Adverse Possession

Suit filed by predecessor-in-interest of appellants was decreed in his favour but Lower Appellate Court allowed appeal and suit was dismissed

Judgment and decree passed by Lower Appellate Court were maintained by High Court

Validity

Possession of suit property was with predecessor-in-interest of respondents/defendants who had electricity consumption meter in their name but the same did not bear any fruit for them and had no effect on merits of the case

Such entries could never be termed as equivalent to ownership

Predecessor-in-interest of appellants was owner of suit house and after his death, the appellants stepped into his shoes

Status of predecessor-in-interest of respondents was that of a tenant and thereafter, respondents had stepped into his shoes

Sale mutations were of no help to predecessor-in-interest of respondents and their possession of suit house was not less than that of a trespasser

Supreme Court set aside judgments and decrees passed by Lower Appellate Court and High Court as Trial Court had rightly granted decree in favour of appellants

Appeal was allowed.

Suit for possession instituted by the respondent/plaintiff was dismissed, but the Appellate Court allowed the appeal of the respondent/plaintiff and decreed the suit in his favour

Contention of the petitioners was that suit for possession was not maintainable being time barred and having been filed without seeking declaration of title

Validity

Respondent purchased property from Khasra No.746, however, possession was handed over to him from Khasra Nos.745 and 746 as the predecessor-in-interest of the petitioners was owner in both the Khasras, thus, petitioners had not thrown any serious challenge to the title of the respondent and as such objection of the petitioners qua maintainability of suit for possession was without any force

Person is only obliged to seek declaration when somebody is interested to deny his legal right or character as ordained in S. 42 of the Specific Relief Act, 1877

Petitioners were claiming protection of their possession on the plea of "adverse possession", thus, when they had no title to the suit property, they could only be termed as "trespassers"

With the afflux of time illegal possession upon the property of the other, irrespective of howsoever long it is, would not extinguish the ownership of the actual owner and validate the possession of trespasser

Knocking out the respondent on account of limitation would amount to giving premium to the petitioners under the obsolete provisions of law i.e. S.28 and Art. 144 of the Limitation Act, 1908, which had already been declared as deviant to the Quranic Injunctions

Civil revision was dismissed, in circumstances.

For claiming an adverse possession a party claiming adverse possession admits the ownership of other side, but on the basis of long uninterrupted hostile possession claims the adverse possession.

Claim on the basis of adverse possession was declared against injunctions of Islam.

Party's claim as to the right to occupy the disputed property on the basis of adverse possession is not permissible under the law and adverse possession has been declared as un-Islamic by Supreme Court of Pakistan.

Plaintiff filed suit for possession claiming therein that he was owner of the suit land whereas the defendants were in possession of the land as Ghair Moroosi

Trial Court decreed the suit and Appellate Court dismissed the appeal

Validity

Plaintiff had filed suit on the basis of title on the suit land, so the contention raised by defendant that Art. 142 of Limitation Act, 1908, was attracted, had no force

Article 142 of Limitation Act, 1908, was applicable where plaintiff being originally in possession of property was dispossessed or discontinued to be in possession, whereas, Art. 144 was attracted when suit for possession was based on the essence of title

Time limit for filing a suit as detailed in Art. 144 was twelve years and the same was to be reckoned from the date when possession of defendant became adverse to plaintiff

Possession of the defendants had become adverse to the plaintiff's rights just one month ago

Courts below had accurately decided the issue of limitation

So far as contention of defendants that all the co-sharers were not impleaded was concerned, High Court observed that co-sharers were not necessary or proper party for the reason that nothing was claimed from the co-sharers

Appeal was dismissed.

Plaintiffs filed suit for possession on the basis of ownership whereas defendants instituted suit alleging that they were in adverse possession of suit property

Trial Court decreed the suit of plaintiffs whereas suit of defendants was dismissed but Appellate Court dismissed the suit of plaintiffs and decreed that of defendants

High Court set aside the judgment and decree passed by the Appellate Court and restored that of Trial Court

Validity

Right of an owner for instituting suit for possession was automatically extinguished along with remedy to recover possession prior to amendment in S. 28 of Limitation Act, 1908

Defendants had failed to prove their adverse possession over the suit property

Mere non-payment of 'Batai' did not extinguish the right of adverse possession but if a person succeeded to prove his ownership then his right would remain intact which could not be extinguished

Owner of suit property could file a suit for possession at any time for which no limitation had been prescribed

Plaintiffs were owners of suit land whereas defendants were tenants

Mere peaceful possession spreading over decades or possession in absence of land owners could not be regarded as "adverse"

Nothing was on record that defendants were in possession of suit property as owners

No decree in the suit of adverse possession could be passed on the basis of law which was no more available on the statute book

Appeal was dismissed in circumstances.

Revision was dismissed in circumstances.

Contention of defendants was that suit property was transferred in their favour by the predecessor of the plaintiffs in his life time

Suit was decreed concurrently

Validity

Defendants were bound to prove the transaction and execution of alleged 'Iqrar Nama' in their favour

Only one marginal witness out of five witnesses of transferred deed was produced

Defendants had failed to prove the transaction and execution of document by not producing stamp vendor, scribe and alleged marginal witnesses or persons who could testify the signatures of deceased marginal witnesses

Findings recorded by the courts below were based on proper appreciation of evidence

Plea of adverse possession was against law

No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below

Objection which was not raised before the courts below could not be raised at revisional stage

No illegality or irregularity had been pointed out in the impugned judgments and decrees

Revision was dismissed in circumstances.

Suit filed, due to denial of rights of co-sharer, for declaration would be within time.

Defendant raised objection of limitation as he had based his claim on adverse possession for having been in possession of suit property for twenty-eight years

Trial Court accepting said objection held that the suit was time-barred

Validity

Plaintiff filed the suit on basis of title and cause of action under Art.144 of Limitation Act, 1908 arose on date when possession of defendant over suit property became adverse to plaintiff

Defendant claimed right on basis of adverse possession when he had filed written statement

Suit was within time

High Court reversed findings of Trial Court as to issue of limitation.

Plaintiff had to prove that he had been in a continuous, open and hostile possession of suit land for a specific period of time

Oral evidence could not be a substitute of documentary evidence

Plaintiff was not in continuous possession of suit land at the time of institution of suit

Suit of plaintiff, therefore, lacked an essential ingredient of adverse possession

Suit land was Shamilat deh and title of plaintiff was to be ascertained by the revenue authorities

Co-sharer could not be dispossessed from the Shamilat deh until it was partitioned by the revenue authorities by metes and bounds

Plaintiff having failed to prove his title to the suit land on the basis of adverse possession, could not be ejected from the land unless it was partitioned by the revenue authorities

Suit of plaintiff was decreed in the tone that he should not be dispossessed from the land until it was partitioned in accordance with law

Appeal was disposed of accordingly.

Second appeal was accepted in circumstances.

Adverse possession must be actual, open, exclusive, continuous, hostile and adverse to knowledge of real owner and person in possession of suit land had never recognized ownership of its owner

Decree for declaration on ground of adverse possession could not be passed in favour of plaintiff having failed to prove his possession over suit land to be adverse against defendants.

Plaintiffs brought suit to the effect that suit property was mortgaged by predecessor-in-interest of defendants with predecessor-in-interest of the plaintiffs which was not redeemed within sixty years and plaintiffs became owners of the same

Trial Court decreed the suit on the basis of prescription and that decree was challenged through application filed under S. 12(2), C.P.C. by the defendants

Trial Court accepted the said application, set aside the decree which was upheld up to the High Court and thereafter one of the defendants moved application under O.VII, R. 11, C.P.C. on the ground that S. 28 of the Limitation Act, 1908, had been declared as repugnant to the Injunctions of Islam and plaintiffs had got no cause of action which was concurrently accepted

Validity

No doubt, after omission of S. 28 of the Limitation Act, 1908, no suit for prescription could proceed prior to the target date i.e. 31-8-1991 and same would be liable to be burried at its very inception

Present suit had been filed after the target date which was barred by law

When the suit of the plaintiffs-petitioners was barred by law, remand of the same and providing opportunity to the parties to lead evidence would just be a futile exercise and wastage of time and while exercising the jurisdiction under O. VII, R. 11 C.P.C., the court was supposed to look at the grounds alleged in the plaint and if it came to the conclusion that even if all the averments of the plaint were accepted and proved at the trial, the plaintiffs would not be entitled to any relief, the plaint would be rejected

Both the courts below had rightly appreciated the law on the subject and had reached to just and right conclusion by invoking the provision of O.VII, R.11, C.P.C.

Revision was dismissed.

Starting point with regard to adverse possession is the period from when first time it is declared by person holding such possession, openly, widely and in a hostile manner that possession is adverse and is a categorical denial of title of real owner about property in question

Such possession should be for an uninterrupted period of more than 12 years

Possession must be nec vi nec clam nec precario i.e. peaceful, open and continuous.

Enumerated.

Plaintiffs admitted that houses in question were more than 40 years old and were constructed before 1947 and no legal action was taken by plaintiffs against defendant between years 1947 and 1979 i.e. when rent application was filed by plaintiffs against defendants for ejecting them from suit property or restraining them from raising illegal construction on their property

Plaintiffs had to prove that they or their predecessors were at any point of time in possession of suit property

No answers were available to such questions and the same could only be answered after detailed deliberation and recording of evidence in such issues and allowing parties to lead evidence thereon

Plea of limitation and adverse possession were questions of facts and had to be established on record before the Court taking evidence, which was Trial Court

Simple averments and vague statements were not sufficient rather each and every statement made on behalf of defendants and plaintiffs had to be substantiated with cogent material and evidence

High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court to decide issues afresh after providing opportunity to lead further evidence to parties

Revision was allowed accordingly.

Co-owner in possession of joint property would be enjoying possession on behalf of all co-owners and could not assert plea of adverse possession against his co-owners.

On expiry of period prescribed by law for a suit for possession of any property, the right of owner was to be extinguished

Basic concept and logic of the declaration of section 28 of the Limitation Act, 1908 to be repugnant to the Injunctions of Islam was that no lawful owner could be deprived of his right, merely by the efflux of time nor a person enjoying possession for such a long period could be rewarded with premium of ownership

Mortgagee enjoying the possession of mortgaged property for sixty years or more get too much through its usufruct, more than his mortgage money and could not additionally be bestowed with the ownership of property, as well on expiry of sixty years.

Contention was that mortgagors having not redeemed the suit-land for a period of sixty years, petitioners had become owners of the same on the basis of adverse possession for more than sixty years

Suit filed by plaintiff was decreed by Trial Court

Appellate Court had rejected the plaint on the ground that S. 28 of the Limitation Act, 1908 had been omitted so the suit for prescription had not proceeded

Validity

After omission of S.28 of the Limitation Act, 1908, present suit could not proceed prior to the target date i.e. 31-8-1991 (with respect to omission of S.28, Limitation Act, 1908) and the same was liable to be buried on its very inception

Appellate Court had rightly set aside the decree of Trial Court

Revision petition was dismissed.

Party (in possession) must prove that his possession over the suit land was actual, open, exclusive, continuous, hostile and adverse to the knowledge of real owners; and they had not admitted them as owners of the land openly.

Survey number in dispute was half in the possession of defendants and half in the possession of the plaintiffs, meaning thereby that the land was also adjacent

Possession of the plaintiffs on the suit land having been proved hostile against the defendants, they had successfully proved their hostile possession

Judgment of the High Court and that of Appellate Court below, were perfectly legal, in circumstances.

Adverse possession must be actual, open, exclusive, continuous, hostile and adverse to the knowledge of real owners.

Plaintiffs claimed to be owners in possession of suit property on the basis of adverse possession as property was mortgaged with them and was not redeemed even after sixty years

Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs

Validity

Suit was filed on 2-3-1989, while law of adverse possession was declared un-Islamic on 31-8-1991

Since no decree till target date i.e. 31-8-1991, was passed, therefore, after that date, no decree under old law could be passed and suit was not maintainable as S.28 of Limitation Act, 1908, had already been declared un-Islamic and ceased to have effect any more

If suit had been decreed before target date, situation would have been different

If some law or provision of law was declared against Injunctions of Islam, that meant that it was not only un-Islamic on that day but it was un-Islamic in the past too, as such, it would apply upon all cases pending at the time of announcement of judgment/declaration by the Supreme Court i.e. 31-8-1991

In order to avoid complications, cases which already stood decided or at least first decree had been passed therein would be decided in accordance with law prevailing before such declaration by Supreme Court and treated as past and closed transactions

Mortgaged land was usufructuary and possession of the land was with plaintiffs from date of mortgage of land

Plaintiffs were enjoying possession of the land and benefiting through getting produce therefrom which would be treated as payment to mortgagees for the purpose of limitation regardless of the intention of parties receiving such usufructs in view of provisions of S.20 of Limitation Act, 1908, which had provided that where mortgage land was in possession of mortgagee, receipt of rent or produce of such land would be deemed to be a payment

High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court

Revision was allowed accordingly.

Principles.

Plea of adverse possession having not been taken at any stage of the proceedings by the petitioner, he was precluded from raising the said plea at stage of petition for leave to appeal.

Plea of adverse possession by the petitioner neither finally concluded at any stage nor any decree was passed favouring the petitioner to the effect that he was in adverse possession of land of an evacuee

Petitioner's constitutional petition was pending on the day when judgment of Supreme Court in Maqbool Ahmad v. Hakoomat-e-Pakistan1991 SCMR 2063 was rendered declaring section 28 and Art.144 of the Limitation Act, 1908, repugnant to the Injunctions of Islam insofar as the same provided for extinguishment of right in the property, and it was held that decision of Supreme Court would take effect on specified date

In view of said decision of Supreme Court, plea of petitioner's adverse possession had lost its efficacy, if there was any, as said judgment was not to affect any past and closed transaction, while in the case of petitioner, matter of adverse possession was never treated as past and closed transaction

Impugned judgment of the High Court, did not suffer from any legal infirmity; rather High Court after adverting to all aspects of the case, had decided the matter, which did not require any interference by the Supreme Court

Petition for leave to appeal was dismissed.

Nothing was available on record to show that petitioner came into possession of property on behalf of an evacuee or with his consent

Petitioner, in circumstances, could only be considered as trespasser.

Such possession had to be proved as open and hostile with a declared denial of real owner's title and to his knowledge.

Defendant by his act and of omission had not only acknowledged and admitted such findings, but had relinquished his right to challenge such findings in revision petition

High Court dismissed revision petition while maintaining such findings.

Plea of adverse ,possession is a plea which is raised to deprive a legitimate owner from his lawful right over his property.

Plaintiff claimed to be in possession of government land for more than thirty years and sought declaration of title on the basis of adverse possession

Validity

After declaring S.28 of Limitation Act, 1908, repugnant to injunctions of Islam by Supreme Court, the same ceased to have effect

No decree could be passed on the ground of adverse possession after the target date viz. 31-8-1991, fixed by Federal Shariat Court and promulgation of Limitation (Amendment) Act, 1995

Plea raised by plaintiff to have decree on the basis of adverse possession was no more available to him to protect illegal and hostile possession over government land

Plaint was rejected in circumstances.

Suit filed by plaintiff in year 1979, was withdrawn on 18-10-2000, with permission to file fresh suit on same cause of action

Plaintiff filed fresh suit on 8-5-2002, but it was rejected/dismissed by Trial Court being barred by limitation

Order passed by Trial Court was maintained by Appellate Court

Validity

Suit filed by plaintiff in year, 1979, being within 12 years of defendant's illegal occupation, was within tine

After withdrawal of first suit, the second suit was filed in year, 2002, i.e. after 33 years of defendant's illegal occupation and was, therefore, time-barred

On 31-8-1991, i.e. on the date of enforcement of decision of Supreme Court in case titled Maqbool Ahmed v. Hakoomat-e-Pakistan, reported as 1991 SCMR 2063, which was after more than 22 years of defendant's illegal occupation, plaintiff's alleged right of ownership having already extinguished under the provisions of S.28 of Limitation Act, 1908, was no more in existence and the decision of Supreme Court did not have the effect of reviewing a non-existent right

High Court in exercise of revisional jurisdiction declined to interfere with concurrent judgments and decrees passed by two courts below

Revision was dismissed in circumstances.

Plea of adverse possession and plea of title, if raised in same breath, would be mutually destructive.

Plea of `adverse possession' and plea of `exchange' could not stand together and clash was irreconcilable.

Respondents had claimed that suit-land was admittedly in possession of their grandfather and after his death it remained in possession of their father during his life time and thereafter they were in its possession which possession not only had been admitted by appellants, but was supported by entries in Revenue Record

Trial Court and Appellate Court having concurrently decreed suit filed by respondents, appellants had filed second appeal before High Court against said judgments and decrees

One of appellants had died during pendency of appeal, but his legal heirs were not brought on record by appellants within prescribed period of limitation

Respondents had contended that due to non-impleading of legal heirs of deceased appellant, said appeal stood abated in toto

Plea of appellants was that after adoption of Pakistan Law Reforms Ordinance, 1972 in Azad Jammu & Kashmir, appeal would not abate for non-impleading of legal heirs of any party

Validity

Deceased appellant had died long before adoption of said amendment in Azad Jammu & Kashmir and same having not been given retrospective effect, was not applicable in the case

Law existing prior to adoption of said amendment would govern the matter

Even said amendment was effected in Code of Civil Procedure through Law Reforms Ordinance, 1972 which had not been made applicables retrospectively

Respondents could not be deprived of vested right which had accrued to them before adoption of amendment in Azad Jammu & Kashmir

Decree under challenge having been awarded on basis of adverse possession, same was indivisible

Appeal stood abated in toto and was dismissed accordingly.

Both such pleas were contradictory.

No co-sharer, in such circumstances, can claim adverse possession.

Whenever, in a case involving the plea of adverse possession, there is a conflict between the entries in the column of cultivation and the column of Lagan and there is no independent evidence to substantiate the plea of adverse possession, the entries in the column of cultivation are to be given preference over the entries in the column of Lagan

Principles.

Adverse possession must be actual, exclusive, visibly hostile and continuous for, statutory period without any legal origin

Act of possession exercised at interval over different portions of land in different years would not amount to adverse possession.

Taking conflicting pleas of ownership by purchase and by adverse possession would tantamount to approbate and reprobate.

Plaintiff, while claiming the decree on basis of adverse possession, had to, show continuous and un-interrupted adverse possession for prescribed period of 12 years

Mere entry in Revenue Record that person or his predecessor-in-interest was tenant-at-will paying Lagan or Batai owing to assertion of ownership, would not in law amount to open and overt act of hostile or adverse possession against true owners

Non payment of rent for more than 12 years, would not constitute adverse possession of tenant

In order to succeed in a claim of adverse possession, tenant was further required to prove/establish by his conduct that he had given up his tenancy rights, declined title of the owner and openly enjoyed land in his own rights and not as tenant-

Even otherwise co-sharer could not raise plea of adverse possession against other co-sharer because each co sharer, even though not physically in possession of the property in which he had a share to any extent, could be deemed to be in possession of property as in that case a co-sharer was presumed to be having possession in every inch of the property jointly owned by him with other co-sharers.

Both such claims could not be maintained in law being mutually destructive and not alternative or reconcilable.

Tenants could not become owners by prescription merely on the of non-payment of rent of "batai" for a certain period as it would not constitute a case of adverse possession to assert title unless it was established by them in unequivocal terms that they remained in possession of the land adversely and in explicit hostility to the interest of the true owners

­Possession off permissive nature would not change by efflux of time.

Mere nonpayment of rent for any length of time would not convert possession into adverse possession for purpose of limitation.

Permissive possession can never he converted to adverse possession, until the possession is surrendered and illegal re-entry is made.

Both pleas being contradictory and irreconcilable to each other, suit was liable to be decreed on this short ground.

Plea of adverse possession in, respect of immovable property was declared as un-Islamic in terms of judgment of Shariat Appellate Bench reported as 1991 SCMR 2063, which was to take effect from 31-8-1991

Said judgment would not in any manner affect rights of parties which had matured prior to the date of its effectiveness

Party claiming to be owner of land vide sale-deed, could not simultaneously raise plea of ownership on basis of adverse possession since such pleas were mutually contradictory and destructive

In order to establish adverse possession one had to specify date of possession, nature in which it was acquired and overt act committed by him to show open and hostile possession and right against legal owners of the land.