1988 PLP 1002 (MLD)

MUHAMMAD ASADULLAH, J.‑‑This Judgment will dispose of this R.FA. as also Civil Revisions Nos.1856 and 1857 of 19rboth entitled "Mst. Aziz Begum etc. v. Malik Din etc." as the subject‑matter involved is the same in all of them.

2. The house in dispute was owned by one Shafqat Ali who sold the same in favour of Feroze Din through a registered sale‑deed on 28‑6‑1952. Karam Din the predecessor‑in‑interest of the present respondents filed a suit for possession of the said house through pre‑emption against .the said Feroze Din. The suit was decreed in favour of Karam Din on 19‑2‑1962. Feroze Din filed an appeal and a second appeal which were dismissed. He then filed an appeal before the Honourable Supreme Court which was dismissed by them on 11‑2‑1966. During this period the execution of the decree for pre‑emption naturally remained stayed. On 24‑3‑1966 Abdul Wahid the deceased‑appellant now represented by his Legal Representatives, and who was a son‑in‑law of the said Feroze Din, filed a suit claiming that he had become owner of the suit house through adverse possession. The execution of the decree for pre‑emption still remained stayed because of stay orders in the suit filed by Abdul Wahid. Ultimately the stay order was vacated by the High Court with the observation that Abdul Wahid may not be ejected without due process of law. In view of the vacation of the stay order a warrant of possession in execution of the pre‑emption decree was issued by the learned Executing Court. According to the report of the Bailiff possession of the house in dispute was delivered to Karam Din on 13‑4‑1967. However, according to the respondents the said Abdul Wahid who admittedly, was a police official took forcible possession of the house in dispute on 15‑4‑1967. A criminal case was registered against Abdul Wahid etc. but it could not meet with success. A writ petition challenging their order of acquittal is still pending in this Court. Karam Din then filed the present suit for possession of the disputed house, number SW XXXI‑4‑AS‑2/B, situated in village Saidpur, Multan Road, Lahore (within the limits of Municipal Corporation, Lahore), on the basis of his said title acquired through the said pre‑emption decree. He also filed a suit for recovery of Rs.5,400/‑ as arrears of rent i.e., mesne profits. On the other hand, as already said, Abdul Wahid the deceased‑appellant had filed a suit seeking a declaration that he had become an owner of the house through adverse possession. All the three suits were consolidated by the learned trial Court. Following consolidated issues were framed:‑ (1) Whether the plaintiff has perfected his title over the suit property as being in adverse possession, if so its effect? OPP (2) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction, if so, what is the correct valuation? OPP (3) Whether the plaintiff has got no locus standi in view of preliminary objection No.2 of the written statement? OPD (4) Whether the suit does not lie in view of preliminary objection No.4 of the written statement? OPD (5) Whether the plaintiff is estopped‑ by his conduct to file the suit? OPD (6) Whether the suit is not maintainable in its present form? OPD (7) Whether the present suit is brought in collusion with defendants No.10 to 23, if so, its effect? (8) Whether plaintiffs in suit No.364/1 are entitled to Rs.5,400/‑ as arrears of rent in respect of property No.SW‑XXXI‑4‑A‑S‑2/B from the defendant? OPP (9) Whether the plaintiffs in suit No.363/1 are owner of the disputed property and entitled to get possession of the suit property? OPP (10) Whether this suit No.363/1 is properly valued for the purposes of court fee and jurisdiction, if not, what is the correct valuation? OPP (11) Whether the suit No.363/1 cannot lie in view of preliminary objection No.3 of written statement? OPD (12) Relief: The issues were decided in favour of the respondents. The two suits filed by Karam Din were decreed while the suit filed by Abdul Wahid was dismissed by the learned Civil Judge, 1st Class, Lahore vide judgment dated 14‑11‑1983. In view of the valuation of the suit for possession Abdul Wahid filed this R.F.A. in this Court while he filed appeals relating to the other two suits before the learned District Judge. The said two appeals filed by him were dismissed by the learned Additional District Judge, Lahore vide judgment dated 1‑11‑1987. The said two revision petitions have been filed against the said appellate judgments and decrees. It may be pointed out that m C.R. No.1857‑D/87, the successors‑in interest of Feroze Din have not been joined as parties. Suit No.497/1 of 1982 out of which the said revision petition has arisen was filed by Abdul Wahid deceased for a declaration that he had become owner of the house in dispute through adverse possession and the same was dismissed by the learned trial Court and the appeal filed there against was also dismissed by the learned Additional District Judge, Lahore vide order dated 1‑11‑1987 as aforesaid. We have perused the record and have heard the learned counsel for the parties.

3. The appellants have contested the appeal and the revision petitions only on issue No.1 which is connected with issue No.9 as well. The findings of the learned Courts below on other issues are not challenged before us.

4. So far as the question of ownership of Karam Din, the predecessor‑in -interest of the respondents is concerned, that has been disputed only on the basis of the claim for adverse possession preferred by Abdul Wahid deceased. It is not disputed that Feroze Din purchased the house in dispute from Shafqat Ali trough a sale deed registered on 28‑6‑1952, that Karam Din filed a suit for possession of the suit house through pre‑emption; that the same was decreed on 19‑2‑1962 that the case went up in appeal to the level of the Honourable Supreme Court wherefrom the appeal filed by Feroze Din deceased was dismissed and that the decree for pre‑emption passed on 19‑2‑1962 in favour of Karam Din remained intact. The judgment of the Honourable Supreme Court is on the file as Exh.P.13. This is itself is sufficient to prove that Karam Din was the owner of the house in dispute and the respondents are its owners now as his successors‑in interest/legal representatives. The finding on issue No.9 is, therefore, confirmed.

5. To prove issue No.1 relating to adverse possession the appellants produced Allah Ditta (D.W.1), Mst. Mahtab Bibi (D.W.2) and Abdul Wahid deceased himself appeared as D.W.3. D.W.1 stated that Abdul Wahid was in possession of the bungalow in dispute since 1929‑

30. The case of Abdul Wahid on the other hand was that he came into possession of the same in 1952 and so has been stated by him as D.W.3. D.W.1 was a tutored witness and, therefore, he could not make the deposition exactly as tutored to him and therefore, gave the year of possession of Abdul Wahid as 1929‑30 when he might not have even been born. Because of this serious contradiction his evidence is not reliable and so is the case with the evidence of D.W.3 whose evidence is not believable also because of his being the plaintiff in the case as also because there is no cogent evidence to support him. Mst. Mahtab Bibi D.W.2 claims to be a mid‑wife and states that Abdul Wahid was residing in the house in dispute since 29/31 years. Her statement is contradicted by the statement of D.W.1. She states that she acted as a mid‑wife at the time of the birth of the first child of Abdul Wahid namely Tahir Ali. She conceded that it was a well recognized custom that at least the first child of a married couple is born in the house of the parents of the wife‑mother. This is such a custom that we not only know of it but also follow the same. Therefore, the evidence of D.W.2 instead of helping the case of Abdul Wahid knocks down his case because that goes to prove that the said child was born in the house of the parents of the mother of the said child. It is admitted by D.W.1 as also by D.W.3 that Abdul Wahid was a son‑in‑law of Feroze Din who had originally purchased the said house and against whom Karam Din had successfully filed the said pre‑emption case. Naturally Feroze Din‑alongwith his family was living in the said house and due to the said custom his daughter, wife of Abdul Wahid, came to that house and gave birth to the said child Tahir Ali (Muhammad Tahir) Therefore, the evidence of D.W.2 in itself suffices to prove that it was Feroze Dingy and his family who were then living in the house in dispute as owners and the " daughter of Feroze Din came there for the delivery of the said child. As such her evidence also proves that Abdul Wahid may be staying in the said house as a son- in‑law of Feroze Din alongwith him at that time and not of his own right. The birth certificates Exhs.D.3, D.5 and D.6, apart from the birth certificate Exh.D.4 of Muhammad Tahir, have been placed on record to show that Abdul Wahid alongwith his wife was living in the said house. However, none of these birth certificates carries the house number and therefore, the same do not operate to prove that the said children were born in the house in dispute. However, even if they were born there that would not mean that Abdul Wahid was residing there as an owner in adverse possession. Abdul Wahid himself was admittedly in police service and according to him he served the said department for thirty‑nine and a half years. D.W.2 has conceded that Abdul Wahid used to reside at the places of his postings. Naturally his wife could reside with her parents in their house i.e. the house in dispute and that practice is also usual. Therefore, even if all the said children were born in the house in dispute that fact will not support the case Abdul Wahid. Relevant copy of electoral roll of 1971 Exh.D.7 has also been file to show that Abdul Wahid resided in the said house and also to establish that Feroze Din resided at another place in Nadir street No.10. We wish that the said electoral roll would have been examined by the party concerned or his learned counsel before filing the same. The entry relating to Feroze Din will show that it relates to Feroze Din who was of Christian religion. Abdul Wahid deceased was not a son‑in‑law of a Christian and Feroze Din his father‑in‑law never claimed to be a Christian. They claimed themselves to be Muslims. Therefore, the said entry does not relate to Feroze Din the father‑in‑law of Abdul Wahid deceased. It was mentioned by D.W.1 and so was stated by Abdul Wahid D.W.3 that Abdul Wahid obtained possession of the disputed house from one Jhanda. D.W.3 also added that at that time the owner was one Babu Muhammad Hussain. Neither the said Jhanda tier the said Muhammad Hussain were produced in evidence by the appellants to support their case. As a matter of fact no such person existed otherwise they or any of them would have been produced in evidence by the appellants. These fictitious names were mentioned just to avoid the admission that Feroze Din was the owner of the house. This scanty, unreliable and total false evidence could not prove the concocted story of adverse possession put forward by Abdul Wahid deceased.

6. Reverting to the aspect of ownership and possession it may be stated that there is no denial that the house in dispute was sold through registered sale‑deed dated 28‑6‑1952 by one Shafqat Ali in favour of Feroze Din, the father‑in‑law of Abdul Wahid deceased. A suit to pre‑empt the said sale was filed by Karam Din deceased and it was decreed in his favour on 19‑2‑1962. This decree remained intact when the appeal of Feroze Din was finally dismissed by the Honourable Supreme Court through judgment dated 11‑2‑1966 Exh.P.13. It was after this appellate decision that Abdul Wahid filed the said declaratory suit (regarding adverse possession) on 24‑3‑1966. The execution of the decree dated 19‑2‑1962 remained stayed due to the pendency of the appeals up to the Honourable Supreme Court. Thereafter, the execution remained stayed m the proceedings of the said suit for declaration (regarding adverse possession) filed by Abdul Wahid. Finally when the stay order was vacated by the High Court the warrant of possession was issued by the learned Executing Court. The‑report of the Bailiff Exh.P.1 shows that the warrant of possession was duly executed and vacant physical possession of the‑ house in dispute was delivered to Karam Din. The order of the learned Executing Court wade op. 5‑5‑196; shows that the execution application was consigned to the record room because the decree had been fully satisfied. The possession teas delivered to Karam Din through due process, of law, and in execution of the decree which had remained intact up to the Supreme Court. There is absolutely no reason to doubt this report of the Bailiff. Therefore, it is quite clear that Feroze Din alongwith his family and others were ousted from the house in dispute on 13‑4‑1967 and even if the family of Abdul Wahid or he himself was residing therein they were all ousted from the same.

7. When the appeal of Feroze Din before the Honourable Supreme Court was dismissed on 11‑2‑1966 it became clear to Feroze Din and Abdul Wahid that in execution of the decree they will be turned out of the house and therefore they in collusion with each other filed the suit for declaration (regarding adverse possession) through Abdul Wahid deceased. Abdul Wahid stated that he did not know of any litigation between Karam Din and Feroze Din in respect of the said suit for pre‑emption. But it was such a known fact that even D.W.2.admits as correct that Karam Din had filed a suit for pre‑emption against Feroze Din. Being a son‑in‑law of Feroze Din he naturally had the knowledge of sale in favour of Feroze Din and then of the suit of pre‑emption and then of the failure of Feroze Din in his appeal before the Honourable Supreme Court. He does not allege that his relations with his father‑in‑law were ever. strained; that they were not an speaking terms or that they did not meet each other, even if they were living separately. Therefore, the assertion of Abdul Wahid that he did not know of the sale and litigation regarding pre‑emption is totally false and unbelievable. The execution of the warrant of possession in these circumstances very clearly shows that it was Feroze Din and all others who were ousted from the house in dispute on 13‑4‑1967 and it also proves that it was Feroze Din. who was occupying the house in his own right and not Abdul Wahid deceased as a claimant of adverse Possession. Aft these factors taken together disprove the claim of adverse possession put forward by Abdul Wahid deceased and go along way to prove that it was Feroze Din who remained in possession till the execution of warrant of possession on 13‑4‑1967. The question of adverse possession by Abdul Wahid, therefore, does not arise.

8. The right of ownership and right of possession came to vest in Karam Din from 13‑4.1967 when the possession of the house in dispute was delivered to him in execution of the decree. In any case he was not the owner of the house till the decree dated 19‑2‑1962 for pre‑emption was passed in his favour and till he paid the pre‑emption money in compliance with the same. The question of adverse possession against Karam Din could arise from the date from which obtained the possession i.e., from 13‑4‑1967 when it was obtained try him in execution of the said decree. No adverse possession could claimed against Karam Din‑prior to that date. Abdul Wahid deceased did not claim any adverse possession against Feroze Din his father‑in‑law so much so that he never stated that he had any strained relations with Feroze Din. If he had usurped the house of his father‑in‑law even Feroze Din would have raised hue; and cry or he would not have fought his case up to the Honourable Supreme Court. However, it may be added that not a single: word was uttered by Abdul Wadid D.W.3 to claim adverse possession against Feroze Din till 13-4-1967. It may be repeated that legally adverse possession against an. owner starts from a date when such an 1 owner himself becomes entitled to possession as an owner. Therefore, the possession of Abdul Wahid as against Karam Din or the respondents could be from 13‑4‑1967 or afterwards and not from a date prior to that date. Therefore the question of adverse possession as against any one does not arise at all.

9. It has been pointed out earlier that Abdul Wahid was a son‑in‑law of Feroze Din and it has also been mentioned that admittedly Abdul Wahid was a police official. It is also proved from the record that the parties have been litigating since 1953 starting with the suit for pre‑emption. In these circumstances the suit filed for ownership through adverse possession was a collusion between Feroze Din and Abdul Wahid in an attempt to deprive Karam Din and the respondents by prolonging their possession so long as possible. Once the warrant for possession was executed the deceased Abdul Wahid alongwith others managed to dispossess Feroze Din and in respect of that occurrence a criminal case was initiated. However, the respondents were unlucky because then policeman once again won the field. A writ petition against the acquittal of Abdul Wahid etc. is still pending and therefore we need not examine the question of trespass allegedly made by Abdul Wahid etc. on 15‑4‑1967. However, it is sufficient to say that Abdul Wahid was never in possession of the house in dispute in his own right; that Feroze Din alongwith all the others, including Abdul Wahid and his family if they were living with him, were dispossessed and ousted on 13‑3 1967 and that Abdul Wahid then came into illegal possession of the house from 15‑4‑1967. Due to the present litigation between the parties the adverse possession against the respondents will not run even from 15‑4‑1967. The appellants have miserably failed to prove the allegation of adverse possession. The finding of the learned Courts below on issue No.1 is confirmed.

10. Before parting with the case it may be mentioned that it is on record that Abdul Wahid also claimed that he had added to the construction of the house in dispute. However, he could not prove the making of such construction by himself. He was a trespasser in the house and so is the position of the appellants. Therefore, when the possession is delivered to the respondents it should be whole of the house as it is, i.e., with all the constructions standing/existing therein.

11. With these observations the appeal and the revision petitions are dismissed with costs throughout. S.Q./A‑291/L Appeal and revisions dismissed.