2007 PLP 597 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner seeks leave to appeal against the judgment dated 4-3-2004 of a learned Judge in Chambers of the Peshawar High Court, Abbottabad Bench, whereby Civil Revision No.2 of 2000 filed by him was dismissed.

2. Briefly, stated the facts giving rise to the filing of instant petition are that petitioner filed a suit against respondents for declaration that he is the owner in possession of the suit-land situated in village Neelore Tehsil and District Mansehra for being remained in possession as mortgagee for more than 60 years as well as being in adverse possession for more than 12 years and the respondents have lost their rights of ownership and mortgagor in the suit-land.

3. The suit was contested by the respondents by filing their written statement on various grounds that the suit is not within time and also not maintainable in its present form and that respondents Nos.4 to 8 are bona tide purchasers of the land but ultimately the ,suit was dismissed vide judgment and decree dated 20-2-1995 mainly on the ground that plea of prescription is not available to the petitioner and also that the exclusive possession over the suit-land hostile to the respondents has not been proved. Petitioner filed appeal before the District Judge, Mansehra, which was dismissed, vide judgment dated 23-11-1999 holding that section 28 of the Act, 1908 (Act No.IX of 1908) (hereinafter referred to as the Act) has been declared repugnant to the Injunctions of Islam and as such not applicable to the present case. Feeling aggrieved, the petitioner assailed the said judgment before the learned High Court in the above mentioned civil revision, which was dismissed, vide impugned judgment.

4. We have heard Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for the petitioner and Roy Muhammad Nawaz Kharal, learned Advocate Supreme Court for respondents and have gone through the record and proceedings of the case in minute particulars.

5. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for the petitioner has argued that the findings of the Courts below suffer from misreading and non-reading of material evidence on record and also from wrong appreciation of facts and law involved in the case. He further argued that the Courts below have erred in holding that since section 28 of the Act has been declared un-Islamic by the learned Shariat Appellate Bench of this Court, the petitioner could not claim to have prescribed his titled through adverse possession. He contended that section 28 of the Act has been declared to be ineffective and non-existent from 31-8-1991 only and the rights which had already matured before 31-8-1991 on account of adverse possession have not been affected by the said judgment, because the petitioner had prescribed his titled through adverse possession long before 31-8-1991. He further contended that petitioner has successfully proved his adverse possession through evidence. According to him the learned trial Court even did not frame the issues properly which arose out of the pleadings of the parties.

6. On the other hand Roy Muhammad Nawaz Kharal, learned Advocate Supreme Court for respondents vehemently controverted the view point as canvassed by learned counsel for petitioner and supported the impugned judgment being free from any illegality or serious irregularity.

7. The main point, which requires serious consideration, is whether the petitioner has matured his title through adverse possession. The petitioner claimed that respondents have lost their rights of ownership and status of mortgagors over the suit property and he has become owner in possession of the same due to open and hostile possession for more than 12 years and also by prescription 'for being remained in possession as mortgagee for more than 60 years. We are of the opinion that this plea is not available to him inasmuch as section 28 of the Act has been declared repugnant to the Injunctions of Islam by this Court in the case of Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2963, wherein it has been held that section 28 of the Act is repugnant to the Injunctions of Islam insofar as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property and that this decision shall take effect from 31st of August, 1991 and on this date section 28 of the Act shall also cease to have effect.

8. For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material brought on record or misconstruction of facts or law.

9. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused. M.H./M-218/SC Petition dismissed: