In a joint landholding including evacuee property vested in the Custodian, the possession of an occupant is deemed to be on behalf of all co-owners. Mere continuous possession does not constitute adverse possession unless the occupant proves ouster, which is a hostile, exclusive, and open denial of the co-owners' title.

PANKAJ JAIN, J.

Plaintiffs are in appeal. For convenience and to avoid confusion, the parties hereinafter are referred to as by their original position before the Court of the First Instance, i.e., the appellants as ‘plaintiffs’ and the respondents as ‘defendants’.

2. The plaintiffs filed suit seeking decree of declaration to the effect that they are owners in possession of a land measuring 69 Kanals and 17 Marlas as detailed out in the headnote of the plaint and that order of partition dated 24.05.1984 qua suit land is bad, illegal and does not affect the rights of the plaintiffs.

3. Plaintiffs claim to be in cultivating possession of land measuring 69 Kanals 17 Marlas prior to the year 1941-42 and claim that they have become owners of the said land as their possession has always remained open, adverse and hostile. The defendants went behind their back without their knowledge and sought partition of the suit land. Assistant Collector, 1st Grade, Pathankot vide order dated 24.05.1984 partitioned the land without impleading plaintiffs as party. Plaintiffs still continue to be in actual physical possession of the suit land. The order regarding delivery of symbolic possession of the suit land to the defendants is illegal and not binding upon the rights of the plaintiffs. Plaintiffs cannot be dispossessed from the suit land under the garb of the partition.

4. Suit was contested by the defendants. Defendants denied that the plaintiffs have become owners of the land in question by way of adverse possession. Defendants claimed that the suit land was a joint-holding of the defendants along with custodian. The defendants have 1/3rd share in the total land. The same was so recognized by the statutory authorities vide order dated 06.04.1953. Prior to order of partition, dated 24.05.1984, the defendants were in possession as co-sharers and after partition they are in possession of their share.

5. Defendants also preferred counter-claim claiming possession from the plaintiffs. As per counter-claim, the defendants claimed that plaintiffs trespassed over the suit land and the defendants being owners thereof, are entitled to possession. The suit was decreed on 19.05.1986 by Sub Judge, 1st Class, Pathankot. In the appeal preferred by the defendants, the judgment and decree, dated 19.05.1986 passed by the Court of the First Instance were set aside. The matter was remanded back vide order dated 20.05.1988 by the Appellate Court framing additional issues for re-trial.

6. The suit was again tried on following issues:

1. Whether the plaintiffs are the owners in possession of the suit land being in adverse possession of the suit land for more than 40 years? OPP

2. Whether the plaintiffs are entitled to declaration and consequential relief of permanent injunction prayed for? OPP

2a. Whether the suit is barred by time? OPD

2b. Whether the counter claim filed by the defendants is not maintainable? OPP.

2c. Whether the defendants are entitled to possession of the disputed land on the basis of the counter-claim? OPD.

3. Whether the plaint has been properly valued for the purpose of Court fee and jurisdiction? OPP.

4. Whether the jurisdiction of this Court is barred u/S 158 of the Punjab Land Revenue Act? OPD

5. Whether the suit is not maintainable? OPD

6. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD

and issues as follows framed by the Appellate Court:-

6a. Whether the land in suit formed part of Khewat No.266 of jamabandi for the year 1977-78 measuring 1490 Kanals 4 Marlas entered as Shamlat Deh an