P L D 1993 Peshawar 239 (PLP)

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑ ‑‑‑‑Art. 115‑‑‑Tenant cannot set up hostile title against his landlord without first surrendering and then regaining possession in his own right hostile to the landlord.‑‑‑[Adverse possession]. S. Sibtul Hassan for Petitioners. H. Muhammad Zahir Shah for Respondents. Date of hearing: 21st April, 1993. The plaintiffs‑petitioners brought a suit for possession in respect of the suit land against the defendants‑respondents on the allegations that they were tenants under them but stopped payment of rent from 'Rabi‑81' and instead set up their own title to the land. This claim of the plaintiffs was denied by the defendants in their written statements in a very inexplicit and vague manner and rather the main defence taken up was that of the suit being beyond time. The learned trial Judge decreed the suit holding that the suit was within time; that the defendants are tenants‑at‑will but the learned appellate Court while applying Article 142 of the Limitation Act held the suit to be beyond the prescribed time and reversed the findings of the learned trial Court on issue No.3 which is to the effect "Whether the suit is not within time?". It is to be noted that on the other issues like the ownership of the plaintiffs and the possession of the defendants as tenants even the learned appellate Court confirmed the findings of the learned trial Court. This revision has been filed to call in question the legality of the appellate Court judgment.

2. I heard the learned counsel for both the sides and went through the record.

3. It is manifest from the perusal of the judgments of the two Courts that they have held the plaintiffs‑petitioners to be the owners of the suit land and that initially the defendants occupied this property as tenants under the plaintiffs. The difference in the findings is regarding the period of limitation in filing the suit. In this context the institution of the suit of produce in the revenue Court, copy Exh.DW.l/1, was the main factor for consideration in the lower Courts. Through the, said suit the plaintiffs had claimed recovery of the value of the produce from `Kharif‑64' to 'Kharif‑65' and the ejectment of the defendants, which was dismissed by the learned Assistant Collector on the ground that the question of ownership was involved for determination which could be done only by Civil Court. This order was passed on 29‑1‑1968 while the present suit was instituted on 28‑11‑1981. The learned trial Judge while discussing issue No.3 came to the conclusion that the dispute in produce suit was later on compromised and the defendants used to pay 'batai' to the plaintiffs. The learned appellate Court did not agree with this finding and held that there was no proof of compromise and, therefore, Article 142 of the Limitation Act would apply in the matter as since more than 12 years have elapsed between the order of the Assistant Collector on 29‑1‑1968 and the institution of the present suit on 28‑1‑1981, the instant suit is barred by limitation. The learned appellate Court has erred in applying Article 142 of the Limitation Act as in absence of the allegations of dispossession or discontinuance of possession in the plaint the said Article would not apply when factum of ownership of the plaintiffs and that of the defendants as tenants under them is proved on record and when it stands admitted even by the learned Appellate Court then there was no justification for the learned Appellate Court to hold the suit to be beyond time in terms of Article 142 of the Limitation Act. When it is proved that the defendants were originally brought on the property as tenants then under section 116 of the Evidence Act they would be estopped from denying the title of the landlord during the continuance of the tenancy. Moreover, a tenant cannot set up a hostile title against his landlord without first surrendering and then re‑gaining possession in his own right hostile to the landlord. A tenant is to be presumed as continuing in possession as such unless he first hands over the possession to the landlord and then enters upon it and sets up apt adverse title right from its inception. The relationship of landlord and tenant would not cease to exist by mere non‑payment of share of produce to the landlord. The learned Appellate Court has, therefore, not taken a correct view of the relevant law applicable to the factual aspect of this case. Consequently, this revision petition is allowed and the judgment and decree of the learned appellate Court are set aside while that of the learned trial Court is restored but with no order as to costs. A.A./1489/P??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted.