Law:

Section:

Limitation Act (IX of 1908)-------Art. 144-Adverse possession-Initial possession of appellant and defendants referable to their lawful title as co-sharers in shamilat-Possession of defendants including appellant-Cannot be regarded as adverse merely for non-payment of rent to a co-sharer after partition of shamilat until express repudiation of such co-sharer's title made. Karam All v. Raja P L D 1955 F C 35 distinguished. Lala v. Mst. Jamey 1968 S C M R 131 and Fazl-e-Ghani v. Khatib Gul 1968 S C M R 1040(2) ref. JUDGMENT MUHAMMAD GUL, J.-This appeal by special leave, arises out of a suit instituted on 9-t-1956, by Hukmat Khan (since deceased) predecessor-in-interest of respondents Nos. 1 to 5 herein, for the possession of land measuring 20 kanalas 7 ½ marlas bearing khaira Nos. 1765/388 etc./3 (herein­after called the suit land) being one half share of land measuring 40 kanals 15 marlas comprised of khasra Nos. 388 to 391, 441 and 469/1 and once forming part of shamilat of village Kala, Tehsil Sawabi, District Mardan. The suit was brought by Hukmat Khan on the allegations that Shamsur Rehman, the appellant herein, and 7 others all of whom were impleaded as defendants, were in possession of the land in dispute as tenants under the deceased plaintiff, but they had discontinued paying rent. A suit brought for the recovery of rent was dismissed by the Revenue Court, because the defendants had repudiated the deceased plaintiff's title in the land and the Revenue Court directed him to establish his title in civil Court. From among the 8 defendants only 6 including Shamsur Rehman appellant herein, entered appearance to contest the suit, inter alia on the ground that Hukmat Khan had never been in possession of the land in dispute within 12 years next prior to the institution of the suit and that the defendants had perfected their title thereto by prescription. A number of issues were framed on the pleadings of the parties. The learned Civil Judge, Sawabi, dismissed the suit on 4-11-1957, holding that it was barred by limitation and that the defendants had acquired title to tire land in dispute by prescription. On appeal by Hukmat Khan, the decree of the trial Court was…

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