1995 PLP 136 (CLC)

In Khushi Muhammad etc. v. Shahshu etc. (1979 CLC 433), it was observed that if a person originally entered into land as tenant and it is not shown that he had relinquished his tenancy under section 36 of the Punjab Tenancy Act by serving notice on the landlord the nature of his tenancy is not changed merely because of non‑payment of rent. In case reported as Munawar Hussain Shah v. Mat. Bilora Bi PLD 1978 SC (AJ&K) 33, it was held that mere non‑payment of rent does not change the nature of possession of a tenant and the same remains permissive during the continuance of the tenancy. In Muhammad Aslam v. Muhammad Ashraf (PLD 1987 Azad J & K 75), it was held that the entries in the revenue record with regard to the possession of the plaintiff were not sustainable as being contradictory and those have no evidentiary value. We have given due consideration to the arguments raised at Bar. After going through the statements of the witnesses for the defendant‑appellant, namely, Sher Muhammad and Ali Akbar and Dewan Ali himself, we are of the opinion that the Courts below have rightly rejected their testimony on the points that the defendant‑appellant has been in possession of the suit land as a result of any oral transaction. As discussed above; the entries the revenue record are contradictory to the stand taken by the defendant‑appellant. Some of the entries in the revenue record show that the land was in possession of Sundar Dass and others evacuees while in others the defendant‑appellant is entered as tenant‑at‑will. Only in one of the copies of the `Khasra Girdawans' he has been recorded in possession as This entry has been written after the words and, thus, cannot be relied upon because it is contradictory to the earlier part of the entry and other revenue record. Even the defendant‑appellant himself admitted as a witness that initially he had entered in the suit land as a tenant‑at‑will but subsequently he purchased the suit land through an oral transaction. As stated earlier, he could not prove any oral transaction. Thus, he being tenant at the inception remained so afterwards and the High Court did not commit any error in holding. that in view of the entries in the revenue record his possession cannot be regarded as hostile to the owners. The argument of the learned counsel for the appellant that the High Court was wrong in discharging the concurrent findings of the trial Court and the first appellate Court is also without any force because the High Court reversed the finding on the basis of the interpretation of the evenue record. The interpretation of documents is a question of law and not a question of fact. Even otherwise, the perusal of the judgment of the trial Court and the first appellate Court is indicative of the fact that both the Courts failed to consider the contradictory nature of entries of possession in the revenue record. The mere fact that the plaintiffs‑respondents did not put themselves in the witness‑box would not prove the case of the defendant appellant that he was in adverse possession of the suit land. When the defendant admitted the title of the plaintiff as owner, it was for him to prove that the nature of his possession was adverse but he failed to discharge the onus. Thus, we find no force in the contention of the learned counsel for the appellant that the possession of the appellant over the suit land was in pursuance of any oral transaction and, thus, the same was adverse to the owners. Coming to the question as to whether the suit filed by the plaintiffs was time‑barred, it may be stated that the trial Court and the first appellate Court merely observed that as the possession of the appellant over the suit land was adverse, the suit was time‑barred. The trial Court and the first appellate Court did not advert to the question as to whether the Article 142 or Article 144 of the Limitation Act would govern the case in hand. The learned counsel for the appellant has conceded that either Article 142 or 144 would, govern the instant case and not both the Articles simultaneously. However, he has submitted that a party is not debarred from raising the plea of limitation in alternative to the plea of `adverse possession'. Thus the learned counsel submitted that if adverse possession of the appellant has not been proved he can press into service Article 142 in defence. It may be stated here that the High Court did not give any finding as to whether Article 142 would be attracted in the instant case or not. It is not evident from the impugned judgment of the High Court as to whether this point was specifically raised or argued. However, the question being that of law point, we allowed the parties to address arguments on the point as to whether the suit of the plaintiffs is time‑barred in view of the provisions contained in Article 142 of the Limitation Act. The learned counsel for the appellant, Raja Muhammad Siddique Khan, Advocate, has argued that even if a party seeks possession of an immovable property on the basis of title, such a party has to prove that it was dispossessed of the same within 12 years of the institution of the suit. According to the learned counsel even if the suit is not based on the plea of `dispossession' or `discontinuance' of possession as stipulated under Article 142 of the Limitation Act, the plaintiff must prove his possession within 12 years, irrespective of the fact whether defendant proves his adverse possession or not. The learned counsel has relied upon an unreported case of this Court entitled Abdul Rahman v. Karamat Khan and others (Civil Appeal No. 7 of 1993, decided on 8‑9‑1993) in support of his contention. The learned counsel for the respondent has controverted the arguments advanced by the learned counsel for the appellant and maintained that Article 142 of the Limitation Act would not be attracted in case where the plaintiff does not allege in the plaint that he was `dispossessed' or he was `discontinued' of tie property of which he seeks possession. The learned counsel submitted that if the suit is based on title and no `dispossession' or discontinuance is alleged, it is for the defendant to prove adverse possession under Article 144 of the Limitation Act for non‑suiting the plaintiff irrespective of the fact that the plaintiff remained out of possession for more than 12 years. Before dealing with the proposition enunciated above, it would be expedient to reproduce the relevant observations made in Abdul Rehman's case as under:‑‑ ‑ "These two articles provide limitation for suits for possession but it has been held about Article 144 that it is residuary in nature. It is residuary because it applies where period for filing a suit , for possession is `not hereby otherwise specially provided for'. This in itself is an indication that the law‑maker intended this Article to be applied only if Article 142 is not found applicable. As I read them, the basic distinction is that Article 142, applies where the defendant comes into possession without legal justification while Article 144 is applicable where the defendant's possession was in the beginning lawful but it subsequently became, as it is called in law, hostile. This distinction clearly follows from the phraseology of law and in its presence the legal aspect of the question as to which of the two Articles is applicable should not pose any real problem. Thus in my view once facts have been found, these Articles are not overlapping and are rather independent of each other. There is, therefore, no warrant for the view that if in a suit for possession the defendant sets up adverse possession the suit cannot be dismissed unless the defendant proves adverse possession. In order to succeed, the plaintiff in a suit for possession had to prove his title as well as the fact that he was suing within twelve years from the date of dispossession/discontinuance or, as the case may be, from the date when the defendant, having lawfully entered into possession, started asserting hostile possession. I may also observe that in cases falling under Article 142, what may amount to discontinuance is a question of fact and must be decided in each case in light of the evidence. It has been rightly held that even a smallest act, in given circumstances, may be sufficient to show that there was no discontinuance, I also hold that in law there is no justification for the view that Article 142 is only restricted to suits based on possessory title." It is evident that the observations in Abdul Rehman's case support the proposition propounded by the learned counsel for the appellant. However, we are constrained to observe that we find ourselves unable to agree with the principle laid down in the said case. It may be stated that previously This Court held in a number of cases that the provisions of Article 142 of the Limitation Act would be attracted only if there is averment of `dispossession' or 'discontinuance' of possession by the plaintiff in the plaint; in all other cases in which possession is sought on the basis of title, Article 144 of the Limitation Act will apply meaning thereby that if the defendant does not prove his adverse possession, the suit for the possession of the plaintiff would succeed. One of such cases of this Court is reported as Maqsood Hussain Shah v. Noor Hussain Shah (PLD 1989 SC (AJ&K) 45]. It appears that this case was not brought to the notice of the Bench which decided Abdul Rehman's case, referred in support of the view taken by this Court in the aforesaid case. In Meherban Lalli Pinjara v. Yousuf Khan Kallu Pinjara (AIR 193`) `Nag. 7), it was held that Article 142 would be applicable only if either the plaintiff was dispossessed, or he discontinued the: possession. This can be established either by the facts admitted in the plaint or pleadings or if not admitted there, then by the facts actually found. But unless that is done the case cannot fall under Article 142 and so the residuary Article 144 would apply It was further observed:‑‑ "The term `dispossession' applies when a person comes in and drives out others from the possession. It imports ouster, a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of both sides the transfer of possession was voluntary, not against the will of the person in possession but in accordance with his wishes and active consent, The term `discontinuance' however implies a voluntary act, an abandonment of possession followed by the actual possession of another. It implies that the person, discontinuing has given up the land and left it to be possessed by any one choosing to come in. There must be an intention to abandon, title before there can be said to be a discontinuance in possession. But this cannot be assumed. It must be either admitted or proved. So strong in fact is the position of the rightful owner that even when he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by vis major for however shot a time, before he has actually perfected his title by 12 years' adverse possession, the possession of the true owner is deemed to revive and he gets a fresh starting point for limitation. Wrongful possession cannot be assumed against the true owner when the facts disclose that he himself voluntarily handed over possession and was not deprived of it by the other side." In Nawab Syed Muhammad Hashim Ali Khan v. Iffat Ara Hamidi Begum (AIR 1942 Cal. 180), it was observed that phrase `discontinuance of possession in Article 142 connotes abandonment of possession by one person followed by the possession of another. In Mt. Maluk Zadi v. Mt. Anwar Sultan (AIR 1950 Pesh. 3.1), it was observed that where the plaintiff in a suit for possession alleges that he was in possession of the property but let the property to the defendant and the latter refused to vacate the same, Article 142 has no application as there is no .abandonment of possession by the plaintiff followed by possession of the .defendant. In such cases Article 144 of the Limitation Act would govern the case. In Abdul Latif v. Nawab Khajeh Habibulla (AIR 1939 Cal. 354), it was held that Article 142 of the Limitation Act would be applicable only if the plaintiff has sued on the footing that while he was in possession he was dispossessed by the defendant or if the facts be established that while in possession he was dispossessed by the defendant. It was further observed that the term `discontinuation of 'possession' in section 142 connotes three elements: two physical and one mental: there must be (i) actual withdrawal, (2) with intention to abandon, and (3) that another should step in and possess the property in dispute. In Arab Jhanglu v. Panjalshan Yakubalishah (AIR 1938 Sind 198), it was observed that dispossession referred to in Article 142 of the Limitation Act is a‑forcible `dispossession' or ouster and the `discontinuance' referred to in Article means something of the nature of an abandonment. Thus, where a suit is based on title and permissive occupancy is alleged, Article 144 of Limitation Act would apply and not the Article

142. In case reported as Muhammad Umran v. Malik Aman (1979 SCMR 481), the suit was based on title and the defendant raised the plea of adverse possession as in the instant case. The suit was decreed as defendant failed to prove adverse possession. A petition for leave to appeal was filed in the Supreme Court. contending that the plaintiff failed to prove that he was in possession within 12 years from the date of the institution of the suit. The contention was repelled and the petition for leave was dismissed observing that Article 142 was not attracted and it was for the defendant to prove his adverse possession. In Haji Sher Muhammad v. Mst. Amoo (PLD 1960 Kar. 428), it has been.held that it is not in every case in which plaintiff out of possession has to prove that he has been in possession of suit land within 12 years as stipulated under Article 142 of the Limitation Act. While drawing distinction between Articles 142 and 144 of the Limitation Act, it was opined that if the plaintiff seeks possession of immovable property on the basis of title his suit could be only defeated if it is proved by the defendant that his adverse possession over the suit land had ripened into ownership. It was further observed that dispossession involves collision and expulsion and `discontinuance' implies `abandonment', i.e., discontinuance of possession with the intention not to take the possession back an intention without `animus revertendi'. The relevant. observations are reproduced below:‑‑ "It will be seen that Article 142 clearly speaks of dispossession or discontinuance of possession. The dispossession refers to actual physical dispossession. Such a dispossession involves collision and expulsion. As for discontinuance of possession it seems clear that the expression hats not been used in the sense of mere abandonment. An abandonment simpliciter does not disentitle the owner because constructive possession must, in spite of a mere abandonment or non user, remain with the owner. On such abandonment therefore there must be instruction by another. Unless there is such instruction there is no one against whom the owner has to defend his title. There has therefore to be an abandonment without animus revertendi followed by somebody else obtaining actual possession." In case reported as Noor Ali Pir Mohammad Parsala v. Mrs. Patricia Dinshaw (PLD 1974 Kar. 235), it has been observed that Article 142 of the Limitation Act would be attracted only if the cause of action is based on plea of `dispossession' or `discontinuance' of possession of immovable property and in all other cases including the cases where the suit is based on title, Article 144 is applicable and the defendant has to prove his adverse possession. It has been further observed that it is well‑settled principle of law now that title follows the possession and presumption is always in favour of the true owner. A number of authorities including that of Privy Council have been relied upon in this case. Again in case reported as Khisro Nawaz v. Khanimullah (PLD 1962 Pesh. 124), while drawing distinction between Articles 142 and 144 of the Limitation Act, it has been observed that if the plaintiff seeks possession on possessory title alleging `dispossession' or `discontinuance of possession', Article 142 of the Limitation Act will apply and in all other cases where the suit is based on title and defendant raises the plea of adverse possession, Article 144 would be applicable in which case the defendant has to prove his adverse possession for defeating the plaintiff.‑ In case reported as Ibrahim v. Fazal Dad (PLD 1957 Lah. 45), while drawing the distinction between Articles 142 and 1 of the Limitation Act it has been held that where the suit was not based the plea of `dispossession', Article 142 of Limitation Act is not applicable and in order to defeat the plaintiff, the defendant must prove his adverse possession under Article 144 of the Limitation Act. In Amjedali Khan v. Raj Kumar Das (PLD 1956 Dacca 277), while dealing with the scope of Articles 142 and 144 of the Limitation Act, it was observed that question is one of onus. It was observed that where the plaintiff alleges to have been `dispossessed' or to have been `discontinued possession' from the specified date, the onus is on him to prove his allegation and Article 142 would apply because the plaintiff himself put up a story of `dispossession' or `discontinuance of possession', but in all other .cases, the suit would be governed by Article 144 of the Limitation Act. In case reported as Haji Muhammad Hussain v. Malik Fateh Muhammad (PLD 1953 BJ 10), while dealing with the scope of Articles 142 and 144 of the Limitation Act, it was observed as under:‑‑ The main question on which the present suit hinges is whether Article 142 or Article' 144 apply to such a case.. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary article and applies only to suit for possession of immovable property to which no other article is applicable. The very wording of Article 142 clearly shows that this article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 1.2 years of the date of dispossession. Therefore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed. Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaintiff, who in order to succeed must show that the dispossession was not prior to 12 years before the suit was filed, Article 144 of the Limitation Act would only apply to suits for possession where no other Article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and he brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession the onus lies on him to 'prove that the date of his dispossession was within 12 years of the suit while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other Article of the Act then on proof of title of the plaintiff's suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years." As is evident from the case‑law, referred to above, it is now settled law that Article 142 of the Limitation Act is not applicable to a case where the plaintiff himself does not allege in the plaint that he was dispossessed' or discontinued the possession' of the disputed land from a certain date. Thus, we approve the view taken by this Court in Maqsood Hussain Shah v. Noor Hussain Shah [PLD 1989 SC (AJ&K)‑45] and constrained to dissent from the one taken in Abdul Rehman's case. Before parting with the case it may be observed that majority of the cases cited in Abdul Rehman's case approve the propositions enunciated above. The learned Judges in Abdul Rehman's case observed that the view taken in cases reported as Ali Hammad v. Ghurpattar Singh (AIR 1925 All. 454) and Kallan v. Muhammad Nabi Khan (AIR 1933 All. 775) were dissented from in a subsequent judgment reported as Bindhysachal Chand v. Ram Gharib Chand (AIR 1934 All. 993). It may be respectfully pointed out that in case reported as Bindhyachal Chand v. Ram Gharib Chand (AIR 1934 All. 993), it was alleged in the plaint itself that the plaintiff who was a co‑sharer was dispossessed by the transferees from the other co‑sharers prior to the institution of the suit. Obviously, as in that case dispossession' was admitted by the plaintiff in the plaint, Article 142 was rightly held applicable to that case. Thus, ratio decidendi in AIR 1934 All. 993 is the same as is in the case‑law, referred to above. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. No order is made as to the costs. BASHARAT AHMAD SHAIKH, J.‑‑‑In the suit filed by Jahandad and Muhammad Aziz it was claimed that Dewan Ali, the present appellant, was a tenant‑at‑will. The defendant, Dewan Ali, admitted the title of the plaintiffs and pleaded adverse possession. The High Court has found that the appellant entered into possession of the land as tenant‑at‑will and he continued to be so till the filing of the suit. The‑pleas of oral sale and adverse possession have been found to be factually correct. This finding has been upheld in the judgment of the learned Chief Justice. I respectfully agree with this finding. In view of this finding, the argument of Raja Muhammad Siddique Khan that Article 142 of the Limitation Act was applicable and, therefore, the suit was barred by time has no force. Article 142 is not applicable in a suit filed by landlord against a tenant. On this point I may refer to Jhangrez v. Faizullah E Khan and others [1974 SCMR 45) in which it was held by Supreme Court of Pakistan that on the findings that the defendants were in possession as tenants under the plaintiffs Article 142 of the Limitation Act had no application. Therefore, this plea has to be rejected on this short ground. For this reason I agree that the appeal may be dismissed without any order as to costs. AA./49/S.CA Appeal dismissed.