1989 PLP 1890 (MLD)

(5) Whether the suit is also barred, under the West Pakistan Urban Rent Restriction Ordinance, 1959 as amended ? (6) Whether the suit is also barred under the Sind Tenancy Act of 1950 as applicable to Karachi? (7) Whether the suit is barred by limitation ? (8) Whether the suit is tarred under section 30 of the D.P C. & R Act 1958 ? (9) Whether the defendants are the tenant of the plaintiff ? (10) What should the decree be ? Issues 5, 6, 7, 8 and 9 were not pressed by the defendants. Issue No.3 was also decided against the defendants but no cross objections were filed by the defendants. The plaintiff examined one witness Ahmed Aslam. Respondent Imam Bukhsh also examined himself as his witness and produced certain documents. The learned trial Court decided Issue No. 1 against .the appellant/plaintiff. It has been observed that signature on Ex. 5/G is quite different from the signature on Ex. 5/E. It is further observed that it was necessary for the plaintiff to prove the documents which he failed. Learned counsel for the appellant has challenged the finding of trial Court on this issue. It has been contended that the appellant through reliable documentary evidence has Been able to prove his case and the finding of the trial Court is contrary to the record which is misreading of evidence. The appellant in order to prove his case filed certain documents which remained unchallenged. Ex. 5-A is the auction list of the evacuee land held on 7th and 8th July, 1971. Exs. 5-B dated 16-7-1971 is the receipt for payment of Rs.500 as earnest money for auction of plot. Ex. 5-F is a letter from the Additional Settlement Commissioner to the appellant informing him that his bid had been accepted. Ex. 5-F is a letter from the Deputy Settlement Commissioner addressed to the appellant informing him that he had to .pay the balance of Rs. 24,275 within seven days. Exs. 5-K and 5-D are other documents in support of the appellant's claim. Ex. 5-C is the challan showing payment of Rs.28,905.25 by the appellant as value of the auction prices. Ex. 5-G dated 24-7-1972 is the final transfer order issued in favour of the appellant. Ex. 5-H is the site plan. Ex. 5-1 is a letter showing the names of Hindu evacuee owners. Ex. 5-J is the certified copy of the extract showing the name of the appellant in respect of the plot in question as owner. The plaintiff's witness Ahmad Aslant has admitted to have prepared the sketch after demarcation marked as Ex. 5-H. The only objection taken by the trial Court as well as by counsel for the respondent was that. the author of Ex. 5-G was not produced. As the documents produced by the appellant are public documents it was therefore felt necessary to examine a witness from the Settlement Department to prove the documents. Mr. S. Ahmad Sajjad Haider. Deputy Secretary (E.P.) was examined as a witness. He brought the transfer file in the name of the appellant in respect of the plot in question. He produced Ex. 5-A the Auction List. The original transfer order Ex. A-1. He has deposed that Ex.5-G is the true copy of Ex. A-1 and the original order of transfer was issued by their office and also bears the signature of late Badrul Jalil, the then Deputy Settlement Commissioner. The witness has deposed that he had worked with late Badrul Jalil for about 12 years and he is conversant with his signature. He has denied the suggestion of the learned counsel for the respondent that Ex. A-I (5-G) is not a transfer document. He has also not admitted the suggestion of the respondent's counsel that Ex. I/A does not bear the genuine signature of Mr. Badrul Jalil. In view of the statement of S. Ahmad Sajjad Haider examined by this court, learned counsel for the respondents has not pressed his objection that the author of Ex. 5-G has not been examined. Thus these documents have been proved in accordance with sections 67 and 47 of the Evidence Act. Learned counsel for the respondents has therefore not disputed the title of the appellant which has been established through the documentary evidence. The finding of the trial Court on this issue in view of over whelming documentary evidence is erroneous. The same is set aside, and the issue is decided in favour of the appellant. It is an admitted fact that the plot in question was evacuee property and it was transferred to the appellant. The title of the Settlement Department has not been challenged by the respondent. The learned counsel for the respondents has conceded that valid title is transferred to the appellant from the Settlement Department. Counsel for the respondent next contended that no issue regarding mesne profit has been framed by the trial Court and the case be remanded for determination of this point by the trial Court. Learned counsel for the appellant has not claimed the mesne profit in view of the fact that no issue has been framed. As such it is not necessary to remand the case to the trial Court for this limited purpose. Learned counsel for the appellant has assailed the finding of the trial Court on Issues Nos. 2 and

4. Article 142 of the Limitation Act provides a period of 12 years from the date of dispossession or discontinuance. In a suit for recovery of possession the plaintiff has to prove that he was dispossessed within 12 years of the filing of the suit. In the present case the plot was transferred to the appellant in 1972 and suit was filed in 1973. The plaintiff has not claimed adverse possession against the Settlement Department. Learned counsel for the respondents has frankly conceded that under law he cannot claim adverse possession against the Settlement Department. The appellant is the transferee of the plot in question therefore he stepped into the shoes of the Settlement Department. The suit was filed after one year of the transfer of the plot in question. The learned counsel has drawn my attention to the averments made in the plaint that the possession of the plot was delivered to the appellant and thereafter he was dispossessed. This fact is not material because suit was filed after one year (if the transfer of the plot in question and as such the suit was within time. Learned counsel for the appellant has referred to the case of Abdul Hamid Khan and 5 others v. Inayat Khan and 2 others (PLD 1958 (W.P.) Lahore 99) wherein it has been observed that the plaintiffs had not only to prove their title to property at the time of the institution of the suit, but they had also to prove that they were in possession of this property within 12 years before the institution of the suit. As the predecessor-in-interest of the plaintiff was in possession of the disputed plot upto 1972 therefore the suit was within time. The next case cited by the learned counsel is Syed Moin Ahmed v. Khondkar Mohiuddin reported in PLD 1969 Dacca 132 wherein it has been held that under Article 142 it is the duty of the plaintiff to prove that he was in possession of the suit premises within 12 years prior to the filing of the suit. The plaintiff has proved this fact. Learned counsel for the appellant has also relied upon P L D 1974 Karachi 235 (Noor Ali Pir Muhammad Parsala v. Mrs. Patrica Dinshaw) that under Article 142 the plaintiff must prove dispossession from or discontinuance of possession of immovable property within 12 year preceding the date of suit. The facts narrated above clearly show that the plaintiffs suit was not barred by time therefore the fording of the trial Court on issue No.4 is also set aside. This issue is also decided in favour of the appellant. The finding of the trial Court on issue No.2 cannot be sustained in view of the discussion made while considering the question of limitation. Even if the plaintiff has not received physical and actual possession of the suit land from the Settlement Authority it would not have any effect on the plaintiffs suit. The plaintiff cannot be non-suited on this ground. His title has been established. The suit is not barred by time therefore the defendants have not established as to how they are entitled to retain the possession. The overall conclusion from the above discussion is that the appeal must, succeed. The same is accepted. The judgment and decree of the trial Court is set aside and decree is passed in favour of the plaintiff against the defendants directing them to handover the vacant possession of the disputed plot No.7 of survey No. 212 Deh Gujro, Tapo Songal, Taluka and District Karachi. The parties will bear their own costs. H.B.T./S-257/K Appeal accepted.