1995 PLP 499 (MLD)

Ghulam Murtaza Bhatti for Petitioners. Muhammad Ashraf Azeem for Respondents. Date of hearing: 7th May, 1994. This revision was directed against the judgment and decree dated 18‑7‑1985 of learned Additional District Judge, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 1‑4‑1985 of the learned Civil Judge was maintained.

2. The necessary facts are that Sanatta and other petitioners filed a suit for possession against Abdul Karim and Muhammad Yousaf respondents seeking possession of an area measuring 30x12 described as Shop No. 52 situated in Kila No.12/2 of Square No.32, Chak No. 283/GB, Tehsil Jaranwala, District Faisalabad. The assertions contained in the suit were that the shop in dispute had been rented out to Muhammad Yousaf and Abdul Karim respondents, 8 years prior to the institution of the suit and that they have been paying rent except for the three years prior to the filing of the suit. Abdul Karim also filed a suit for declaration against Sanatta etc. the present petitioner‑plaintiff claiming the ownership of suit shop on account of oral sale by one Najabat grandfather of Sanatta. He also sought injunction to perpetually restrain Sanatta etc. from interfering in his possession. Both the suits were consolidated and dealt with together and were ultimately dismissed by the learned trial Court. It appears that the respondents did not file the appeal against the judgment and decree dismissing their suit. The appeal filed by the petitioner was dismissed by the impugned judgment dated 18‑7‑1985 observing that the petitioner‑plaintiff had failed to substantiate the relationship of landlord and tenant between the parties, the possession of the defendant respondent as owners on account of oral sale since 1964 was certainly a hostile possession recovery whereof could have been claimed within 12‑years time. Learned appellate Court referred to the statement of Ahmed P.W.1 wherein he had stated that the suit shop was in possession of Yousaf defendant since 1964 and that the shop was constructed by Abdul Karim, father of Yousaf respondent. It was added that if the shop was constructed by Abdul Karim how can the same be claimed by Sanatta appellant. Jamabandi Exh. D.1 was also referred which according to the learned Additional District Judge shows that the persons other ~ than the petitioners‑plaintiffs were in possession of the disputed shop on account of oral sale, and that Exh. D.7 shows Abdul Karim to be the owner in possession of the disputed shop. The appraisal of evidence by the learned appellate Court appears to be erroneous. The plea taken in the written statement by the respondents was that the Ihata in question was owned by Najabat, the predecessor‑in‑interest of the plaintiff who had sold the same to various persons after receiving consideration but mutation could not be got entered due to lack of attention. However, the respondents are in possession as owner without any interference from any one for a period more than 20 years and has thus attained prescriptive title. Ahmed P.W. in his examination- in‑chief supported the case of plaintiff, though in cross‑examination he admitted that plaintiffs are in possession since 1964, though he does not know as to from whom they had taken the site in question. It was added that it was not in his knowledge that the shop stands constructed for the last 20 years or that it was constructed 10 years earlier. Except for the above statement Ahmed even in his cross‑examination supported the case of the plaintiffs. He also added that the shops were constructed by Sanatta 10 years ago.

3. The oral evidence produced by the respondents‑defendants may now be referred to. Habib Ullah D.W.1 stated that Najabat, the grandfather of Sanatta had sold the shops to various persons. He added that the respondents defendants have also purchased the site of the shop before 1960 and after the purchase had constructed the shop and that the defendants are in possession since before 1960. In cross‑examination he added that Amir Ali son of Fazil had purchased the site of the shop from Najabat. Amir Ali had sold the same to Sultan son of Naurang. He in turn sold it to defendants. Noor Ahmed son of Muhammad Khalil, D.W.2 made the deposition similar to the one made by Habibullah D.W.1. Yousaf respondent appeared as D.W3 and claimed in his statement that the site of the shop was purchased by Amir Ali son of Fazil from Najabat and Amir Ali sold the same to Sultan from whom his father purchased the site of the shop. He claimed that his possession without any interference is since 1956‑

57. Abdul Karim, his father also appeared as D.W.4 and he also claimed to have purchased the site from Haji Sultan who according to him had purchased it from the grandfather of the plaintiff. He also admitted that prior to their coming into possession Sultan was in possession of the shop and earlier to him Amir Ali was in possession and that no one had ever interfered in the possession of any one of them. He, however, did not give the exact time of coming into possession of the shop.

4. The documentary evidence on record which is reflected by the Jamabandies on record may now be noted. Amir Ali son of Fazil is shown to be the person in occupation of the shop on account of sale of Ihata and construction vide Jamabandi for the year 1964‑65 Exh. D.

1. Sultan son of Naurang is entered as person in occupation on account of oral sale vide Jamabandi for the year 1967‑68 and Jamabandi for the year 1976‑77, Exh. D. 2 and Exh. D.3 and Jamabandi for the year 19.76‑77 Exh. D. 4 showing Amir Ali son of Fazal in possession, are not relevant as that does not pertain to the area in dispute. Jamabandi for the year 1980‑81 Exh. D.7 shows Abdul Karim respondent as occupant of Khasra No. 12/3 while shop in dispute is stated to be in Khasra No. 12/2. Exh. P.1 also shows Abdul Karim respondent as in possession. Both these documents do not contain any entry of possession in assertion of rights of ownership on account of any oral sale. Even otherwise this is the only document which shows Abdul Karim in possession, hence the plea that they are in possession of the shop in dispute since 1956‑57 has remained unsubstantiated, rather these documents show that Sultan and others were in possession from whom they had assertedly purchased the property. Respondents therefore, cannot claim to be in possession for a period more than 12 years, before the institution of the suit filed in the year 1981. The finding of the learned Additional District Judge that the respondents had established their possession as owners on account of oral sale since 1964 and that the said possession was a hostile possession and adverse possession for a period of more than 12 years, is not based on record. It is true that the plea of respondents to have rented out the shop in question has also not been established by producing convincing evidence, but petitioners‑plaintiff admittedly the owners of the land in dispute are entitled to receive the possession from the respondents who have failed to establish their right to remain in possession. The declaratory suit claiming the title filed by the respondents failed and no appeal having been filed, the said finding has attained finality as against the respondents.

5. For the reasons given above and the circumstances noted above, the suit of the petitioner‑plaintiff cannot be dismissed and recovery of possession cannot legally be refused. The net result of the above discussion is that the impugned judgment and decree of the learned Courts below dismissing the suit of the petitioner‑plaintiff are set aside. No other issue was pressed. Learned counsel for the petitioners states that petitioners will have no objection to the removal of the `Malba' by respondents. In view of the above respondents will be entitled to remove `Malba' within two months from today. The petition is, therefore, accepted with no order as to costs, and suit is decreed in above terms. AA/S‑516/L Revision accepted