' On 8-1-1989 the petitioner filed a suit against the respondents. In the plaint it was stated that Mst.
Hussain Bibi was the original owner of the suit-land mentioned in the plaint. She sold the same to the respondents vide Mutation No,517 attested on 1-9-1960. The petitioner filed a pre-emption suit which was decreed in his favour on 20-12-1961. He deposited the pre-emption money and Mutation No,734 was attested on 15-9-1969 and he took possession of the land and cultivated it through a tenant. It was alleged that 2/3 years before the institution of the suit the respondents had taken over possession of the land. He made inquiries and he found that the said mutation was reviewed and cancelled. With these averments he sought a decree for possession. The respondents stated that they are in possession since 26 years and this possession is adverse and they have acquired title through prescription and that the suit is barred by time. The other allegations in the plaint were denied. Following issues were framed by the learned trial Court:--
(1) Whether the suit is within time? OPD
(2) Whether the plaintiff is estopped to file this suit by his act and conduct and on the principle of acquiescence and laches? OPD
(3) Whether the'plaintiff is owner of suit-land? OPP
(4) Whether the defendants have become owner through adverse possession? OPD
(5) Whether the plaintiff is entitled to get the possession of the suit-land? OPP
(6) Relief.
' Evidence of the parties was recorded. Now vide judgment and decree, dated 29-1-1992 the learned trial Court found that the petitioner is owner of the suit-land. Issue No,4 covering the plea of adverse possession was found against the respondents. However, under Issue No,1 the suit was found to be barred by time. The suit was accordingly dismissed for the said reason. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Jhelum, on 13-2-1995.
2. Learned counsel for the petitioner contends that after holding the petitioner to be owner of the land and then fmding concurrently that plea of adverse possession had not been proved, both the learned Courts below have acted without jurisdiction while dismissing the suit as barred by time.
Learned counsel for the respondents on the other hand argues with reference to the cases of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and Alam Din alias Alam Sher and 3 others v. Alam Din PLD 1990 SC (AJ&K) 1 that the suit has been rightly declared to be barred by time.
3. I have gone through the records, with the assistance of the learned counsel for the parties. The learned trial Court has found as a fact that the petitioner is the owner of the suit-land and further that the respondents have been unable to prove the plea of adverse possession. It is evident in the judgment, dated 13-2-1995 by the learned Court of first appeal that finding on the said Issues Nos.3 and 4 were not questioned by the respondents in the course of first appeal. The learned counsel for the respondents has not questioned the said finding even before me.
4. Now according to the reasoning of the learned lower Courts the petitioner has not proved his possession over the said property nor has he proved his dispossession by the respondents in the year 1985. Now whereas the learned trial Court has found the suit to be barred by time without reference to any provision of Limitation Act. The learned Appellate Court has referred to Articles 142 and 144 of the Schedule to the Limitation Act, 1908. Under Article 142 the prescribed period of 12 years for a suit for possession is to commence from the date of dispossession or discontinuation of possession. Under Article 144 the prescribed period of 12 years is to commence from a point of time when the possession of the defendant in the suit becomes adverse to the plaintiff. Now going by the findings of the learned lower Courts that the petitioner never took possession of the land under the said decree, Article 142 would not apply. As there is no question of dispossession or discontinuation of possession while a plaintiff is in possession. This leaves Article 144. Under this provision the starting point of limitation is when the possession of the defendant becomes adverse to the plaintiff. The finding of the learned lower Courts is that possession of the respondent is not adverse. This being so, they have acted without jurisdiction in holding the suit to be barred by time.
5. Now according to the said case of Mahboob Khan cited by the learned counsel for the respondents it has been held that the limitation for a first application for execution of a decree is three years as prescribed in Article 181 of the Limitation Act, 1908. To my mind the said proposition is not involved in this case where we are dealing with the limitation for suit for possession. However, the judgment in the case of Alam Din alias Alam Sher and 3 others cited by learned counsel does deal with a suit for possession. Now the learned counsel particularly relies on the following observations of the Honourable Court in para. 18 of the judgment at page 10 of the report : "We think that it is no practically a settled law that if a person with title fails to sue for possession or execute the decree for possession or declaration which he has in his favour for twelve years, the person holding such a property adversely to the true owner for more than twelve years, after the decree or dispossession of the owner, becomes full owner in extinguishing the title of the true owner. (Underlining is mine)
' Now it will be seen that their Lordships also insisted that the possession has to be adverse to the true owner in order to extinguish his title by prescription. In the present case, as held by me above, it is an interprets finding that possession of the respondent has never been adverse.
6. Thus the possession of the respondents not being adverse, whatever the length of said possession may be, it will not result in extinguishment of the title of the petitioner. Needless to state that so long as the, title vests in the petitioner he is entitled to get the possession of the land on the basis of the same.
7. For all what has been stated above, the civil revision is allowed. Both the impugned judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed with no orders as to costs.