1994 PLP 109 (SCMR)

‑‑‑‑ To constitute adverse possession it had to be public, hostile and known. Birjees Nagy, Advocate and Iqbal Ahmed Oureshi, Advocate‑on -Record (absent) for Appellant. Ch. Abdur Rehman Cheema, Advocate instructed by MA. Kadri, Advocate‑on‑Record for Respondents. Date of hearing: 8th November, 1992, SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine whether the plaintiffs/respondents were entitled to the decree against the appellant in respect of 3 Marlas 7 Sarsais of land allegedly encroached upon by the appellant since 1947.

2. The plaintiffs/respondents claimed to have purchased Ihatas bearing Nos. 255 and 265 in Chak No. 242/RB Tehsil and District Lyallpur (now Faislabad) in state auction. They applied for the demarcation of the plot on 1‑11‑1966 and obtained a report from the Qanungo of encroachment to the extent of 3 Marlas 7 Sarsais. This report of Qanungo is dated 23‑2‑1967. Getting no further relief from the Revenue authorities, they instituted a Civil suit which was contested by the appellant and a number of issues were framed but the two important ones relate to the fact of encroachment and the adverse possession claimed by the appellant over it. The trial Court decided these two controversial issues as hereunder:‑ "The plaintiffs are admittedly the owners of the suit property, as his evidence from the Revenue Record on the file. As regards the possession of the defendant over it, he has failed to adduce sufficient evidence to support his adverse possession." The Additional District Judge affirmed this finding on appeal. The High Court did not interfere with it in revision. Hence this appeal.

3. The learned counsel for the appellant contended that the Ihata allotted to the appellant was the adjoining one, was evacuee and that whatever construction had been raised by the appellant was of the years 1947 and 1948 and in this manner the appellant had become an adverse owner even if there was any encroachment. He claimed protection for the encroachment on the ground of adverse possession and on the ground of its allotment as such under the evacuee laws.

4. The Ihatas are distinct entities. Their allotments to the parties had taken place by their numbers. The boundaries of the Ihata are a matter of record and measurement. In such a situation of marginal encroachments when the extent of encroachment or the fact of encroachment itself remained undetermined could not give rise to adverse possession. In order to establish adverse possession it had to be public and hostile and known. In the case of, encroachment these facts become known only after the demarcation proceedings are conducted and not otherwise. In the case in hand there is no indication that at any stage prior to the demarcation which has been made the basis of the suit any other demarcation had taken place to give an earlier cause of action for institution of the suit. The Hadd Shikni cases do not give rise generally to adverse possession till such time as the demarcation takes place.

5. In the circumstances, even if the appellant had encroached over an area of 3 Marlas 7 Sarsais in 1948, as it was not determined nor was it known publicly, at least to the purchasers of the adjoining Ihata, no question of adverse possession could arise. The appeal is without merit and is dismissed with no order as to costs. A.A./M‑1846/S Appeal dismissed.