P L D 1994 Quetta 26 (PLP)

IFTIKHAR MUHAMMAD CH., J.--Precisely stating the facts of the case are that respondents/plaintiffs filed a suit on 25th April, 1978 against the appellants for possession of a piece of land alongwith a Katcha room description whereof has been given in the plaint, situated in Ward No.2 Hari Krishan Road, Quetta with further relief of directions to appellants for removing additional construction raised by them over the plot. It was the case of the plaintiffs that a plot of land entering into Khasra No. 2560 measuring 14,631 sq. ft. was transferred to their predecessor-in-interest Abdul Hakim as back as on 12th August, 1952 and PTO whereof was granted to him on 1st October, 1960 which was followed by a permanent transfer deed dated 20th June, 1963. Accordingly mutation entries in the record-of-rights was attested on the name of Late Abdul Hakim on 17th September, 1966. Out of the said plot on 13th September, 1976 they sold a piece of land measuring 7,769 sq.ft. to one Umer Zaman. Whereas 4,172 sq.ft. was given in possession of the predecessor-in-interest of appellants namely Jallal Khan to look after the same as Choukidar. Basides it an area of 342 sq.ft. was left for the use as private lane. A Katcha room was also built on the plot to provide a residential accommodation for the Choukidar. Unfortunately he stated asserting himself to be the owner of the plot and moved an application in the year 1975 before the Taxation Officer Municipal Committee for recording entries on his name in the Municipal record. Prior to it he got entered his name in the PT-1 Form, as owner, with the Excise and Taxation Department. After the death of Jallal Khan appellants were asked to quit the disputed portion of the plot but they deferred the same from one pretext or the other. Resultantly at the initial stages in 1976 an application was made to District Magistrate, Quetta for the redress of their grievances but without any success, as such having left with no option the suit has been filed. Appellants (defendants) contested the suit and put forth the plea that they are in lawful, continuous and uninterrupted possession of the property in dispute for more than 30 years and the building presently existing at the site was also lawfully constructed by them about 28 years ago. During this long span of time nobody have ever objected to their possession and the act of constructing building over there. The learned trial Court on the basis of pleadings of the parties struck following issues for determination:-- (1) Whether the suit is not maintainable and liable to rejection in view of preliminary objection A & B of WS? (2) Whether the suit is deficiently valued, if so what should be the value? (3) Whether the suit suffers from misjoinder of defendant No.l? (4) Whether the plaintiff is entitled for decree claimed? (5) Relief. Both the parties lead for and against evidence in support of their respective contentions and the trial Court vide order/decree dated 31st August, 1989 directed dismissal of the suit mainly on having been satisfied that the appellants (defendants) have established adverse possession by way of prescription. As such respondents filed RFA No. 36/1989 before this Court which was disposed of vide judgment dated 30th July, 1990 whereby case was sent back to the lower Court for the reasons that no issue on the point of adverse possession or limitation was framed. Consequently excluding the parties to lead evidence in support or rebuttal of these points. Moreover, the learned trial Court failed to take into consideration the entire evidence and the conclusions were not drawn correctly. While remanding the case trial Court was directed to frame additional issues with opportunity to the parties to lead evidence. On remand accordingly learned trial Court framed following issues:-- (1) Whether the suit of the plaintiff is time-barred? (2) Whether the defendants have the adverse possession of the disputed property? (3) Relief. As such again parties lead evidence in support of their contentions and ultimately suit was accepted vide impugned order/decree dated 17th April, 1993 .directing the appellants to deliver the possession of land measuring 6,520 sq. ft. Khasra No. 2560 alongwith one Katcha room situated in Ward No.2, Hari Krishna Road, Quetta to respondents, and also to .remove unauthorised superstructure raised by them on the disputed property. Hence, instant appeal has been preferred. Mr. M. Arshad Choudhary learned counsel at the outset of hearing of the case was asked to address on the point, whether in view of declaration of section 28 of the Limitation Act contrary to injunctions of Our'an and Sunnah by the Shariat Appellate Bench in the case of Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 plea of being in adverse possession of the disputed land furthermore is available to appellants. The learned counsel surprisingly replied that the appellants have never raised the plea of being in adverse possession in the disputed property. However, Mr. Basharatullah learned counsel for respondents seriously objected on such contention and stated that the arguments so put forth by him are absolutely misconceived because initially the trial Court dismissed the suit of respondents vide order/decree dated 31st August, 1989 on the ground that appellants had established adverse possession by way of prescription. So much so during the hearing of the R.FA. No. 36/1989 the appellants' counsel (Mr. M. Arshad Choudhary) supported the order of the trial Court. However, this Court was pleased to set aside that order/decree because the point of adverse possession and limitation were decided by the trial Court without having framed issues. Inasmuch as the learned counsel for appellants while filing written statement before the trial Court in para. 3, in unequivocal terms, claimed the possession of appellants on the disputed plot continuous and uninterrupted to the knowledge of respondents. Besides the fact that before the trial Court the learned counsel under his signatures filed written arguments and supported the plea of appellants being in adverse possession. We have carefully gone through the pleadings of the parties and the previous order/decree referred to hereinabove, as well as the judgment of this Court in RFA No. 36/1989 and the written arguments filed by the appellants in support of their contentions. On the basis whereof it is amazing for us to observe that the learned counsel for the appellants had raised a contention which is absolutely contrary to the plea of the appellants being in adverse possession in the disputed property. When the counsel was confronted with the documents referred hereinbefore he could not substantiate his stand satisfactorily. However, despite of agitating consistently at various stages of the proceedings that appellants are in adverse possession he was not agreeable to reconcile with his previous plea. Anyway such inconsistent stand on the factual aspect of the case by a counsel who incidentally had been appearing throughout in the proceedings has not been appreciated. No doubt on the interpretation of legal propositions a counsel is allowed to take different stands (PLD 1980 SC 221 but as far as indifferent Plea on the factual aspect of a civil case is concerned cannot be allowed to be agitated Because such conduct on the part of a counsel would amount to misrepresenting the factual side of the case with the object to mislead the Court from drawing a correct decision, which also tantamounts to interfere deliberately in the safe administration justice Thus warranting a warning to the counsel to be very careful in future while pleading the cases. Be that as it may, the Court has to go alongwith the record of the case irrespective of the fact whether altogether a new plea contrary to previous one has been raised or not. Thus it is to be held that the appellants, in view of the declaration by the Shariat Appellate Bench in the case referred to hereinabove are not permitted to contend that they are in adverse possession of the plot in question. In such view of the matter the learned counsel for appellants alternatively attempted to advance their case on point of limitation. According to him appellants were in possession of the property for the last more than 30 years, from 1978 when the suit was filed, therefore, under Article 142 of the Limitation Act the suit is hopelessly barred by time. The learned counsel for respondents' meeting with the objection of appellants' counsel stated that in the given circumstances of the case when particularly it has not been established that respondents predecessor-in-interest late Abdul Hakim was dispossessed from' disputed land Article 142 of the Limitation Act would not be attracted. Mr. M. Arshad Choudhary in this behalf placed reliance on 1987 SCMR 1791, 1989 CLC 2206, 1991 CLC 1331, PLD 1988 Azad J&K 1, PLD 1969 Dacca 132,1990 CLC 268 and 1990 SCMR

114. Mr. Basharatullah learned counsel referred to PLD 1991 SC 290, 1991 SCMR 829 and 1992 SCMR

16. It is pertinent to observe that in the case of Maqbool Ahmed Honourable Shariat Appellate Bench had declared section 28 of the Limitation Act repugnant to the Injunction of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for institution of a suit for possession of the said property. Therefore, due to this pronouncement a lawful owner of the property cannot be non-suited on the plea that the opponent is in adverse possession of the property and Article 144 of the Limitation Act which prescribes a period of 12 years for institution of the suit for possession of immovable property when the possession of the defendants becomes adverse to the plaintiffs shall also not be a hurdle in his way. At this juncture it may be observed that in the case of Maqbool Ahmed Article 144 of the Limitation Act also came for consideration with reference to section 28 of the Limitation Act and Honourable Bench in this context observed as follows:-- As such in view of above dictum of law it is crystal clear that on account of non-availability the plea to appellants of being in adverse possession of the disputed portion of the plot Article 144 of the Limitation Act will not be attracted. However, the case of respondents will be exposed to the point of limitation in terms of Article

142. There is no cavil with the proposition that burden always lies on the party who seeks relief from the Court to establish that action has been brought before the Court within the period prescribed by law. Hence in the case in hand the respondents/plaintiffs are bound to prove that their case is not hit by limitation. Article 142 prescribes a period of 12 years for the suit for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or discontinued the possession. It has been noticed vigilantly that it is nobody's case that respondents were ever dispossessed by the appellants from the disputed piece of plot, therefore, their case is to be decided on the second factor, i.e. discontinuance the possession in order to determine the point of terminus a quo. It would be pertinent to note that in the judgment by both the learned counsel a consistent rule has been followed by the superior Courts to calculate the period of 12 years under Article 142 of the Limitation Act for filing of a suit. Said rule can be summarized as under from the judgment of Honourable Supreme Court in the case of Shah Sultana v. Abdul Khaliq 1987 SCMR 1791:-- It is well-settled that where the case set up is of dispossession from or discontinuance of possession of immovable property limitation for bringing a suit for possession is governed by Article 142 of the Limitation Act. In such a case the plaintiff must prove dispossession from the immovable property within 12 years preceding the date of the suit." Examining the instant case at the touchstone of above principle of law it would be compulsory to ascertain that since when the respondents have discontinued the possession of the disputed property. It is imperative to bear in mind that in the pleadings as well as through evidence they have asserted that the predecessor-in-interest of the appellants Jallal Khan was posted as Choukidar on the plot and for that purpose a Katcha room was also constructed for his residence. As such the plea purportedly appears to be that appellants through their predecessor are in permissible possession of the plot. It is further the case of the respondents that till 13th September, 1976 they have been administering/managing the property because on this date vide Exh.P/6 a portion of land was transferred by them on the name of one Umer Zaman son of Malik Din. Inasmuch as that on 7th September, 1976 respondents filed an application for and on behalf of their predecessor-in- interest before the Deputy Commissioner complaining that their Choukidar Jallal Khan has raised unauthorized construction on the plot and after his death the appellants Pasand Khan and Muhammad Afzal are living there but no approval has been obtained for raising such construction. Therefore, authorities be directed to demolish these Katcha quarters and the possession of the plot be ordered to be delivered to them after. getting it vacated. On this application a notice was issued on the name of appellants by the Municipal Committee, Quetta calling upon them to demolish the unauthorized construction. This fact had been admitted by the appellant Afzal Khan during his cross-examination. These facts are sufficient to draw the inference that uptil the date mentioned hereinabove with reference to different documents the respondents had been looking after the affairs of their property. Although the possession of the predecessor-in-interest of appellants said to be permissive one because he was appointed as Choukidar. Therefore, from this point of view as well it would be legally presumed that respondents were themselves in constructive possession of the property. It is important to note that even late Jallal Khan submitted an application Exh. P/2-A before the Taxation Officer Baldia Quetta for recording his name in the Municipal Record because prior to that his name had already been entered in the PT-1 Form. Accordingly his request was conceded to and vide Exh.D/1-2 Jallal Khan son of Attar Khan was shown to be the owner of the portion of the land for the period pertaining to 1974 to 1979 and 1985 to 1989 respectively. It is also worth consideration that in the record of Excise and Taxation Department late Jallal Khan vide PT-1 Form D/3 got recorded himself the owner of the property/plot in question vide order of Excise and Taxation Officer dated 7th September, 1976 whereby the pew number to disputed portion of the plot was allotted to be 2-39/9 (3-A) 1326-A. It is to be noticed that even during the pendency of the suit a portion of the plot measuring 2,368 sq. ft. vide Intiqal No.121 dated 16th January, 1988 was transferred by the respondents on the name of Arjandas Bugti. However, for the purpose' of determination the starting point of limitation for filing of the suit in view of the above-referred evidence would be after 1974 whereas the suit has been instituted in the year of 1978 within the period of 12 years as has been prescribed under the law. Thus calculating the period of 12 years from any angle, safely it can be held that the suit filed by the respondents was within the period of limitation. Since no other plea has been raised on behalf of appellants to occupy the disputed property except being in adverse possession which otherwise is not available to them, therefore, they have no legal entitlement to remain in the possession of disputed plot. For these reasons the impugned judgment passed by the trial Court does not deserve interference by this Court. For the above discussion appeal has no merits which must fail, allowing the parties to bear their own costs. A.A./466/Q Appeal dismissed.