ihe dispute of adverse possession between the tenant and the landlord, made the following observations :— "The entry in the rent column is in accordance with the rates of ti-.'jaat *ba shara'i mahkana?. This entry by itself is not sufficient '-,» continue 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 agree ment." "To give the mortgagor a right to insist on immediate possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving no room for doubt that the person taking possession does not profess to represent the mortgagor but to hold in spite of him. In such a cnse, the mortgagor is as effectually and unmistakably displaced as if there had been no martgage at a!i. When an ouster takes place in that manner the mortgagor knows that no one is in possession who can represent or continue his possession or who is entitled preferentially to possession and therefore, he becomes entitled (and it is necessary and his duty, if he does not want his right to be barred) to claim possession immediately." /:3 The Bombay High Court in a case reported in AIR 1923 Bombay 'if''5, waile considering the effect of oufter of a mortgagee from the land by « irespasser on the right of the mortgagor, arrived at the following conclusion :•— "A possessory title to property can only be acquired by physical possession which ripens into ownership by the failure of the true owner to take steps to recover possession. Though a trespasser by holding possession against the mortgagor can bar the mortga gor's right to redeem, it cannot be said that an equity of. redemption can be acquired by adverse possession of thj mortgaged property. In the case of a possessory mortgaged where oossession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgage, but not to the mortgagor." 24. The Allahabad High Court while resolving the same question ui tbe case reported in AIR 1927 Allah : 177, observed as under : — "True it is that if a trespasser dispossesses a mortgagee and enters into possession of the mortgaged property asserting a title adverse to the mortgagor also, his title will be adverse to the mortgagor from the time, the mortgagor has knowledge of the assertion." 25. The Lahore High Court, while considering the same question, in a case reported in AIR 1928 Lahore 147, laid down the following rult :— '•Adverse possession against a mortgagee is generally ineffectual against the mortgagor, especially when it begins at a time when the mortgagee is in possession but when a trespasser takes possession of the mortgaged properly and asserts a title which is hostile not only to the mortgagee but which also assails the title of the mortgagor and the mortgagor allows 12 years to elapse, the title of the trespasser will become indefeasible not only against the mortgagee but also against the mortgagor." 26. I think, the Madras , Lahore and Allahabad High Courts have laid down the correct rule. If a person ousts a mortgagee from the possession of the land and remains in possession of it, in assertion of his ownership over it, within the definite knowlege of the mortgagor, for a period of more than 12 years, his possession will be adverse against the mortgagee as well as against the mortgagor. The mortgagor, after mortgaging the land, did not divest from his equity of redemption and if he, being fully aware of the fact that a person in possession of his land is asserting his hostile title sleeps over it for more than 12 years, without taking any step against the trespasser, the principle of adverse possession will be fully applicable against his rights too. 27. The stand that the time cannot run against a person and articles of the Law of Limitation cannot be applied against him if he is not entitled to immediate possession of the land, is based on a well known maxim : — "Contra non valentem agere non currii praescriptio" which means prescription does not run against a person during the time when he is not entitled to immediate possession." This maxim I think cannot be made applicable where a trespasser asserts his right of ownership over the possession of the land within the definite knowledge of the true owner who may have to discharge some sorts of obligation to become entitled to get possession. 28. From the statement of Muhammad Jan, respondent, it appears that the respondents were fully aware of the fact that the land was in possession of the appellant who had no lawful right to possess it and he had turned down the demand of possession of it. 29. In the instant case, the appellant, remained in possession of the land in dispute in assertion of the right of an owner thereof for more than 12 years on payment of land revenue within the knowledge of the respon dents and refused to part with the possession of it when a demand was made, I therefore, hereby hold that the appellant held this land in adverse possession for more than 12 years. 30. After having come to conclusion that the appellant held the possession of the land adversely, its effect on the title of the true owner is required to be seen. 31. It is laid down in Section 28 of the Limitation Act that ; — (28) "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished," 32. The Bombay High Court, while considering the impact of the provisions of Section 28 of the Limitation Act, in a case reported in AIR 1943 Bombay 265, made the following observations :— "Over the right of the person in possession of it in a case titled "Ganga Gobind Mundul v. Collector nf 24 Parganas (1866) 11 MIA 345 (PC) has clearly pointed out that after the expiry of the period of limitation the law declares not simply that the remedy is barred but the title is exint (sic) in favour of the possessor." 33. The opinion of the learned District Judge that after a mortgage, the nature of possession over the land even held by a person other than the mortgagee, keeping in view the maxim "once a mortgage is always a mortgage" cannot undergo a change, I think, is not correct. The applica tion of the aforesaid maxim can only be made applicable to the mortgagee and the person claiming under him or the person who in any case be termed to be the mortgagee but not against the trespasser who holds the! possession over the land in his own right as owner in denial of the right the real owner (mortgagor). 34. la the aforesaid view of the matter, I hereby allow this appeal, vacate the decree passed by the learned District Judge on 13th of May, 1986 and restore the one passed by the learned Sub Judge Mirpur on the 28tb of December, 1976. Keeping in view the circumstances of the case, the parties are left to bear their own costs throughout. (TQM) Appeal allowed.