P L D 2001 Lahore 390 (PLP)

(1) Whether the plaintiff is entitled to a decree of possession on the basis of title as prayed for? OPP (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is barred by time? OPD (4) Whether the plaintiff has no locus standi to file this suit? OPD (5) Whether the transfer order made by the Settlement Department in favour of the plaintiff is a result of forgery and fraud and the suit property is liable to be devolved upon the legal heirs of successors- in‑interest including the defendant's wife Mst. Sughran Bibi? OPD (6) Whether the suit is intentionally undervalued for the purposes of court‑fee and jurisdiction; if so, its effect? OPD (7) Whether the suit is bad for non joinder of necessary parties? OPD (8) Relief

3. The learned Civil Judge, Lahore vide judgment and decree dated 11‑5‑1993 held issues Nos.1, 2, 4, 5 and 6 in favour of the plaintiff respondent. However, on the issue of limitation which is Issue No.3, the Court recorded a finding against the plaintiff‑respondent and observed:‑‑ "If Lire time calculated from the admitted period of residence of the defendant the suit comes to be barred by time. Even if the period spent for the disposal of ejectment petition is excluded the same does not come within time. The suit is, therefore found barred by time from the evidence of the plaintiff. Issue is, therefore, decided against the plaintiff." Against the judgment and decree of Civil Judge plaintiff‑respondent filed appeal challenging the finding of the learned trial Court on issue of limitation i.e. (Issue No.3). It is pertinent to note here that no cross‑objections as provided under Order XLI, Rule 22 of the Code of Civil Procedure were filed by the petitioner‑defendant against the findings of the learned trial Court on Issues Nos. 1, 2, 4, 5 and

6. The learned Additional District Judge, Lahore, accepted the appeal of the respondent‑plaintiff by reversing the findings of the learned trial Court on issue of limitation (i.e. Issue No.3) vide his judgment and decree dated 7‑2‑2001 and recorded a finding as under:- Here in the present case admittedly the plaintiff‑appellant is the owner of the suit property and when he filed the application for ejectment on 23‑1‑1985 and Muhammad Hussain deceased respondent filed reply on 1‑6‑1985 denying the relationship of landlord and tenant, obviously his possession became adverse to the appellant. So, that time limit would run from day when Muhammad Hussain deceased denied the title of the plaintiff‑appellant. The plaintiff‑appellant has instituted this suit on 8‑4‑1992 within the period of 12 years from the day when possession of the respondent become adverse to the appellant. In view of the above said discussion and findings, the findings of the learned Court below on Issue No.3, are therefore, reversed. The issue is decided against the respondent‑defendant. "

4. The learned counsel for the petitioner argued that the first appellate Court while deciding the issue of limitation i.e. Issue No.3 had illegally decided that the time limit would run from the day when Muhammad Hussain deceased denied the title of respondent by filing written reply in ejectment application. According to the learned counsel, Article 144 of the Limitation Act has been omitted from the statute by enacting the limitation (Amendment Act 1995) (Act II of 1995) which is published in PLD 1996 Central Statute page 1296, therefore, the First Appellate Court fell in error by reversing the finding of issue of limitation.

5. I have considered the arguments advanced by the learned counsel for the petitioners and also perused the record. Neither any appeal nor cross -objections as provided under Order XLI, Rule 22 has been filed by the petitioners‑defendants against the findings of the learned trial Court on Issues Nos. 1, 2, 4, 5 and 6 which were held against the petitioners and particularly the findings of the learned trial Court on Issues. Nos. 1 and 5 through which the plaintiff‑respondent has been declared to be genuine transferee under valid transfer order Exh.P.1, therefore, as far as the title of the respondent plaintiff is concerned that has become final as the same has not been challenged in any Court of law. The learned Additional District Judge has held that by denying the relationship of landlord and tenant by Muhammad Hussain. deceased obviously, his possession has become adverse to the appellant. The learned Additional District Judge has recorded a finding in favour of the respondent on Issue No.3 regarding limitation on different ground any, saying that limitation under Article 142 of the Limitation Act of 12 years will start the day when possession of the respondent become adverse to the appellant.

6. I agree with the finding of the learned Additional District Judge on issue of limitation i.e. Issue No.3 and hold that the suit of the plaintiff respondent is within time but on different reasoning which are as follows:‑‑ "Section 28 of the Limitation Act has been declared as contrary to Injunction of Qur'an and Sunnah by the Shariat Appellate Bench in the case of Maqbool Ahmad v. Government of Pakistan 1991 SCMR page 2063, therefore, plea of being in adverse‑possession of the disputed house is no more available to the petitioners as such in view of the above dictum of law it is clear that on account of non -availability the plea to the petitioners of being in adverse possession or disputed portion of the house under Article 144 of the Limitation Act will not be attracted, however, the case of the respondent will be exposed to the point of limitation in terms of Article 142 of the Limitation Act, 1908. Hence, in this case, the respondents‑plaintiffs were under the obligation to prove that their case is not hit by limitation. Article 142 prescribed a period of 12 years for the suit for possession of immovable property when the plaintiff while in possession to the property has been dispossessed or dis‑continued the possession. It has been noticed that it is nobody's case that respondents were ever dispossessed by the petitioners from the disputed house. Their case is of discontinuance possession. Reliance is placed on the case of Shah Sultan v. Abdul Khaliq 1987 SCMR 1791. It lays down that where the case set up is that dispossession or discontinuance of possession of immovable property, limitation for bringing a suit for possession as provided by Article 142 of the Limitation Act in such a case, dispossession must be proved from the immovable property within 12 years preceding the date of suit."

7. In the case of Afzal Khan and 2 others v. Abdul Faheem and 4 others PLD 1994 Quetta 26 while interpreting Articles 142 and 144 of the Limitation Act (IX of 1908), it has been held that on account of non- availability of the plea of the appellant or being in adverse possession of the disputed portion of the plot, Article 144 of the Limitation Act will not be attracted, however, the case of respondents will be exposed to the point to limitation in terms by Article 142.

8. Examining the instant case at the touchstone of the above principles of law it is important to ascertain that since when the respondents have dis continued the possession of the disputed house. From the pleading as well as through the evidence, plaintiffs have asserted that predecessor of the respondent was inducted in possession of the portion of the house by the respondent‑plaintiff as such it appears that petitioners through their predecessor are in permissible possession of the house even this fact has been admitted, by D.W.3 that second storey of the house is in possession of the plaintiff. It is also admitted that till 10‑7‑1990 the plaintiff was pursuing the ejectment petition and filed the present suit on 29-10‑1991 for possession. These facts are sufficient to draw inference that uptil the date mentioned above, the respondent had been looking after the affairs of the suit House. Even otherwise the possession of the predecessor‑in‑interest of the respondent said to be permissive, therefore, from this point of view as well it would be legally presumed that respondent/plaintiff was in the constructive possession of the property. Thus, it is clear that this is not a case of trespasser or adverse possession in fact it is a case of permissive possession, therefore, Article 142 is attracted. It is also well‑established principles of law that possession follows the title.

9. Thus, calculating the period of 12 years from any angle safely it cannot be held that the suit filed by the respondent‑plaintiff was within the period of limitation.

10. Since no other plea has been raised on behalf of the petitioner to occupy the disputed property except that the transfer order in favour of the petitioner is based on fraud and the Issues Nos. 1 and 5 regarding Exh.P.1 claiming to be result of forgery, and fraud and has been decided by the learned trial Court in favour of the petitioner which have not been challenged by filing cross‑objections and plea of adverse possession which is otherwise not available to the petitioners. They have no legal entitlement to remain in the possession of the disputed house, for these reasons, the impugned judgment passed by the learned first appellate Court (Additional District, Judge) cannot be interfered by this Court.

11. For the above discussion, this revision petition has no merits which must fail allowing the parties to bear their own costs. The revision petition is dismissed. Q.M.H./M.A.K./M‑583/L Petition dismissed.