1999 PLP 1826﷓ (CLC)

In this case, the defendant/appellants were admittedly the true owners of the land involved In the suit anti the respondents were in possession of the said land, The appellants instituted a suit seeking possession from the respondents/defendants who raised the plea of adverse possession tin the land for over 12 years; The suit was contented and was decreed, Appeal filed against the said judgment and decree of the trial Court wad also disallowed. The appellants also filed a suit against the respondents for ejectment which was decreed and the appeal was dismissed, A learned Single Judge of the Peshawar High Court set aside the findings recorded In the first appeal, A letters patent appeal was also filed by the appellants which wad dismissed. The Honourable Supreme Char; after considering several reported cased held that the claim of the plaintiff to the true owner and of the defendant to be in adverse possession alleging hostile title and Interest and the decree for possession by itself had no effect of interrupting the adverse possession once convinced. In view of this finding the appeal war dismissed with no order as to costs. (ii) Maqbool Ahmed and another v' Munir Ahmed and 9 others 1995 SCMR

482. In this case, the Honourable Supreme Court refused to grant leave to the petitioners wart were defendants in a revenue suit wherein they pleaded that the land involved fit the suit was not liable to be partitioned do the ground of adverse possession: it was held by the Supreme Court that the plea of adverse possession by the petitioner, who were co‑sharer in the suit land against the respondents was not well‑founded as no to‑sharer without first partition of the property and without getting respective possession of their share can set up a plea of adverse possession: It was further held that a co‑sharer cannot Claim adverse possession against his ether co-sharers as It is well‑settled proposition of law that all the co‑sharers are considered td have a joint possession. (see also the case of Jagendra Chandra Kapali Chaudhary v. Arjun Chandra Kapali and others. PLD I 964 Dacca 498. (iii) Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063. In this case Shariat Appellate Bench of the Honourable Supreme Court of Pakistan held that section 28 of the Limitation Act. 1908 as well as Article 144 of the Limitation Act are against Qur'an and Sunnah. This view of Mr. Pir Karam Ali Shah was endorsed by the entire Bench. Maulana Muhammad Taqi Usmani, J., after citing several books written by Faqihs and Muhadiseen agreed to the extent that section 28 of Limitation Act is contrary to Qur'an and Sunnah and held that after section 28 is declared to be repugnant to the Injunctions of Islam, Article 144 remains procedural law and in no manner does it affect ownership and right of a person. Accordingly, it was unanimously held that section 28 of the Limitation Act is repugnant to the Injunctions of Islam in so far as it provides for extinction of the right in property at the determination of the period of prescribed for instituting a suit for possession of the suit property. It was further held that the said decision shall take effect from 31‑8‑1991 whereafter the section ceased to have in effect. Besides the above view, the following principles were also enunciated by the Honourable Shariat Appellate Bench of the Supreme Court which are as follows;‑‑ (a) That even after expiry of the time prescribed in the Limitation Act, if any person is in unlawful possession of a property, he, according to divine judgment, will be sinful and he will be liable. According to Shariat and morality he is bound to return the suit property to its original owner. (b) It' a person who admits that his possession of more than twelve years on a land belongs to some other persons, on such admission a Court is entitled under Shariah Law to return the property to its original owner. (c) That in case a Court refuses to entertain any claim on the question of limitation even then such dispute can be referred to the arbitration and the Court is competent to enforce award of such arbitrator. (d) That in case the real owner comes into Possession of an immovable property from the trespasser then such a trespasser cannot maintain a claim on the ground that by virtue of adverse possession he had attained ownership of the dis2uted land, (underlining is mine). (iv) Bilquis Begum and 9 others v. Karam Shah and 3 others 1980 CLC

169. In this case, Honurable Supreme Court of Azad Jammu and Kashmir after considering the case‑law of Jogandra Chandra Kapah Chaudhary (supra) held that defendant after paying land revenue coupled with the enjoyment of produce as owner had made the plaintiff fully alive that he had been holding the property adversely and in total disclaimer .of his title, such settled position of defendant as trespasser spreading over a sufficient long period and acquiesced in by the true owner shall be considered as acquiescence of the adverse nature , (v) Moolchand and 9 others, v, Muhammad Yousaf (Udhamdas) and 3 others PLD 1994 SC

462. In this case, two appeals were before the Full Bench of the Honourable Supreme Court, each filed by the defendants and the plaintiffs. Besides other legal questions pertaining to the property left by a Hindu, the question of adverse possession was also considered. It was held, inter alia, that one co‑heirs cannot defeat the claim of other co‑heirs by the plea of adverse possession. The rule laid down in the case of Mst. Omai and others v, Hakim Khan and others 1970 SCMR 499 was followed wherein it was held that if property is joint, mere non‑participation in profits of property by one co‑heir and exclusive possession by others would not be sufficient to construe adverse possession. The Honourable Supreme Court reiterated the rule laid down in the case of Mst. Aftaba and another v. Raza Khan and others 1984 SCMR 906 and in the case of Haji v Khuda Yar PLD 1987 SC 453 wherein it was held that adverse entry and non‑participation in the profits of the property would not amount to ouster of the other co‑sharers or co‑owners. Mr. Naeemur Rehman, learned counsel for the plaintiff has also argued that the right of adverse possession was accrued to the plaintiff much prior to the decision of Supreme Court in the case of Maqbool Ahmad (supra) and, therefore, her right is protected. In other words, he means that the effect of a Supreme Court judgment is prospective and not retrospective. In this connection, he has referred to the cases of Muhammad Bachal v, Deputy Rehabilitation Commissioner, Hyderabad and others PLD 1,962 Kar. 889, Adnan Afzal v, Captain Sher Afzal PLD 1969 SC 187 and the case of Al‑Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917. In the first case a Division Bench of this Court considered the facts of repeal of a statute wherein it %~ as held that when a statute affects existing rights, these provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest. In the case of Al‑Samrez Enterprise, the question involved was retrospective effect of a notification issued by the Custom Authorities. It was held that when a vested right was created and a transaction was not open to doubt as fraudulent, then retrospective operation cannot be given to executive orders in order to destroy contractual rights and obligations already accrued. The case of Adnan Afza1 PLD 1967 SC 187 is also on the point of retrospective effect of a legislation, However, the present controversy involved in this application is not covered by the provision of section 6 of the General Clauses Act, No doubt, the law is very clear as far as judicial pronouncement by the superior Courts is concerned that such judgments are also prospective in nature and not retrospective. But this plea is not available to the plaintiff' a. this suit was filed after the target date of 31-8-1991 as set up by the Supreme Court in the case of Maqbool Ahmed v. Hakoomat‑e-Pakistan 1991 SOME 2063. In the case., certain provisions of Limitation Act. 1909 were declared to be contrary to the Injunctions of Islam, I may observe here that the well‑established Islamic In junctions are net subordinate to the general or common laws of land. Article 2A of the Constitution. 1973 read with Objectives Resolution and section 4 of the Enforcement of Shari'ah Act (Act X of 1991) keep the Islamic laws at a' higher level than the other common and general laws of the country, In support, I would like to refer to the case of Sakhi Muhammad v, Munshl Khan PLD 1992 ,SC" 256 where an appeal arising out of a suit for pre-emption, leave to appeal was granted to consider whether a second suit is barred on general principle of res judicata after rejection of plaint In the first suit for non-payment of 1/5th of Zar-e‑Panjam by due date. This plea of the appellant was dismissed by the, Honourable Supreme Court in the following words. ;l "Learned counsel also mentioned that notwithstanding the aforestated rebuttal of the points raised by him the general principle of res judicata should be givers effect iii cases like the present one, When asked to bast his plea on any jurisprudential source the learned counsel without citing the stone could not visualise ally except the Roman and Western source. But he was unable even to state that this source of the plea would be available to the appellant/defendant/vendee in this cast In Islamic dispensation, As hold in several cases by the superior Courts In Pakistan including Haji Nitam Khan v. Additional District Judge, Lyallpur and others PLD 1976 1sah: 936 and Muhammad Hashir v, The State PLD 1 9142 SC 139 flow in so far as the principles are concerned Islamic, jurisprudence and Islamic haw, cannot be subordinated to any other principle which comes in clash with them, This is so on account of Constitutional set up of Pakistan." In to the instant case, the plaintiff has admitted in para, 2(b) of the plaint flint she alongwith one Jamila Althtar and defendant is occupying the said strip of land. I am of the tentative view that the correspondence filed as Annexures (IV/A) to (IV/F) does not prove lawful and bona fide possession of the plaintiff on suit land: do the contrary, Annexures (IV/G), (IV/1), XII/A) and (XII/B) indicate that the cooperative society have never treated the plaintiff as the lawful and bona fide occupier of the suit land: I am of the view that in absonco of any legal right it cannot be hold that the plaintiff has a prima facie ease: The defendants tire the purchasers of the suit land and accordingly title. documents wore executed in their favour, This farther shows that the retaining two ingredients for grant of interim injunction are also absent in the plaintiff's case" For the abovesaid ,reasons, through, a short order on 5-9-1996 the p1ttintiff's application C.M.A. No.1934 of 1995 wing rejected with the direction a the that the order of maintaining status quo shall remain in operation till the expiry of time prescribed for filing of appeal, The above are the reasoning for the said short order. H,B,T./S‑146/1 ‑ Application rejected,