P L D- 1996 Lahore 149 (PLP)

IHSAN‑UL‑HAQ CHAUDHRY, J.‑‑By this Single Judgment we propose to decide LPA No.152 ol'1970 and LPA No.163 of 1970 because both the appeals are directed Against the same judgment of the learned Single Judge in Chambers dated 15‑5‑1970.

2. The relevant facts for the decision of these appeals are that Amar Nath resident of Village Bhagowal, District Gujrat alongwith his family members embraced Islam at the time of the partition of the sub‑Continent and took up residence in Gujrat City, where he died in the year 1952 as Muslim and his name was Akhtar Hussain. He did not migrate to indicate any time. Akhtar Hussain had purchased property consisting of one house, one stable, two shops and two plots at a Court auction. The sale was made by the executing Court absolute. The property belonged to the judgment‑debtors Karam Singh and Ganda Singh who did not pursue the, matter. The result was that the auction was made absolute and executing Court proceeded to grant certificate to Akhtar Hussain on 16‑8‑1930. The property was treated as evacuee by the Rehabilitation Authorities after the creation of Pakistan. The Appellants initially represented to the Rehabilitation Authorities for not treating the property as evacuee and ultimately moved an application on 18‑10‑1958 under section 22 of Act XII of 1957. The application was dismissed by the Deputy Custodian vide order dated 15‑8‑1960 which was assailed by the appellants through an appeal. The appeal was accepted vide order dated 7‑1‑1961 and the application was remanded for fresh decision to the Deputy Custodian. The application was accepted vide order dated 13‑&1961 and it was held that Akhtar Hussain was full‑fledged owner of the property and since he had not migrated to India, therefore, the property Was not evacuee but as the value of the property was more than Rs.5,000.00, therefore, the proceedings were submitted for confirmation to the Additional Custodian of Evacuee Property. The respondents Nosl to 4 also filed appeals, which were accepted vide order dated 14‑7‑1962. The application of the appellants was rejected on the ground that since Akhtar Hussain had failed to assume possession, therefore, he lost title to the property. This order was assailed by the appellants through a revision before the learned Custodian, Evacuee Property. The same was dismissed vide order dated 26‑11‑1962. The appellants ultimately filed writ petition which was partially accepted by the learned Single Judge in Chambers vide judgment dated 15‑5‑1970. The result was that it was held that Akhtar Hussain had valid title to stable, two shops And two plots but in respect of the house the decision of the Custodian was upheld. Therefore, the appellants have filed the present appeal against the decision in respect of the house while respondent No.4 and the heirs of Rahmat Khan respondent No.2 have filed the other connected appeal. The appeals were admitted to hearing and notices were issued to the respondents.

3. The learned counsel for the appellants argued that the auction was confirmed by the Civil Court and certificate as required under Order XXI, Rule 94, C.P.C. was issued in favour of Akhtar Hussain. This completed his title. The delivery of possession has nothing to do with passing of title. The auction‑purchaser is neither under legal obligation to secure the possession through the Executing Court nor it is a condition precedent for perfecting his title in the property. It is argued that there is a long chain of precedents of the superior Courts that issue of possession can be settled by the auction purchaser with the judgment‑debtor out of Court. In this behalf, the learned counsel has referred to the cases reported as Pathaperumal v. Chidambaram AIR 1954 Madras 760 (Vol. 41 C.N 246), Jadav Chandra v. Akrur Chandra AIR 1930 Calcutta 586 and Ali Ahmad v. Muhammad Fazal PLD 1973 Lahore 207.

4. On the other hand, the learned counsel for the respondents argued that Akhtar Hussain did not move for possession under order XXI, Rule 95, C.P.C. This he could have done within three years from the grant of certificate. It is added that the judgment‑debtors continued in possession, they again became owners by way of adverse possession for 12 years and therefore, the property vested on them on the material date i.e. 1‑3‑1947, therefore, the same was covered by the definition of 'evacuee property' as contained in the section 2(3) of Act XII of 1957. It is, therefore, concluded that the Additional Custodian rightly refused to grant declaration. The appeal of the respondents, therefore, is U" to be accepted and that of the appellants is without any merit.

5. The learned counsel for the appellants while summing up the arguments submitted that section .28 of the Limitation Act has been declared against the functions of Islam, therefore, the findings recorded by the Additional Custodian are liable to be set aside on this ground alone. The learned counsel in this behalf has referred to the caw reported as Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063. It is added that the issue of possession was settled by Akhtar Hussain out of Court and the possession of the house was delivered to Gurdit Singh who had embraced Islam and continued to reside, in the village. He gave the house to Ch. Rahmat Khan. therefore, the possession was not that of the judgment‑debtors and lastly that none. of the evacuees at any stage had claimed adverse possession, therefore, there is no question of their becoming owners of the property by way of adverse possession. The plea of adverse possession is no longer available in view of the judgment of the Hon'ble Supreme Court in the case of Maqbool Ahmad (supra).

6. We have given our anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The learned Single Judge in Chambers has noted the case of Jadav Chandra (supra) where it was held that it was not necessary for the auction‑purchaser to take possession through Court in every case and possession of the property purchased in execution of the decree' can be obtained by him from the judgment‑debtors by means of private arrangement. it is clear from the bare reading of Rules 92, 94 and 95 of Order XXI, C.P.C. that the issue of delivery of possession has no bearing on the title which passes to auction‑purchaser with the issuance of sale certificate under Rule 94, therefore, the property vested in Akhtar Hussain on 16‑8‑1930.

7. The learned Single Judge in Chambers refused declaration in respect of the house for the reason that the application under rule 95 for possession through Court was barred by limitation while the suit for possession was barred under Article 142 of the Limitation Act. With utmost respect we find it difficult to agree with this part of the finding mainly for the reason that the learned Single Judge in Chambers has relied on Article 142 of the Limitation Act which deals with "For possession of immovable property when the plaintiff, while 'in possession of the property, has been dispossessed or has discontinued the possession". This is not the case of either side in the present appeals. It is added that the possession of the judgment‑debtors must be regarded as adverse before it matures into ownership and hostile to decree‑holder and auction purchaser. Therefore, in our humble view, the relevant Article is

144. But in the present case, there is nothing on the record, whatsoever, even to suggest that posture of the judgment‑debtors was hostile to the auction purchaser. The mere possession of whatever length is not sufficient to divest the owner of the property of his title by way of adverse possession. We in this behalf may refer to section 28 of the Limitation Act which reads as under:‑‑ "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 held that the owner has lost title on account of adverse possession and the possession of the persons must be hostile and continuous. We may in this behalf refer to the cases reported as Mir Laik Ali v. Standard Vacuum Oil Co. (Esso) PLD 1%4 SC 220 and Dadhu Mia v. Rahimuddin PLD 1964 Dacca

655. The possession of the licencee, however long, unless adverse possession is asserted and proved to the licensor is of no legal consequences. Reference in this behalf may be made to cases reported as Shafiur Rehman v. Jane Alam. Dobash, Mutwalli Waqf Estate 1971 DLC 161, Abdul Haniid v. Custodian, Evacuee Property PLD 1969 Lahore 404, Vasudeo Atmarank Joshi v. Eknath Balkrisana Thite (1910) 35 Bombay 79, Ali Ahmad v. Muhammad Fazal PLD 1973 Lahore 207 and Habib‑ur‑Rehman v. Ziarat Gul 1990 SCMR 1706, Bashiruddin. Fariadar v. Saradindu Narayan Roy CLJ 102 (LX PC) 1934. Section 28 is not independent. It has to be read subject to the provisions of Articles 141 to

144. In this behalf reference can be made to Abdul Hamid v. Custodian of Evacuee Property PLD 1969 Lahore

404. To the present controversy the relevant Article is 144 which reads as under:‑‑ "For possession of Twenty years When the possession of immovable property or the defendant becomes any interest therein adverse to the plaintiff." not hereby otherwise specially provided for. The cases of Khisro Nawaz v. Khanimullah and others PLD 1962 Peshawar 12A, Jogandra Chandra Kapali Choudhary and another v. Mun Chandra Kapali and others PLD 1964 Dacca 498 and Dudhu Mia and others v. Rahimuddin and others (supra) referred to by the learned Single Judge in Chambers, also support our view point. It is dear from the last column that limitation would run from "when the possession of the 'defendant becomes adverse to the plaintiff." So mere possession for any length of time 'does not extinguish the title of the owner. Now the facts of the case in hand are that Akhtar Hussain was entitled to possession through Court but. he did not make any effort meaning thereby that the possession of the judgment‑debtors, thereafter was permissible.

8. The case of Israr Bai v. Settlement Commission PLD 1965 (W.P.) Karachi 252 was clearly relevant because the appellants have subsisting interest in the property, the subject‑matter of the application under section 22 of Act XII of 1957.

9. The upshot of the above discussion is that LPA NO‑152 of 1970 is allowed. The result is that the application under section 22 of Act XII of 1957 of the appellants is accepted in toto while the appeal of the respondents is dismissed with no order as to costs. AA./J‑109/L Order accordingly