1999 PLP 951 (MLD)

(i) That the defendant-respondents were the owners of the land and the house, the subject of dispute between the parties. The aforesaid land was in possession of the plaintiff-appellants as tenants-at-will, given to them by the fore-fathers of Mukhtar Hussain Shah and others, the defendants in Suit No.

72. The suit land was transferred in favour of Habib Khan and others, respondents, through a sale-deed, as such, they were owners; (ii) that according to the evidence, particularly, the documentary evidence led by both the parties, the plaintiff-appellants were tenants-at-will who cultivated the land on 'Batai', as such their claim of adverse possession was unfounded, therefore, was rightly rejected by both the Courts below; and (iii) that both the subordinate Courts concurrently decided against the plaintiff-appellants, holding the suit land and house of the respondents, as such the concurrent findings could not be disturbed in second appeal, particularly when no misreading or non-reading of evidence or any illegality was pointed out.

6. I have heard the learned counsel for parties and also gone through the record. The plaintiff-appellants filed their declaratory suit in the Court of the Sub-Judge, Dadyal, on September 2, 1986, against Mukhtar Hussain Shah and others, defendant-respondents, while the counter-suit for possession of the suit land and house, was filed by Habib Khan and others against the plaintiff-appellants, on June 14, 1990, on the basis of sale -deed executed in their favour on January 30, 1988. The trial Judge consolidated both the suits and framed the following issues arising out of the pleadings of the parties:--

7. The plaintiff-appellants, in support of their claim produced Fateh Muhammad son of Saifa, Muhammad Ismail son of Din Muhammad, Ghulam Rasool, Patwari and Mst. Kali Begum, one of the plaintiffs, also appeared as witness, in addition to the documentary evidence, Exh. PA/1, copy of Mutation No. 1039, Exh. PA, copy of Khasra Girdawari for the year 1990-92, Exh. P B, copy of sale-deed, Exhs. PC, PC/1, PC/2 and PD, copies of Khasra Girdawaris, while the defendant-respondents brought on record the evidence of Ghulam Rasool, Patawri, Mukhtar Hussain Shah son of Pir Shah, Khuda Dad son of Allah Ditta, Abdul Ghani son of Shahbaz and Muhammad Aslam, one of the defendants appeared as witness, including the documentary evidence, Exh. D A, copy of Misal-e-Haqqiat for the year 1989-90. The plaintiff-appellants' claim is that the suit land was purchased by them through an oral sale. However, an unregistered document was executed in their favour which was fraudulently taken back by the defendant-respondents on the pretext of effecting correction of revenue entries. The said land and house built over it, was claimed to be in their possession since old days as owners. Alternatively, the plea of adverse possession was asserted. Both the Courts below after appreciating the evidence led by the parties, came to the conclusion that the plaintiff-appellants' claim was unfounded. The suit land and the house fell in the ownership of the defendant-respondents who transferred the same through a sale-deed in favour of Habib Khan and others. The oral evidence led by the plaintiff-appellants in support of their assertion, was held to be contradictory and inspiring no confidence in the circumstances. The documentary evidence either produced by the plaintiff -appellants or the defendant-respondents, was found supportive to the respondent's claim. Though this Court was not obliged to appraise the evidence in second appeal, but for the safer administration of justice, I have examined the entire evidence, oral as well as documentary. So far as the documentary evidence is concerned, it would suffice to mention that the plaintiff-appellants, from the evidence, were found to be in possession of the suit land as tenants-at-will, while the defendant-respondents, Mukhtar Hussain Shah and others, were entered as owners. The examination of the aforesaid evidence shows that according to the Misal-e-Haqqiat, for the year 1989-90, Mukhtar Hussain Shah and others, respondents were shows as owners while the appellants as tenants-at-will. The Khasra Girdawaris placed on record, Exh. PC, for the years 1952-58, PC/1 for the years 1959-62, PC/2 for the years 1977-80, produced by the plaintiff-appellants, indicated the same position. The copy of the Khasra Girdawari for the years 1990-92, Exh. PA, though does not show the plaintiff- appellants as tenants-at-will, but in a critical examination, shows the same positions of their being in possession of the property as tenants. The plaintiff- appellants also claimed to have been in possession of some unregistered document allegedly taken back by the respondents fraudulently, is not substantiated by any evidence. The oral evidence led by them in this connection was contradictory one and was not found to be of any avail to their point of view. Therefore, the plaintiff-appellants' claim of their being in possession as owner, is not proved.

8. So far as the plea of adverse possession is concerned, it may be mentioned that whenever a defendant attempts to defeat the plaintiff's suit for possession on the plea of adverse possession, or a declaration in the declaratory suit, the onus of proof is placed on him. In a suit for possession where the plaintiff acquires title in suit property when defendant is already in possession under a right, the plaintiff is under an obligation to prove his title and nothing more. The defendant who defends his possession on the ground of adverse possession or limitation, the onus to prove that suit is beyond limitation, is on such defendant in the light of provisions of Article 144 of the Limitation Act, as defendant in possession under a title or permissive possession is best at' knowledge as to how and when his possession became adverse. This leads to the conclusion that Article 144 envisages commencement of limitation at the time when the defendant's possession becomes adverse. The proposition of adverse possession came under discussion before the Supreme Court of Azad Jammu and Kashmir in the case titled ' Gulab v. Muhammad Younas' (P L J 1984 SC (A J K) 108), wherein it was held as under:-- '

Next we come to the question of adverse possession. The rule of adverse possession is based on the principle of 'Might is right'. Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State and Pakistan have considered it immoral for having its source of origin in brute force. The history of the concept is traced to premedical times. But with the passage of time and organization of society into state of rule of law, it gained mandate of law to set at rest the status of long time possessions, particularly in absence of claims of true owners of properties. The constituent conditions of adverse possession are that it must be actual, visible exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If anyone of the constituent conditions is lacking in evidence, the plea is outrightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession. " A similar proposition closer to the facts of the case in hand, came under consideration before the Supreme Court of Azad Jammu and Kashmir in Munawar Hussain Shah's case (PLD 1978 SC (A J & K) 33), wherein it was observed as under:-- '

The onus is on the tenant to show when and how his possession became adverse. In order to acquire a title by adverse possession, it is necessary that the possession of the wrong-doer must be continuous for the prescribed period of limitation. It would follow that where there is a break in adverse possession of the wrong doer, limitation ceases to run against the lawful owner of the property. The leading case on the point is The Trustees, Executors & Agency Co. v. Shori (1888) 13 AC 793). In that case, their Lordships of the Privy Council observed: 'They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place'."

9. Taking in view the facts of the case in hand, in the light of the law discussed above, it can safely be held that the plaintiff-appellants failed to prove their possession adverse, ripened into ownership. As discussed above, all the evidence, oral as well as documentary, suggested that the plaintiff-appellants were in possession as tenants. Mere entry for a period of 12 years is not sufficient to constitute adverse possession as tenant's possession cannot be adverse to his landlord unless the other necessary ingredients of adverse possession are satisfied which are lacking in the present case.

10. Both the Courts below concurrently gave the findings against the plaintiff-appellants, holding their claim of ownership as well as adverse possession not proved by any evidence. By now, it is settled that the concurrent findings based on facts cannot be interfered with in second appeal unless some misreading, non-reading or misconstruing of evidence is pointed out. In the present case, it was not shown that any illegality was committed by the Courts below. I have gone through the judgments recorded by the trial Court as well as the first Appellate Court and am of the view that the evidence has been appreciated in accordance with settled principle of appreciation of evidence and therefore, requires no interference, particularly in second appeal. Reliance in this regard is placed on Mst. Amina Bi's case (1992 SCR 154) wherein it was held as under: "--(a) C. P. C., 5.100

Concurrent findings of the Courts below on the question of facts not open to challenge unless suffers from the defect of non-reading or misreading of evidence. " The proposition also came under consideration before the Supreme Court of Azad jammu and Kashmir in another case, Mst. Nazir Begum v. Muhammad Ayub and another (1993 SCR 321) wherein it was laid down as under:- "

S. 100

Second Appeal

Concurrent findings of fact by the Trial Court and first Appellate Court can only be disturbed in second appeal if there is misreading of non-reading of evidence."

11. In the very outset of the arguments of the learned counsel for the appellants, it was forcefully argued that the trial Court as well as the first Appellate Court did not decide the issue framed on the subject of jurisdiction. The learned counsel argued that the point was specifically taken in the written statement filed in the counter-suit by the respondents, Habib Khan and others, but the issue was struck off illegally by the trial Court and similarly, the District Judge also failed to give his finding. I would have taken serious view of the fact pointed out by the learned counsel, but a reading of the written statement filed by the defendants (now appellants herein) shows that the value of the property shown by them was well within the jurisdiction of the trial Court, as such, the point is found to have no substance in it and is meaningless in the circumstances. Therefore, it is hardly necessary to remand the case on such point. The issue, therefore, is decided against them.

12. In view of the discussion, the appeals are found to have no substance in them, as such, are dismissed with no order as to costs. C.M.A./152/AJ & K Appeals dismissed.