1994 PLP 1637 (SCMR)

MANZOOR HUSSAIN SIAL, J.‑‑‑This appeal by leave of this Court filed by Mst. Umtul Habib and others (legal heirs of Muhammad Aslam) call in question the validity of order dated 13‑11‑1991, passed in Writ Petition No.3963/83, by a learned Single Judge of the Lahore High Court, whereby he maintained order dated 14‑1‑1982, of the learned District Judge, Mianwali, allowing amendment in the plaint and dismissed the Constitutional petition.

2. The relevant facts, giving rise to this appeal are that on 3‑7‑1979, one Malik Sher instituted a suit for declaration, to the effect, that he was owner in possession of the suit land and prayed for perpetual injunction restraining Muhammad Aslam defendant from interfering in his possession. The defendant in the written statement controverted the claim of the plaintiff and pleaded that he had purchased the land in dispute from Malik Abdul Karim and Atta Muhammad through a registered sale‑deed dated 30‑8‑1950, and since then had become owner thereof. He moved application dated 15‑9‑1979, for rejection of the plaint. The learned Civil Judge seized of the suit, rejected the application under Order 7, rule 11, C.P.C. In appeal the aforementioned judgment and decree was set aside and the matter was remanded to the Civil Court for decision on merits. During the pendency of the suit the plaintiff filed an application seeking amendment of the plaint so as to take up alternative plea of adverse possession. The learned trial Judge vide order dated 14‑i1‑1981, rejected the application holding that the plea of adverse possession cannot be taken, being contradictory and destructive to the plea of the ownership. The plaintiff challenged that order in revision and the District Judge, Mianwali, on 14‑1‑1982, allowed the application.

3. Aggrieved by the aforesaid order the plaintiff filed a Constitution petition in the Lahore High Court, which was dismissed vide impugned judgment dated 13‑11‑1991.

4. Leave to appeal was granted by this Court on 19‑4‑1992, to consider whether the plaintiff's plea of adverse possession was destructive to his claim that he had purchased the property.

5. We have heard learned counsel for the parties and have perused the record. In the instant case the plaintiff claimed that he had purchased the property from Malik Abdul Karim and Malik Atta Muhammad and became owner in possession thereof since then. The appellant on the other hand also maintained that he had, purchased the property from Malik Abdul Karim and Malik Atta Muhammad and was in possession thereof. The plaintiff on learning from the contents of the written statement that the defendant had pleaded that he had also purchased the property from the same owners, moved application for amendment of the plaint so as to take up additional plea of adverse possession against the defendant. The question as to whether the plea of adverse possession is destructive to the plea of ownership depends upon the circumstances of each case and determination whereof depends on the basis of the evidence brought on the record. The plaintiff has yet to lead evidence in support of his case. We have noticed that neither the nature of the suit nor the relief claimed therein by the plaintiff is changed by virtue of the proposed amendment in the plaint. The discretion exercised by the revisional Court in allowing amendment of the suit, was in our view rightly not disturbed by the learned Single Judge in Constitutional jurisdiction of the High Court. As to the dictum laid down in Maqbool Ahmed v. Hakoomat‑e‑Pakistan (1991 SCMR 2063) (Shariat Appellate Bench), the learned Single Judge of the High Court advisedly did not enter into the retrospective application of the law laid down therein, on cases already decided or pending, before it was to take effect. We may, however, observe that in case the plaintiff ultimately succeeds on the plea of adverse possession that finding will be assailable on the principle enunciated in the aforementioned case being repugnant to injunction of Islam subject of course to the determination of its retrospective application.

6. Subject to the observation herein before made, this appeal is dismissed. As no one has opposed this appeal, there shall be no order as to costs. AA./M‑1942/S ?????????????????????????????????????????????????????????????????????? Appeal dismissed.