P L D 1962 (W (PLP)

SAJJAD AHMAD JAN, J.

This is a plaintiff's further appeal whose suit for possession of a house and for recovery of its khakshora was decreed (partly as regards khakshora) by the Sub Judge, Second Class, Peshawar (Mr. Muhammad Akhtar Khan), but dismissed on appeal by the Additional District Judge, Peshawar (Khan Muhammad Shafiq Khan).

2. The facts are as follows: The plaintiff Khisro Nawaz, who is the appellant before us, filed a suit for possession of the house, and for Rs. 160 represent ing the price of the khakshora for three years (1953-1955) on the claim that his father, Amir Khisro, who was the owner of the suit house, had gifted it to him by a registered tamliknama (copy Exh P. 9), and that the defendant-respondents, who were occupy ing the house as tenants, had disowned his title and had not given the khakshora to him for the period in suit. The respondents, in their written statement, denied the plaintiff's ownership. They alleged that the house was constructed by their grand-father named Abdullah, the site of which bad been donated to him by one Abdus Sattar, a proprietor of Charsadda, ands that they and their predecessors-in-title had held possession of It as owners for over sixty years. The suit was also resisted on the legal pleas of limitation, deficiency of Court-fee, and lack of service of notice on the defendants regarding the suit. One further defence taken was that there was no custom in the village where the house in dispute was situated regarding the ejectment of tenants.

3. The following Issues were settled by the trial Judge :- (1) Whether plaintiff is the owner of the suit house ? (2) Whether there is a custom of ejectment of a tenant in village Babara, if so, what is its effect ? (3) Is the suit properly valued ? (4) Is the suit within time ? (5) Whether a notice prior to the institution of the suit was essential ? (6) Whether the plaintiff is entitled to Rs. 160 as the value of khakshora ? (7) Relief ?

4. All the issues were found in favour of the plaintiff except that his relief to the amount for the khakshora was reduced to Rs. 53 only representing its value for one year, on the admission of the plaintiff's father and attorney, Amir Khisro, that the defendant-respondent were in arrears of khakshora with respect to the year 1953 and had met their liability prior to that.

5. The Additional District Judge on appeal came to contrary findings on the question of ownership and on the point of limita tion, and also regarding the status of the defendants as tenants under the plaintiff. A third point that was raised by the defendants before him, for the first time in appeal, related to the Incompet ency of the suit as instituted. The suit of the plaintiff was thrown out by him in its entirety.

6. It is first of all necessary to examine the plaintiff's title to the suit house and the nature of the defendant-respondents' occupation of it. While the defendants claimed that the site of the house load been donated to them by Abdus Sattar on which they had put up a house, according to the plaintiff's case, the house was purchased by the plaintiff's father, Amir Khisro, from Abdullah Nur, a son of the same Abdus Sattar, by two sale deeds (copies Exhs. P. 3 and P. 4), both dated the 12th of April 1938. The common fact which thus emerges is that both the parties have sought to trace the origin of their respective titles from Abdus Sattar. It appears that before the sale the site was under mort gage with one Said Ahmad Gul, in whose favour the mortgage deeds (copies Exhs. P. 5 and P. 6) dated the 5th of July 1927, were executed by Abdullah Nur, the vendor of Amir Khisro. Before making the purchase of the site in the year 1938 by the sale deeds (copies Exhs. P. 3 and P. 4) Amir Khisro had secured the transfer of the mortgage rights of Said Ahmad Gul conveyed to him by, one Qudrat Ali, a brother of the wife of Said Ahmad Gul, by a deed (copy Exh. P. 7) which is dated the 8th of August 1937. If this transaction was competently made, it is obvious that Amir Khisro became the full-fledged owner of the site of the house, mortgagee rights purchased by him having merged into ownership rights in the year 1938. Another document (copy Exh. D. 10) also needs consideration. This shows that the site of a house was obtained by Abdullah son of Mustajib, and one Khairullah, from Abdus Sattar on the stipulations as contained in the deed itself that the transferees would build on it, and that they could discharge their tenancy obligations whatever they may be. In case of any default the transferor was given the right to eject the tenants on payment of the cost of the material put up by them, One further recital in the deed was that the khakshora of this site belonged to Abdus Sattar.

7. The learned Additional District Judge has dwelt upon the plaintiff's title to the disputed house as disclosed in the documents mentioned above, but has rejected it on the ground that the boundaries contained in the documents aforesaid are not shown to tally with the present boundaries of the house in dispute. He has also discarded the plaintiff's case on the ground that he had not succeeded in showing that the defendants were his tenants in the house in question. We feel that the learned Additional District Judge was unnecessarily confused in his quest to ascertain the boundaries of the disputed house. It was not the defendant respondents' case that they had obtained from Abdus Sattar any site other than the one in dispute, nor did the plaintiff in his suit claim any house other than the one existing on the same site. There was, thus, no doubt regarding the identity of the disputed site. In this view of the matter, Exh. D. 10, mentioned above which was tendered in evidence by the defendant-respondents themselves, determines the fate of this case. It reveals a clear acknowledgment on the part of Abdullah, who is the grandfather of the defendant-respondent, Kbanimullah (vide the statement of Khanimullah himself), that the site was obtained by him and Khairullah from Abdus Sattar, who is the predecessor-in-interest of the plaintiff-appellant, being the father of Abdullah Nur, the vendor, who effected the sale of the disputed site in favour of Amir Khisro the father of the plaintiff-appellant. It was also accepted in this deed that the site would be made habitable by the defendant-transferees and they could be ejected from it on receipt of the price of the superstructure in case they committed a default in discharging their obligations as tenants. This document clearly shows that the respondents' predecessor entered the dis puted site as a tenant, which was a vacant one on which the house was to be constructed by the tenants. The fact that the house was put up by the tenants at their own cost finds further support from the sale deeds Exhs. P. 3 and P. 4, which show that what was actually sold was the site of a house, and not the superstructure. This leads to the obvious result that the house was constructed on the site by the predecessors of the defendant respondents after they had got it from Abdus Sattar, and under the terms of the deed, Exh. D. 10, they are to get its value in case of ejectment for any default committed by them. The plaintiff' has stepped into the shoes of Abdus Sattar being his valid successor, under a valid purchase acquiring all the rights of a landlord qua the defendant-respondents. The defendant-respondents have repudiated the title of the plaintiff and have denied their liability to pay the khakshora which, under the law, entails for feiture of their tenancy. We feel that under the circumstances, the terms of Exh. D. 10 have to be given their full effect, which would be that the defendants have to be ejected from the house on payment of the value of the superstructure by the appellant.

8. But the legal objections on which the suit was dismissed by the learned lower appellate Court have still to be considered. On the issue of limitation the learned Additional District Judge has considered that the suit, instituted on the 2nd of June 1956, beyond twelve years of the date of the purchase of the house by the plaintiff's father in the year 1938, was barred under Article 142 of the Limitation Act. The learned trial Judge on this issue considered that since the defendants were found by him to be the tenants of the plaintiff, the former could not repudiate his title, and as such, the question of limitation in the case did not arise at all. We feel that both the Courts below have made a wrong approach to the case on the point of limitation. Every civil case filed in a Court has its commencement in a cause of action as well as its terminus quo which will have to be determined for purposes of discovering the period of limitation applicable to it under the Limitation Act or any special law governing limitation. A suit by a landlord against a tenant is no exception. The period of limitation for a suit under tile Article applicable to it has primarily to be determined from the averments in the plaint. Where a plaintiff seeks possession of immovable property on the basis of a possessory title and alleges dispossession or discontinu ance of possession therefrom, the Article applicable to the case 1, Article 142 of the Limitation Act, which gives a period of twelve years for such suits commencing from the date of the alleged dispossession or discontinuance of possession. On the other hand, where a suit is based on title alone, and the defendant sets up a plea of adverse possession the article applicable would be Article 144, which provides twelve years' limitation for suits for recovery of possession of immovable property, the starting time being the date from which the possession of the defendant becomes adverse to that of the plaintiff. In the present case, the Additional District Judge was entirely wrong in con sidering that the right to sue accrued to the plaintiff on the date of the purchase of the site by his father in 1938. On the claim that the defendants were his tenants, the plaintiff obviously asserted constructive possession in himself, and it was for him to show under Article 142 of the Limitation Act that he had been dispos sessed within twelve years preceding the institution of the suit. According to him, his constructive possession was disrupted when the defendants refused to attorn to him in the year 1953. If it is found in a case that a defendant was originally brought on to the property as a tenant, section 116 of the Evidence Act would come into play, estopping the tenants from deny ing the title of the landlord during the continuance of the tenancy. A tenant cannot set up in himself a hostile title against his land lord, without first surrendering the possession of the property, and D unless he does so and regains the possession in his own rights hostile to the landlord he cannot successfully set up the plea of adverse possession ; he shall be presumed to be in permissive possession of the property on behalf of the landlord and posses sion for purposes of limitation will be deemed to be that of the landlord. From the facts of the present case it is clear that the defendant-respondents had at no time surrendered possession of the property and then regained it and therefore their possession, which was permissible in its inception, will continue to remain so. If we bind down the plaintiff to his own admission that the defendant-respondents repudiated his title in the year 1953 asserting ownership in themselves and treat this as the starting point of their adverse possession, the suit would be still within time as there is nothing on the record to suggest satisfactorily that any disclaimer to the title was openly made prior to that period. The plaintiff being, clearly in constructive possession of the disputed property within twelve years before the institution of the suit was, therefore, clearly within time for his present suit under Article 142 of the Limitation Act.

9. The learned lower appellate Court has also held that the plaintiff's suit was incompetent, firstly, because being owner of the site, and not of the superstructure, he should have asked for the possession of the site only, or for the possession of the site as well as of the house on payment of the value of the superstructure of the house. The course suggested by the learned Additional District Judge may have beep more appropriate as far as the form of the suit was concerned, but the wrong frame of the suit should not, in our view, disentitle the plaintiff to the relief which is other wise clearly admissible, to him, or which we can grant to him in E the interest of justice under Order VII, rule 7 of the Civil Procedure Code.

10. Another point raised against the competency of the suit by the learned Additional District Judge which has been repeated before us by the learned counsel for the defendant-respondents is that the suit for possession by the plaintiff is liable to dismissal because the property in dispute was under mortgage with posses sion with Said Ahmad Gul and the sale of the mortgagee rights by Qudrat Ali on his behalf in favour of Amir Khisro, without any power-of-attorney, was incompetent, and wholly void. This objection was not raised by the defendants in their written statement and no issue was struck on it. The sale of the mortgagee rights in question took place in 1937, and no objection to it has been preferred against it by any of the persons concerned, namely, the heirs of Said Ahmad Gul. This lends support to the submission of the learned counsel for the plaintiff-appellant that they might have acquiesced in this transaction. Since the heirs of Said Ahma9 Gul are not parties to the suit any order made by us will not affect their rights. That is an additional reason why we have not allowed the question of the validity or the invalidity of the transfer of the mortgagee rights by Qudrat Ali to impede the relief that we propose to grant to the plaintiff.

11. To sum up our conclusions, we hold that the site of the house in suit belongs to the plaintiff which was validly purchased by his father Amir Khisro from its owner Abdullah blur, son of Abdus Sattar. We further hold that the plaintiff's suit is within time and does not suffer from any fatal incompetency, We also hold that the predecessors-in-title of the defendant-respondents occupied this site as tenants and made their own abadi on it, and that the superstructure existing on the site thus belongs to them, and 0.ey are entitled to its value in the event of their ejectment. A commissioner was appointed by the trial Court to assess the value of the superstructure which he fixed at Rs. 3,221 to which both the parties agreed.

12. In the result, we set aside the order of the lower appellate Court restoring that of the trial Court with the further direction that the plaintiff shall be entitled to the possession of the suit house by ejectment of the defendant-respondents only if he deposits in Court the amount of Rs. 3,221 as the cost of the material which belongs to the defendant-respondents and which shall be paid to them. The plaintiff-appellant shall have his costs throughout. A. H. Order accordingly.