Possession

Mere possession does not confer title.

Authorities were aggrieved of order passed by High Court in exercise of Reference jurisdiction pertaining to confiscation of vehicles in question which were alleged to be smuggled

Validity

Condition precedent for Section 156(1)(89) of Customs Act, 1969 to apply, is that goods in question should be smuggled, in terms of Section 2(s) of Customs Act, 1969, read with applicable notification thereunder

Vehicles in question could be considered smuggled if either (i) at the relevant time, the applicable notification in terms of Section 2(s)(ii) of Customs Act, 1969 included vehicles, or (ii) in terms of Section 2(s)(iii) of Customs Act, 1969 the vehicles were brought in by any route other than a route declared under Section 9 or 10 of Customs Act, 1969 or from any place other than the customs station

In cases of registered vehicles, if at the time the vehicle was intercepted, more than 3 years had elapsed for cases prior to Finance Act, 2007 and 5 years for cases thereafter, the defence of "lawful excuse" was indefeasible

It was reasonable to assume that if a vehicle stood registered, the government was presumed to have exercised due care and diligence with respect to its obligation to see whatever duties and taxes as payable to the government before a vehicle could be registered, stood paid

Vehicles in question were registered, which registration was duly verified, and they were presumed to have been brought lawfully; after completion of notified period in case of used vehicles also

Without any proof it could not be said that a person (last owner) was involved in registration of vehicle knowing fully well that no duties and taxes, as required under the law, were paid, and that therefore the vehicle was fraudulently registered, and the vehicle could be seized from him on his failure to produce documents of import and payment of duties and taxes thereon, and even beyond the period of three years or five years, as the case would be, as required under Section 211(2) of Customs Act, 1969

In most of the cases since first registration, the vehicles had changed many owners on the strength of registration book and no adverse inference could be drawn for the ultimate bona fide owners unless otherwise proved by the authorities, in which exercise they had failed

Verified registration book and official record was enough for bona fide presumption that a valid title existed

Vehicles in question were those which were either auctioned or were brought into Pakistan and were registered through a statutory process and the auction papers or registration papers of some other vehicles were not being used fraudulently

Where it was established that chassis/engine numbers had been tampered with after auction or registration to match the description of auctioned or registered vehicle, the lawful excuse was not available

Supreme Court declined to interfere in the orders passed by High Court as the questions had been answered cumulatively

Appeal was dismissed.

Authorities were aggrieved of order passed by High Court in exercise of Reference jurisdiction pertaining to confiscation of vehicles in question which were alleged to be smuggled

Validity

Condition precedent for Section 156(1)(89) of Customs Act, 1969 to apply, is that goods in question should be smuggled, in terms of Section 2(s) of Customs Act, 1969, read with applicable notification thereunder

Vehicles in question could be considered smuggled if either (i) at the relevant time, the applicable notification in terms of Section 2(s)(ii) of Customs Act, 1969 included vehicles, or (ii) in terms of Section 2(s)(iii) of Customs Act, 1969 the vehicles were brought in by any route other than a route declared under Section 9 or 10 of Customs Act, 1969 or from any place other than the customs station

In cases of registered vehicles, if at the time the vehicle was intercepted, more than 3 years had elapsed for cases prior to Finance Act, 2007 and 5 years for cases thereafter, the defence of "lawful excuse" was indefeasible

It was reasonable to assume that if a vehicle stood registered, the government was presumed to have exercised due care and diligence with respect to its obligation to see whatever duties and taxes as payable to the government before a vehicle could be registered, stood paid

Vehicles in question were registered, which registration was duly verified, and they were presumed to have been brought lawfully; after completion of notified period in case of used vehicles also

Without any proof it could not be said that a person (last owner) was involved in registration of vehicle knowing fully well that no duties and taxes, as required under the law, were paid, and that therefore the vehicle was fraudulently registered, and the vehicle could be seized from him on his failure to produce documents of import and payment of duties and taxes thereon, and even beyond the period of three years or five years, as the case would be, as required under Section 211(2) of Customs Act, 1969

In most of the cases since first registration, the vehicles had changed many owners on the strength of registration book and no adverse inference could be drawn for the ultimate bona fide owners unless otherwise proved by the authorities, in which exercise they had failed

Verified registration book and official record was enough for bona fide presumption that a valid title existed

Vehicles in question were those which were either auctioned or were brought into Pakistan and were registered through a statutory process and the auction papers or registration papers of some other vehicles were not being used fraudulently

Where it was established that chassis/engine numbers had been tampered with after auction or registration to match the description of auctioned or registered vehicle, the lawful excuse was not available

Supreme Court declined to interfere in the orders passed by High Court as the questions had been answered cumulatively

Appeal was dismissed.

Respondent got land in question mutated in his name on the basis of judgment and decree passed by Trial Court in year 1952, which land was an evacuee land

Predecessor-in-interest of appellants sought cancellation of land in question from the name of respondent but he remained unsuccessful

Held, that after creation of Pakistan, all evacuee properties abandoned by non-Muslim evacuees stood vested with Central Government of Pakistan, who by operation of law had become owner of land in question under S. 6 of Pakistan (Protection of Evacuee Property) Ordinance, 1948

Bar was imposed under S. 12 of Pakistan (Protection of Evacuee Property) Ordinance, 1948, regarding transfer of any evacuee property on or after 1-8-1947, and all issues regarding such evacuee lands stood vested in the jurisdiction of Custodian

Appellants as well as respondent did not agitate the matter before such statutory forum

Respondent after lapse of a period of about 7 years challenged the transaction/sale deed dated 5-6-1944 before Civil Court on 1-10-1951 knowing that vendees after abandoning their lands had migrated to India

Respondent instituted a civil suit in Civil Court without arraying Central Government or Custodian as party to such civil suit

Suit was malafidely filed against non-Muslim vendees who were not living in Pakistan, rather they had migrated to India in the year 1947

Such suit land vested in government and respondent by committing fraud obtained decree from Civil Court without arraying necessary parties

Such decree was inexecutable as the same was passed without jurisdiction and was in itself void in nature and was devoid of creating any right

Division Bench of High Court directed revenue authorities to take necessary action against mutation in favour of respondent, which was based upon void and inexecutable decree

Division Bench of High Court declined to interfere in the judgment passed by Judge in Chambers of High Court

Intra Court Appeal was dismissed, in circumstances.

Section 53A of the Transfer of Property Act, 1882, will come into play for protection of the buyer only when the buyer had performed his commitments substantially and was willing to perform the remaining part of his promise, if any

No other way existed in which the buyer could be considered to have committed breach or there was indication of the buyer breaching his promises required to be met as per contract

Benefit of the part performance doctrine was not available to a person who sought to acquire a valid title to the property dealt with under a transaction which remained inchoate.

Mere transfer of possession to donee was not sufficient to constitute a valid gift under the law.

Every legal heir is deemed to be in constructive possession in respect of an inheritable estate.

Kinds of.

Possession would follow title.

Recovery of alleged unlicensed Kalashnikov, along with 15 live rounds, was effected on arrest of accused along with his brothers co-accused in a connected case under S.302, P.P.C.

Contradictions, discrepancies and lacunae were found in prosecution evidence, on the basis whereof no conviction could be recorded

Alleged recovery of arms and ammunition had been disbelieved by High Court in connected case on account of glaring contradictions in the statements of prosecution witnesses

Alleged recovery of Kalashnikov had not been effected from the actual possession and control of accused, but was allegedly effected from a joint house, where accused, along with his brothers (co-accused in connected case), was residing

To constitute "possession" within the meaning of S.13(e) of West Pakistan Arms Ordinance, 1965, it must be interpreted in its broadest sense, and apart from physical possession, it must also mean the ownership of and control over the alleged recovered arms and ammunition the word "possession" was a word of wide import and was not free from ambiguity

Meaning of possession must depend upon the context in which the word was used

Mental element was an essential factor of possession in criminal law

Mandatory provisions of S.103, Cr.P.C. had also been violated in the case

Alleged recovery of Kalashnikov without joining disinterested persons in spite of availability, was highly doubtful and no reliance could be placed upon the same, especially when ulterior motive had been alleged by accused

Prosecution having failed to establish its case against accused beyond reasonable doubt, impugned judgment of the Trial Court was set aside and accused was acquitted of the charge and was set at liberty, in circumstances.

Illustration.

Mere possession would not create any title in favour of a person.

Mere possession over a land for any long period would not entitle a person to become its owner.

Scope of such proof in Sawat area stated.

Person in occupation of immovable property would be bound to establish his capacity in which he was occupying the same.

Mere acceptance by donee and mentioning of delivery of possession in gift deed is sufficient.

If a witness has not seen and visited disputed property for last 7-8 years back, then his statement to the extent of possession carries no legal weight.

Distinction illustrated.

Where a person was continuing in possession, limitation would start against him from the time of denial of his title.

Possession of one co-sharer, in law was possession of all the co-sharers and for the benefit of other co-sharers.

Word "possession" has been used in the Control of Narcotic Substances Act, 1997, in a wider sense so as to include transport, despatch and delivery

Transportation within the country is also prohibited and the finding relating to the ownership is not required.

Person can be treated as an owner of a property even though he has no- possession over it provided other incidents of ownership are complete i.e. title etc.

Were a party continued to be in possession of proprietary rights question of limitation would not arise.

Possession follows the title.

Possession Possession follows title in case of vacant site.

When a property was not capable of physical possession or was otherwise not in possession of any other, it would be deemed to be not in possession of any one.

Report of Local Commissioner which had been accepted by the Court after disposing of objections against the same indicated that plaintiff was not in possession but defendant was in possession of property in question at the relevant time

Defendant was 4clared to be in possession.

Defendant's witness having admitted plaintiff's possession over plot in question, such evidence coupled with the evidence of plaintiff would prove plaintiff's possession over the plot in question.

Entries incorporated in Khasra Girdawari pertaining to the years 1951-52, 1963-64 and 1967-68 indicated that plaintiffs and their predecessors-in-interest were in possession of land in question, as tenants-at will under defendant and his predecessors and after execution of gift deed in favour of his son, they would be deemed to be tenants-at-will under the donee and not in adverse possession of same.

Such tenant was entitled to effect improvements over the land in question without seeking permission of owners if same were effected out of bona fide belief

Plaintiffs having pleaded adverse possession over the land in question had failed to establish the time when improvements in question were effected by them; nor that same were effected with the consent of owners of suit land and even no cost of improvement was pleaded by them in their plaint or proved by leading evidence

Plaintiffs were thus, not entitled to receive any cost of improvements from owners.

Both parties placed on record copies of Jamabandi for the year 1960, wherein defendants/vendors had been shown in possession of land in question

Plaintiffs claimed to be in possession for 14/15 years prior to the institution of suit by them, which had been instituted in 1979

No revenue record having been produced by parties after 1960, in support of their claim, revenue record produced by them relating to year 1959-60 would be of no avail to them about question of possession

Oral evidence produced by parties and report of Commission, however, fully established plaintiffs' possession over land in question

Plaintiffs were thus, in possession of land at the time of institution of suit.

[Words and phrases].

Such allottee, who had himself, yet not become owner of said quarter, was not authorised to pass on any title pertaining the same to petitioner-Petitioner's occupation in lieu of alleged sale was, therefore, illegal and he was in wrongful possession as same was unaulhoriscd

Petitioner having been dispossessed and such quarter being in occupation of another person for the past many years, Authority's order, refusing petitioner to be considered for allotment, under policy letters of Government was not unjustified as he was a trespasser and was not in similar occupation of quarter as those. in whose favour regularisation had been made

Petition being devoid of merit, leave to appeal was refused.

Principle of law that possession follows title and that in case of fallow or Banjar land, possession would be presumed to be that of the real owner, holds good only in cases where the dispute is between the trespassers or persons in wrongful possession on the one hand and the real owner or co-owner on the other

Such principle cannot be availed of by co-owner entering upon joint property as tenant or licensee on behalf of other co-owner.

A co-sharer is deemed to be in possession of land.

Respondent prima facie establishing through documents that possession had already been taken over through execution proceedings

Application dismissed.

Art. 185 (3)-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Ejectment on ground of personal need of landlord and default in payment of rent-Notwithstanding fact that no interference on facts was called for in constitutional petition, High Court attending to contentions raised on behalf of tenant-petitioner Findings of High Court that no case was made for interference found to be unexceptionable-No question of law worth consideration arising in petition-Leave to appeal refused-Provisional Constitution Order (1 of 1981), Art. 9.

Art. 185 (3)-Transfer of Property Act (1V of 1882), S. 53-APossession-Leave to appeal-Granted to consider question of law of considerable importance that various Benches of High Courts have expressed a view different from that expressed by Privy Council in AIR 1940 P C 1.

Property in dispute in possession of appellant, local (non.-displaced person) Government servant standing transferred to respondent on 11-5-60 under P.T.O. dated 23-7-6U

Appellant clearing rent dues in respect of said property on 31-6-61 about one year after its transfer to respondent

Held, appellant being ineligible for transfer on date of clearance of rent dues, subsequent eligibility, after property ceased to be available for transfer, could not entitle him to disturb transfer in favour of respondent.

[Words and phrases].

Rightful owner to be presumed in possession of such property-Possession of v4cant site or vacant land goes with title of rightful owner-Possession in case of doubt, follows title.

Co-sharer's possession, held, always on behalf of all co-sharers unless some overt act done setting up adverse possession or right of ownership denied.

S. 2(6) read with Ministry of Works and Rehabilitation Notification No. F. 3(3)/60-SI, dated 3-8-1960-Transfer of evacuee house Possession-Person in order to avail of benefit of extension of period beyond 20-12-1958 as envisaged by notification must be shown to have-been in undisputed occupation of property claimed-Allotment in favour of claimant having been for a period of few months only and competent authority entitled to allot house to other persons, claimant could not be deemed to have been in undisputed occupation-of claimant having remained in occupation of house throughout of no consequence in view of his occupation being illegal, being in breach of condition of allotment requiring such person to hand over possession to Settlement Authority on expiry of period of allotment.

Transfers of pieces of land on large scale by a person could constitute important piece of evidence to show open and active assertion to claim of adverse possession-Claim, however, should have been asserted within statutory period of limitation.

Finding of fact-Question whether a person was or was not in Hissa Dari possession of land in dispute-A question of fact - Concurrent findings by Courts below-No interference called for.

S. 9-Possession-Police has no power under law to interfere with possessory rights of citizens in their immovable property-Courts of law only proper forum

Possession, however, delivered by police in execution of orders of Martial Law Authorities quite within law-Jurisdiction of Courts (Removal of Doubts) Order (3 of 1969), para. 3.

Possession -Possession, proof of-Oral evidence adduced, discrepant and contradictory-Lower Court, held, justified in not accepting such evidence as proof of possession.

Possession -Maxim: Pari delicto, scope of-Where both parties are equally at fault law would help one in possession.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 2(6)-Possession-Includes constructive possession.

Possession Possession Person, having no title to land, dispossessed by another by lawful process-Cannot sue upon his prior possession alone.