1996 PLP 971 (MLD)

(6) Whether the suit is bad for missjoinder of parties? (7) What should the decree be?

4. In support of his case, applicant appeared as his own witness and examined Moula Bakhsh P.W.2. On the other hand respondents examined respondent No.2 Muhammad Budhal and Kaloo D.W.2.

5. On consideration of the evidence on record, learned IInd Senior Civil Judge, Larkana held that Issue No. l was not proved. He answered Issues Nos.2, 3 and 5 in negative. On issue No.4, he held that the suit was barred by time. On Issue No.6, he recorded a finding that the suit was bad for non‑joinder of other legal heirs of deceased Muhammad Soomar. Resultantly he dismissed the suit with costs.

6. Applicant preferred Civil Appeal No.22 of 1988 from the judgment and decree which came up for hearing before an Additional District Judge, Larkana who concurred with the findings recorded by the trial Court and dismissed the appeal.

7. I have heard learned counsel for the parties and gone through the material on record. It would appear from a narrative of this judgment that the respondents had raised the plea of joint purchase of the city survey number in question in the name of the applicant and the purchase of plot in suit from him for a consideration of Rs.800 and claimed to be owners of the plot and construction of a house thereon in their own rights. No doubt they failed to establish their title to the plot in suit and to this extent finding of the trial Court attained finality, as it was not challenged before the Appellate Court. They sought to justify their stand on this aspect of the case and attempted to show that their predecessor‑in‑interest deceased Muhammad Soomar had purchased the plot in dispute from the applicant for a valuable consideration who subsequently went back on his commitment and even after the death of Muhammad Soomar did not honour the agreement of sale. Simultaneously they raised the plea of their possession and occupation of the house constructed on the plot in suit since 1962 and termed their possession as adverse to the right and interest of the applicant.

8. In the peculiar circumstances of the case, I am of the considered view that the respondents having claimed the plot in suit as owners in their own right cannot take the plea of adverse possession which is required to be open, uninterrupted, notorious and hostile to the knowledge of the real owner for a period exceeding 12 years. It is true that both the Courts below have found that the suit was barred by the period of limitation as prescribed by Article 142 of the Limitation Act, to my mind finding on this aspect of the case is based on misreading and non‑reading of material evidence on record which would amount to an illegality within the meaning of the term. Unfortunately both the parties have adduced oral evidence and no document has been produced to establish the date of dispossession. While applicant Shah Muhammad conceded that the respondents were in possession of the plot in suit for the last ten years before the filing of the suit, respondent Muhammad Budhal who is the maternal uncle of respondents 1 and 3 residing in the house as their licensee dated back the possession of the respondents for the last 24‑25 years. He was examined on 9‑2‑1988. Respondent's witness Kaloo who was examined on the same day, however claimed that the respondents are residing in the disputed house for the last 16‑17 years. Likewise applicant Shah Muhammad asserted that the respondents are occupying the premises for the last 7 or 8 years and at the most 10 years. His witness P.W. Moula Bakhsh in his examination‑in‑chief stated that the respondents were occupying the disputed premises for the last about 10 years but in his cross‑examination, he claimed to know Muhammad Soomar since the time he started residing near the disputed house. He conceded that he is residing in the present house for the last 16 or 17 years. During his further cross- examination, he volunteered to say that Muhammad Soomar was in occupation of the premises for the last 9‑10 years.

9. On an over‑all assessment of the evidence, I am not inclined to accept 1 the version given by P.W. Moula Bakhsh who has taken a somersault in making self‑contradictory statements in relation to the point of time when the respondents came into possession of the premises. Likewise the version given by respondent Muhammad Budhal is highly interested and partisan. His evidence mainly relates to the purchase of plot in suit by Muhammad Soomar from the applicant on payment of Rs.800. It is pertinent to observe that the respondents 1 and 3 who are the sons of deceased Muhammad Soomar and real contestants did not step into the witness‑box to assert their right, if any. Their non‑appearance in the witness‑box is fatal to their defence. Suffice to say finding of fact recorded by the Courts below, on this point, suffers from inherent infirmity and cannot be sustained in law. On the strength of evidence on record, I would conclude that the respondents remained in possession of the plot in suit with construction thereon with the permission and to the knowledge of the applicants for a period muchless the statutory period.

10. There is another aspect of the case. Having asserted the right of ownership and possession over the plot in suit in their own rights in my view respondents are debarred from raising the plea of adverse possession. I am fortified in this view by a judgment of the Honourable Supreme Court in the case of Bahadur v. Muhammad Aslam 1994 SCMR 116 laying down the principle of law that a person who claims possession in his own right cannot take plea of adverse possession.

11. In Bilqees Begum v. Karam Shah 1980 CLC 169 Supreme Court of Azad Jammu and Kashmir held as under:‑‑‑ "Adverse possession in our view means holding the land openly, in publicity, in one's own right and in disclaimer of the title of true owner. The inference may be drawn by the nature of the possession i.e. the way in which it is being treated and enjoyed by the possessor. An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right. Adverse possession implies that it commenced in wrong and is maintained against right. A person is said to hold the property of another adversely to him, when the latter is, in denial of his title excluded by the former, from the enjqyment of the same. Possession of the wrong‑doer, to avail him, must be adverse in its character, importing a denial of the owner's title in the property claimed. "

12. Dealing with an identical question in the case of Haji Muhammad Akram v. Dr. Muhammad Iqbal PLD 1992 SC 438 their Lordships of the Supreme Court held that if starting point in a claim of adverse possession is relatable to a claim of lawful title as well, then after a fight on basis of permissive possession if that claim is given up or lost, then from that point of time onward only adverse possession would start. In the present case right and title of the respondents to the plot in suit if any, was defeated by the judgment of the trial Court on 29‑2‑1988 and the starting point for adverse possession if any would be from this date which is much short of the statutory period for maturing title by prescription.

13. Yet in another case namely Adam Khan v. Mumtaz Khan 1991 SCMR 832 a Full Bench of the Supreme Court observed that when. the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title is to be established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession adverse a long continued, possession hostile to him. In other words went back on his commitment and even after the death of Mtihammad Soomar did not honour the agreement of sale. Simultaneously they raised the plea of their possession and occupation of the house constructed on the plot in suit since 1962 and termed their possession as adverse to the right and interest of the applicant.

8. In the peculiar circumstances of the case, I am of the considered view that the respondents having claimed the plot in suit as owners in their own right cannot take the plea of adverse possession which is required to be open, uninterrupted, notorious and hostile to the knowledge of the real owner for a period exceeding 12 years. It is true that both the Courts below have found that the suit was barred by the period of limitation as prescribed by Article 142 of the Limitation Act, to my mind finding on this aspect of the case is based on misreading and non‑reading of material evidence on record which would amount to an illegality within the meaning of the term. Unfortunately both the parties have adduced oral evidence and no document has been produced to establish the date of dispossession. While applicant Shah Muhammad conceded that the respondents were in possession of the plot in suit for the last ten years before the filing of the suit, respondent Muhammad Budhal who is the maternal uncle of respondents 1 and 3 residing in the house as their licensee dated back the possession of the respondents for the last 24‑25 years. He was examined on 9‑2‑1988. Respondent's witness Kaloo who was examined on the same day, however claimed that the respondents are residing in the disputed house for the last 16‑17 years. Likewise applicant Shah Muhammad asserted that the respondents are occupying the premises for the last 7 or 8 years and at the most 10 years. His witness P.W. Moula Bakhsh in his examination‑in‑chief stated that the respondents were occupying the disputed premises for the last about 10 years but in his cross‑examination, he claimed to know Muhammad Soomar since the time he started residing near the disputed house. He conceded that he is residing in the present house for the last 16 or ‑ 17 years. During his further cross- examination, he volunteered to say that Muhammad Soomar was in occupation of the premises for the last 9‑10 years.

9. On an over‑all assessment of the evidence, I am not inclined to accept 1 the version given by P.W. Moula Bakhsh who has taken a somersault in making self‑contradictory statements in relation to the point of time when the respondents came into possession of the premises. Likewise the version given by respondent Muhammad Budhal .i$ highly interested and partisan. His evidence mainly relates to the purchase of plot in suit by Muhammad Soomar from the applicant on payment of Rs.800. It is pertinent to observe that the respondents 1 and 3 who are the sons of deceased Muhammad Soomar and real contestants did not step into the witness‑box to assert their right, if any. Their non‑appearance in the witness‑box is fatal to their defence. Suffice to say finding of fact recorded by the Courts below, on this point, suffers from inherent infirmity and cannot be sustained in law. On the strength of evidence on record, I would conclude that the respondents remained in possession of the plot in suit with construction thereon with the permission and to the knowledge of the applicants for a period muchless the statutory period.

10. There is another aspect of the case. Having asserted the right of ownership and possession over the plot in suit in their own rights in my view respondents are debarred from raising the plea of adverse possession. I am fortified in this view by a judgment of the Honourable Supreme Court in the case of Bahadur v. Muhammad Aslam 1994 SCMR 116 laying down the principle of law that a person who claims possession in his own right cannot take plea of adverse possession.

11. In Bilqees Begum v. Karam Shah 1980 CLC 169 Supreme Court of Azad Jammu and Kashmir held as under:‑‑‑ "Adverse possession in our view means holding the land openly, in publicity, in one's own right and in disclaimer of the title of true owner. The inference may be drawn by the nature of the possession i.e. the way in which it is being treated and enjoyed by the possessor. An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right. Adverse possession implies that it commenced in wrong and is maintained against right. A person is said to hold the property of another adversely to him, when the latter is, in denial of his title excluded by the former, from the enjoyment of the same. Possession of the wrong‑doer, to avail him, must be adverse in its character, importing a denial of the owner's title in the property claimed. "

12. Dealing with an identical question in the case of Haji Muhammad Akram v. Dr. Muhammad Iqbal PLD 1992 SC 438 their Lordships of the Supreme Court held that if starting point in a claim of adverse possession is relatable to a claim of lawful title as well, then after a fight on basis of permissive possession if that claim is given up or lost, then from that point of time onward only adverse possession would start. In the present case right and title of the respondents to the plot in suit if any, was defeated by the judgment of the trial Court on 29‑2‑1988 and the starting point for adverse possession if any would be from this date which is much short of the statutory period for maturing title by prescription.

13. Yet in another case namely Adam Khan v. Mumtaz Khan 1991 SCMR 832 a Full Bench of the Supreme Court observed that when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title is to be established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession adverse a long continued, possession hostile to him. In other words there should be expressed and open denial of the title of true owner and animus of exclusive ownership.

14. In the case of Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmed PLD 1991 SC 290 the point at issue was dealt with comprehensively and elaborating the principle of adverse possession Muhammad Afzal Zullah, C.J. (as he then was) observed as under:‑‑‑ "Possession is not adverse if it could be referred. to a lawful title. It has to be kept in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession, as lawful no adverse possession begins until the denial of the knowledge of the owner."

15. On behalf of the respondents reliance was placed on a Single Bench judgment of Sindh High Court in the case of Mst. Sarwat Ara v . Mst. Sabra Khatoon 1993 CLC 1682 holding the suit to be time‑barred. This case has absolutely no bearing on the facts of the present case. A reference was also made to the judgment in the case of Mst. Shah Sultana v. Abdul Khalique 1987 SCMR 1791 laying down that in a suit for possession, plaintiff must prove dispossession from immovable property within 12 years preceding the date of suit. There is no cavil with the proposition of law which is even otherwise unambiguous on the plain terms of Article 142 of the Limitation Act but the facts of the instant case are altogether different and distinguishable, 16. , No other point was convassed at the Bar, Resultantly both the judgments of the Courts below are liable to be struck down. These are accordingly set aside and the suit of the plaintiff decreed as prayed. Applicant shall pay deficit court‑fee on the amount of mesne profits after the same are calculated. Parties to bear their sown costs. A.A./S‑6/K Revision accepted.