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Petitioner: MIRU AND BIRU VS Respondent: NUR MUHAMMAD
P L D 1949 Lahore 361
P L D 1949 Lahore 361
(DIVISION BENCH)
Before Cornelius and Kayani, JJ
MIRU and BIRU‑Defendants‑Appellants
versus
NUR MUHAMMAD and others‑Plaintiffs‑Respondents
First Appeal No. 51 of 1944, decided on 13th June 1949 from the decree of the Court of Sub‑Judge, First Class, Lyallpur, dated the 12th February 1944.
(a) Adverse possession against Muhammadan widow's life estate---
--‑Held, not adverse against one having an independent right to succeed to widow on her death or remarriage‑Limitation Act (IX of 1908), First Sch. Art. 141.
A person prescribing for title against a Muhammadan widow in enjoyment of a life‑estate could not at the same time be regarded as prescribing for title against one entitled to succeed on the death or remarriage of the widow. Article 141 in First Schedule of Limitation Act (IX of 1908) provided a period of 12 years' limitation for a Muhammadan entitled to the possession of immovable property on the death of a Muhammandan female the terminus being the date of such death.
(b) Res judicata‑---
---Earlier Revenue Court's decisions not so clear as they should be‑Avoiding matters coming subsequently before Civil Court and failing to notice evidence of Revenue Records‑Held, it was unsafe to place decision of subsequent civil case on plea of res judicata.
We find on a careful examination of the various decisions of the Revenue Courts that the decisions of those Courts are by no means as clear as they should be if they are to he regarded as res judicata in a civil case.
In some respects the findings of the revenue authorities avoid decisions on matters which are now before the Courts, and in other respects they fail to take notice of evidence existing on the revenue records which was highly relevant to the decision which they were recording and, therefore, it seems that it would be unsafe to place decision of the present case on the basis of any plea of res judicata arisising out of these earlier revenue decisions.
(c) Symbolical possession delivered where actual possession could have been asked for or could have been delivered‑----
----Minor irregularities in proceedings not materially affecting degree of publicity‑Symbolical possession, held effectively determined pre -existing adverse possession.
Where the nature of possession delivered was such as the condition of each kila allowed of i.e., those which were vacant were given in actual possession and as for those which were under crop symbolical possession was given.
Held, there can be no doubt whatsoever that such a proceeding was sufficient to determine the pre‑existing adverse possession.
There appears to be great weight of authority in favour of the proposition that the delivery of symbolical possession, whether through mistaken application by the plaintiffs or otherwise, in circumstances in which actual possession should have been asked for or could have been delivered, and minor irregularities not materially affecting the degree of publicity attending the delivery proceedings, do not prejudice the effect of the proceedings, in relation to the parties to the suit and if one of these parties is the party in possession, such proceedings will have the effect of determining such possession, and giving rise to fresh cause of action in favour of the party placed in possession as a result of the proceedings, should he be dispossessed again.
Even if only symbolical possession was given, where actual possession was possible and the plaintiffs never actually cultivated the land, it would still hold, following the ‑authority of I L L 7 Cal. 418, that the formal transfer operated to terminate the' adverse possession.
ILR 5Cal.584 (FB); ILR 7 Cal. 418; AIR 1917 PC 197; A I R 1941 Lah. 357, followed.
S. A. Kareem for Appellants.
Zahur‑ud‑din Pal for Respondents.
JUDGMENT
CORNELIUS AND KAYANI, JJ. ‑This is a first appeal by the defendants Miru and Biru against whom a First Class Subordinate Judge of Lyallpur has passed a decree in favour of the plaintiffs Wazir, Nur Muhammad and Nabi Bakhsh, for possession of the whole of square No. 68/71 in Chak No. 104‑J. B:
This square was originally the property of one Sultani, to whom` the appellants Miru and Bitu are related as collaterals Sultani's great grand father was one Zafar and Miru and Biru are great‑grandsons of Zafar in the male line. The square, however, was self‑acquired property of Sultani, and he chose to dispose of it by a will. This was executed on the 14th February 1922, and is Exh. P. 4, Sultani had a wife Mst. Umri, but no child. Saying that he had only distant collaterals, who had no love for him, he disposed of the square as follows :‑
(i) Half the square to be mutated in the name of his wife Mst. Umri, to be held for life or till re‑marriage, without power to sell or mortgage ;
(ii) four killas of land to be mutated in the names of Mst. Aziz Bibi and Mst. Barkat Bibi, minor daughters of one Rahim Bakhsh, a poor man, to whom Sultani had given shelter in his ahata, to be held until they attained majority ; and
(iii) eight and half killas, i.e., the balance of the square to be mutated in the name of Wazir, who, although not related to Sultani, had been rendering services to him and behaved towards him like a son.
It was further provided in the will that when Mst. Aziz Bibi and Mst. Barkat Bibi attained majority, Wazir would be entitled to be owner of the four killas of land mutated in their names, and similarly after Mst. Umri's death he was to become full owner of the half square, which was to be mutated in her name. The will was challenged by the collaterals without success. The case eventually came to the High Court, where a Division Bench decided that was valid (Exh. P. 12, a judgment dated the 16th April 1923).
Mutations of names were made in accordance with the will. Sub sequently, on the 12th June 1930, when Mst. Aziz Bibi and Mst. Barkat Bibi had attained majority, the land standing in their names was mutated in the name of Wazir, vide mutation Exh. P. 11. Mst. Umri died on the 15th November 1935, as appears from the mutation Exh. P. 7, whereby Wazir's name was substituted for hers in the revenue records, the order of sanction being dated the 11th January 1936. Before this happened, however, as will appear from the Jamabandi for the year 1932‑ 33 (Exh. P. 5), Wazir had alienated in favour of three persons, namely, Nabi Bakhsh, Nur Muhammad and Danishmand, one‑third of his half share in the square (i.e., 8 killas originally bequeathed to him plus the four killas which he took as reversioner to 'the legatees Mst. Aziz Bibi and Mst. Barkat Bibi.
This was the process of devolution in regard to title. As regards possession and cultivation, Miru and Biru appellants were already cultivating the square during the life time of Sultani, and they con tinued to do so after his death, as appears from the elamabandis, although they claimed that they, possessed the land under a claim of right as successors to Sultani. (It should be mentioned that Sultani died on the 17th February 1922). They also succeeded in winning over to their side the widow Mst. Umri, who appears to have taken up residence with them and to have agreed to accept maintenance in lieu of rent. As was to be expected, Wazir as the sufferer, asserted his rights by means of legal proceedings. He brought a suit in 1892 against Miru and Biru as well as Mst. Umri, and it having been established that the rent in respect of Wazir's share. had been paid by Miru and Biru to Mst. Umri on the 17th October 19‑20, a decree for Rs. 199‑6‑0 was awarded to Wazir against Mst. Umri for the rent of his 8J killas. Later the amount seems to have swelled, for it is found that in 1931, Wazir took out an ejectment notice against Mst. Umri, under section 45, Punjab Tenancy Act, and her share of the square was duly attached on the 3rd April 1931. for recovery of a sum of Rs. 765‑2‑0. Delivery of possession of Mst. Umri's half square was effected in favour of Wazir on the 21st August 1932, by a Girdawar Qanungo Abdul Aziz, whose report to that effect is found in his Roznamcha and is Exh. P. 2. This report shows that Killas Nos. 12 and 13 were got ploughed. The plaintiffs also placed on the record the final order of the Revenue Assistant in the ejectment proceedings, which is Exh. P. 14 and is dated the 24th August 1932 ; it notes that the decree‑holder had obtained possession of the land under a Mustajri, and directs that entries as to full satisfaction of the decree should be noted. The order of the Assistant Collector in the ensuing mutation of names, which is Exh. P. 6, is dated the 20th December 7932, and is to the effect that lease of half of the square had been effected on behalf of Mst. Umri in favour of Wazir for a sum of Rs. 765‑2‑0 with effect from Kharif 1932 to Rabi 1953 (i.e., 20 years) and that on the expiry of that period, the land would be redeemed without further payment. This sanction however, does not appear to have had the effect of depriving Miru and Biru of possession; it only served to substitute Wazir for Mst. Umri as the immediate land lord of the tenants, under a long‑term lease from the real title‑holder, and so far as the recovery of the landlord's share of the produce from the square was concerned, Wazir was still under the necessity of going to law. Accordingly, we find that on the 1st November 1933, he issued a notice of ejectment in respect of the whole square to Miru and Biru. This was served by affixation as the addresses refused to accept it. The original notice is not available, but the fact that it was issued and served has been proved by production of an extract from the Collector's register of cases under section 76 of the Punjab Tenancy Act, Exh. P. 21. Following upon this, on the 14th May 1934; Wazir and his co‑sharers started proceedings in ejectment, and on the 24th May 1934, a Girdawar Qanungo Ghulam Qadir went to the spot and effected execution of a warrant of possession issued by the Court of the Tahsildar. The report is Exh. P. 3 and is signed by the Girdawar Qanungo ; it states that posses sion was delivered through Danishmand, that eleven out of 25 killas were cultivated, and the remaining fourteen were vacant at the time. The Goshwara entry relating to these proceedings is Exh. P. 23. The state ment made by Danishmand as P. W. 7 in the case shows that he and his co‑sharers after obtaining possession sowed chari, hemp and maize in the land and that, for the protection of their possession they obtained the services of a police constable named Muhammad Ramzan, who remained in the village for. two months and whose salary they were required to pay. While this constable was still in the village, on the 16th October 1934, Miru and Biru forcibly took possession of the land and cultivated it themselves. They were proceeded against in a Criminal Court under sections 147 and 447, I P C in a Crown case instituted on the 7th December 1934 ; the proceedings ended in dismissal, and the defendants have placed on the record copies of the statements of several witnesses in .those proceedings, e.g., the statement of Ghulam Qadir (Exh. D 5), that of Wazir (Exh. D. 7) that of Munshi Muhammad Ismail Patwari (Exh. D. 7) and that of Danishmand (Exh. D. 14). Thus even the criminal prosecution was not of any avail to the plaintiffs, and the defendants Miru and Biru continued in possession of the land as be fore. The nature of their possession as it appears from the jamabandis may also be briefly stated. In 1924‑25 (Exh. P. 13) Miru and Biru were shown as holding under one Jawahar, who was a non‑occupancy tenant under Mst. Umri and others, paying no rent, under a dispute about the title. In 1928‑29 (Exh. D. 1) Miru and Biru were shown as holding the land themselves, under a claim of right and paying no rent. In 1932‑33 (Exh. P. 5), they were shown as tenants‑at‑will under Wazir, Nabi Bakhsh, Nur Muhammad and Danishmand paying batai. This was the condition appearing from the jamab:4ndi at the time when the ejectment proceedings of 1934 took place, but on the 1st December 1934 Miru and Biru instituted proceedings for correction of the entry in the jamabandi and obtained a decision in their favour on the 9th July 1935, (Exh. D. 9). This petition was again reversed in 1942 when the Collector of Lyallpur dismissed the appeal of Miru and Biru from an order of an Assistant Collector directing that they should be shown in the rent column as tenants paying half batai (vide Exh. P. 28). Thus, the eventual result of the various proceedings commenced in 1934 was that Miru and Biru continued‑in possession and were regarded by the revenue authori ties until 1942 as holding the. land under a claim of right.
Wazir and his co‑sharers, however, were not prepared to let the matter rest there and on the 16th July 1935, they instituted a suit in a Revenue Court against Miru and Biru for recovery of Rs. 500 as rent of the whole square for the period from Kharif 1932 to Rabi 1935. Their suit was decreed by the Revenue Assistant on the 31st August 1936 (Exh. P.25). The learned Revenue Assistant held that the plaintiffs had proved by their evidence that their relationship with the defendants continued to be that of a landlord with his tenants, as before. The estimated value of the landlord's share of the produce for the period in suit was Rs. 818‑8‑6, but as only Rs. 500 had been claimed that was the amount decreed. An appeal was taken by Miru and Biru to the Deputy Commissioner, and was accepted on the 19th December 1936, the case being remanded for a fresh decision. No copy of the first Court's decision after the remand has been placed on the record, but it seems that the suit was again decreed on the 7th June 1937, as appears from the copy of the Collector's appellate order (Exh. P. 9) in an appeal taken before him by Miru and Biru. The Collector found that the Assistant Collector has recorded conflicting finding in two cases between the same parties holding in the case to contest a notice of ejectment that there was no relation of landlord and tenant between the parties, but in the rent case that there was such a relationship up to a certain stage, although at the time of the suit, the defendants had been holding as trespassers and their liability towards landlords could only be enforc ed under section 14 of the Punjab Tenancy Act. The learned. Collector himself examined the jamabandis and relying on those of 1932‑33 came to the conclusion that the plaintiffs were the owners and the defendants were tenants‑at‑will, and if their possession was adverse, it was not of more than four or five years' duration. Accordingly, he dismissed the appeal. A revision was taken up by Miru and Biru to the Commissioner, who dismissed it, holding that the plea of adverse possession was un founded and that the defendants were in fact tenants of the plaintiff's. The judgment was delivered on the 4th July 1938, and is Exh. P. 8 on the record. The plaintiffs have produced on the record proof that they took out execution of the decree awarded to them on the 7th June 1937, by the Assistant Collector. Exh. P. 30 is a copy of the warrant of attachment issued on the 18th November 1939. by the Revenue Assistant, and Exh. P. 31 in the bailiff's report that after attachment had been effected the judgment‑debtors had paid Rs. 510 which was the full amount claimed, to the decree‑holders. Statements to this effect were made by Nabi Bakhsh and Wazir in the Court of the Revenue Assistant at Lyallpur on the 14th December 1939, and these are attested by Miru, judgment‑debtor among others, vide Exh. P. 32. These documents clearly show that satisfaction was made under the decree of 1937. Thereafter, on the 13th May 1940, a fresh suit was brought by Wazir and his co sharers against Miru and Biru for Rs. 500 for the period Kharif 1937 to Kharif 1939 ; this was decreed by an Assistant Collector Sardar Lal Singh on the 4th November 1941, vide Exh. P. 27, on the findings that as regards the relationship of landlord and tenants the decision of the earlier suit was res‑judicata and further that the defence of adverse possession was of no avail since that possession had been disturbed on the 24th May 1934. An appeal was taken before the Collector and the order of the learned Collector dismissing it is Exh. D. 12, dated the 9th May 1942. The learned Collector regarded it as decisive that the plain tiffs were regarded as owners in the jamabandi and that they had been granted a decree for rent against the defendants in a previous suit. It appears that at the time when the previous suit was undergoing a trial, a revision from the order of the Collector, dated the 8th May 1942 was proceeding in the Court of the Commissioner. Obviously, no satisfaction of the Assistant Collector's decree of the 4th November 1941. could have been made at the time of the present suit.
This being the history of the previous litigation between the parties on the 10th February 1943, Wazir, Nur Muhammad and Nabi Bakhsh filed the suit out of which the present appeal arises for possession of the full square. The principal defendants were Miru and Biru and Danishmand way added as a pro forma defendant, he being a co‑share in the square along with the plaintiffs. It was alleged that the contesting defendants had been repeatedly asked to quite the land, that they had resorted by claiming to be themselves the owners and thus placed the plaintiffs under the necessity of suing to eject them. The suit,was contested, and the parties proceeded to evidence on five several issues, viz. :‑
1. Does the land in dispute not belong to the plaintiffs?
2. Did the defendants not hold the land in dispute as tenants under the plaintiffs?
3. Is the suit barred by limitation?
4. Are the defendants holding the land in dispute adversely for 12 years or more?
5. Are the matters covered by issues 2 to 4 res‑judicata?
The first four issues were decided against the defendants. On issue No. 5 it was held that the decisions of the Revenue Courts ending with the Commissioner's order of the 4th July 1938, constituted res‑judicata, but that on the points embodied in issues Nos. 3 and 4 there was no decision by the Revenue Courts which could operate as res‑judicata. The suit was accordingly decreed, and Miru and Biru have now appealed.
The case appears to us to divide into two parts namely, the claim in respect of the half share bequeathed to Mst. Umri and the claim in respect of the remaining half share. It may be noted that there seems no reliable indication on the record that the legatees under the will ever divided their shares among themselves, for which reason Mst. Umri's share must be regarded as an undivided half share. Now, although in the revenue records it appears that even as against Mst. Umri, Miru and Biru profess to be holding adversely, there are clear indications on the record that this was not so, but the fact was that they were holding under her, giving her in lieu of her landlord's rights, maintenance and protection, and this would appear to imply recognition of her superior title. In fact, the defendant Biru clearly stated in the course of his cross‑examination that "Mst. Umri was the owner of the land in dispute so long as she was alive". This defendant as D. W. 9 also clearly admitted that on the death of Sultani, "Mst. Umri took up residence with us and we provided her with food and clothes as she was our aunt." In the face of these admissions it becomes clear that Miru and Biru never prescribed for title against Mst. Umri, but even if they had done so, it is clear that their success would be limited to the life‑estate of Mst. Umri, and they could not at the same time be regarded as prgs. cribing for title against Wazir, who was the remainder man entitled to possession after her death. It is not the case that Wazir claims title through Mst. Umri, his title is derived independently from the will of Sultani, to take effect after the death or re‑marriage of Mst. Umri and there is no room for doubt that any period of adverse possession of Mst. Umri's share by Miru and Biru could be of no assistance to them in defeating the title of Wazir, which accrued upon the death of Mst. Umri, on the 15th November, 1935. The learned counsel for the respondents placed his case in respect of Mst. Umri's Ehares on the basis that the suit for possession in respect of such share fell under Article 141 in the 1st Schedule of the Limitation Act, 1908, which provides a period of 12 year's limitation for a Muhammadan entitled to the possession of immovable property on the death of a Muhammadan female, the terminus being the date of such. He has contended that since the present suit was brought in 1934, when Mst. Umri had been dead for less than eight years, there can be no question of any title having matured in favour of Miru and Biru in respect of her share of the estate through adverse possession, and to this argument learned counsel for the appellants was unable to put forward any reply. Irres pective of whether or not in 1932 Wazir succeeded in getting possession of Mst. Umri's share in the share, under his decree an independent right accrued to Wazir, to take possession of Mst. LJmri's share of the square when she died and that right had not been defeated by prescription on the date when Wazir brought his suit.
As regards the other half square, the learned Subordinate Judge, has held in the plaintiff's favour principally on the following grounds Firstly, he has relied on the finding by the Commissioner in his judgment of the 4th July 1938 the defendants were tenants under Wazir and his co‑shares. Secondly, he has relied on the entry in the jamabandi of 1932‑33 which showed the defendants as tenants paying half batai to the plaintiffs. Thirdly, he mentions the fact that the plaintiffs had been instituting suits for rent against the defendants and obtaining decrees and effecting recoveries under these decrees. He was of the opinion that even if recoveries were not proved, the rule would be applicable that mere non‑payment of rent is not sufficient to determine a landlord‑tenant relationship. Fourthly, he has relied on the disposses sion effected under the ejectment proceedings initiated by Wazir and his co‑shares in 1934, as evidenced by the document Exh. P. 3 ; the date of this possession is 24th May 1934. The learned Subordinate Judge thought that the plaintiffs had not obtained actual possession as a result of these proceedings, but he has cited authority to the effect that the delivery of symbolical possession is sufficient to put an end to the adverse possession of any party to the proceedings until such possession is delivered. The learned Subordinate judge has found that the defendant's adverse possession recommenced in June 1945 after this interruption.
The learned counsel for the respondents has argued that on all points relevant to the case, the decision of the Revenue Courts operates as res‑judicata, those Courts being Courts of exclusive jurisdiction. We find however, on a careful examination of the various decisions of the Revenue Courts which have been brought to our notice that the decisions of those Courts are by no means as clear as they should be if they are to be regarded as res‑judicata in a civil case. The judgment of Sardar Dhian Singh, dated the 31st August 1936 was set aside by the Collector and consequently any findings contained in it are irrelevant. In the appeal from the judgment delivered by the same Assistant Collector on remand, the Collector held on the basis of the 1932‑33 jamabandi that the plaintiffs were owners and the defendants tenants‑at‑will, and he further found that the appellant's adverse possession was " no more than four or five years old." The learned Collector ignored the fact that in 1935 the entry in the jamabandi was corrected, and it was directed that the new entry should show that Miru and Biru were in possession in a claim of rights as owners the order at the same time mentioned facts which go to show that Wazir was never at any time in legal possession of the land, it may, therefore, be construed as meaning that the possession as it appears from the jamabandi of 1932‑33 was not correct, nevertheless, when the case went up before the Commissioner in 1938, three years after the entries had been corrected, the learned Com missioner came to the same conclusion His the Collector viz., that the plain tiffs were landlords and the defendants tenants, and he went further than the plaintiffs‑respondents." In the second case, the Assistant Collector first held that the landlord tenants relationship was res judicata by reason of the decision in the first case and secondly that the adverse possession of the defendants commenced in May 1934. When this went up before the Collector, he held that it was not for the Revenue Court to go show intricate question of…
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