2017 PLP 127 (CLCN)

RAJA SAEED AKRAM KHAN, J.

This appeal, by leave of the Court, has been addressed against the judgment and decree passed by the High Court on 8.1.2008, whereby the appeal filed by the appellants, herein, was dismissed whereas the appeal filed by the respondents, herein, was accepted.

2. The brief facts forming the background of this appeal are that the parties, herein, are contesting in respect of the landed property identified as Survey No. 879, measuring 14 kanals, situate in village Kotli, Tehsil Dhirkot, District Bagh. One Kaloo Khan, predecessor-in interest of the appellants was allegedly holding the possession of land since prior to the year 1947 and after his death the possession of the land remained with Yaqoob Khan, who was martyred during the war of liberation in 1947. After his death the aforesaid land remained in the possession of the appellants. The entries in respect of possession in Khasra Girdawari were recorded in the name of respondents. A suit was filed by Gul Akbar Khan, father of appellants Nos. 1 to 3 against Muhammad Afzal Khan and others on the basis of adverse possession. This suit was subsequently amended on 9.9.1996 because Muhammad Afzal, during pendency of the suit, had transferred the suit land through a gift-deed executed on 29.10.1995. Muhammad Afzal Khan also filed a suit against Gul Akbar Khan and others. The suit filed by Gul Akbar Khan and others was for adverse possession while the suit filed by Muhammad Afzal Khan was for declaration and perpetual injunction relating to the suit land comprising survey No. 879 measuring 13 kanals, out of total land measuring 19 kanals 12 marlas. After requisite proceedings, the trial Court dismissed both the suits for want of proof vide judgment and decree dated 29.10.2001. Feeling aggrieved from the judgment and decree of the trial Court, both the parties preferred appeals before the Additional District Judge, Kahuta, Camp Dhirkot which were dismissed vide judgment and decree dated 28.12.2002. Dissatisfied from the judgment and decree of the Additional District Judge, the appellants, herein, preferred an appeal before the High Court on 27.3.2003 whereas the respondents also filed an appeal on 28.3.2003. The High Court, after hearing both the parties, dismissed the appeal filed by the appellants, herein, while accepted the appeal filed by the respondents and the suit filed by them was decreed vide judgment and decree dated 8.1.2008 in the following terms:-- "The upshot of the above discussion is that Muhammad Fayyaz and others, appellants, are entitled to a decree of declaration in respect of the land comprising Khasra No. 879 min measuring 13 kanals. They are also entitled to the possession to the extent of 8 kanals, which is in the possession of the defendants. A decree of perpetual injunction is also granted in their favour in the terms that defendants shall not claim any right in respect of the said property." It may be stated here that in the first round of litigation, the civil petition for leave to appeal No. 244 of 2001 was filed by Muhammad Fayyaz Khan against Gul Akbar Khan but the same was dismissed by a former Chief Justice of this Court through order dated 7.5.2001. The controversy brought to this Court was in respect of an amendment application filed by Muhammad Fayyaz and others who pleaded that they were entitled to the possession of land. The learned Judge of the High Court set aside the order of the trial Court which had allowed the amendment. The petition for leave to appeal was rejected by this Court by holding at page 5 of the judgment (page 70 of the paper book) as under:-- "......... Tehsildar has given verdict about possession against them, they had no alternative but to amend the suit. Obviously, the application filed by the appellants, herein, cannot be deemed to be bona fide; it is a case of mala fide because when the petitioners realized the weakness of their case they tried to amend their suit."

3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, has argued that according to the order of Tehsildar settlement dated 27.7.1992, order of Tehsildar dated 9.12.1999, mutation No. 1483 dated 2.8.1992 and the entries in Khasra Girdawari 'Rabi', 1991, the appellants are in possession of the land measuring 14 kanals, comprising survey No. 879 since prior to 1947. He submitted that the respondents admitted the correctness of all the proceedings conducted before the Revenue Officers which were initiated by the appellants with regard to correction of revenue record in respect of land in dispute. He urged that the act of the respondents by submitting their application dated 20.12.1999 for withdrawal of suit with permission to file fresh suit which was rejected by the Civil Judge on 3.2.2000 is an ample proof of the fact that the respondents were not holding the possession of the suit land, therefore, the suit for declaration and permanent injunction filed by them was not maintainable due to bar contained in proviso to section 42 of the Specific Relief Act, as their right to maintain a declaratory suit must be determined as it existed on the date of institution of the suit. He further argued that the expression "omits to do so", mentioned in proviso to section 42 of the Specific Relief Act, refers to the ability of the plaintiffs-respondents on the date of institution of the suit and cannot be stretched to include the ability acquired subsequently ability to do so. The learned counsel submitted that when the plaintiffs-respondents realized that their suit was not maintainable, they filed an application on 16.2.2000 for amendment of the plaint. That application was dismissed by the Civil Judge and the decision of the Civil Judge remained intact up to this Court. The act of filing application for amendment of the plaint was declared by this Court as mala fide one, on the part of respondents. The learned counsel vehemently contended that once the plea of respondents for seeking relief for possession by amending their plaint was refused up to this Court, the same relief could not be asked by the respondents in the High Court in the subsequent round of litigation, therefore, the High Court erred while granting the relief to the respondents. He has further alleged that the suit for declaration filed by the respondents was dismissed by the Civil Judge on 29.10.2001 but they did not file any appeal against the judgment of the Civil Judge before the District Judge, therefore, the appeal filed by the respondents before the High Court was incompetent. The High Court could not grant a decree for possession in their favour to the extent of 8 kanals as they have accepted the decision of Civil Judge by not filing any appeal to this extent. He submitted that the learned Judge in the High Court, while exercising suo motu power, has violated the provisions of section 42 of the Specific Relief Act as well as the dictum of this Court dated 7.5.2001. The learned counsel further contended that the High Court failed to consider the important aspect of the case that the respondents have admitted the correctness of the order of Tehsildar Settlement dated 27.7.1992 which was confirmed by Tehsildar on 9.12.1999 through which it was held that the appellants are in possession of land measuring 14 kanals comprising survey No.

879. He contended that the respondents have also admitted the entries of mutation No. 1483 and Khasra Girdawari. In this respect the appellants produced witnesses in the trial Court who were not cross-examined by the respondents, therefore, they have admitted the hostile possession of the appellants. He submitted that the appellants filed the suit for declaration on the basis of adverse possession on 12.8.1992 when the provisions of section 28 of the Limitation Act were in existence but the High Court erred in law while holding that provisions of section 28 of the Limitation Act were not in existence without taking into consideration section 6 of Act X of 1992. He submitted that fact of the matter is that vide section 6 of Act X of 1992, in section 28 of the Limitation Act, the word "extinguishment" was replaced with the word "bar" while the word "extinguished" was replaced by the word "bar", whereas Articles 142 and 144 of Limitation Act were not deleted which were deleted in 1997. The existence of Articles 142 and 144 in the Limitation Act despite the nature of amendment made in section 28 of Limitation Act is an ample proof to the effect that the decree for adverse possession could be passed until Articles 142 and 144 were in existence. It was further contended that the High Court has wrongly held that as the land in dispute is "Khalsa Sarkar", therefore without impleading the Government as defendant, the suit filed by the appellants could not be decreed. The fact of the matter is that the Government has transferred its proprietorship in favour of Muhammad Afzal Khan, father of respondents Nos. 1 to 8 vide order of Collector dated 20.11.1968 and on the basis of the aforesaid order, mutation No. 862 dated 10.5.1969 was sanctioned, therefore, the Government was no more the owner of the suit land on the date of filing of the suit by the appellants. The case of the appellants was that even after 10.5.1969, the appellants' plaint for adverse possession had matured into ownership on the ground that the respondents never filed any suit for possession within 12 years which important fact has been ignored by the High Court. The learned counsel submitted that the High Court failed to consider another important aspect of the case that mutation No. 862 dated 10.5.1969 was sanctioned in favour of one Hassu Khan, the grandfather of respondents Nos. 1 to 8, who had died on 7.7.1959, as is proved from mutation No.

706. The whole story narrated by the respondents in their suit was based on falsehood and they have failed to prove their case, rather it was proved that the filing of suit on their part was based on mala fide, therefore, the judgment of the High Court is liable to be set aside on this sole ground. He has lastly argued that the judgment of the High Court in appeal No. 24 of 2003 is a telegraphic one as the Court has not taken into consideration the documentary evidence, oral evidence and the law relied upon by the appellants.

4. On the other hand, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the respondents, has strongly supported the judgment of the High Court while arguing that the same is perfectly legal and in accordance with law. He submitted that the appellants failed to point out any legal point for acceptance of the appeal. He further submitted that the appellants have misstated and misconceived the facts in the memo. of appeal by placing reliance on unproved comments and reports of the revenue officers. The suit of the appellants was not maintainable and same has rightly been dismissed by the Courts below. He lastly argued that the respondents have proved their suit by production of legal evidence which has rightly been decreed.

5. We have considered the arguments of the learned counsel for the parties at length and perused the record made available. Before proceeding further, it may be observed that prior to amendment, under the provisions of section 28 of the Limitation Act, 1908 (Act IX of 1908) by the lapse of time the right of an owner for instituting suit for possession was automatically extinguished along with remedy to recover possession. It was provided that on extinguishment of right of owner, the owner's title was to follow possession and vest in the trespasser who has got a title by adverse possession. In Pakistan, the vires of section 28 and Article 144 of Limitation Act, where under on the basis of adverse possession for more than 12 years no suit for possession could be maintained, were deleted being repugnant to injunctions of Islam, in the year 1991. Later on, section 28 and Article 144 of Limitation Act were omitted/repealed from the statute book.

6. In Azad Jammu and Kashmir vide Act X of 1992 dated 29.6.1992 an amendment was brought in section 28 of the Limitation Act and for the words 'extinguishment' and 'extinguished', the words 'bar' and 'barred' were substituted. Through said amendment a proviso was also added to section 28 whereby it was provided that if the defendant is the owner of the suit property and he admits the claim of the plaintiff in the Court, then the Court shall decide the case according to his admission. After the said amendment in section 28 of the Limitation Act, the suit on the basis of adverse possession could not be succeeded except the true owner admits the claim of the person having the possession of the suit property adversely. Later on, on 7th December, 1996 through an amendment brought in the Limitation Act, section 28 and Article 144 were omitted from the statute book.

7. In the instant case, the suit on the basis of adverse possession filed by the plaintiffs-appellants could only be succeeded or decreed if their claim is admitted by the respondents-owners in the Court. During the pendency of the suits, an amendment was brought in the Limitation Act through which section 28 and Article 144 of the Limitation Act were omitted. On the basis of the amendment incorporated in the Limitation Act, through which section 28 and Article 144 were omitted, the High Court, after hearing the parties, passed a decree for possession in favour of the respondents and dismissed the suit for adverse possession filed by the appellants, herein.

8. The question of amendment of section 28 and Article 144 of the Limitation Act came under consideration of this Court in a recent judgment titled Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No. 52 of 2005 decided on 10.4.2012] in which the effect of repeal has elaborately been dealt with by this Court. While interpreting section 56-C of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which deals with the repeal of law, on the strength of the judgments reported as Nizam Din and another v. Custodian and 15 others [2011 SCR 390] and Fazal Dad v. Mst. Sakina Bibi and another [1997 MLD 2861] this Court observed as under:-- "The plain reading of subsection (c) of section 56 of the AJ&K Interim Constitution Act, 1974 makes it clear that the repeal shall not, except as otherwise provided in this Act, affect any right, privilege, obligation or liability acquired, accrued or incurred under law. The rights accrued to a person under law cannot be destroyed by subsequent amendment of law." While dealing with section 6 of the General Clauses Act, it was observed as under:-- "The above reproduced subsection (c) of section 6 of the General Clauses Act postulates that repeal of law will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It shall continue in force as the law has not been repealed." Similarly while dealing with the repeal of section 28 and Article 144 of the Limitation Act, it was observed as under:-- "

7. It is well settled principle of law that procedural law operates retrospectively even if such law doesn't specifically envisages so. The law of limitation is a procedural law and it takes effect retrospectively. There is an exception to it that if the rights vested in a party are taken away or destroyed by amendment, the operation of law shall not be retrospective, it shall be prospective." In support of the above view, reliance was placed on the cases reported as Muhammad Yousaf and 3 others v. Fazal Dad and 12 others [2000 YLR 2340], Government of Rajasthan and another v. Sangram Singh and others [AIR 1962 Rajasthan 43], Muhammad Hussain v. Muniza Bi [1996 CLC 1681], Allah Rakha and others v. Additional Deputy Commissioner (G), Lahore and others [1980 CLC 1386], Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others [PLD 1971 Supreme Court 252]. The above findings were re-affirmed in an unreported judgment of this Court titled Zahid Hussain v. Afsar Din and others [Civil Appeal No. 84 of 2010 decided on 3.10.2012] in which it was observed as under:-- "

7. Leave was granted to consider the effect of amendments in the Limitation Act. Section 28 and Article 144 of the Limitation Act have been omitted through amendments brought in the Limitation Act. We have already observed in the case titled Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No.52 of 2005 decided on 10.4.2012] that after the omission of section 28 of the Limitation Act, a decree on the ground of adverse possession cannot be passed in favour of a person who claims adverse possession against the real owner. The title of property always remains with the true owner and after the deletion of Article 144 if a true owner files a suit against a person for possession on the basis of title, he can file suit at any time irrespective of limitation except the suit which is filed on the ground that the owner was in possession and he has been dispossessed. In that case the suit shall be governed by Article 142 of the Limitation Act and one has to file suit within 12 years." In another unreported case titled Muhammad Maroof Khan and others v. Mansoor Khan and others [2012 MLD 1479] it was observed as under:-- "

6. We have considered the argument of the counsel for the appellants that through an amendment, section 28 and Article 144 of the 1st Schedule of the Limitation Act, have been deleted and a decree on the ground of adverse possession cannot be passed. It is by now a settled law that repeal of law shall not affect the rights accrued to a party and repeal will not affect the proceedings pending in a Court." Similarly, in another unreported case titled Jalal-ud-Din v. Mst. Rozman and others [Civil Appeal No. 64 of 2006 decided on 12.7.2012] it was held by this Court as under:-- "The suit for possession can competently be filed under section 8 of Specific Relief Act on the basis of title. In the present case the suit was filed on 28.8.1998 when there was no prescribed limitation on the statute for filing a suit for possession on the basis of title as Section 28 and Article 144 of the Limitation Act had already been deleted through amendment brought in the Limitation Act on 7.12.1996 vide Ordinance No.LIV of 1996. After deletion of Article 144 of the Limitation Act, the owner can file a suit at any time. We are fortified in our view by the judgment of this Court delivered in the case titled Feroz Din Khan v. Muhammad Latif Khan and 5 others [PLD 2012 SC(AJ&K) 13] wherein it was observed that after deletion of Article 144, a suit for possession on the basis of title may be filed at any time. This view also finds support from another judgment of this Court titled Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No.52 of 2005 decided on 10.4.2012]."

9. Now we come to the controversy involved in the instant case. In this case admittedly the suit for possession was filed by the respondents on 12.8.1992, whereas the counter suit was also filed by the appellants, herein, on the same date, i.e., 12.8.1992 for seeking a decree of adverse possession. It is evident from the record that the suit for adverse possession was filed after the repeal of section 28 of the Limitation Act, therefore, in view of the judgments of this Court, referred to above, the suit on the ground of adverse possession was not maintainable and the decree cannot be passed after the repeal of the aforesaid section and if passed, that would be nullity in the eye of law. Therefore, we can safely hold that the suit for grant of a decree on the ground of adverse possession was barred by law.

10. The next question which needs to be resolved is whether by the amendment of aforesaid law, the right of ownership has been extinguished. This question also arose in the Ismadad's case referred to above, and relying upon the cases reported as Mahomed Raza Ahmed and another v. Zahoor Ahmed and others [AIR 1930 Allahabad 858], Abdul Alim and another v. Abdul Hamid [AIR 1930 Allahabad 866], The District Board, Banaras v. Churhu Rai and another [1956 Allahabad 680 (AIR V 43 C 223 Nov.)] and Ahmad Khan v. Rasul Shah and others [PLD 1975 Supreme Court 311] the same was resolved in the following manner:-- "

10. From survey of the case law referred to above, it is crystal clear that under the old Section if a suit for possession of immovable property was filed beyond the period of limitation, the said right of the owner shall be extinguished, after the amendment brought in the Limitation Act in the year 1992. The words "extinguished" and "extinguishment" have been changed into the words "barred" and "bar". After the period of limitation a suit for possession of immovable property beyond the period of limitation is barred but the ownership rights of the owner shall remain intact in the property.

11. Through the amendment of 1992, a proviso has been attached to section

28. A perusal of the proviso shows that in the light of deletion of word "extinguishment" and insertion of word "bar", an exception has been created that if an owner of property admits the claim of a person who is in possession of the property, then a decree of ownership can be passed in his favour. We may observe here that the effect of proviso is that it creates an exception to the main section. Since in the original section the ownership rights of the owner remain intact after period of limitation prescribed to file suit for possession of immovable property, the decree on the ground of adverse possession can only be passed if the defendant-owner admits the claim of the person, who claims decree on the ground of adverse possession. Otherwise the decree in favour of a person claiming adverse possession cannot be passed."

11. From the perusal of the record, it reveals that the appellants were defendant in the suit filed by the plaintiffs-respondents and during the trial they failed to prove their adverse possession over the suit land whereas the respondents have successfully proved their ownership. If a person succeeds to prove his ownership, his right remains intact which cannot be deemed to have extinguished. He is at liberty to file a suit for possession at any time for which no limitation has been prescribed. Therefore, we are fully convinced with the finding of the High Court that the respondents are owner of the disputed land.

12. After the repeal of section 28 of the Limitation Act and in view of the pronouncement made by the Court in supra case, there is no hesitation in our mind to hold that no decree in the suit of adverse possession could be passed on the basis of law which was no more available on the statute book. Resultantly, we do not find any substance in this appeal which is hereby dismissed with no order as to costs. ZC/74/SC(AJ&K) SAppeal dismissed.