2006 PLP 941 (MLD)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that plaintiff filed a suit for possession against the respondents on 16-3-1986 with respect to the property detailed in the head note of the plaint. The claim of the plaintiff/petitioner was that property in dispute including some other property was purchased by the petitioner from Sh. Muhammad Aslam predecessor-in-interest of the respondents through registered sale-deed dated 13-12-1974. The suit 'was contested by the respondents. After recording evidence of the parties, the learned trial Court vide judgment and decree dated 19-12-1993 decreed the suit. The same was assailed by the respondents through an appeal, which was allowed vide judgment and decree dated 20-11-2000 and the suit filed by A the petitioner was dismissed.

2. The sole ground on which the suit stands dismissed by the learned Court of appeal is that the suit was barred by time.

3. The basic plea and defence taken by the respondents in para. 2 of their written statement was that property in full as detailed in the sale-deed dated 13-12-1974 was given to the petitioner by their predecessor at the time of sale. However, as a second defence they had pleaded that the suit was barred by time and by afflux of time the petitioner is estopped to file the suit.

4. Learned counsel for the petitioner contends that case of the petitioner is covered under Article 144 of the Limitation Act, 1908 which provides period of limitation of 12 years for filing a suit for possession if the defendant claims adverse/hostile possession against the plaintiff's right. In the instant case the very sale-deed is dated 13-12-1974 and the suit was filed on 16-3-1986, which is within 12 years, therefore, even the question of hostile possession whether claimed or not by the defendants does not arise.

5. On the other hand, learned counsel for the respondents contends that the instant case falls under Article 83 read with Article 116 of the Limitation Act. According to him there is an indemnifying clause contained in the sale-deed which is reproduced by the petitioner in para 6 of his plaint, therefore, under Article 83 the period of limitation was three years from the date of sale-deed. It is further argued that even if the plaintiff/petitioner claims compensation on account of some deficiency in the land, still, his case would come under Article 116 of the Limitation Act. Relies on PLD 1956 Lahore 675.

6. It is next argued that predecessor-in-interest of the respondents had not included the legal heirs to be bound to indemnify to any loss or deficiency, therefore, as against the present respondents, the petitioner's suit was not maintainable. With reference to 1995 SCMR 522, learned counsel contends that since the petitioner was in possession from very beginning, therefore, Article 142 of the Limitation is not applicable and with reference to Article 144 it is argued that the respondents never claimed hostile possession as against the petitioner, therefore, the said Article is also not applicable.

7. I have considered the arguments of the learned counsel for the parties.

8. Articles 83, 116, 142 and 144 of the Limitation Act are reproduced below for ready reference: 83 Upon any other Three years When the plaintiff contract to indemnify is actually indemnified. 116 For compensation for Six years When the period the breach of a of limitation contract in writing would begin to registered. run against a suit brought on a similar contract not registered. 142 For possession of Twelve years The date of the immovable property dispossession or when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. discontinuance. 144 For possession of Twelve years When the immovable property possession of the or any interest therein defendant become not hereby otherwise adverse to the specially provided for. plaintiff. Article 83 only comes into play and the period of limitation starts when the plaintiff is actually indemnified i.e. from the date of indemnification. In the instant case, the plaintiff was never indemnified although such a clause was contained in the sale-deed, therefore, this Article is not applicable in the instant case. Article 116 is also not applicable for the simple reason that the plaintiff is not claiming any compensation for breach of any contract. He is only seeking possession of some of the portion of the property sold to him by the predecessor of the respondents. Article 142 of the Limitation Act is also not applicable inasmuch as according to the petitioner himself he was never in possession of the portion being now claimed by the petitioner to be deficient under the sale. The only Article which remains to be applicable in the case of the petitioner is Article 144 since the sale had taken place on 13-12-1974, therefore, suit filed on 16-3-1986 was well within 12 years. No question of being in adverse possession or otherwise by the defendant would materially effect the period of limitation.

9. For what has been stated above, this Civil Revision is allowed. Judgment and decree pasied by the learned appellate Court is set aside and that of learned trial Court is restored. No order as to costs. H.B.T./A-545/L?????????????????????????????????????????????????????????????????????????????????? Revision allowed.