1984 PLP 2351 (CLC)

Noor Ali Peer Muhammad Parsela v. Mrs. Particia Dinshaw P L D 1974 Kar. 235 ref. (c) Limitation Act (IX of 1908)‑

‑‑Art. 144‑Limitation period, computation of‑Article 144, held, did not provide for computation of period of limitation from date of knowledge of owner but from date of possession becoming hostile, open and adverse to owner. Wajihuddin Ahmad for Appellant. Respondent in person. Date of hearing : 24th January, 1984. The appellant purchased Plot No, A‑10/48 measuring 133 sq. yards, Nazimabad, Karachi from one Imamuddin the original allottee to whom it was transferred in the year 1951. The appellant purchased it on 8th October, 1964 by a registered deed and his name was mutated in the records of K. D. A. When he applied for site plan, he noticed that the respondent an allottee of the adjacent Plot No. VA‑10/49 had illegally encroached upon 4 sq. yards of his plot. The appellant, therefore, filed suit on 9th July, 1965 for possession and injunction. The respondent contested the suit on the ground that the area of 134.5 sq. yards had been leased out to him by K. D. A. It was further pleaded that he has raised construction over the plot in the beginning of 1952, and since then he is in possession and, there fore, the suit is barred by time. The learned trial Court had appointed a Commissioner, who inspected the site and submitted his report. The suit was, however, dismissed. It was also held that the suit is barred by time. An appeal filed against that judgment was also dismissed by the lower appel late Court. Mr. Wajihuddin Ahmed, the learned counsel for the appellant contended that the area of the plot allotted to the respondent was 133 sq. yards and not 134.5 as alleged by him. In this regard the learned counsel for the appellant has referred to the evidence of P. W. 1 an Engineer in K. D. A. who was appointed as a Commissioner, Exh. D‑1 the possession certificate issued to the respondent and Exh. D/12, the allotment order issued in favour of the respondent. In Exh. D/12 the area of the Plot is mentioned as approxi mately 132 sq. yards. On its back the area of plot was first mentioned as 133 sq. yards which has been cut out. Thereafter 136 sq. yards was written which has also been changed to 134.5 sq. yards. These additions and alterations seem to have been made subsequently. However, in receipts for payment the area has been mentioned as 134.5 sq. yards. As the respondent has filed few receipts it cannot be ascertained that he paid for 134 sq. yards. In the possession certificate Exh. D/ 1 the area seems to have been written in different ink. The lease‑deed has not been produced. P. W. 1 has stated that in this area all the plots are of 133 sq. yards, but according to the measurement, the area of respon dent's plot is 134.40 sq. yards and that of the appellant 130 sq. yards. In the allotment order and lease relating to appellant's plot the area has been mentioned as 133 sq. yards. There is no clear evidence on record how the area of the respondent's plot was changed. Nor the respondent produced any witness to prove the authenticity of the addition and alter ation in D/1 and D/12. Both the Courts below have completely ignored these documents. The appellant has established that the respondent has encroached upon the plot of the appellant. The question then arises whether the suit is within time. In these circumstances Article 144 will apply which provides that suit for possession of immovable property should be filed within 12 years from the date of possession of the defendant when it became adverse to the plaintiff. A possession be adverse should be hostile notorious, exclusive and overt. The possession taken by wrongdoer must be of such a nature that it may1A be observed and noticed that the occupant is holding it adversely. In the present case, it has been established that the respondent has constructed his house and made encroachment in early 1952. The raising of a construc tion of permanent nature with boundary wall will amount to a hostile, overt and notorious act of dispossessing the owner. In this regard reference can be made to the case of Noor Ali Peer Muhammad Parsela v. Mrs. B Particia Dinshaw (P L D 1974 Kar. 235) where after examining a host of authorities it was held that "the possession to constitute adverse possession, must not only be with intention to assert hostile to property in denial of the real owners title to property, but must be open and adequate in continuity, in particularity and in extent". The appellants predecessor was allotted plot No. 48 on 23rd April, 1951. Some time thereafter the respondent encroached upon it in early 1952. From these facts it is clear that the hostile posses sion of the respondent has continued for more than 12 years before the suit was filed. Mr. Wajihuddin the learned counsel for the appellant has contended that the period of limitation should be computed from the date of know ledge of the appellant. The learned counsel for the appellant contended that as it was an open plot of land no one could have gone and ascertained tithe respondent has encroached upon 4 sq. yards, and therefore, when the appellant went to obtain possession he came to know about it. This contention is not well‑founded because Article 144 does not provide for computation of period of limitation from the date of knowledge of the owner. The period is to be computed from the date, the possession, became hostile, open and adverse to the appellant. The learned counsel has referred to 66 1 C (?) but it is not applicable to present case because in that case under some wrong impression the parties had taken possession of the plot of each other. This is not the case here. For these reasons the appeal is dismissed with no order as to costs. M.B.A Appeal dismissed.