1980 PLP 364 (SCMR)

Bashir Ahmad Insari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing : 11th December, 1979. MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought from the judgment dated 24th September, 1979 of the High Court of Baluchistan ; whereby the respondents/plaintiffs 2nd appeal arising out of a suit for possession of an urban property, was allowed. The suit was earlier dis missed by the trial Court on the ground that the petitioners defendants had established the plea of adverse possession and the respondents 1st appeal had been dismissed. Learned counsel for the petitioners has reiterated the same arguments which were urged on behalf of the petitioners before the High Court. They are that the value of the subject matter of the original suit did not exceed Rs. 2,000 therefore, 2nd appeal was not competent; that question of adverse possession being one of fact, the concurrent findings thereon by the two learned lower Courts, could not be disturbed in 2nd appeal ; and that under section 28 of the Limitation Act, the question of `ownership' becomes irrelevant when looked in the light that the provision bars the suit for possession on account of limitation. We have not been impressed by the arguments of the learned counsel. It is not disputed that the party pleading adverse possession is under the burden to prove that his possession, amongst other conditions, is open an hostile to the real owner so as to show visible denial of the latter 's title. In this case the petitioners not only failed to fulfil this condition but also made a contrary affirmation in their reply to the notice received from the; respondents. It was admitted therein that the respondents were the owner of the plot, that the petitioners were willing to purchase the land from them and that they were the owners only of the superstructure on the land. Read in this context and background it would be rightly held as found by the learned Single Judge in the High Court, that the plea of adverse possession was not raised in the written statement. It‑cannot be denied that the plea of adverse possession (so as to non‑suit the real owner) lacks moral content the claim is not based on any equitable considera tion. It would be legitimate to insist that a claimant of adverse‑posses sion must be put on strict proof of the well-known conditions, which have not been ignored by the High Court. On the other hand the learned lower appellate Court ignored the most important material including the admission of the petitioners in their reply to the respondents notice and the learned trial Court misread the same. They proceeded on totally wrong assumption of law that mere long possession qualifies for setting up a plea of adverse possession. The High Court in 2nd appeal was justified in correcting this wrong view of law as also in taking note of material which was either ignored or misread by the learned lower Courts. The argument of the learned counsel that section 28 of the Limitation Act bars only the suit for possession, of the owner; therefore, denial of ownership of the respondents by the petitioners, was not an essential par of the plea of the petitioners, is also without any force. Section 28 provides 6 that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". It is true that the expression adverse possession' has not been used in the section. And for that reason learned counsel assumed that the condition of denial of ownership could not be read there in. But the application of the substantive provision of the section is contingent on the determination of the period limited in the Act, for the institution of the suit. Article 144 provides the period of limitation and third column thereof, prescribes the commencing point of time as "when the possession of the defendant becomes adverse to the plaintiff". Thus the conditions always insisted upon, by the Courts, are not without relevance to the law and the principle governing its interpretation. The learned Judge in the High Court properly attended to the objection regarding maintainability of 2nd appeal and affirmed the factual position that the subject matter of the suit was more than Rs. 2,

000. The objection, in this behalf was rightly overruled. There is no substance in this petition. It is accordingly dismissed. Petition dismissed.