2007 SCMR 1510 (PLP)

SYED JAMSHED ALI, J.

This appeal by leave of this Court, is directed against the judgment, dated 23-6-2003 of the learned Lahore High Court and arises out of the following circumstances.

2. The land in dispute (which was evacuee) was allotted to Major Jang Baz Khan, somewhere in 1962. On 9-5-1981, he filed a suit for possession against Sain Ghulam Ali, the predecessor-in-interest of the' appellants. During pendency of the said suit, the property in dispute was sold by Major Jang Baz Khan in favour of Dar-ul-Uloom Ghousia, Ghousia Hanfia, the respondent herein, who was substituted as the plaintiff.

3. The suit was contested by the predecessor-in-interest of the appellants with the contention that he had been in possession of the land for more than 60 years and, therefore, his possession had matured into title. The suit was ultimately dismissed on the ground that it was barred by time. This conclusion was affirmed by the learned First Appellate Court with the observation that since allotment was made to Major Jang Baz Khan in 1962 the suit should have been brought within 12 years and, therefore the suit brought in 1981 was barred by time under Article 144 of the Limitation Act. The learned High Court, however, on reappraisal of the evidence, found that in the Revenue Record Sain Ghulam Ali was shown at "Muzara Tabey Marzi" for the year 1973-74 and 1976-1977 and the expression "Bashara Malkana Bawaja Qabza" was 'not sufficient to constitute adverse possession. Accordingly, the appeal of the respondent was allowed and the suit decreed.

4. The learned counsel for appellants submits that the suit was governed by Article 142 of Limitation Act because the plaintiff namely Major Jang Baz Khan has been in possession of the property in dispute and was dispossessed. Therefore, the suit should have been filed within 12 years of dispossession. The second submission is even under Article 136 of the Limitation Act, the suit was barred by time because the said Article also contemplated a period of 12 years for seeking possession by the vendee if the vendor was out of possession.

5. On the other hand, the learned counsel for the respondent has defended the impugned judgment for the reasons on which it is based with the contention that the learned High Court has found as a fact that the appellant's predecessor had not been able to establish adverse possession.

6. The submissions have been considered. As far as the first contention is concerned, it has no merit because it has never been the case of the appellants in their written statement that the original or the substituted plaintiff had been in possession and was dispossessed. It was a suit based on title to which Article 144 of Limitation Act was applicable and the period of 12 years would start from the date when the possession of defendant becomes adverse to the plaintiff. This was explained by this Court in Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR

522. There has been consensus of judicial opinion that Article 142 of Limitation Act governs a suit based on possessory title while Article 144 of Limitation Act governs a suit based on proprietary title. It may also be observed that possession for any length of time would not be adverse unless it is open, hostile and notorious to the knowledge of the real owner. A perusal of the written statement, shows that except passing reference of "Qabza Mukhalfana" based on possession for a number of year's no such plea was raised that this possession amounted to an act of ouster to the knowledge of the real owner. We will also like to observe that disputed property being evacuee vested in the custodian and therefore, the plea of continuous possession was not otherwise sustainable because the plea of adverse possession was not available against the custodian till the property lost the character as evacuee.

7. As far as the second contention is concerned, it has no merit. The scope of the said Article was explained by the Rangoon High Court in Saw En Hoke v. Ma Po Yin and others AIR 1934 Rangoon

223. In the said case, the plaintiff had filed a suit on the basis of registered sale in his favour beyond 12 years of the purchase, the suit was dismissed being barred by time under Article 136 of the Limitation Act. The Rangoon High Court while reversing the judgment of the District Judge held as under:

"In holding that the suit was barred by limitation, the learned District Judge held that Article 136, Sched. 1, Limitation Act, was applicable, as the purchased by the appellant was a purchase from a vendor who was out of possession of the property at the date of the Sale. He held that Kyi Nyo never acquired possession of the land, and that therefore, time began to run from the date of the sale-deed of 1917. But possession contemplated by Article 136 is not confined to actual occupation only; it also includes constructive possession. The expression "out of possession" as used in this Article, implies that some person is in possession adversely to the vendor, some person holding in a character incompatible with the idea that ownership remained vested in the vendor. See Chintamani Pramanik v. Hriday Nath Kamila (1) and B. Venkayya v. Ramakrishnamma (2) Time does not begin to run under this Article until the property is held in possession adverse to the vendor. In fact, the question for decision in applying this Article is whether, if there had been no second sale, and the vendor had brought the suit for possession, he would have succeeded. If he would have succeeded, then the vendee must succeed in the suit brought by him. In my opinion, this question must be answered in the affirmative in this case." (underline to supply emphasis). The view expressed by the Rangoon High Court was followed by learned Karachi High Court in Official Assignee of the High Court of West Pakistan, Karachi Bench, Karachi v. Muhammad Hussain and 28 others PLD 1978 Kar, 27.

8. For what has been stated above, we see no merit in this appeal in which is dismissed with no order as to costs. M.H./M-58/SC Appeal dismissed.