D.K. Mahajan, J.
1. This second appeal is directed against the decision of the learn-ed Additional District Judge, Ambala, at Karnal partly modifying the decision of the trial Court decreeing the plaintiffs' suit.
2. The plaintiffs as well as the defendants owned separate khewats of land la village Kachhana, Tehsil Kaithal, Dis-trict Karnai. Besides their khewat lands they also owned shamilat land. This shamilat land was known as 'Thulla Badhahan'. During the consolidation of holdings in the village the shamilat land was partitioned and it was allotted to the khewatdars along with their separate khewat lands. The plaintiffs allege that the area of shamilat Thulla Badhahan owned by the parties was 1.318 bighas 14 biswas and out of this the plaintiffs owned three-fourth share and the defendants one-fourth share and that during the consolidation the defendants have wrongly been allotted land measuring 484 bighas 12 biswas out of the shamilat land and the plaintiffs have wrongly been allotted 834 bighas 2 biswas of land. In fact the plaintiffs are entitled to 984 bighas 1/2 biswas of land and the defendants should have been allotted only 329 bighas 131/2 biswas of land. It was with regard to this excess allotment of the shamilat land to the defendants that the present suit was riled. The contention of the plaintiffs prevailed in the Courts below and accordingly the necessary decree was ultimately granted by the learned Additional District Judge.
3. It will be proper at this stage to mention the reason why the defendants were allotted more land by the consolidation authorities. In the earliest settlement the khewat land was held three-fourth and one-fourth by the ancestors of the plaintiffs and the defendants. Out of the plaintiffs' ancestors' holding, an area measuring 13 bighas 19 biswas was taken possession of by the defendants ancestors and ultimately they perfected their title by adverse possession to this area by the year 1921. However, it is clear from the pedigree-table Exhibit P. 44 that in the year 1905-06 the shamilat was recorded as owned by the ancestors of the plaintiffs and the defendants three-fourth and one-fourth. A mutation was entered in the year 1930-31 (Exhibit D. 6), wherein it was clearly indicated that the shamilat was to be shared according to the settlement of Mr. Stowe. This Settlement was of the year 1905-06 as would appear from Exhibit P. 40. It will, therefore, appear that the measure of ownership of the shamilat in Exhibit D. 6 was three-fourth and one-fourth. Later on an attempt was made by the defendants to get this mutation entry corrected. Their case seems to be that in view of the excess in their holding by 13 bighas 19 biswas, they are entitled to the corresponding shamilat of that khewatholding and on that basis they got the mutation Exhibit D. 7 entered in their favour and this is what really furnished the basis for the present suit, though the matter was precipitated when the consolidation of holdings took place. In the background of the above facts the present appeal has to be decided.
4. Before proceeding further I may advert to another fact, namely that this matter came up before me on the 25th of April 1967 and by my order of that date I remanded the case to the trial Court for a report as to whether 13 bighas 19 biswas of land was taken possession of by the defendant-appellants on the basis of their prior title or on the basis of adverse possession. This course was adopted in view of the rule that shamilat land, though an adjunct to the proprietary holding, has to be specifically either adversely possessed or transferred. Mere transfer of the proprietary land does not pass the shamilat corresponding to it to the transferee of the proprietary holding. If the defendant-appellants were proprietors of this land in their own right, the shamilat land corresponding to 13 bighas 19 biswas will form part of their holding- If they were not, then the Question will have to be decided, whether by adversely possessing the proprietary holding alone, the shamilat corresponding to it is also adversely possessed. It was for this reason that the remand order was passed. The trial Court has, after giving the parties opportunity to produce evidence, submitted a comprehensive report. I must place my appreciation on the record of the labour and pains taken by the trial Court in writing the report. It is a very fair and clear document and no error has been pointed out by the learned counsel for the appellants in the same. The report clearly Indicates, that land measuring 13 bighas 19 biswas was the ownership of the plaintiffs. They lost this ownership in a process starting in the year 1901 and ending in the year 1922. This is a clear case where they lost the land by adverse possession and this is what the trial Court has found. The only question that arises now is whether the shamilal land appurtenant to this land will so to the defendant-appellants or it will still remain the property of the plaintiffs. The plaintiffs' case is that it is still their property and the defendants' case is that they are the owners of this land as well on the basis of adverse possession.
5. On first principle It appears to me that the defendants do not become the owners of the shamilat land in order to adversely possess land -- whether It be proprietary holding or shamilat -- tho land must actuallv be possessed. There is no evidence on the record that the defendants adversely possessed the corres-ponding part of the shamilat land. There Is no evidence that they have even asserted an adverse right to this shamilat land to the knowledge of the plaintiffs. It is not disputed that so far as transfer of land is concerned, the rule is firmly settled that unless the shamilat land appertaining to it is specifically transferred, it does not pass to the vendee. The vendee only gets the proprietary land. It is only when the proprietor transfers the proprietary land along with the share in the shamilat that the vendee gets the ownership of the corresponding rights in the shamilat land. Adverse possession is nothing short of involuntary transfer and Unless there is a clear intention on the part of the adverse possessor to possess the shamilat land adversely there would be no reason to hold, by the mere fact that he has adversely possessed the proprietary land, that he has become the owner of the shamilat land corresponding to the proprietary holding by adverse possession. No authority has been cited at the bar which will support the contention of Mr. Tewatia, learned counsel for the appellants.
However. Mr. Tewatia has drawn my attention to the decision of Shadi Lal, C. J. and Tapp. J., in Karam Dad v. Rehmat, AIR 1931 Lah 648 (2), for his contention that if any parcel of land Is adversely possessed the necessary consequence is that the shamilat land appurtenant thereto also gets adversely possessed. In my opinion this decision is not an authority for the proposition for which It has, been relied upon. In Karam Dad's case, AIR 1931 Lah 648 (2) two brothers owned land. One brother abandoned the village and went away. Later on he came back and laid claim to one parcel of the abandoned land and succeeded in getting its possession from his brother. There was another parcel of abandoned land to which no claim was laid. Later on a claim was laid to the remaining parcel of the abandoned land and that claim failed in a Court of law, the suit having failed on the plea of limitation. Having failed in that suit, the brother who abandoned that land filed another suit to claim the corresponding shamilat appurtenant to the abandoned land and it was in that situation that it was held by the leared. Chief justice and Tapp, J., that the shamilat land would form part of the abandoned land. It is no doubt true that the learned Judges have used the expression that by adversely possessing khewat land the adverse possessor would get rights to the shamilat land appurtenant to it, but this expression must be read in the light of the facts of that case. The reason for this is very simple. When the land was abandoned, it was abandoned along with the sbamilat rights. That is not the case when land is adversely possessed, becauseabandonment is a unilateral act, whereas adverse possession, though in one sense Is a unilateral act, pre-supposes that the owner is aware of adverse possession. In the case of abandonment there Is no question of the awareness on the part of the owner, because the owner has voluntarily left the land with no intention to return. Therefore, the case of abandonment will stand on a totally different footing than the case of mere adverse possession. I am therefore clearly of the view that the Bench decision has no bearing on the present controversy.
6. In view of the remand report, there is no option but to dismiss the appeal. Considering the importance of the question involved, I would leave the parties to bear their own costs throughout.
7. On an oral request by the learned counsel for the defendant-appellants, I grant leave under CL 10 of the Letters Patent.