2017 PLP 78 (CLCN)

RAJA SAEED AKRAM KHAN, J.

The supra titled appeal, with the leave of the Court, has been addressed against the judgment and decree passed by the High Court on 28.2.2007, whereby while accepting the appeal, the judgment and decree passed by the Additional District Judge, Dhirkot, were recalled and that of the Civil Judge, Dhirkot, were restored.

2. The relevant facts culminating into this appeal are that the plaintiffs-respondents filed a suit for possession in respect of the suit land in the Court of Civil Judge, Dhirkot, against the defendants-appellants on 24.8.1992, alleging therein that in view of the revenue record, they are owners of the land measuring 41 kanals 18 marlas comprising survey Nos. 273 and 274 which is in possession of the defendants-appellants as tenants. The suit was controverted by the defendants-appellants alleging that they are in adverse possession of the land and their possession has ripened into ownership. The defendants-appellants, herein, also instituted a suit for adverse possession and perpetual injunction against the plaintiffs-respondents, herein in respect of same land in the Court of Civil Judge, Dhirkot on 30.5.1995. It was claimed that they are in possession of the suit land since their forefathers and their continuous and hostile possession has ripened into ownership and defendants-respondents, herein, have no concern with the land. The trial Court consolidated both the suits on 20.10.1998 and the parties were directed to lead evidence in support of their respective claims. After necessary proceedings, the suit filed by the plaintiffs-respondents for possession of the suit land was decreed while the suit filed by the defendants-appellants was dismissed for want of proof vide judgment and decree dated 23.12.2002. The defendants-appellants preferred an appeal before the Additional District Judge, Dhirkot, which was accepted vide judgment and decree dated 30.8.2004. The suit filed by the plaintiffs-respondents was dismissed and the suit for adverse possession filed by the defendants-appellants was decreed. The plaintiffs-respondents filed an appeal before the High Court on 5.11.2004. The High Court accepted the appeal and while setting aside the judgment and decree passed by the Additional District Judge, restored the judgment and decree passed by the Civil Judge, Dhirkot.

3. Raja Muhammad Hanif, the learned counsel for the defendants-appellants, has argued that the judgment of the High Court is against law and the facts of the case. The High Court failed to adhere to the law on the subject while passing the impugned judgment. He urged that the defendants-appellants have produced comprehensive evidence before the trial Court in support of their case to the effect that the possession over the suit land of the predecessor-in-interest of the defendants-appellants and thereafter the defendants-appellants was continuous, hostile to the rights of the plaintiffs-respondents and that the ownership rights of the plaintiffs-respondents' have been extinguished. He further submitted that even the evidence produced by the plaintiffs-respondents was supportive to the case of the defendants-appellants but this fact has been ignored by the High Court. He contended that the learned Civil Judge did not read the evidence as a whole which is against the norms of justice, whereas the learned Additional District Judge appreciated the evidence in its true perspective while keeping in view the evidence of both the parties in juxtaposition but the High Court has not taken into consideration and has reached the wrong conclusion that the defendants-appellants miserably failed to prove their adverse possession. The learned counsel has further submitted that the onus to prove that the suit for possession filed by the plaintiffs-respondents was within limitation, was upon the plaintiffs-respondents but they miserably failed to discharge the same. He submitted that the Additional District Judge was justified to hold that the suit filed by the plaintiffs-respondents was barred by limitation. He argued that the finding of the High Court in this regard is not sustainable in the eye of law. The High Court also failed to take into consideration that a local Commission was appointed who assessed the valuation of the improvements made upon the suit land by the defendants-appellants, but this fact has been totally ignored by the High Court. He argued that the High Court appears to have been influenced by the fact that section 28 and Article 144 in First Schedule of the Limitation Act have been repealed, therefore, the plea of adverse possession cannot be agitated by any person. In this regard the High Court has wrongly relied upon the judgment in Rozi Khan's case [1992 SCMR 445] and failed to take into consideration that the plea of adverse possession could be raised despite the aforesaid amendment in section 28 for the reason that Article 144 in First Schedule of Limitation Act was intact. Therefore, the finding of the High Court without adverting to the real facts relating to the legislative history that no plea of adverse possession could be agitated by the defendants-appellants is not correct. The High Court also failed to take into consideration that under sections 96 or 100, C.P.C., an appeal shall lie to the High Court from every 'decree' passed in appeal by a Court subordinate to it and in view of Order XLI, C.P.C., the memorandum of appeal shall be accompanied by a copy of decree appealed from, whereas the plaintiffs-respondents had not attached the certified copy of the decree passed by the Additional District Judge, therefore, the appeal filed by the plaintiffs-respondents before the High Court was incompetent and the High Court, upon an incompetent appeal, has illegally passed the judgment and decree which are liable to be set aside on this ground.

4. On the other hand, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the plaintiffs-respondents, while controverting the arguments advanced by the learned counsel for the defendants-appellants, has argued that the judgment of the High Court is legal and perfect, therefore, no interference is called for by this Court. He argued that the plaintiffs-respondents filed a suit in the trial Court on 24.8.1992 for possession of the suit land bearing survey Nos. 273 and 274, measuring 41 kanals 18 marlas, situate in village Manhasa, Tehsil Dhirkot, in which it was alleged that they are owners of the suit land and the defendants-appellants, herein, are tenants-at-will who were paying 'Batai' etc. till 1991. Thereafter they refused to pay the 'Ghalla Batai' or 'lagan'. It was further alleged that the defendants-appellants, herein, refused to hand over the possession of the suit land to the plaintiffs-respondents, herein, therefore, a plaint was filed by the plaintiffs-respondents for the recovery of possession along with allied prayers. The learned counsel has argued that after recording the evidence in the suit, the defendants-appellants filed a counter suit for declaration and perpetual injunction in respect of suit land on the basis of adverse possession on 30.5.1995. He further argued that the revenue record, spreading over hundred years, reveals that the plaintiffs-respondents are owners of the suit land and the entries in the revenue record had never been challenged by the defendants-appellants and presumption of finality is attached with these entries. He urged that the plaintiffs-respondents have proved their case by producing unrebutted evidence in the shape of oral as well as documentary, whereas the defendants-appellants have failed to establish the plea of their adverse possession. He lastly argued that in view of the recent precedents of this Court, this issue has been settled in a comprehensive manner, therefore, the findings of the High Court in this regard are well reasoned and quite in accordance with law, procedure and the record of the case. The defendants-appellants failed to point out any irregularity or illegality committed by the High Court while passing the impugned judgment.

5. We have considered the arguments, perused the record and also gone through the impugned judgment. The plaintiffs-respondents filed a suit for possession of the land in dispute on 24.8.1992 on the ground that they are owners of the land which is in possession of the defendants-appellants, herein, as tenant and the defendants-appellants, herein, had abandoned the payment of 'Batai' and also refused to hand over the possession of the land. The defendants-appellants filed a counter suit on 30.5.1995 on the ground that they are in possession of the land from their forefathers and their case of adverse possession has matured into ownership, therefore, they are entitled to a decree of adverse possession. During the pendency of the suit, an amendment was brought in the Limitation Act through which section 28 and Article 144 of the Limitation Act were amended. On the basis of the aforesaid amendment in the Limitation Act, the trial Court, after hearing the parties, passed a decree for possession in favour of the plaintiffs-respondents and dismissed the suit for adverse possession filed by the defendants-appellants, herein. On appeal, the learned Additional District Judge set aside the judgment and decree passed by the trial Court in favour of the plaintiffs-respondents and decreed the suit for adverse possession filed by the defendants-appellants. However, on appeal, the High Court concurred with the finding of the Civil Judge and set aside the judgment and decree passed by the Additional District Judge. 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." 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 envisage 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 etc. 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 case titled Muhammad Maroof Khan and others v. Mansoo 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 a 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]."

6. Now we come to the controversy involved in the instant case. In this case admittedly the suit for possession was filed by the plaintiffs-respondents on 24.8.1992, whereas the counter suit was filed by the defendants-appellants, herein, on 30.5.1995 for seeking a decree of adverse possession. Section 28 of the Limitation Act was amended through an amendment brought in the Limitation Act on 29.6.1992, whereby for the word 'extinguishment' the word 'barred' were substituted. A proviso was also added to the section. It will be useful to reproduce the amended section 28 of the Limitation which reads as under:-- "

1. Short title and commencement.

(1) This Act may be called the Limitation (Amendment) Act, 1992. (2) ............................................................... (3) ............................................................... (4) ............................................................... (5) ............................................................... (6) Amendment of Section 28, Act IX of 1908.

In the said Act, in section 28,- (a) for the word 'Extinguishment' the word 'Bar' and for the word 'extinguished' the word 'barred' shall be substituted. (b) after section 28, the full stop at the end shall be substituted by a colon and thereafter the following proviso shall be added, namely.- 'Provided that if the defendant is the owner of the property and he admits the claims of the plaintiff in the Court, then the Court shall decide the case according to this admission.'" A perusal of the amendment makes it abundantly clear that after the amendment in section 28 of the Limitation Act, a person claiming adverse possession cannot seek a decree of ownership on the ground of adverse possession except in the case where the owner himself admits the right of the party. The proposition has already been resolved by this Court in a case titled Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No. 52 of 2005 decided on 10.4.2012] in which it has been held as under:-- "

9. For determining the purpose that what right vests in favour of the rival plaintiff, who seeks decree on the ground of adverse possession, we have to go through the provisions of Section 28 of the Limitation Act. It will be useful to reproduce original Section 28 of the Limitation Act, which reads as under:-- '

28. Extinguishment of right to property. At the determination of the period thereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.' A plain reading of section 28 of the Limitation Act shows that if a suit for possession of immovable property is filed after the period of limitation, his right to such property shall be extinguished. Under Article 144 of the Limitation Act, the limitation for filing suit for possession of immovable property is 12 years, if adverse possession of a party is proved. The right of plaintiff is to be extinguished but section 28 was amended in the year 1992 through amending Act No. X of 1992, promulgated on 24.6.1992, whereby Section 28 has been amended. For resolving the controversy it is necessary to reproduced amendment:- (6) Amendment of section 28, Act IX of 1908.- In the said Act, in section 28,- (a) for the word 'Extinguishment' the word 'Bar' and for the word `extinguished' the word 'barred' shall be substituted. (b) after Section 28, the full stop at the end shall be substituted by a colon and thereafter the following proviso shall be added, namely.- `Provided that if the defendant is the owner of the property and he admits the claims of the plaintiff in the Court, then the Court shall decide the case according to this admission.' A perusal of the amendment shows that in the existing section in the heading of Section instead of word 'extinguishment', word 'bar' has been replaced and at the end of the section, instead of word `extinguished', word 'barred' has been used. The word 'extinguishment' indicates a total alienation of a right of a person in the property. In the existing section while entering the word 'extinguished', the intention of the Legislature was clear that if a suit for possession of immovable property is filed beyond the period of limitation prescribed for the purpose, which was under Article 144 of the 1st Schedule of Limitation Act, the right shall be extinguished. Through amendment brought in the year 1992 the word 'extinguished' has been replaced by the word 'barred'. Under unamended section 28 if a suit for possession was filed beyond the period of limitation, the right of the owner in the property shall extinguished but after the amendment the right of an owner of the property is not extinguished, only remedy for filing the suit for possession beyond the period of limitation is barred and title of the owner remains intact, ....."

7. Now the question arises whether the suit filed by Muhammad Rafique Khan and others for possession was rightly decreed and the judgment of the District Judge is maintainable. 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, whereunder 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.

8. In Azad Jammu and Kashmir vide Act X of 1992 dated 24.6.1992 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.

9. 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.

10. Now we advert to the next question, 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 question 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 defendants in the suit and during the trial they failed to prove their adverse possession over the suit land. Although mere non-payment of 'Batai' does not extinguish the right of adverse possession but if a person succeeds to prove his ownership, his right remains intact which cannot be 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 old record as well as the record prepared in the present settlement shows the plaintiffs-respondents as owner of the disputed land while the defendants-appellants have been shown as tenants. Mere peaceful possession spreading over decades or possession in absence of land owners cannot be regarded as adverse. The record does not reveal that the defendants- appellants were in possession of the suit land as owners and the entries made in the revenue record were never challenged before any forum which have attained finality.

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/9/SC(AJ&K) Appeal dismissed.