2002 PLP 587 (CLC)

(ii)??????? Whether this suit is hit by res judicata? OPD (iii)?????? Whether the plaintiffs are estopped to file this. suit under the Order 9, rule 9? OPD (iv)?????? Whether the suit is bad for non‑joinder of necessary parties? (v)??????? Whether the plaintiffs are estopped to file this suit by their words and conduct? OPD (vi)?????? Whether the suit is not maintainable in its present form? OPD (vii) ???? Whether the defendants have become owners of suit‑land for being in possession thereon for a period over 12 years? OPD (viii) ???? Whether the Mutation of Inheritance No.410, dated 1‑12‑1955 is illegal, void and inoperative qua the rights of the plaintiffs? OPP (ix)?????? Whether the plaintiffs are entitled to the decree prayed for? OPP (x)??????? Relief.

3. Learned Civil Judge gave findings on Issues Nos.2, 3 and 4 against the respondents, holding that they have failed to produce any evidence. Issues Nos. l and 8 were decided in favour of the plaintiffs/ appellants finding that Mst. Sharifan had died on 1‑1‑1982, and at the time of attestation of the impugned mutation, she was alive, therefore, the mutation is invalid, based upon fraud and misrepresentation; on the issue of limitation, it is observed that the same was not pressed by the respondents/defendants. However, on Issues Nos.5 and 7, the findings of the Courts below are that Haveli, and .thereafter, respondents remained in possession of the suit property since 1955. The appellants have failed to produce on record that the respondents had paid any share of produce to the appellants, therefore, on account of being in possession of the suit property, as owners for more than 12 years, respondents had become the owners on account of the adverse possession. ,

4. Learned counsel for the appellants has seriously challenged the findings of the Court below on Issues Nos.5 and 7 and contends that according to the case of the respondent, mutation of inheritance was attested in favour of Haveli, their predecessor‑in‑interest, which has been found to be invalid, illegal and inoperative by the trial Court. Therefore, the entry of the respondents' predecessor over the suit property being not that of illegal nature or of a trespasser but under the inheritance mutation, which has been held to be illegal and invalid, respondents in the circumstances of the case, cannot set up the plea of adverse possession. It is also submitted that the plea of title to the suit property and adverse possession are mutually destructive. In this behalf, reliance has been placed on the following judgments: ‑‑ Maqbool Ahmed and others v. Munir Ahmed and others 1995 SCMR 482, PLD 1987 SC 1295 Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063, Ghulam Ali and others v. Ghulam Sarwar Nabi PLD 1989 Lah. 372 Ghulam Hussain v. Nazir Ahmed and others 1987 CLC 1255.

5. Conversely the learned counsel for the respondents also challenged the findings of trial Court on Issues Nos. l and 8 and it is stated that the suit was barred by time because the respondents are in possession of the suit property since 1955, when the mutation in question was attested. Therefore, the limitation to challenge such mutation would run from the date of its attestation, consequently, the suit brought in 1986 is beyond time. On Issue No. 8, it is argued that Mst. Sharifan had died in the year 1953 and the mutation was rightly attested in favour of Haveli, predecessor‑in‑interest of the respondents being a collateral; the findings of the Court below that she died on 1‑1‑1982, is based upon misreading and non‑reading of the evidence. Thus, the findings on Issues Nos. l and 8, be reversed.

6. It may be pertinent to state here that respondents have not filed any cross‑appeal/objection, however, without going into this question, whether they can challenge the findings in the absence of the cross-?appeal/objection, we hold that the findings of the Court below are absolutely in accordance with law. On Issue No. 1, it is Meld that respondents in fact are enforcing their right of inheritance being legal heirs of Mst. Sharifan and for the purpose of enforcement of such right, there is no bar of limitation. Moreover, this issue according to the judgment of the trial Court was not pressed by the respondents; there is no affidavit of the counsel for the respondents who argued the case before) the trial Court to the contrary.

7. As regards the findings on Issue No.8, are ‑concerned, the appellants have produced on record, the death certificate. of Mst. Sharifan, wherefrom it clearly stands established that she died on 1‑1‑1982. On the contrary, respondents have neither led any oral or documentary evidence to prove that Mst. Sharifan had died before the attestation of the impugned Mutation No.410. Though they have agitated that Mst. Sharifan was unmarried and the present appellants are not her children or husband, but from the evidence brought by the appellants on the record, relationship of the plaintiffs with Mst. Sharifan and about her death stand fully established, no error in reading of the evidence has been shown, resultantly, findings of the trial Court on Issue No.8 are affirmed. As regards Issues Nos.5 and 7 are concerned, the case of the respondents is that they have been in possession of the suit property in their own rights, without paying any share of produce, to the appellant side; moreover,, during the consolidation proceedings, in the village, when the respondents were considered as owners by the consolidation authorities, the appellants did not assert their rights, thus they are estopped by their own conduct to claim the ownership of the suit property, suffice it to say that there is no evidence brought on record by the respondents, wherefrom it can be established or even inferred that respondents by their act or omission had ever accepted the respondents to be the owners of the suit property. It is not proved that the appellants were aware of the mutation in question, right from the beginning or the consolidation proceedings and they kept silenced over the matter. Rather the respondents are basing their title on Mutation No.410 which as per findings of the trial Court as affirmed by this Court, is adjudged as void, because Mst. Sharifan was alive at the relevant point of time and thus, her succession did not open in the year 1955 to confer any inheritance right upon Haveli. Mere fact that the appellants have not been able to prove that the share of the produce was not given to them, by itself is no reason to hold that the respondents have acquired title on the basis of their adverse possession. There is no entry in the Revenue Record showing that respondents are in adverse possession of the suit property and their title having matured on account of the above. As has been submitted by the learned counsel for the appellant and in view of the p judgments cited above, if the defendant in a case for possession is claiming his right on the basis of a title. which is not proved to be valid on the record, there is no question of the maturity of the title on account of the adverse possession. Both the pleas of title to the property and adverse possession are mutually destructive and having failed to prove the validity of Mutation No.410 the respondents cannot fall back to claim the adverse possession. In the light of above, the findings of the learned trial Court on Issues Nos.5 and 7, cannot be sustained and hereby set aside.

9. The argument of learned counsel for the respondents that Mst. Sharifan was a limited owner, and therefore, even if assuming that. no valid mutation was attested in favour of Haveli predecessor‑in‑interest of the respondents and the respondents have also not matured their title on account of the adverse possession yet under the customary law, the suit property would be deemed to be. the property of last male owner i.e. father of Mst. Sharifan, Mehr Din and as Haveli was the collateral of Mehr Din, consequently, Haveli would be entitled to succeed, to the estate left by him. We are not impressed with this argument, because this plea has not been specifically taken by the respondents in their written statement; rather they have vaguely averred in the written statement that Mst. Sharifan was not the exclusive owner of the suit property. It is for this reason that no issue on the above was claimed by the respondents. It is settled law that a party cannot be allowed to plead beyond the scope of his pleadings and even if any evidence has been led beyond the scope thereof, it has to be ignored by the Court. This principle is aptly applicable to the case in hand. Therefore, this plea of the learned counsel has no force. In the light of above, the judgment and decree of the trial Court, dismissing the suit of the appellants is set aside and a decree for declaration and possession, as prayed for is passed in favour of the appellants and against the respondents with costs. S.A.K./13‑57/L Appeal dismissed.