2006 PLP 892 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners/defendants impugn the concurrent judgments and decree of the learned trial Court dated 14-6-2004 and of the learned appellate Court dated 29-3-2005, whereby a suit for possession of the suit property filed by the respondents/plaintiffs has been decreed.

2. Learned counsel for the petitioners, inter alia, has contended that the learned Courts below have committed serious error in applying the law of limitation. According to him, the petitioners/defendants had expressly averred in their written statement that the suit of the respondents was time-barred. He has also drawn the attention of the Court to the contents of the plaint wherein the respondents have not disclosed as to when and how they were deprived of the possession of the suit property and as to how and when the petitioners came into possession of the same. It is next pointed out that even the Revenue Record produced by the respondents shows that the petitioners were, at least, in possession of the suit property since 1973, while the suit for possession was filed by the respondents on 25-11-1996.

3. On the above basis, it was contended that the suit itself was time-barred. The learned Courts below have proceeded on the premise that since section 28 and Article 144 of the Limitation Act have been declared repugnant to Islamic Law in the case titled Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2063), there was no question of limitation in the present case. Learned counsel for the petitioners, however, has drawn the attention of the Court to the distinction between Article 142 and Article 144 of the Schedule to the Limitation Act. According to the said provisions, the plaintiff in a suit for possession still has to approach the Court within the period of twelve years prescribed under Article 142 of the aforesaid schedule. Article 144, as such, according to learned counsel, has no application in the present case. To support his argument, he has referred to the case titled Afzal Khan and 2 others v. Abdul Fahim and 4 others (PLD 1994 Quetta 26) in which the issue as to limitation in a suit for possession has been fully examined.

4. Learned counsel for the respondents has controverted the above submissions. He has drawn the attention of the Court to the defence set up by the petitioners. In para. 3 of the written statement, the petitioners have averred that the respondents/plaintiffs have no interest or nexus with the disputed property. Furthermore, it has been alleged by the petitioners/defendants that they are the owners in possession of the disputed khasra numbers.

5. Having gone through the record, it is abundantly clear that the title of the respondents/plaintiffs in the suit-land is undisputed. Before me, learned counsel for the petitioners was unable to show any basis for the claim raised by the petitioners that they are owners in possession of the suit-land. It follows, therefore, that the very basis of the defence raised by the petitioners/defendants is not supported by the evidence on record.

6. The contents of the written statement, referred to above, have also to be seen in another context. It was argued on behalf of the petitioners that consolidation schemes in the village were approved in 1973. He conceded that the disputed land came to the share of the respondents/plaintiffs as a result of the consolidation.. He also acknowledged that prior to the consolidation the petitioners and the respondents/plaintiffs were co-sharers in a joint khata. It was, however, contended that as a result of the consolidation the khata stood partitioned and the respondents came to the owners in severalty. On this basis, it was contended that they could only have filed a suit within twelve years form 1973 as per Article 142 of the Schedule to the Limitation Act. In order to appreciate this contention, Article 142 of the Schedule to the Limitation Act is reproduced as under:-- "142 1 2 3 For possession of immovable? property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. Twelve years The date of the dispossession or discontinuance.

7. Learned counsel for the respondents rightly argued that in the circumstances of the present case, which have been noted above, and considering the express averments in the written statement filed by the petitioners, Article 142 has no application. According to learned counsel for the respondents, the plaintiffs were never dispossessed of the suit property and nor did they discontinue possession. It is only on account of the consolidation proceedings that the present situation came to pass where the petitioners retained possession of the land which admittedly fell to the share of the respondents. It is evident from the Revenue Record that the petitioners were merely shown as being in possession in the column showing cultivators. Column 8 of the various jamabandis since 1973 simply says "? ". This entry does not vest any right in the petitioners and nor does it grant to them any special status which would defeat the title of the respondents/plaintiffs.

8. The wording of Article 142 reproduced above, makes one thing abundantly clear. The Article presupposes that the plaintiff was in possession of the immovable property in question but subsequently was either dispossessed or discontinued his possession. In the present case, there is nothing on record to show that the respondents/plaintiffs were in possession of the suit property at any time. It is only as a result of the consolidation proceedings which were undertaken in 1973 that title in the suit property was vested in them to the exclusion of others including the petitioners, who were co-sharers of a joint khata along with the plaintiffs, prior to the consolidation.

9. Following from the above discussion, a question arises to the meaning of the word possession used in Article

142. Learned counsel for the respondents argued, in my opinion rightly so, that the word could only be construed to mean physical possession and not any notional or B constructive possession. The very concept of being dispossessed or discontinuing possession implies physical possession. At his request, learned counsel for the petitioners was granted time to examine case-law which may have interpreted the wording of. Article 142 differently. He was unable to locate any precedent where the word possession, as used in Article 142, had been construed otherwise than to indicate physical possession. In the circumstances of the present case, which have been c noted above, I am clear that Article 142 has no application in the present case because the respondents/plaintiffs were never in possession of the suit-land.

10. Here I also need to note that the defence set up by the petitioners in their written statement is somewhat ambiguous. I have already concluded that the title of the respondents-plaintiffs is undisputed. In this view of the matter, the assertion in para. 3 of the written statement that the petitioners/defendants are owners in possession of the disputed land can only be construed as an assertion of adverse possession. Although learned counsel for the petitioners contended that the petitioners did not claim adverse possession, I do not see how else para. 3 of the written statement can be construed. The defence on the basis of adverse possession, even according to learned counsel for the petitioners, was not available to them after the decision of the Shariat Appellate Bench D (1991 SCMR 2063), wherein section 28 and Article 144 of the Schedule to the Limitation Act were declared to be against the injunctions of Islam.

11. Furthermore, learned counsel for the respondents also drew my attention to the aforesaid decision of the Shariat Appellate Bench in which the following conclusion has been reached:

12. In the above circumstances, I find the impugned decrees to be unexceptionable. Furthermore, learned counsel for the petitioners was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition, which is therefore, dismissed. F.B./M-73/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.