P D 1997 Supreme Court 879 (PLP)

FAZAL ILAHI KHAN, J.

The legal representatives of Hayat Gul deceased, petitioners herein; seek leave to appeal against the judgment and decree of a learned Judge of the Peshawar High Court dated 3-3-1996 passed in Civil Revision No.311 of 1990. -2. Hayat Gul deceased/predecessor-in-interest of the petitioners got the suit land on lease from one Samad Khan predecessor-in-interest of the respondents-plaintiffs. On the death of Samad Khan, Hayat Gul lessee refused to pay the lease money on the ground that he had purchased an area measuring one jarib out of the suit land from Mohibullah son of Samad Khan on the basis of a sale-deed dated 2-5-1972. As such Civil Suit No.78/1 was brought in the Court of A.P.O. Dargai exercising the powers, of Civil Judge by Mohibullah and Ikramullah minor sons of Samad Khan through their next friend Madat Khan against Hayat Gul for declaration to the effect that Mohibullah plaintiff No. l was minor and that the alleged sale-deed in favour of Hayat Gul defendant was void and liable to be declared as such. Prayer was made that the defendant be restrained from asserting his title in the suit land on the basis of the aforementioned deed. The suit was contested by Hayat Gul by filing his written statement. However, on the application of the plaintiff for withdrawal of the suit with permission to bring a fresh suit, the suit was allowed to be withdrawn with permission to file a fresh suit vide order dated 7-2-1977. A fresh suit was instituted by Mst. Rehm Bibi widow of Samad Khan deceased, Mohibullah, Ikramullah and Noor Jehan minor sons and daughter, against Hayat Gul in the Court of Senior Civil Judge, Batkhela at Dargai on 2-3-1988 wherein declaration was sought regarding land measuring one jarib out of Khasra No.60 detailed therein and also described by boundaries; that they are the owners of the suit land and that Hayat Gul and others defendants have got no' interest in the property and the alleged document of sale is fraudulent, void and ineffective upon their rights. Furthermore, the said document had been declared void vide judgment of the learned Senior Civil Judge dated 12-6-1982 and upheld by the learned District Judge and the learned High Court. In the alternative prayer for possession of the suit land was also made. The suit was contested by the petitioners' predecessor in which he re-asserted, having purchased the suit land. Issues were framed and evidence of the parties which they wished to produce, was recorded. The learned trial Judge held that petitioners predecessor had brought suit No.24/1 on 6-4-1980 against the uncle of the respondents-plaintiffs and one Khan Pur in the Court of Senior Civil Judge wherein title in the land having purchased from Mohibullab was based on the disputed sale-deed. His suit was dismissed on the ground that neither Mohibullah could sell the entire one jarib of land nor has he proved the sale in question as the marginal witness of the deed had deposed that the sale consideration was not paid, therefore, the sale deed was cancelled. This judgment and decree was upheld up to the High Court. The learned trial Judge further held that Mohibullah was minor at the time of execution of the alleged sale-deed. The plea of adverse possession was repelled on the ground that petitioners' predecessor initial possession was that of a lessee, therefore, he was estopped to deny title of the respondents-plaintiffs/lessors. Accordingly the, suit of the respondents-plaintiffs was decreed as prayed for.

3. The learned District, Judge in appeal filed by the petitioners' predecessor set aside the judgment and decree of the learned trial Judge and dismissed the respondents-plaintiffs' suit in the light of his findings on the issues of limitation and adverse possession. In revision the findings of. the learned District Judge on material issues i.e. limitation and adverse possession were reversed and in consequence the judgment and decree of the learned District Judge was set aside and that of the learned trial Judge restored.

4. In seeking leave to appeal the learned counsel for the petitioners contended that Mohibullah respondent-plaintiff had made an application on ,I9-3-1975 in the earlier suit No.78/1 in which he admitted having validly sold the suit land in favour of Hayat Gul predecessor-in-interest of the petitioners and having received the entire sale consideration. It was further stated therein that the suit filed by Madat Khan his uncle as his next friend was without his consent and prayed that the suit may be dismissed. That the Courts below ignored the above admission. It was further contended that the questions of limitation and adverse & possession are mixed questions of law and facts and the same having been determined by the learned District Judge on the basis of material placed on file, the finding given was immune from interference by the learned High Court in exercise of its revisional jurisdiction.

5. After hearing the learned counsel for the petitioners and perusal of the record we find no substance in the aforesaid contentions. As far as the application dated 19-3-1975 is concerned, it has been rightly held by the learned High Court that subsequent to the filing of above application the suit was withdrawn with permission to file a fresh suit on the grounds stated therein which was not opposed by the petitioners' predecessor. Subsequently when fresh suit was filed and evidence was led the above application was not put to Mohibullah respondent when he appeared in the witness-box. There is no evidence that the said application was made by Mohibullah or that it was filed on his behalf by a competent and an authorised person. The application as such has no bearing on the merits of the case. As far as the execution of the alleged sale deed is concerned, even the petitioners' own witnesses examined in Court have admitted that the respondent-plaintiff Mohibullah was minor at the time of execution of the deed and that the same was subsequently cancelled as the sale consideration was never paid to Mohibullah. The said deed was also not accepted in Suit No.24/1 pertaining to the same land. As such the petitioners' predecessor failed to prove a valid sale in his favour.

6. Regarding the questions of limitation and adverse possession the learned District Judge in setting-aside the judgment and decree of the trial Judge held as under:- "It is immaterial that possession of the appellant was under a valid or invalid sale. All that mattered was the attitude of the appellant, who was in possession of the suit land. In this case the limitation is to be applied on the basis of averments in the plaint. It is well-settled that after the expiry of the prescribed period .of limitation not only is the remedy barred but the title is also extinct in favour of the possessor." The finding reached by the learned District Judge is erroneous. Admittedly the petitioners' predecessor-in-interest entered into possession of the land as a lessee under the respondeftts-plaintiffs and during continuation of his possession as such he claimed to have purchased the land from Mohibullah son of Samad Khan. As the petitioners' predecessor-in-interest failed to prove the sale, his possession will be in continuation of the lease agreement till such time that he surrenders possession to the lessor even if denies title of the lessor during this period.

7. For the reasons stated above, we find no infirmity an the judgment of the learned High Court. Leave to appeal is, therefore, refused and the petition is dismissed. A.A./H-6/S Leave refused.