P L D 1993 Lahore 566 (PLP)

Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, was against a unanimous decision of the lower Courts, by which they declined to reject the plaint under Order VII, rule 11, Civil P.C. for failing to disclose a triable cause of action and also being barred by judgment of the Supreme Court in Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 (~hariat Appellate Bench). The judgment of the Supreme Court took effect from 31st of August, 1991. By it, section 28 of the Limitation Act, 1908 was found repugnant to Islamic Injunctions. 29 Kanals, 14 Marlas of land at Mauza Chandian of Tehsil Cantt., Lahore was owned by Edward Masih. By a deed registered on 20-6-1969, he sold it to the petitioner. Sale-deed was implemented in revenue papers. On 13-9-1975, Muhammad Ayub brought a civil suit to claim that he owned and possessed the above piece of land on account of holding it adversely for the past forty years and had prescribed for its title. Further, sale by Edward Masih in favour of the petitioner was also questioned as being non-existent. Written statement was filed and the suit was contested. Trial Court settled appropriate issues for decision and thereafter, postponed the suit for taking evidence in support of them. Evidence of a few witnesses was recorded. In this state of record, petitioner applied to the trial Court for summary rejection of the plaint on account of the afore noticed judgment of the Supreme Court, wherein it was found that section 28 of Limitation Act, 1908 was contrary to Islamic Injunctions. It was also Asserted that elements of adverse possession were wanting in the case. On 21-10-1992, the trial Court rejected the petition for rejection of the plaint. Petitioner preferred a revision from the order of the trial Court. It was dismissed in limine by learned District Judge, Lahore on 21-2-1993. These two orders were sought to be quashed in extraordinary jurisdiction of this Court with consequence of a summary rejection of the plaint without its trial on merits. It was urged that the Supreme Court having adjudged section 28 of the Limitation Act, 1908 as unIslamic for acquiring a prescriptive title on account of holding the property adversely for a required period of time, therefore, the trial of the suit was merely a futile exercise. It was further urged that elements of adverse possession were not found to exist in the case and, the petitioner held the possession of the land in dispute as its owner -on the basis of a registered sale-deed which could not legitimacy be questioned by the plaintiff or his successors. The contention has little substance. The judgment of the Supreme Court declaring section 28 of the Limitation Act, 1908 repugnant to Islamic Injunctions was prospective in its operation. It took effect from the date specified in it. Prior proceedings were required to continue and governed in accordance with law for the time being in force. Plaintiff claimed acquisition of ownership rights in respect of the land in dispute for holding it adversely to the true owner for a period of forty years in the past. Adverse possession for twelve years not only deprives real owner of his right to property but transfers it to person in possession. Title on the basis of adverse possession was acquired after twelve years of its commencement. Decree by the Civil Court merely gave recognition to the title but was not necessary for creating it. It was of a confirmatory nature only. Therefore, acquisition of prescriptive title in the past was not affected before the judgment of the Supreme Court took ect. Whether, adverse possession existed or not was a question relatable to its proof and could not be summarily resolved in a petition for rejection of the plaint under Order VII, rule 11, Civil P.C. Also, question relating to legitimacy of sale of the land by Edward Masih required evidence for its decision and summary verdict on it was neither requirement nor the object of law. As said above, number of issues for trial of the suit were already framed and part of evidence was taken from the plaintiff. In the midst of trial, a petition for summary rejection of the plaint was put in. It was self-evident that for ordering rejection of the plaint under Order VII, rule 11 Civil P.C. ordinarily, averments in the plaint also were required to be seen. A look at the plaint would reveal that a disclosed serious triable issues for decision of the title to the disputed land. From a reading of it, it did not appear to be barred by any law. Failing to prove the averments in the plaint was not equivalent to a non-disclosure of cause of 13 action for trial. Rejection of the plaint could take place only, if upon proof of all the facts in it, it did not give rise to any right to relief. Reading of the plaint as it existed did not lead to the above conclusion. Upon application of mind to the facts, lower Courts found it an unfit case for an outright rejection of the plaint. In my opinion, their view was correct. At least, the view could not be described palpably unreasonable or perverse. It was difficult to hold that impugned decisions were without jurisdiction or without lawful authority. It was a plausible view. Rather, it was a right view of the facts and the law applicable to them. Therefore, there was no scope for a different view to be' taken in extraordinary jurisdiction by this Court. Rejection of the plaint in the acts of the case was not a permissible course in writ jurisdiction. Upon this view, writ petition is dismissed in limine, However, the trial Court is called upon to expedite the trial. of the suit for its early finalization. AA./M-1063/L Petition dismissed.