1995SCMR522 (PLP)

AJMAL MIAN, J.‑‑‑Petition for leave to appeal was filed against the judgment dated 27‑5‑1991 passed by a Division Bench of the High Court of Balochistan in R.FA. No. 32 of 1989 filed by the appellant against the judgment/decree dated 29‑8‑1989 of the Majlis‑e‑Shoora, Loralai, decreeing the respondent's suit in respect of the suit shop, dismissing the same by maintaining the above judgment/decree of the trial Court. However, when the above petition for leave to appeal came up for hearing on 3‑4‑1993, Mr. Muhammad Aslam Chishti, learned counsel for the appellant, pointed out that since the value of the suit shop was more than Rs.50,000, a direct appeal under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, was competent and not a petition for leave to appeal. He requested for the conversion of above petition for leave to appeal into a direct appeal, which request was granted subject to all just exceptions in presence of Mr. Tariq Mahmood, learned Advocate‑on‑Record appearing for the respondent.

2. The brief facts are that shop No. 112‑H situated on Thana Road, Zhob, hereinafter referred to as the suit shop, was an evacuee property. The same was transferred by the Political Agent and Rehabilitation Commissioner under sub‑paragraph 2(4) of paragraph 5 of the Settlement Scheme No. VII, hereinafter referred to as the Scheme, through a Permanent Transfer Order No. 231/1‑Evacuee dated 7‑7‑1964 to one Usman son of Khozhak. It appears that the respondent's father, Sheikh Abdul Qadeem, purchased the suit shop from said Usman for a consideration of Rs.5,000 through a registered sale deed dated 19‑3‑1965. The above sale was mutated in the municipal record. It seems that on 31‑10‑1983 the suit shop was transferred by Sheikh Abdul Qadeem to his son i.e. to the present respondent. Necessary entries of the above transfer were effected in the revenue record.

3. It is the case of the appellant that he had been in possession of the suit shop since 1947 without any title. It is also his case that on 31‑5‑1981 the dispute between him and Sheikh Abdul Oadeem in respect of the suit shop was referred under an arbitration agreement dated 31‑5‑1981, signed by him and by Sheikh Abdul Qadeem's brother and his attorney, Sheikh Abdul Sattar. It is further his case that on 2‑7‑1981, the sole arbitrator, Sardar Janan, gave an award. Whereby he had given half of the suit shop to the appellant and the remaining half to the respondent's father and it was also ordered that for the above remaining half shop the appellant would pay rent to the respondent's father. According to the appellant, he abided by the terms of the above award but the same were disowned by Sheikh Abdul Qadeem inasmuch as he contended that he had not authorised anyone to agree to the above arbitration reference on his behalf.

4. Be that as it may, on 1‑4‑1984 the respondent sent a notice through his advocate stating therein that the appellant was the tenant of his father at the rate of Rs.25 per month and that the suit shop was transferred by his father to him on 31‑10‑1983. The appellant was called upon to pay the rent of the suit shop to the respondent from 31‑10‑1983. It may be pointed out that the appellant had denied the receipt of the above notice. After that, the respondent filed a suit under Balochistan Civil Disputes (Shariat Application) Regulations, 1976, on 9‑10‑1984, which was decreed on 27‑4‑1987. Against the above decree, the appellant filed Revision No. 5 of 1987, which was allowed by the High Court of Balochistan and whereby the above decree was set aside on the ground that the relationship of landlord and tenant between the parties was not established. It was also observed that the respondent could approach a competent forum. It appears that on 22‑8‑1987, the respondent filed civil suit in the Court, of Qazi Zhob, for declaration that the appellant was a tenant and for possession etc. The plaint of the above suit was returned under Order VII, Rule 11, C.P.C. by an order dated 25‑4‑1988. The respondent, instead of presenting the above plaint, filed a fresh suit on 2‑6‑1988 for possession and mesne profits in the Majlis‑e‑Shoora Loralai, on the basis of the averment that the appellant was in unauthorised possession of the suit shop. The above suit was resisted by the appellant inasmuch as a written statement was filed in which inter alia it was pleaded that the suit was barred by time and that the appellant had become owner of the suit shop by adverse possession. The Majlis‑e‑Shoora, after framing issues, recording evidence and hearing the parties decreed the aforesaid suit on 29‑8‑1989 for possession and mesne profits amounting to Rs.7,

200. Against the above judgment/decree, the appellant filed the aforesaid F.R.A., which was dismissed by the judgment under appeal with the modification that portion relating to mesne profits was set aside. Thereupon, a petition for leave to appeal was filed, which was converted into a direct appeal on 3‑4‑1993 as stated above.

5. In support of the above appeal, the thrust of the arguments of Mr. Muhammad Aslam Chishti, learned counsel for the appellant, was that the Majlis‑e‑Shoora, after having held under issue No. 2 that the respondent's suit was barred by time, could not have decreed the suit. It was further urged by him that the High Court failed to dilate upon the above aspect of the case. To reinforce his above submissions he has invited our attention to the following portion of the judgment of the Majlis‑.e‑Shoora:‑‑

6. The above‑quoted portion of the judgment of the Majlis‑e‑Shoora is to be read as, a whole. A plain reading of the same indicates that the Majlis‑e Shoora has not held that the respondent's suit was barred. On the contrary, it has been held that since the matter was referred to arbitration, there was discontinuity of the alleged adverse possession.

7. It is also not true that the High Court has not dilated upon the above respect. The judgment under appeal shows that the basic issue, namely, on whom the burden of proof on the question of adverse possession lies, has been thoroughly discussed. We may observe that it has been consistently held that there is a distinction between Article 142 and Article 144 of the First Schedule to the Limitation Act, inasmuch as under the former Article, 12 years period is to be computed from the date of dispossession or discontinuance; whereas under the latter Article, 12 years are to be reckoned from the date when the possession of the defendant becomes adverse to the plaintiff. It may be advantageous to produce the above two Articles, which read as follows: Article 142 of the "142.‑‑‑For possession Twelve years. The date of Limitation Act: of immovable dispossession property when the or disconti plaintiff, while in nuance." possession of the property, has been dispossessed or has discontinued the possession. Article 144 of the "

144. For possession Twelve years. When the Limitation Act: of immovable possession of Property or any the defendant interest therein not becomes hereby otherwise adverse to specially provided for. the plaintiff."

8. A perusal of the above Article 142 indicates that it is applicable to a suit for possession of an immovable property in a case in which the plaintiff while in possession of the suit immovable property has been dispossessed or has discontinued the possession. The period prescribed is 12 years from the date of dispossession or discontinuance. It may further be noticed that Article 144 covers a suit of possession of an immovable property or any interest therein for which there is no other specific Article provided for in the First Schedule to the Limitation Act. The above Article provides period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.

9. In the case in hand, it was not the plea of the respondent that he or his predecessor‑in‑interest was in possession of the suit shop and that he was dispossessed by the appellant or that he discontinued his possession. In this view of the matter, the above Article 142 has no application to the instant case. It must therefore, follow that above Article 144 is attracted to the present case. and the period of limitation of 12 years is to be computed from the date when the appellant's possession became adverse to the respondent. We may further observe that there is also a marked distinction as to the burden of proof under the above two Articles, inasmuch as under Article 142, the burden of proof is on a plaintiff to show that he has brought the suit within the period of 12 years from the date of possession or from the date of discontinuance of his possession; whereas under Article 144, the burden of proof is on a defendant to prove that the suit has been filed after 12 years from the date when his possession became adverse to the plaintiff. It may also be stated that simpliciter possession of a trespasser even for a period mote than 12 years is not sufficient to sustain a plea of adverse possession. If a person is in possession of land or any other immovable property without any title and he does not assert any hostile title thereto, his possession cannot be said to be adverse. To constitute an adverse possession, the possession must not only be with the intention to assert hostile title to property in denial of the real owner's title, but must be open and adequate in continuity, in publicity and in extent. It is also a well‑settled proposition of law that if there is a break in the continuity of adverse possession of the wrong‑doer the limitation ceases to run against the lawful owner of the property and fresh period of limitation will start from the date of hostile re‑entry into the property by the wrong‑doer.

10. In the present case though the appellant alleged that he had been in possession of the suit shop since 1947 but has not pleaded material facts, like, oil what date he asserted his hostile title, what overt acts were taken, which could be attributed towards maturity of the adverse title etc. Since the suit shop was an evacuee shop, the appellant could not have claimed adverse possession till the suit shop was transferred to Usman on 7‑7‑1964. The High Court has rightly held that the appellant failed to prove adverse possession of the suit shop as required under the law. The Majlis‑e‑Shoora also rightly pointed out that once the appellant agreed to refer the dispute to arbitration without claiming any adverse possession, there was break in the continuity of the alleged adverse possession. In this regard, it may be pertinent to refer to the following judgment (i) Muhammad Umran v. Malik Aman and others (1979 SCMR 481); In which this Court while declining a petition for leave to appeal against the judgment, of the Peshawar High Court, has pointed out that burden to prove adverse possession is on a defendant and that burden can be discharged by showing as to from which date how and by which overt act he perfected his title on the basis of adverse possession. (ii) Khanpur and others v. Muhammad Zarin and others (PLD 1989 SC 485); . In the above case this Court, while dismissing the appeal, dilated upon the question of proof as to the adverse possession as follows: "Even otherwise there was no evidence in support of the plea of adverse possession in that case. In the present case the respondents claim the owners of the land and their claim finds full support from the Revenue record, therefore, the burden of proving adverse possession was on the appellants and they should have shown as to from which date, how and by which overt act they perfected their title by adverse possession. The appellants in their written statement have not stated as how and by which overt acts they have perfected their title as alleged. They have simply stated therein that they have constructed some house on a portion of the land without objection from the respondents even without stating time when they made the construction. Mere assertion that they have constructed the house without objection would not by itself establish adverse possession. In this regard the appellate Court rightly relied on Muhammad Umran v. Malik Aman and others (1979 SCMR 481):"

11. The view which we are inclined to take is in line with the above two cases decided by this Court besides a number of other judgments enunciating and reiterating the above principle of law. However, Mr. Muhammad Aslam Chishti, learned Advocate Supreme Court appearing for the appellant, has contended that in view of section 3 of the Limitation Act, it is the duty of the Court to examine the question of limitation notwithstanding that a party may not have raised any objection. Reliance has been placed by him on the case of Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153), in which inter alia it has been held that the waiver on the question of limitation by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act to notice the point of limitation.

12. The above case has no application to the case in hand. A distinction is to be made between a case involving simpliciter question of limitation for filing a suit or any other proceeding and a case where a defendant wants to raise a plea of adverse possession. In order to successfully raise the plea of adverse possession, above material facts are to be expressly pleaded by a defendant and they are to be proved. In the absence of any such pleading and proof of the material facts, the Court cannot take upon itself to make out a case of adverse possession on behalf of a defendant.

13. The upshot of the above discussion is that the judgment under appeal appears to be unexceptionable and, therefore, the appeal is dismissed with no order as to costs. However, at the request of Mr. Muhammad Aslam Chishti, learned Sr. Advocate Supreme Court appearing for the appellant, we allow six months time to the appellant from today to hand over vacant possession of the suit shop on condition that he shall pay regularly Rs.300 per month as the mesne profits to the respondent, failing which it will be open to the respondent to file an execution application before the expiry of the above period of six months. Additionally, if the appellant fails to hand over the vacant possession of the suit shop on the expiry of the above period, the executing Court shall issue a writ of ejectment without any further notice to the appellant. AA./N‑397/S Appeal dismissed.