P L D 1983 Karachi 510 (PLP)

By this judgment Revision Applications 208/80 and 209/80 . shall be disposed of. The dispute relates to the plot of land bearing No. 3-B/28/49, Nazimabad, Karachi which was owned by one Atiqur Rahman. He sold this plot on 1.8-8-1970 to Mst. Qamra Khatoon hereinafter referred to as the respondent. On execution of the sale-deed the possession was delivered to the respondent who got her name mutated in the records of K, D. A. In the month of September, 1970 when the respondent sent her contractor for constructing the building she found that the applicant had trespassed on the plot. The respondent called upon the applicant to vacate the plot immediately as he was a trespasser but he did not agree and threatened with serious consequences. The matter was reported to the police. However, as the dispute was of a civil nature the respondent filed Suit No. 2292/70--for-'possession and mesne profits. The applicant resisted the claim on the ground that he has been in possession of the plot for more than 12 years and, therefore, he has an adverse possession over it and the title and right of Atiqur Rehman who had conveyed this property to the respondent has been lost. He has stated that he had entered on the plot 12 years before the year 1970. Applicant also pleaded that he has also filed a suit bearing No. 2087/70 in respect of the same property for declaration that by virtue of the adverse possession he is the owner of the property. Both the suits were tried together and 'the learned trial Court decreed Suit No. 2292/70 filed by the respondent and dismissed Suit No. 2087/70 filed by the applicant. Two appeals were filed by the applicant which were also dismissed. Revision Application No. 208/80 arises out of Suit No. 2087/70 filed by the applicant whereas Revision Application No. 209/80 arises out of Suit No. 2292/70 filed by the respondent. The evidence which was recorded in Suit No. 2292/70 has been read as the evidence in both the suits. Mr. Urfi the learned counsel for the applicant has contended that both the Courts below have erred in holding that the applicant is not in adverse possession of this land. According to the learned counsel as the respondent had filed a suit for possession it was governed by Article 142 of the Limitation Act and, therefore, unless she proves that she was dispossessed she cannot succeed. The second contention of the learned counsel is that in arriving at the conclusion that the applicant did not enter into possession 12 years before 18-8-1970 the learned Courts below have ignored the evidence of the applicant and have misread it. Taking the first contention it may be pointed out that the applicant's main emphasis is that in the plaint and in the evidence the respondent has not alleged that she has been dispossessed and, therefore, the question of granting relief as provided by Article 142 of the Limitation Act is not available. The contention of the learned counsel does not seem to be correct. In the present case the respondent has rested her case both on her title as well as on dispossession from the disputed land. It is well-settled that possession follows the title, and if a question arises as to who is in possession' of the land the presumption is in favour of the true owner. Reference cant be made to Noor Alt Pir Muhammad v. Patracia Dinshaw (P L D 1974 Kar. 234) and Ramzee v. Margarette ((1894) L R 2 Q B 18). In the present case from the assessment of evidence it is clear that the respondent had purchased the property from Atiqur Rehman who was the owner of the property. The respondent has clearly established her title to the property and in the conveyance deed it has been stated that the possession has been delivered to her. Therefore, in these circumstances the presumption is that the respondent is in possession and this possession is being resisted by the applicant by setting up a case of adverse possession. In such circumstances it is not necessary that the respondent should have led a clear evidence to the effect that she was in physical possession and has been dispossessed by a person claiming adverse possession. The respondent has claimed relief on the basis of being an owner of the property. An owner of the property is entitled to eject the trespasser. In this regard reference can be made to the case of Noor Ali Pir Muhammad where it was observed that 'the respondent has principally rested her case both on her title to the disputed land as the sole heir of the late Mr. Dinshaw, as well as on her dispossession from the disputed land, the act of dispossession being the act of the appellant in setting up his own title to the land in his reply dated 20th April, 1960 to the respondent's notice of 6th April, 1960'. The original title of Atiqur Rehman has not been disputed. Even the applicant relies on the title of Atiqur Rebman. In these circumstances besides the fact that the claim is on the basis of the title the applicant has stated that when bet contractor went the applicant asserted his right by claiming adverse, possession. Therefore, in view of Pir Muhammad's case this would amount to dispossession of the respondent. In view of this legal position the judgments of the learned Courts below cannot be subjected to any interference.

2. The second contention of the learned counsel for the applicant is that the Courts below have misread the evidence and also ignored the evidence of the applicant in deciding the' issue whether the applicant .was in adverse possession or not. At the outset it may be stated that the finding on question whether the applicant was holding possession 12 years before the cause of action arose to the respondent, is a finding of fact which has been con-' currently found against the applicant. Both the learned Courts below have assessed the evidence of the parties and have discussed it in detail. In view of contradictions in the evidence of the applicant the learned Courts , below have come to the conclusion that the applicant was not able to prove hi claim of adverse possession. Heavy burden lies upon the party. who claim adverse possession. . Once a party proves his title to the property the presumption will be that he is in possession of the property as a true owner. This presumption is greater in case of open land and the burden lies entire upon the defendant to prove that he had been in continuous possession for 1 years. Such possession should be in continuity without any break. The person claiming adverse possession must establish by cogent, clear and conclusive evidence that he has continuously been in possession for the whole of the statutory period requisite for completing title by adverse possession and that his entry was with the intention to assert hostile title. In the present case as the respondent had proved the title the burden shifted entirely upon the applicant to prove adverse possession. Viewing the case from this point of view I find that Courts below have taken a correct view of the law. In this regard reference may be made to the evidence of Ali Ahmad a Record Sorter of K. D. A. who was examined as a witness for. the applicant. He has produced an application dated 11-1-1969 and an affidavit dated 17-1-1969 Exhs. 19 and 20 respectively in which the applicant had prayed for transfer of his name in place of Atiqur Rehman. In the application he has stated that the plot was allotted to Atiqur Rehman but since 1952 he left Karachi, handed over the said plot to him which he was occupying but the papers have been lost by him. In the affidavit he has stated the same facts. These documents clearly prove that the applicant was put in possession by the allottee. On his own admission the applicant had a permissive possession which is contrary to adverse possession. The Privy Council in Ijaz Ali Gidwai and others v. The Special Manager, Court of Wards, Rampur State and others (AIR1935PC53) : held that `The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.' After discussing host of authorities in Noor Ali i Pir Muhammad's case Noorul Arfin, J. observed that "From this follows the rule that permissive possession of land cannot constitute adverse possession, whether the permission is express, or may be implied from the circumstances of the case." In this regard reliance was placed on A I R 1915 All. 312, A I R 1917 All. 182 and A I R 1923 All.

140. Putting the present- case to the test laid down by the judgments of our Courts as well as the Privy Council it seems clear that on his own showing the applicant bad entered into possession with the permission of the allottee. The entry of the applicant was not with the intention to assert hostile title. As the entry and possession lacked the intention of the applicant to acquire title by prescription, the question of adverse possession does not arise. As observed earlier both the Courts below, have given a concurrent finding of fact on the question of possession of the applicant. This finding of fact cannot lightly be disturbed in exercise of the revisional jurisdiction. The power of the High Court, is exercise of revisional jurisdiction, to look into the evidence may be with a view to determine whether the subordinate Court has assumed the jurisdiction which it had not or declined to exercise the jurisdiction it bad or acted illegally or with material irregularity in the exercise of its jurisdiction. The revisional Court,' however, will not disturb the concurrent finding of fact of subordinate Courts or substitute its own appreciation of evidence for that of the trial Court unless such conclusions of facts are based on no evidence at all, or if no opportunity was given to the party. to substantiate the respective contentions. If the finding of fact is based on incorrect approach of and applicability to the provisions of law the High Court has the power to interfere and correct this mistake. In view of these reasons both the revisions were dismissed by a short order on 8-11-1982. M. z. M. ????????? Revisions dismissed.