2003 PLP 1238 (MLD)

3. Writ Petition No.263-R of 1981 captioned as Muhammad Bashir v. Allah Ditta and others was filed in the High Court through Abdul Qader against Mst. Sughran and others, the successor-in-interest of the late Abdul Majeed, Settlement Commissioner and the Additional Settlement Commissioner. A stay order was issued by High Court 'subject to notice status quo with regard to possession of the shop in dispute will be maintained'. This writ petition was ultimately decided on merits by his Lordship Mr. Justice Mian Saeed-ur-Rehman Farrukh, it was observed by High Court that auction once held the auction purchaser/successful bidder cannot be deprived therefrom till such time that formal order of cancellation of the auction is passed against him. No c such order was passed. The price of the shop has already been paid by the legal heirs of the auction purchaser and they have succeeded in obtaining the transfer order as well. This judgment is dated 26-10-1992. Thereupon Mst. Sughran and other successor-in-interest of Abdul Majeed auction purchaser filed a suit for possession against Allah Ditta and Muhammad Riaz son of Allah Ditta in the Civil Court. This suit was contested through written statement and alongwith other preliminary objections the objection of lack of cause of action, limitation, estoppal and wrong description of property were taken. The following issues were formulated:-- (i) Whether the plaintiffs have no case of action? OPD. (ii) Whether the suit is barred by time? OPD. (iii) Whether the plaintiffs are estopped by their conduct? OPD. (iv) Whether the description of the suit property is defectives if so, then with what effect? OPD. (v) Whether the suit is not maintainable in view of the preliminary objections Nos.5, 6 and 10 of the written statement? OPD. (vi) Whether the plaintiffs have not come to this Court with clean hands? OPD (vii) Whether the suit is bad for non-joinder of necessary parties? OPD. (viii) Whether the suit is false, frivolous and defendants are entitled to special costs? OPD. (ix) Whether the plaintiffs are entitled to decree for possession as prayed for? OPP. (x) Relief.

4. The evidence was produced and the learned Civil Judge 1st Class, Sargodha vide judgment and decree dated 16-7-1995 observed that possession of the property in dispute is with the defendants without any title so it cannot be said that the plaintiffs have no cause of action, they do have cause of action and the suit is not false or frivolous; and Decreed the suit for possession of Shop No.1-S-1-M alongwith compensation of its use and occupation for the amount of Rs.28,800 and costs of the suit were also awarded. An appeal was filed and the learned Appellate Court vide judgment and decree dated 4-1-1999 dismissed the appeal and also set aside the judgment and decree passed by the learned Lower Court and dismissed the suit without any costs. Against these judgments at variance the instance civil revision has been filed.

5. Learned counsel for the petitioners submitted that the impugned judgment and decree is result of misreading and non-reading of the material evidence on record. The allotment in favour of petitioners was firstly challenged by Muhammad Bashir and the respondents before the Settlement Authorities and before the High Court and the High Court finally decided the dispute between the parties on 26-10-1992. The title and allotment in favour of the petitioners became absolute and perfect on 26-10-1992. The petitioners instituted suit on 7-9-1994. Thus the suit was within time. The limitation stood suspended on the issuance of status quo order in writ petition by the High Court. The learned Lower Appellate Court misconstrued while saying that suit of the petitioners is time-barred. Further submitted that shop in dispute bears a specific number and is independent unit. It is described in the map annexed alongwith the plaint. The Deputy Settlement Commissioner in his order dated 10-1-1981 has given full description of .the disputed property. The learned Court has illegally exercised the jurisdiction by setting aside the finding on Issue No.4. The respondents' attorney who appeared as D. W.1 had admitted in his cross-examination the correct location and description of property in dispute, therefore, the requirement of Order VII, Rule 3, C.P.C. was fulfilled by the petitioners. He further submitted that property in dispute alongwith other shop related to Khasra Nos. 1/2/2/1/2/2/2 which was an evacuee property in the ownership of Central Government. All the shops were independent units made by the Settlement Department and had been given specific numbers and allotted to various persons as per shop number, therefore, the shop can easily be identified. The need of demarcation arises at a place where identification of particular property is uncertain. After demarcation of independent units and allotment of specific numbers to shops by the Settlement Department, no other department or authority has jurisdiction to make demarcation, therefore, the learned Appellate Court while holding that demarcation of disputed property was necessary has completely exercised the jurisdiction not 'vested in him by law as the respondents were only in illegal and unauthorized possession of the shop in dispute. Therefore, no other party was needed to be impleaded as property party. Moreover, where specific number is given to a property in a big Khasra it does not remain a portion of that Khasra and no suit can be dismissed for non- joinder and misjoinder of parties. He has relied on "Fazal Hussain and another v. Abdul Hamid" (PLD 1971 Lahore 89). Lastly learned counsel for the petitioners argued that the learned Appellate Court has exercised the jurisdiction with material irregularity and going beyond the verdict of the Settlement Authorities in respect of allotment, entitlement, auction and other allied matters. Learned counsel for the respondents submitted that undoubtedly possession was taken over by the respondent Allah Ditta on 30-4-1979 and this fact admitted in paragraph 2 of the plaint filed by the plaintiffs The stay order was issued by the High Court on 3-5-1981 and on 26-10-1992 the writ petition was decided but the suit for possession was filed within two years of the decision of the writ petition i.e. 7-9-1994. He relied on "Lt. Maseel Ahmad v. Punjab Sport, Control Board through Director of Sports, ex Officio Secretary, Punjab Sports Control Board, Lahore" (1974 SCMR 492) and "Ghulam Ali v. Akbar alias Akoor and another" (PLD 1991 SC 957). Therefore, the impugned judgment is passed rightly.

7. I have heard the learned counsel for the parties and perused the record. Issue-wise finding, given by the learned Civil Judge vide judgment and decree dated 16-7-1995 was reversed by the learned Appellate Court in suit for possession merely that the suit was barred by time and plaintiffs were estopped by their conduct and the description of the property given by the plaintiffs is wrong without demarcation and the plaintiffs have not arrayed all the owners of Khasra No.12/2/1/2/2/2 and this Khasra has also not been partitioned by any, competent authority. This was the contention of the defendants at appellate stage. The learned Appellate Court while deciding Issue No.2 about limitation observed that Allah Ditta defendant had taken over the possession of the disputed property forcibly ejecting Muhammad Bashir, the then occupant, of the property, against whom the plaintiffs claimed that he was in continuous possession of the property since 1947. If the contention of the plaintiffs/respondents is admitted and it is presumed that Allah Ditta had obtained the possession of the property 18 years ago in the year, 1979 the suit having been filed on 7-9-1994 after the expiry of 12 years, it was incumbent upon them to file suit within statutory period of 12 years to dispossess Allah Ditta. The learned Appellate Court also reversed the findings on Issue No.5 in view of preliminary objections Nos.5, 6 and 10 of the written statement and observed that unless the property purchased by the plaintiffs/respondents is properly demarcated by the competent authority there was no other way to find out where the property No. I-S- 1-M purchased by the plaintiffs/respondents was located as it is a joint Khasra admittedly owned by a number of persons and admittedly Allah Ditta defendant wag owner of 72 square feet in the said Khasra proved by the sale-deed Exh.D-2 attested copy of Mutation No.30201 sanctioned on 12-4-1990 Exh.D.3 and jamabandi for the year 1988-89 Exh.D.4 and that Khasra No.1/2/2/1/2/2/2 consisted of 192 square feet out of which 72 square feet were admittedly owned by Allah Ditta whereas 80 square feet was claimed by the plaintiffs/respondents. Thus it is clear that. Allah Ditta defendant/appellant had acquired ownership rights of 72 square feet out of total area of 192 square feet in the said Khasra, which he had purchased from its previous owner in the year, 1986-87 as is evident from jamabandi for the year, 1986-87. The learned Appellate Court further observed that Allah Ditta appellant vide registered sale-deed dated 18-3-1990 Exh.D.2 transferred his share of the property in favour of his real son Muhammad Riaz and a regular mutation was sanctioned in favour of Muhammad Riaz on 12-3-1990 i.e. Exh.D.3. Unless the disputed Khasra is demarcated and necessary parties are also added, the plaintiffs could not be granted a decree for possession and while reverting the finding of the learned Civil Judge on merits the learned Appellate Court observed that in the decision of the High Court Ekh.P.4, there is no mention of the property transferred to Abdul Majeed the predecessor-in-interest of the plaintiffs/appellants and the transfer order Exh.P.3 does not contain' the area of Property No.1-S-1-M, Block No.6, Sargodha transferred to the predecessor-in-interest of the plaintiffs/respondents.

8. Perusal of impugned judgment shows that the learned Appellate Court while reversing the judgment passed by the learned Civil Judge issue-wise finding has completely not taken into account Exh.P.2. This is a judgment passed by the Deputy Settlement Commissioner, Sargodha in a case filed by Muhammad Bashir against Allah Ditta through Abdul Qadir and Abdul Majeed regarding transfer of Shop No.1-S-1-M, Block No.6, Sargodha. In this judgment it is observed by the Deputy Settlement Commissioner that he inspected the spot in presence of the parties and found out that the shop was allotted to Muhammad Bashir by the Deputy Rehabilitation Officer dated 8-5-1950 he was eliminated by the Assistant Settlement Commissioner vide his order dated 22-6-1960. He filed an appeal before the Deputy Settlement Commissioner to redress his grievances but the appeal was rejected on 19-9-1960. He filed revision petition which was also dismissed on 29-10-1960 bathe learned Additional Settlement Commissioner, Sargodha Division. During the pendency of revision of the shop was put to auction; Muhammad Bahsir was in physical possession of disputed shop and was paying rend to the department. He was forcibly ejected by Allah Ditta and, report was lodged with the police through F.I.R. No.177 of 1979. In the second round of litigation Muhammad Bashir again filed a regular form L.S.24 under the Revised Settlement Scheme No.VIII saying shop being independent unit and having been considered as cancelled due to failure to deposit of auction price, may be transferred to him. The Deputy Settlement Commissioner observed that all the shops in Khasra No. 1-S -1-M run in successive serial order and these have their own independent successive numbers and are in possession of the different persons and these are independent unit and independent existence of the shop has already been confessed and proved in the sale-deed executed in favour of Muhammad Rafiq successor-in-interest of Muhammad Shafi original auction purchaser and thus the shop has been proved as an independent not form part of other shop. Through Exh. P.2 the, Deputy Settlement Commissioner also refused to set aside the auction proceedings in favour of Abdul Majeed. The transfer order was issued in favour of the successor-in-interest of Abdul Majeed and description show the shop No. 1-S-1-M, Block No.6, Sargodha. Even the sale-deed Exh.D.2 also shows that the shop is an independent unit. Exh.P.4 is the copy of writ petition which is filed by Muhammad Bashir against Allah Ditta through Abdul Qadir respondent No.1 and the respondents Mst. Sughran etc., the Deputy Settlement Commissioner and the Additional Settlement Commissioner, Sargodha. The stay order was issued by the High Court that subject to notice status quo with regard to possession of the shop in dispute will be maintained. Writ Petition No.263-R of 1981 was dismissed by my learned brother Mr. Justice Mian Saeed-ur-Rehman Farrukh vide judgment dated 26-10-1992 with the observation that auction once held the auction purchaser/successful bidder cannot be deprived therefrom till such time that formal order of cancellation of the auction is passed against him and no such order was ever passed. The price of the shop has been paid by the legal heirs of the auction purchaser and they have succeeded in obtaining the transfer order as well.

9. After the judgment passed by the High Court the parties tiled a suit for possession. P. W. 1 Noor Muhammad produced copy of the map Exh.P.1 and P. W.2 Tariq Javed one of the plaintiffs appeared as his own witness and supported the auction purchaser. He in his cross-examination stated that it is incorrect that they were given Shop No.1-S-1-S and volunteered that Khasra number is not incorporated in the transfer order. He produced copy of Exh.P.2 to P.7 and concluded his evidence. D.W.1 Abdul Khaliq stated that Riaz purchased this shop from Allah Ditta through Exh.D.2 and Exh.D.4. He admitted that the property in Khasra No. 1/2/2/1/2/2/2 is evacuee property and the Settlement Department has allotted to different people. He also admitted that he does not know that on 10-1-1981 the Deputy Settlement Commissioner decided against his father. He produced jamabandies Exh.D.5 to D.9 and the judgment of the High Court Exh.D.10. After perusing the evidence it is found out that the learned Appellate Court while reversing the judgment of the learned Civil Judge has misread the evidence. Both the parties have been litigating from the Court of Deputy Settlement Commissioner to Additional Settlement Commissioner and to High Court and it is wrongly observed by the learner Appellate Court that Allah Ditta was not party to the proceeding: and in the writ petition before High Court while the documentary evidence proves that Allah Ditta was a party before Settlement forum and in High Court he was respondent No.1 alongwith other respondent.

10. Now the question whether the time limit will start from the date of possession of the respondent Allah Ditta or it will start when the title of the contesting parties become absolute. The judgment of the Deputy Settlement Commissioner and Additional Settlement Commissioner was up held by the High Court and the judgment of the High Court was not assailed further, therefore, it is a final judgment which determines the rights of the parties which also maintains the judgment given by the Deputy Settlement Commissioner and the Additional Settlement Commissioner that the property in-question is an in dependent unit and each shop has got its own number and allotted to different persons, therefore, the learned Appellate Court without any legal justification reversed the Issues Nos,2, 4, 5, 7 and 9 decided by the learned Civil Judge. Parties were undoubtedly litigating for their own claims and titles and the time taken in such proceedings is to be excluded in computing period of limitation filing such suit. Moreover, under the relevant article limitation regarding estoppel operates where some kind of expression or implied representation which might have led another person to change his position to his disadvantage by believing the representation made to him as correct. In "Muhammad Nawaz v. Muhammad Khan and 5 others" (1989 CLC 2140) it was held that Article 120 of the Limitation Act does not even obliquely refer to the cause of action as the starting point of limitation but puts it at the time of accrual of right to sue when status quo of parties is determined. In this case admittedly there was a denial of title of each other by all the litigating parties and title was finally determined by the High Court on date and the limitation started from the time the title was claimed or title of the parties was determined and that is Exh. P.4. There was a stay order in the field and admittedly the parties could not assail the same "Facid-uz-Zafar and others v. Ghulam Muhammad and another" (1984 1 SCMR 1167) and the limitation is to be computed for the time the stay was in field.

11. Now the second point that suit suffered from wrong description of property it is the settled proposition of law under Order VII, Rule 3 that suit cannot be dismissed or plaint cannot be rejected on account of any insufficient description or inconsistency between descriptions by boundaries and by areas " Fazal Hussain and another v. Abdul Hamid" (PLD 1971 Lahore 89). It is held in "Ghulam Farid v. Muhammad Aslam Khan and 26 others" (2000 MLD 1737) Article 120 of Limitation Act, 1908 limitation runs as soon as the defendant has openly and expressly challenged the plaintiffs title to the property in the suit by casting cloud or shadow over it.

12. For what, I have discussed above instant civil revision is accepted and the judgment and decree passed by the learned Appellate Court is set aside being the outcome of misreading and non-reading of evidence on record. S.A.K./S-510/L Revision accepted.