1998 PLP 392 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

The petitioners, who are successors-in-interest of Qurban Hussain Shah, have sought leave to appeal against a judgment dated 27-I1-1995 delivered by a learned Single Judge of Lahore High Court in R.F.A.No.158 of 1989. Respondent No.1 Masjid Hanfia Maqbooza Ahle-Islam filed a suit in Court of Civil Judge Ist Class, Bhalwal against the petitioners for possession of Ahata No.6, Masjid Hanfia, Chak No.8, Measuring 13/1-2 Marlas, given in the sketch filed with the plaint. According to the plaint, the disputed Ahata was given to the respondent No.1 in the year 1902 for mosque purposes. It was added that Walayat Hussain Shah, father-in-law of Qurban Hussain Shah, was working as Khadim-e-Masjid in Masjid Hanfia and hence he was allowed to reside temporarily in the disputed place. It was added that subsequently a separate Ahata was allotted for the Khadim-e-Masjid and Walayat Hussain as Khadim-e-Masjid started living in the Ahata permanently. That subsequent status of Walayat Hussain as Khadim-e-Masjid was terminated but his legal heirs started living over there and they made certain construction. The legal heirs of Walayat Hussain were said to have refused to vacate the disputed premises. Hence Masjid Hanfia filed the suit. The suit was contested by the petitioners, who in their written statement challenged valuation and maintainability of the suit. Filing of the suit by the Masjid was challenged on the ground that it was not a legal person. Competency of Mian Ehsanullah etc. to file suit on behalf of said mosque was also challenged. It was added that an earlier suit filed by Masjid Hanfia through Barkat Ali Chaudhry, was withdrawn on 19-1-1984. On merits the petitioners stated that their predecessor Walayat Hussain occupied the disputed property as an encroacher, filled it with earth and raised some construction over it. That later on Walayat Huss ain orally gifted the disputed property to Qurban Hussain in 1949. Learned trial Court under its judgment dated 9.7.1989, dismissed the suit, after taking view that Masjid Hanfia was not a legal person and was not competent to file a suit, that the suit was wrongly valued at Rs.1,000 when market value of the disputed property was Rs.5,00,000 to Rs.6,00,000, that the petitioners had become owners of the disputed land by way of adverse possession and that the suit was time barred having been filed after 12 years fixed by Article 144 of the Limitation Act. Respondent No.1 challenged the judgment and the decree of the trial Court under R.F.A. No.158 of 1989 in the Lahore High Court where it was accepted by a learned Division Bench, which under the impugned judgment decreed suit of the respondent No.

1. Hence this petition. Mr. Rafique Ahmad Bajwa. learned counsel for the petitioners requested for adjournment of the case on the ground that he wanted to file certain documents. Learned counsel was reminded of the provisions contained in Order 13 Rule 1 of the Civil Procedure Code and was questioned, as to, under what provision of law he could file documents directly in this Court, when the same were neither filed in the trial Court nor in the High Court. Upon this learned counsel did not press his request for filing fresh documents. He was given an opportunity to argue his petition. Under the impugned judgment a learned Division Bench of the High I Court, after referring to various authorities came to the right conclusion, that a mosque is a juristic person and that in the instant case the suit was competently filed before the Trial Court in a representative capacity. Learned Division Bench also recorded a finding that the suit filed by the respondent No.1 on 11-1-1984 was within time because the limitation in such a suit is twelve years. On the basis of contents of the Jamabandis copies Exhs.P-1, P-2, P-7, and P-8, learned Division Bench was of the view that the disputed property was given to Ahle Islam for mosque purposes and that the petitioners had no right or title over the property in question. In respect of valuation of the suit, learned Division Bench found the same to have been correctly valued at Rs.24,

000. After recording such findings, learned Division Bench decreed the suit. Hence this petition. The petitioners base their claim on the ground that their predecessor Walayat Hussain occupied successfully the disputed property as an encroacher, and, later on, he gifted the disputed property to Qurban Hussain Shah. These pleas, which were not taken in the -written statement. have not been substantiated. In order to demolish case of the respondent No.1, the petitioners were required to prove their adverse possession over the disputed property for the statutory period. by positive evidence. This was to be done by adducing positive evidence on the point. In the present situation, the plea taken by the petitioners, does not appeal to reason. While dealing with this point, the learned Division Bench in the High Court took view, as follows:-- "It is not disputed by the parties that Walayat Shah died in the year 1975 and after his death respondent -defendent No.1 occupied the place ' independently claiming to be in its possession although without any valid allotment or any other entitlement. It appears that by virtue of his shifting and being son-in-law of Walayat, respondent No.1 was residing in the property in dispute and, therefore, his claim that he was in adverse possession of the property since more than 83 years is baseless and negatived by his own evidence. " Learned Division Bench after finding the suit filed by the respondent No. l to be within time, proceeded to observe as follows:-- "Moreover, as has been observed above in para. No.9, mosque is property of God and no limitation runs against it and if some body is in possession thereof, he cannot claim any right of ownership thereon and howlongsoever he lives thereon, his possession shall not mature into ownership." Learned Division Bench in the High Court appears to have examined the case from every angle. No scope appears for interference. Consequently, the leave to appeal is declined and this petition stands dismissed. A.A./Q-2/S Leave refused.