P L D 1988 Lahore 258 (PLP)

S‑115‑‑Suit for declaration of title and possession of property Revision ‑‑Concurrent findings of fact reached by two Courts below on the basis of record to the effect that plaintiff had not been able to prove title in suit property‑‑No error of jurisdiction found to be involved in such findings‑‑Such findings, held, deserved to prevail for the purposes of revision due to their being eminently justified on the record. (f) Adverse possession Permissive possession cannot become adverse to the rightful owner whereabout even ignorance has been professed in the case. Sarwar and another v. Malik Hakim Khan and others P L D 1958 Lah. 568 ref. (g) Practice and procedure Filing of unmaintainable cases on altogether untenable grounds leads to numerous evil s‑‑C o‑operation of the Bar and need for appropriate legislation to invest power in the superior Courts enabling them to, in suitable cases. pass order at the limine stages of their disposal, for not merely the refund by the concerned counsel of the money expended by an innocent litigant as his professional fee but also paying to him all other charges which are borne by him in maintaining such a case and if the view of the Court be that litigant is to be blamed for maintaining a frivolous case that he may be burdened at that stage with suitable costs to re‑compensate the exchequer for the uncalled for consumption of public time‑‑Mere dismissal in limine of such cases does not provide any measure for rectification and the existing provisions of Ss.35 & 35‑A, C.P.C. do not cater for such situation s‑‑Civil Procedure Code (V of 1908), Ss.35 & 35‑A. Tendency of filing unmaintainable cases on altogether untenable grounds has of late been alarmingly on an increase. This tendency leads to numerous evils, for example, thereby innocent litigants are led to incur heavy expenditures on the false hopes of succeeding in such cases as the law contemplates must conclude at the lower tiers of the judiciary. Scope and limitations for interference in different kinds of litigations have been succinctly laid down by the superior Courts in the country and they are being re‑iterated day in and day out in the reported case but still cases are being maintained in utter disregard of the expositions of law made therein with the result, that it is becoming increasingly difficult for the High Court to cope with the daily institution and there is little time left for attending to pending cases, the number whereof pending in the High Court since more than a decade has swelled to well over fifty thousand and once a case is admitted to regular hearing, it takes almost 15 years for its turn to be heard. Co‑operation of the Bar is now direly needed, much more than ever before, for clearing such a heavy back‑log of cases and if the present trend of indiscriminately bringing cases to the High Court continues unabated then this already over‑burdened. Court will continue to be further burdened so that the problem would not be likely to be solved by even doubling the present strength of the High Court. One way in which the problem can be tackled successfully is that the Bar may itself rise to the occasion so as to realise the gravity of the situation and in addition to refraining from seeking unnecessary adjournments, its members may bring to this Court only those cases which stand in the genuine need of being determined here by the High Court in accordance with the standards from time to time laid down for this purpose. Since it is not humanly possible to in this behalf lay down any rules of universal application, therefore, one way of achieving the object can be that appropriate legislation is brought in the field to invest power in the superior Courts enabling them to in suitable cases pass orders at the limine stages of their disposal for not merely the refund by the concerned counsel of the money expended by an innocent litigant as his professional fee but also paying to him, all other charges which are borne by him in maintaining such a case and if the view of the Court be that the litigant is to be blamed for maintaining a frivolous case then he may be burdened at that stage with suitable costs to recompense the Exchequer for the uncalled for consumption of public time because mere dismissal in limine of such cases does not provide any measure for rectification and the existing provisions of sections 35 and 35‑A of the C.P.C. do not cater for such situations because whereas under the former only prescribed costs are capable of being awarded and compensatory costs cannot be given; under the latter an objection for the purpose being taken by the opposite party at the earliest opportunity is the necessary condition and there is generally no opposite party in attendance at the limine hearing of cases and invariably there is no claim made at any stage for recompensing the Exchequer. Malik Noor Muhammad Awan for Petitioner A suit filed by the petitioner, for declaration of title and consequential reliefs of injunction and possession, with regard to a house situated in the Abadi of village known as Dhok Ali Khan Dakhlee in Tehsil Mianwali was contested by the defendant by denying his claim and also raising a number of technical objections. It was set down to be tried on a total of 12 issues, including relief but issues Nos.3 and 9, relating respectively to the form of the suit and the plaintiff's title to the suit property, alone were the pivotal issues pressed during the trial. On the basis of evidence led by the parties learned trial Judge held that the plaintiff had not been able to prove any title for the suit property and dismissed the suit by means of his judgment and decree dated 20‑12‑1983.

2. Plaintiff filed an appeal thereagainst in the District Court which was heard by a learned Additional District Judge who made are appraisal of the evidence of the parties and came to the conclusion that the plaintiff had not proved any title in himself and whereas in his plaint he had not even pleaded adverse possession apart from his own statement made as P.W.3 he had produced his two sons Muhammad Yousaf and Sher Hussain as the only witnesses whose statements had been recorded as P.Ws. 1 and 2 respectively and neither of them had uttered even a word about adverse possession. So much so that even the plaintiff himself had not made any such statement and the ingredients of adverse possession had not been proved in any manner. Moreover, Muhammad Yousaf P.W.1, like the other witness, had clearly stated that they have been living in this house for the last 70 years and this statement was also re‑affirmed by him during the cross -examination with the explanation that he did not know as to how had his grand‑father got the house in dispute, whether with the permission of Ali Khan (father of defendant No.1) or by giving anything in exchange therefor. The trial Court's findings accordingly were hence affirmed by him to dismiss the appeal by means of the judgment and decree dated 24‑11‑1987. The plaintiff has now come up to this Court on revision.

3. The revision petition itself was not accompanied originally by the copies of all the documents required to be filed under the Proviso to subsection (1) of section 115, of the C.P.C. but those of Exhs. 7, 9 and 10 only were furnished by the petitioner subsequently on the basis of C.M.No.73‑C of 1988 which were taken on the record. Although copies of the statements of Muhammad Yousaf and Sher Hassan recorded respectively as P.Ws. 1 and 2 have been furnished alongwith those of the statements made by D.Ws. 1 to 4, yet, that of the statement made by the plaintiff himself as P.W.3 has not been produced contrary to the requirement of the aforementioned proviso which also enjoins that the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. There is no reason made out for calling the record of the suit and, hence, this civil revision has to be decided on the present record.

4. It was contended that in an earlier round, the dispute between the parties had come up to this Court in Civil Revision No.416 of 1980 which arose out of a pre‑emption suit filed by defendant No.2 against the petitioner wherein it was finally concluded that the present petitioner (being a defendant therein) had perfected his title on account of long possession but the appellate and revisional judgments passed in that suit have not been considered by the two Courts below to hold the contrary herein despite the principle of res judicata getting attracted to issue 9 relating to the plaintiff's, ownership of the suit property. No doubt the plaintiff -petitioner did not found his suit on the plea that he may have acquired title on account of perfected adverse possession. This is the requirement of law that such a plea has to be specifically set up, as held in Saifur Rahman and two others v. Haider Shah and another P L D 1967 S C 344 and also in Naik Muhammad and another v. Manzoor Ahmad and others 1983 S C M R

13. The plea with regard to the principle of res judicata barring the suit of the plaintiff was actually taken by the defendant in his written‑statement which has, however, been rightly decided against him to otherwise dismiss the plaintiff's suit on merits and the defendant does not have any grievance thereabout, yet, the copies of the previous judgments had not been furnished on this record despite their having been got exhibited as P.2 and P.4 in the trial Court but in the interests of justice the record of the said Civil Revision has been called and perused.

5. The above assertion with regard to failure of the two Courts below to consider the said judgments is manifestly incorrect inasmuch as the trial Court has addressed itself thereto in paragraph 8 of the judgment but refused to accept them as binding in this litigation because Malik Attar Khan defendant No.1 was not a party thereto; in the appellate judgment, they find mention at page 4 to be discarded as not having any direct bearing on the issue of ownership of the plaintiff. Such judgments as are not inter partes had to be held irrelevant under the provisions of section 44 of the Evidence Act. There also cannot be any question of section 11 of the C.P.C. getting attracted on account of those judgments because, clearly enough, the defendant‑respondent No.1, the principal contestant herein, was not a party in the pre‑emption suit filed by his son Malik Muhammad Aslam in his own right and in the present suit, former cannot be regarded to be claiming under the latter and muchless can they be litigating now under the same title. Contention fails thus.

6. Any other contention has not been raised before me. This case really gets concluded with the concurrent findings of fact reached by the two Courts below on the basis of record to the effect that the plaintiff had not been able to prove any title in the suit‑property. There is no error of jurisdiction pointed out to be involved therein and hence the said findings have to prevail for the purposes of revision due to their being eminently justified on the record. Again, neither has the plea of adverse possession been taken in the plaint nor have its ingredients been proved anywise. So much so that the P.Ws. do not appear to have uttered even a word on the point and although a copy of the statement made by the plaintiff has not been placed on this record and only those of the first two witnesses examined by the plaintiff as P.Ws. 1 and 2 have been provided, yet, learned Additional District Judge has observed that even P.W.3 has not so averred in his statement. There is no basis made out on this record for doubting the authenticity thereof. On the contrary, there are admissions made by the said P.Ws., who are the sons of the plaintiff, to the effect that the possession of the plaintiff, was permissive to the ostensible title clearly admitted by them to be vesting in the ancestors of the defendants. As has been held in Sarwar and another v. Malik Hakim Khan and others P L D 1958 Lah. 568, permissive possession cannot become adverse to the rightful owner whereabout even ignorance has been professed in this case. Thus, the plaintiff has been rightly non‑suited in these circumstances.

7. There is no case at all made out for exercise of revisional jurisdiction and, in fact, this civil revision is only frivolous. This case did not deserve to be brought to the High court. Tendency Of filing unmaintainable cases on altogether untenable grounds has of late been alarmingly on an increase. This tendency leads to numerous evils, for example, thereby innocent litigants are led to incur heavy expenditures on the false hopes of succeeding in such cases as the, law contemplates must conclude at the lower tiers of the judiciary. Scope and limitations for interference in different kinds Of litigations have been succinctly laid down by Superior Courts in the country and they are being reiterated day in and day out in the reported cases but still cases are being maintained in utter disregard of the expositions‑ of law made therein with the result that it is becoming increasingly difficult for this Court ' to cope with the daily institution and there is little time left for attending to pending cases, the number whereof pending in this Court since more than a decade has swelled to well over fifty thousand and once a case is admitted to regular hearing, it takes Almost 15 years for its turn to be heard. Co‑operation of the Bar is now direly needed, much more than ever before, for clearing such a heavy back‑log of cases and if the present trend of indiscriminately bringing cases to the High Court continues unabated then this already over‑burdened Court will continue to be further burdened so that the problem would not be likely to be solved by even doubling the present strength of this Court. One way in which the problem can be tackled successfully is that the Bar may itself rise to the occasion so as to realise the gravity of the situation and in addition to refraining from seeking unnecessary adjournments, its learned members may bring to this Court only those cases which stand in the genuine need of being determined here by this Court in accordance with the standards from time to time laid down for this purpose. Since it is not humanly possible to in this behalf lay down any rules of universal application, therefore, one way of achieving the object can be that appropriate legisiation is brought in the field to invest power in the superior Courts enabling there to in suitable cases pass orders at the limine stages of their disposal for not merely the refund by the concerned counsel of the money expended by an innocent litigant as his professional fee but also paying to him all other charges ,maintaining . A case and the Court be that the litigant is to be blamed for maintaining a frivolous case then he may be burdened at that stage with suitable costs to recompense the Exchequer for the uncalled‑for consumption of public time because mere dismissal in limine of such cases does not provide any measure for rectification and the existing provisions of sections 35 and 35‑A of the C.P.C. do not cater of such situations because whereas under the former only prescribed costs are capable of being awarded and compensatory costs cannot 13e given; under the latter an objection for the purpose being taken by the opposite party at the earliest opportunity is the necessary condition and there is generally no opposite party in attendance at the limine hearing of cases and invariably there is no claim made at any stage for recompensing the Exchequer. A copy hereof will be sent to the Secretary, Ministry of Justice and Parliamentary Affairs. Government of Pakistan, Islamabad for suitable action being taken in this direction. In result for the aforestated reasons, this Civil Revision is dismissed in limine. M.B.A./A‑272/L Revision dismissed.