P L D 2001 Karachi 403 (PLP)

(6) Whether the defendant has acquired title in the property by way of adverse possession? (7) Whether the defendant is a trespasser over the suit property? (8) What should the decree be?" The respondent examined himself and one Nusrat Ali as his witness while the applicant examined himself only. One Sultan Ahmed, Assistant Director, Karachi Development Authority, was examined as a Court‑witness. The trial Court decided the above issues as follows:‑‑ Issue No.1 Negative Issue No.2 Negative Issue No.3 Negative Issue No.4 Not approved Issue No.5 Affirmative Issue No.6 Negative Issue No.7 Affirmative Issue No.8 Suti decree with no order as to costs. Being aggrieved with the judgment and decree of trial Court the applicant filed first appeal in the Court of learned IX Additional District Judge, Karachi East, being Civil Appeal No.35/96. The first appeal was dismissed on 5‑11‑1997 and the judgment and decree of the trial Court was upheld. Being still dissatisfied the applicant has preferred this revision application. During the course of arguments for the purpose of Katcha Peshi it was contended by the learned counsel for the applicant on 23‑2‑1999 that one of the points involved in this matter pertains to the right of ownership on the basis of adverse possession. It was contended by Mr. Kanwar Mukhtar Ahmed that the rule laid down by the Hon'ble Supreme Court in respect of section 28 of the Limitation Act, 1928 was not attracted in this case. The parties were directed to address their submissions on this point. Subsequently the hearing was adjourned from time to time and when the matter came fog consideration before me on 26‑10‑2000, the learned Advocates for the parties submitted that the entire case may be heard and finally disposed of. With the consent of learned Advocates for the parties the entire revision application was heard. The learned counsel for the applicant submitted that although there are concurrent findings of facts and law against the applicant but the revision application is maintainable under section 115(c), C.P.C., as both the Courts below have acted in exercise of their jurisdiction illegally and with material irregularity. He contended that both the Courts below while holding that the property in question was allotted to the respondent have placed reliance on the evidence of Sultan Ahmed, Assistant Director, K.D.A. who was examined as Court‑witness. According to the learned counsel it is admitted position that the original record of K.D.A. containing the allotment order was not traceable and the record were‑constituted with the attested copies of the documents which were attested by a Notary Public and not by any officer of the department and therefore, the documents are not admissible in evidence for non‑compliance of the requirements contained in Article 87 of the Qanun‑e‑Shahadat Order, 1984. He has thus submitted that the suit has been decreed on the basis of inadmissible evidence. He has next contended that even if the allotment order is held to be valid, the respondent had no right to file a suit for possession because the allotment order is licence and a licensee has no right to file a suit for possession. In support of his contention he has placed reliance on the judgment of the All‑ahabad High Court in the case of Manbahal Rai v. Ram Ghulam AIR 1927 Allahabad

633. He has further contended that the suit was barred by limitation under Article 142 of the Limitation Act, because the applicant was in possession from 1966 and the suit for possession was filed in the year 1985. He has submitted that the applicant has acquired right in the suit property by way of adverse possession under Article ‑144 read with section 28 of the Limitation Act. In support of his contention, he has placed reliance on the following judgments:‑‑ (i) Noora and 11 others v. Ahmed Ali and 3 others 1992 SCMR 1610. (ii) Province of the Punjab v. Muhammad Hussain PLD 1993 SC

147. On the other hand Mr. Abdul Hafeez Lakho learned counsel for the respondent has candidly conceded that the judgment of Hon'ble Supreme Court Shariat Appellate Bench in the case of Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063, declaring section 28 of the Limitation Act as repugnant to the Injunction of Islam is effective from 31‑8‑1991 and is not applicable to the present case. He has further submitted that the contention that the documents produced by Sultan Ahmed Court‑witness are not admissible in evidence is not sustainable because Article 87 of the Qanun‑e‑Shahadat Order, 1984, provides that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. Mr. Lakho, has submitted that Article 87 is not attracted to the facts of the present case as Mr. Sultan Ahmed has produced the record available with K.D.A. which consisted of the attested allotment order and other documents which form part of the record which was reconstituted because of the fact that the original record was rot traceable. He has further submitted that all the documents produced by Mr. Sultan Ahmed are not attested copies but original receipts have been produced which show that the allotment order was issued in favour of the respondent. He has farther submitted that tip view expressed by Allahabad High Court in the judgment reported as AIR 1927 Allahabad 633, is not attracted to the facts of the present case as in the cited case the person who filed suit for possession was a licensee simpliciter while in the present case the respondent is not a licensee simpliciter as defined in section 52 of the Easements Act, 1882, but is holder of an allotment order which is a step towards the grant of lease by K.D.A. Thus the respondent has acquired a vested right and has become owner of the property against the entire world except against K.D.A. and in the present case the K.D.A. has recognized respondent as a person holding valid allotment order thereby creating a vested right in favour of respondent. He has further submitted that period of limitation provided under Article 142 of the Limitation Act, is not attracted as the respondent has never abandoned the property. He has further submitted that the provisions contained in Article 144 of the Limitation Act anal section 28 thereof are not attracted as the applicant never claimed any right or title in the suit property hostile to the respondent and to his knowledge at any time before filing of written statement in the ejectment proceedings. In support of his contention Mr. Abdul Hafeez Lakho, has placed reliance on the following judgments:‑‑ (1) Mubinulnissa v. Ali Hussain and another AIR 1929 Oudh 402. (2) Azizur Rehman and 10 others v. Ali Haider Shah and others 1993 CLC 454 (Azad J & K), (3) 1992 SCMR 1610 (supra) I have given my anxious consideration to the contentions raised by the learned Advocates for the parties. My findings are as under:‑‑ The first contention of the learned counsel for the applicant that the learned two Courts below wrongly placed reliance on the evidence of Mr. Sultan Ahmed, Assistant Director, K.D.A. appears to be without substance. The reason being that the learned counsel for the applicant has raised the objection by recourse to the provisions contained in Article 87 of Qanun‑e‑Shahadat Order, 1984 which deals with the manner in which certified copy of public document shall be issued. In the present case C.W. Sultan Ahmed has not produced the certified copies of any public document. He has produced the record which was reconstituted for the reason that the original record was not traceable. The original record which was not traceable consisted of allotment order issued by the K.D.A. to the respondent. Thus the K.D.A. and respondent are parties to the transaction which is sought to be proved and the applicant has never set up a case that the suit property was allotted to him as well at any time and any record in favour of applicant has been tampered with or any fraud or forgery has been committed effecting any vested right in his favour. The K.D.A. issued E allotment order to the respondent and continues to accept the respondent as valid allottee of the suit property. The record has been reconstituted and has been produced from the custody of a person who is required to keep it in his possession. Moreover as pointed out by Mr. A. Hafeez Lakho, learned counsel for respondent, some of the documents produced by C.W. Sultan Ahmed are original to which no objection can be taken. It is, therefore, held that the learned two Courts below have not committed any illegality or material irregularity in placing reliance on the documents produced by Mr. Sultan Ahmad, Assistant Director, K.D.A. which were produced in support of the documentary evidence already produce respondent. The second contention that even if respondent is held to be a genuine allottee of the suit property he cannot institute a suit for possession f in his own right is also not tenable. The reliance placed by the learned counsel for the applicant on the judgment of Allahabad High Court reported as AIR 1927 Allahabad 633 (supra) is not attracted to the facts of the present case. In the said judgment it is held that a licence as defined under section 52 of the Indian Easements Act, passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. That being so, by the licence granted to the plaintiffs‑appellants they acquired no interest in the site, the subject‑matter of the dispute. They were authorised by the licence simply to build over the site in dispute. The plaintiffs, not having any interest in the site, could not maintain an action for possession of the same in their own name. After holding so Mr. Justice Iqbal Ahmad, of the Allahabad High Court further held as follows:‑‑‑ "My attention has been drawn to a passage at "681 of Peacock on Easements, 3rd Edition, but it appears to me that passage has no reference to the case of bare licence which is not coupled with a grant or an interest in land or profit a prendre. " The above passage indicates that the learned Judge was dealing with a bare licence which conferred no other interest in the land in favour of licensee. It means that if a licensee is holding not a bare licence but a licence which is a step towards the grant of lease then the view expressed in the cited judgment shall not be applicable. I am persuaded to agree with the submission of Mr. Lakho, that in the present case the allotment order is a prelude to the issuance of lease and confers a right and interest on the allottee in respect of the allotted property against the entire world except K.D.A. Thus, the ratio of the judgment by Allahabad High Court, on which the learned counsel for the applicant has placed reliance. is not attracted. Now coming to the last point which pertains to the period of limitation and adverse possession in favour of applicant, I find that the provisions contained in Article 142 of the First Schedule to the Limitation Act, 1908, is not attracted because it is applicable to the suit for possession of immovable property, when the plaintiff while in possession of property has been dispossessed or has discontinued the possession. In the present case, neither the respondent was at any time dispossessed by the applicant nor the respondent has ever discontinued the possession: So far Article 144 as it stood before its omission by Act II of 1995, is concerned it is also not attracted because, for the purpose of Article 144, the period of limitation commences from the time when the possession of defendant becomes adverse to the plaintiff and in this case the adverse possession was claimed by the applicant for the first time when the written statement was filed in the rent case. It has been held in the case of Mubinulnissa v. Ali Hussian and another AIR 1929 Oudh 402, as follows: "This section does not apply unless there is some one in adverse possession of the property. Until some one is in adverse possession, the owner of the property does not lose his right to the property merely because he happens not to be in possession of the property for 12 years. His right is only extinguished at the determination of the period limited by .the act to him for instituting a suit for possession of the property. The period cannot be determined unless it has commenced to run and the period will not commence to run until the owner is aware that some one else in possession is also holding adverse to him." It has been held by Hon'ble Supreme Court of Pakistan, in the case of Noora and 11 others v. Ahmed Ali and 3 others 1992 SCMR 1610, on which both the learned Advocates for the parties have placed reliance as follows:‑‑ "The High Court held that Article 142 of the Limitation Act applied from the date of abandonment. It also held that discontinuance within the meaning of Article 142 was not complete till the land of which possession was alleged to have been discontinued had been taken over by somebody and that mere non‑user by the owner did not constitute discontinuance. A number of cases have taken different view, namely, that where a plaintiff alleges that the defendant's possession is permissive, which is denied by the defendant, there is discontinuance of possession within the meaning of Article 142 and the said Article applies for the purpose of limitation. I do not think this view correctly reflects the law. A plaintiff who is in possession of property may find himself thrown out from that property by another. He may abandon that property and find later that the same has been taken possession of by another. He may voluntarily give permissive possession of his property to another, only to find later that the other has set up an adverse or conflicting claim against him. One thing is certain that Article 144 is a residuary Article dealing with suits for possession of immovable property not otherwise specifically provided for in the Schedule to the Limitation Act. Article 142 deals with a specific case where the plaintiff, while in possession of the property, has been dispossessed (thrown out by somebody else, who has taken over possession) or while in possession of the property, has discontinued the possession. Now the only question that arises is whether this discontinuance is to be treated as a voluntary form of abandonment, with somebody else taking over possession and the suit having to be filed within twelve years from the date of discontinuance or a voluntary transfer of possession under permission or title, with the person inducted later claiming adverse possession and the suit having to be filed within twelve year's` from the, adverse claim being set up. Now Article 144 presupposes that the person holding possession was one who did not initially treat his possession as adverse to the plaintiff. It would therefore include cases where the transfer of possession to him originally was under permission or title. Article 142 carries no such thought. It presupposes a person who has possession but has discontinued it, and is no question of any assumption that the subsequent person s curing possession is one who initially treated his possession as under the plaintiff's title. The discontinuance of possession within the meaning of Article 142, therefore, is more in consonance with the view that the discontinuance is a form of abandonment and not a transfer of possession under permission or title. Where an abandonment of property takes place and another person steps in, the other does so as a trespasser or under some assumed title of his own, His possession is not under a right derived from the plaintiff. This is, therefore, one of the cases provided for in Article

142. Where the discontinuance of possession is simultaneous with its transfer under some form of permission or title, Article 144 will apply. In Mst.Chandni Begum v. Madhorao Falke AIR 1953 Madh. Bha. 28, Shinde, C.J. held: A person can be said to be dispossessed or to discontinue his possession only when another person enters on the property in the possession of the plaintiff skid such entry is adverse to the plaintiff. Where the plaintiff is in possession and the defendant has entered on the property but his entry is under a right derived from the plaintiff or is permissive it cannot be said that the. entry itself is in contravention of the plaintiff's title, though by reason of subsequent events his possession may become adverse to the plaintiff. Adverse possession means hostile possession, that is, possession which is expressly or impliedly in denial of the title of tie true owner, where possession which is permissive to begin with, becomes adverse to the plaintiff by some act of the defendant Article 144 would apply and not Article 142.

11. In the case in instance the respondents' plea of adverse possession has miserably failed. As held by this Court in Mirza Ghulam Hussain v. Iqbal Ahmad PLD 1991 SC 290, where a person is inducted into property under lawful permission or title, no adverse possession can be deemed to have originated from the time that he was so inducted, but it can be shown that it became adverse through an aggressive act at some later stage by disclaimer of owner's permission/title of such a character that the owner can be presumed to know that possession adverse to his title had been set up. In the instant case the respondents have failed in establishing their title by adverse possession. The appellants' case that the respondents had taken the Ahata on a temporary basis for their use and occupation stands made out. A mere permission given to another to reside gratuitously does not amount to a discontinuance of possession. See Syed Zainuddin Hussain v. Moulvi Muhammad Abdur Rahman AIR 1993 Cal.

102. Thus, where such a licensee sets up adverse possession, Article 144 of the Limitation Act would apply and not Article

142. See Syed Zainuddin Hossain's case (supra). In the instant case, according to the averments in their Plaint the appellants had given the respondents mere permission to reside gratuitously and when they requested the respondents on 4‑7‑1974 to deliver vacant possession to them, they refused to do so, and in their written statement raised flaw plea of adverse possession. The suit was therefore, covered by Article 144 of the Limitation Act as the appellant had twelve years from the said date i.e. 4‑7‑1974 within which to file the suit. The judgment of the learned Single Judge being to error, deserves to be set aside. " It has been held in the case of Azizur Rehman and 10 others v. Ali Haider Shah and 4 others 1993 CLC 454 (Azad J & K), that basic ingredients for adverse possession which were required to be proved were that possession was hostile; continuous; and notorious to the interest of true owners, fogy m ore than twelve years. Peaceful possession of any length of time shall not be adverse to the true owner. Consequent to above discussion I am not persuaded to agree with the submissions of learned counsel for the applicant that the learned two Courts below have committed any illegality or material irregularity with reference to the provisions contained in Article 87 of the Qanun‑e‑Shahadat Order, 1984. Articles 142 and 144 of the Schedule I to the Limitation Act, L 1908 and on the point of maintainability of the suit for possession by the respondent in his own right being holder of an allotment order which is duly recognized by the K.D.A. The concurrent findings of facts and law by the learned two Courts below are not open to any exception under section 115, C.P.C. The revision application is without substance which stands dismissed with costs. H.B.T./F‑16/K Revision dismissed