P L D 2000 Quetta 61 (PLP)

(ii) Granting a perpetual injunction, directing the defendant to dismental the kacha construction raised thereon and remove debris and allow plot as, vacant sight and hand over the vacant possession thereof to the plaintiff; (iii) Any other relief in addition to the above or in place thereof may also be awarded to the plaintiff, which is deemed fit and appropriate under the circumstances alongwith the cost of suit in the interest of justice, fairplay and equity. The suit was resisted by the respondent/defendant by filing written statement and raised legal as well as factual grounds.

3. Out of the pleadings of the parties the learned trial Court framed the following issues:‑‑ (i) Whether the suit is not maintainable in view of preliminary objections A to G of the written statement? (ii) Whether the plaintiff is entitled for the relief claimed? (iii) Relief?

4. In support of their case petitioners/plaintiffs produced P.W.1 Malik Shoaib, P.W.2 Khan Muhammad, representative of M.B.R. P.W.3 Muhammad Ibrahim, P. W.4 Ali Muhammad Patwari and petitioner Malik Munir got recorded his statement as attorney.

5. On the other hand the respondent.. examined D. W.1 Syed Muhammad Younas, D. W.2 Abdul Jabbar, D. W.3 Sher Muhammad, D. W.4 Bahadur Khan, D.W.5 Abdul Latif, D.W.6 Wali Jan, D.W.7 Muhammad Saleem and also got recorded his own statement. The learned trial Court on the assessment of evidence brought on record decreed the suit in favour of the petitioners/plaintiffs on 26‑3‑1998. Aggrieved by the above judgment and decree the respondent/defendant preferred an appeal which was transferred to the Court of Additional District Judge IV, Quetta.

6. The learned Additional District Judge‑IV, Quetta after hearing the arguments of learned counsel for the parties and examining the record came to the ‑conclusions that the suit was barred by time, deficient court‑fee, the prayer clause was ambiguous and the petitioners/plaintiffs were not entitled to the relief claimed for. According to the Appellate Court the suit has been filed without cause of action against the defendant, therefore, the plaintiffs were not entitled to the relief claimed for. The learned Appellate Court by setting aside the judgment and decree dated 26‑3‑1998 of the learned Civil Judge‑II, Quetta dismissed the suit which was filed by the petitioners/plaintiffs. The judgment of acceptance of appeal of the respondent and dismissal of the suit of the petitioners/plaintiffs by the learned Additional District Judge‑IV, ‑Quetta vide order and decree dated 3‑9‑1998 is the subject‑matter of the present civil revision which has been filed under section 115, C.P.C.

7. I have heard Mr. Ayaz Sawati, Advocate learned counsel for the petitioners and Syed Ayaz Zahoor, Advocate, learned counsel for the respondent. .

8. The learned counsel for the petitioners supporting the judgment of the trial Court has contended that the observation of the Appellate Court regarding court‑fee was not justified without determination of the same by . the Court. According to him the petitioners/plaintiffs have valued the suit only to the extent of land underneath and the construction had been raised by the respondent on his own risk and cost without the permission of plaintiffs and has failed to show the actual value of the property. He has contended that dismissal of suit on ground of deficiency without asking or providing opportunity to the petitioners/plaintiffs to make of deficiency was not warranted by law.

9. He has next argued that the documents which were produced by the plaintiffs have not been challenged that the same were forged. He has also contended that the learned Appellate Court has not given the reasons for cause of action.

10. It is settled principle of law that after producing the plaint, the Court comes to the conclusion that the averments made in the plaint, if presumed true ‑the plaintiffs may get the relief sought, the plaint cannot be rejected for absence of a cause of action. It may be pointed out that if a defendant seeks rejection of a plaint for the non‑disclosure of a cause of action he has to show that even if the allegations in the plaint are presumed to be true, the plaintiff was not entitled to any relief. By' now, it is established that for the purposes of determination whether the plaint discloses a cause of action or not, the Court has to presume that every allegation made in the plaint is true, therefore, the power to reject the plaint under the rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved the plaintiff would not be entitled to any relief whatsoever. Order passed should be self‑speaking and not cryptic. The real' controversy between the parties should have been resolved.

11. Learned Counsel for the petitioners has contended that there is a distinction between Article 142 and Article 144 of the First Schedule to the Limitation Act. According to Article 142, twelve years' period is to be computed from the date of dispossession or discontinuance. This Article i.e. 142 is not attracted in the circumstances of present case. In support of his contention he has relied upon the authorities of the Hon'ble Supreme Court of Pakistan reported in 1995 SCMR 522 and 1991 SCMR 2063. There is force in the contention of learned counsel for the petitioners.

12. The respondent had also contested the suit on the ground that he is in undisturbed, uninterrupted, hostile, open and adverse possession of the property in question for the last about 42/45 years and is deemed to be the owner of the same. Under Article 144 twelve years were to be reckoned from the date when the possession of the defendant becomes adverse to the plaintiffs. Section 28 of the Limitation Act, 1908 (Act No. IX of 1908) was declared repugnant to the Injunctions of Islam in so far as it provided for extinguishments of the right in the property at the determination of the period prescribed for instituting a suit for possession of the property by the Hon'ble Supreme Court Shariat Appellate Bench in case of Maqbool Ahmed v. Government of Pakistan reported in 1991 SCMR 2063. It was further held that the said decision shall take effect from 31‑8‑1991 whereafter, the section shall also cease to have effect. Besides ‑ the above view, the following principles were also enunciated by the Hon'ble Shariat Appellate Bench of the Supreme Court which are as follows:‑‑ (a) That even after expiry of the time prescribed in the Limitation Act, if any person is in unlawful possession of a property, he, according to Divine judgment, will be sinful and he will be liable. According to Shariat and morality he is bound to return the suit property to its original owner. (b) If a person who admits that his possession of more than twelve years on a land belongs to some other persons, on such admission a Court is entitled under Shariah Law to return the property to its original owner. (c) That in case a Court refuses to entertain any claim on the question of limitation even then such dispute can be referred to the arbitration and the Court is competent to enforce award of such arbitrator. (d) That in case the real owner comes into possession of an immovable property from the trespasser then such a trespasser cannot maintain a claim on the ground that by virtue of adverse possession he had attained ownership of the disputed land.

13. Section 28 of the Limitation Act has since been omitted by Act II of 1995. Similarly, Article 144 has also been omitted by the same Act. In view of above position the learned Appellate Court was not justified by observing that the suit was barred by time as no limitation runs as section 28 and Article 144 have since been omitted.

14. Having regard to all the circumstances of the case, I am pursuaded to allow this revision petition. Resultantly, the order/judgment and decree passed by the learned Appellate Court dated 3‑9‑1998 is hereby set aside. The appeal filed by the petitioners shall be treated as pending adjudication and the case is remanded to the learned Additional District Judge‑IV, Quetta for fresh decision after providing of opportunity to the parties including recording of additional evidence if considered essential for the just decision of the appeal or for any other substantial cause, strictly in accordance with law and without being influenced by any observation made in this Order. The revision petition is accordingly stands disposed of with no order as to costs. Q.M.H./M.A.K./21/Q Revision allowed.