2004 PLP 1395 (YLR)

(1) Whether the plaintiff is owner of the suit property and entitled to recover possession of the suit property? OPP (2) Whether Mr. Abdul Sattar is not legally constituted attorney for the plaintiffs Nos. 1 to 5 and the suit has not been properly constituted? If so its effect'? OPP (3) Whether the suit is barred by time? OPD (4) Whether the plaintiffs have no cause of action and locus standi? OPD (5) Whether the plaintiff committed fraud and misrepresentation in procuring allotment of the suit property without any lawful authority? If so its effect? OPD (6) Whether the suit is not maintainable in its present form? OPD (7) Whether the suit is barred under the principle of res judicata? OPD (8) Whether the defendants are owners in possession of the suit property on the basis of adverse possession? OPD (9) Whether the defendants are owners of the suit property under the principle of prescription? OPD (10) Whether the plaintiff's suit is false, mala fide and vexatious and liable to compensatory costs under 35‑A, C.P.C.? OPD (11) Relief. The learned trial Court after recording the evidence of the parties dismissed the suit of the plaintiffs/petitioners on 5‑6‑1996. Issue No.1 in respect of ownership was decided in favour of the plaintiffs/appellants. Issue No.3 regarding limitation and Issues Nos.8 and 9 regarding adverse possession were decided in favour of the defendant/ respondent and against the plaintiffs/ appellants.

2. Learned counsel for the appellants contended that the suit was not barred by time nor the principle of 'res judicata' was applicable to the facts of the instant case. He urged that the adverse possession of the respondent was not proved on the record. Conversely the learned counsel for the respondent defended the impugned judgment stating that the respondent had become the owner of the property long ago by virtue of his adverse possession on the suit‑land.

3. We have gone through the judgment of the trial Court and perused the record. Issue No.1 in respect of ownership of the suit property has been decided in favour of plaintiffs/appellants. Neither appeal nor cross‑objections have been filed by the respondent, the finding on Issue No.1 has attained finality. The ownership of the plaintiffs/appellants is no more in dispute. The plaintiffs have produced "Naqal Khasra Amarati" Mauza Ichhra for the year 1968‑69, Exh.P.2 showing the plaintiffs/appellants as owners‑in‑possession of the suit‑land/plot in Khasra No.9031/1. "Naqal Khasra Amarati" Mauza Ichhra for the year 1984‑85, Exh.P.3 also shows the plaintiffs/appellants as owners in possession of the suit‑land/plot. We do not find any entry about adverse possession of the respondent in the said two documents. In order to show the possession as hostile the same has to be proved from documentary evidence. Adverse possession cannot be established by mere word of mouth. In the absence of clear evidence about unambiguous, open and notorious disclaimer of the title of the true owners, possession of the respondent on the land could not be held adverse for giving title to him. The respondent had only produced oral evidence and no document from the Revenue Record in order to substantiate his version has been brought on the record. See Barkat Mondal and others v. Baitulla Bepari and others PLD 1970 Dacca

407. We are not inclined to accept the oral version of the respondent. The suit of the plaintiff for declaration that he was in adverse possession of the suit‑land was dismissed by the learned Additional District Judge, Lahore vide judgment Exh.P.7. The contention of the learned counsel that the adverse possession of the respondent on the property is proved also goes by the board. The provisions of section 28 of Limitation Act, 1908, have been declared repugnant to the injunctions of Islam by the Honourable Supreme Court of Pakistan in the case of Maqbool Ahmad v. Government of Pakistan and others 1991 SCMR 2063 and the same ceased to have effect w.e.f. August 31, 1991. It is well‑settled by now that no decree can be passed on the ground of adverse possession after the target date i.e. 31‑8‑1991. See Mst. Walayat Jan and 7 others v. Habib Ullah Khan and 4 others 1992 MLD 751, Abdul Latif and 5 others v. Manzoor Ahmad and others 1993 MLD 177, Muhammad Ashraf and others v. Bholu and others 1994 MLD 81, Abdul Hameed and another v. Mst. Aaleeman (deceased) through Legal Representative and others 2002 YLR 3864 and Muhammad Aslam and another v. Muhammad Sarfraz Khan and others 1996 MLD 1216. Similarly no plea of adverse possession could be raised in defence nor was it available to any defendant nor any suit for recovery of possession could be dismissed after the target date on the ground of title having matured in favour of defendant on the basis of adverse possession. In the circumstances stated above the question of limitation would not arise. As far as the question of 'res judicata' is concerned the previous. petition filed by the appellants against the respondent was for ejectment of the respondent. Question of title was not decided in the said ejectment petition. We therefore allow this appeal and set aside the findings of the learned trial Court on Issues Nos.3, 4, 7, 8 and 9 and decree the suit of the plaintiffs/appellants. M.I./Z‑216/L Appeal allowed.