2004 PLP 1918 (YLR)

Out of the pleadings of the parties, following issues were framed: (1) Whether the suit is time-barred? OPD. (2) Whether the plaintiffs are estopped by their act and conduct to file the suit? OPD. (3) Whether the suit is wrongly valued for the purposes of Court-fee and jurisdiction, if so, what. is the correct valuation for both the purposes and with what effect? OPD. (4) Whether the description of the suit-land given in the plaint is not correct, if so, with what effect? OPD. (5) Whether the defendant has become owner of the suit property by adverse being in possession for a period of more than 12 years? OPD. (6) Whether the plaintiffs are owners of the suit property? OPP. (7) Relief. The learned trial Court after recording the evidence of the parties vide its judgment dated 25-9-1991, decreed the suit of the plaintiffs/petitioners. On appeal, learned Additional District Judge, Chiniot, allowed the same, set aside the judgment of the learned trial Court and dismissed the suit of the plaintiffs/petitioners vide judgment dated 5-6-1994.

2. Learned counsel for the petitioners has contended that the learned Additional District Judge has misread the record. He referred to the copy of the Register Haqdaran Zamin for the year 1985-86, wherein the petitioners have been shown as owners in possession of the suit-land. He further referred to the copy of the Khasra Girdawari wherein the respondent has been shown in possession in Rabi 1987. Learned counsel further urged that section 28 of the Limitation Act 1908, has been declared to be against the Injunctions of Islam by the Honourable Supreme Court of Pakistan in 1991 SCMR 2063. Conversely, learned counsel for respondent defended the impugned-judgment and placed reliance on PLD 1993 SC 147.

3. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The copy of Register Haqdaran Zamin 1985-86, Exh. P.1, shows the plaintiffs/petitioners in possession of the suit-land. Similarly for the first time an entry is made showing the respondent as tenant of the suit-land in 1987. The defendant/respondent appeared as D.W.2 and admitted in his cross examination that he cultivated the suit-land as tenant. The discrepancies in the depositions of the P.Ws. do not shatter the case of the plaintiffs/petitioners particularly in view of the" documentary evidence and the admission of the defendant/respondent: Adverse possession cannot be established by bare word of mouth. See AIR 1970 Dacca

407. In the case of Maqbool Ahmed v. Hakoomat-e -Pakistan 1991 SCMR 2063, the Honourables Supreme Court of Pakistan, has declared section 28 of the Limitation Act, 1908 repugnant to the Injunctions of Islam. The said section ceased to have the effect after the target date i.e.31-8-1991. In the instant case, learned Additional District Judge accepted the plea of adverse possession on 5-9-1994 after the target date. In my view, no such plea can be accepted after the target date as prescriptive title under section 28 of the Limitation Act, 1908, stands extinguished. A suit cannot be dismissed by accepting the plea of adverse possession. The decree on the ground of adverse possession cannot be passed after target date. See 1993 MLD 177; 1996 MLD 1216; 2000 PTD 3369 and 1994 MLD

81. A Division Bench of this Court in a recent judgment passed on R.F A. No.356 of 1996 titled Mst. Zain Bibi v. Muhammad Sharif, observed as under:-- "Similarly no plea of adverse possession could be raised in defence nor was it available to any defendant nor any suit for recovery of possession could be dismissed after the target date on the ground of title having matured in favour of defendant on the basis of adverse possession."

4. For what has been stated above, the judgment of the learned Additional District Judge is unsustainable in law. Consequently this revision petition is allowed and the judgment of the learned Additional District Judge, Chiniot dated 5-6-1994 is set aside and that of the learned trial Court dated 25-9-1991 is upheld. M.I./A-1058 Revision accepted.