MUHAMMAD KHALID ALVI, J.--- Brief facts of the case are that petitioner and respondents Nos. 8 to 13 alongwith respondents Nos. 14 to 17 being the L.Rs. Of deceased Hakeem Mehr Din who was the original owner of the property in dispute, filed a suit for possession on 8.10.1988 against predecessor-in-interest of respondents Nos. 1.To 7 namely Abdul Karim.
2. It was pleaded by the plaintiff that the property in dispute was given by Hakeem Mehr Din, the original owner to the predecessor-in-interest of respondents Nos. 1 to 7 namely Abdul Karim for temporary use. When the possession was demanded by Hakeem Mehr Din, Abdul Karim filed a declaratory suit against the original owner. On dismissal of the said suit, he filed a second suit for specific performance which was also dismissed.
During the pendency of the second suit the petitioners filed the instant suit on 8.19.1988. The suit for specific performance filed by respondents Nos. 1 to 7 was also dismissed vide judgment and decree dated 23.9.1989. It is pertinent_to mention here that first declaratory suit filed by Abdul Karim was dismissed on 30:7.1984 and no appeal was filed by Abdul Karim against the said order.
The present suit was contested by respondents Nos. 1 to 7. However, the learned Trial Court after recording evidence of the parties vide judgment and decree dated 23.6.1994 decreed the suit. The same was assailed Nos. 1 to 7 through an appeal which was allowed vide judgment and decree dated 22.11.2000. This appellate decree is being assailed through the instant civil revision. The co- plaintiffs of the petitioner have, however been arrayed as respondents Nos. 8 to 13.
3. It is contended by the learned counsel for the petitioner with reference to PLD 2004 SC 59 that the petitioner has been non-suited on the ground of limitation but in a case where the possession is permissive, no limitation runs. It is further argued that respondents Nos. 1 to 7 having failed to obtain a decree for declaration of title and also have failed in obtaining a decree for specific performance of oral agreement claimed by them, the petitioner and other legal heirs of Hakim Mehr Din are the lawful owners and thus entitled to possession. He has referred to the statement of Rashid Ahmad Khan, one of the plaintiffs to contend that Abdul Karim was put into permissive possession by their predecessor and this fact was not specifically cross-examined.
4. On the other hand, learned counsel for respondents Nos. 1 to 7 contends that the first suit for declaration filed by respondents Nos. 1 to 7 was dismissed only on the ground that they cannot maintain a suit for declaration on the basis of an agreement to sell and seek possession under Section 53-A of the Transfer of Property Act, however they could defend their possession if a suit is filed against them. It is further submitted that their plaint for suit for specific performance was also rejected on technical ground of limitation and no finding was- recorded to nonexistence of an agreement to sell-between Abdul Karim and Hakim Mehr Din. It is further argued that stance of respondents Nos. 1 to 7 and their predecessor Abdul Karim from day one was that they were in possession of the property in dispute after having paid a sum of Rs. 5,000/- to Hakim Mehr Din. As against this, the plaintiffs/petitioners never pleaded their case of permissive possession either in the written statement filed by Hakim Mehr Din in the first suit for declaration nor in the second suit for specific performance. The plea of permissive possession was taken by the petitioners for the first time when they filed the instant suit in order to seek shelter from the rigors of law of limitation. It is further argued that the present revision is filed by one of the legal heirs of deceased Hakim Mehr Din while the other legal heirs have conceded to the right of respondents Nos. 1 to 7 and, therefore have not challenged the appellate decree.
5. I have considered the arguments of the learned counsel for the parties.
6. Predecessor-in-interest of respondents Nos. 1 to 7 had initially filed a declaratory suit against predecessorin-interest of the petitioner seeking a declaration that he is owner in possession of the suit property. This suit was dismissed on 30.7.1984. The same was not further assailed and had attained finality. Thereafter he filed another suit on 13.8.1984 for specific performance of an oral- agreement against the petitioner and other legal heirs of Hakeem Mehr Din. The plaint of this suit was also rejected vide judgment and decree dated 23.9.1989. Meaning thereby that respondents Nos. 1 to 7 failed to get a declaration of title and also a decree for specific performance of the alleged oral agreement to sell between their predecessor Abdul Karim and petitioner's predecessor Hakeem Mehr Din. The nutshell result of the above litigation is that Hakeem Mehr Din and after his death petitioner and other legal heirs of Hakeem Mehr Din are the lawful owners of the property in dispute. The learned Appellate Court while discussing the statement ofyDW.1 Mukhtar Ahmad has reopened a past and close chapter i.e. With respect to the oral agreement to sell between Abdul Karim and Hakim. Mehr Din which already stands concluded vide judgment and decree dated 23.9 1989 whereby the plaint of suit for specific performance filed by Abdul Karim predecessor-in- interest of respondents Nos. 1 to 7 as rejected.
The only question involved which requires determination in the instant case is whether he instant suit filed by the petitioner and other legal heirs of Hakeem Mehr Din was barred by time or not. In case reported as .PLD 2004 SC 59 their Lordships have held in the following words:- "4. The question of limitation finds no place in the suit on account of permissive possession of the appellants and the latter having carried out some improvement unilaterally also cannot clamour for compensation."
This state of legal position leaves only one question to be resolved i.e. 'whether possession of Abdul Hakeem was permissive or was in any other capacity. The plaintiffs in para 2 of their plaint have specifically pleaded that predecessor of respondents Nos. 1 to 7 was in permissible possession from Hakeem Mehr Din. This fact was denied by them in their written statement and took up a specific plea that their possession is under an oral agreement to sell. The respondents having failed to establish the existence of oral agreement to sell on account of rejection of their plaint, their status of possession is left only as permissive. The contention of the learned counsel for the respondents that Hakeem Mehr Din never objected to the possession of Abdul Karim or his legal heirs in -his life time is also incorrect. As a matter of fact Hakeem Mehr Din contested the first suit filed by predecessor of respondents Nos. 1 to 7 which was ultimately dismissed on 30.7.1984. In order to satisfy myself, I had sent for the record of other the suits filed by Abdul Karim against Hakeem Mehr Din and his legal heirs but it is reported that the said record was burnt in a fire incident having taken place in D.C.O. Office, Lahore on 12.1.1998.
8. The plea of learned counsel for respondents Nos. 1 to 7 that other legal heirs of Hakeem Mehr Din have not joined the petitioner on account of having conceded the right of respondents Nos. 1 to 7, therefore, this petition filed by the petitioner is not maintainable is without substance. The petitioner being one of the legal heirs and owner of the property after the death of her father has every right to maintain this petition while impleading the other legal heirs as respondents.
9. Since the learned Appellate Court has not considered the aspect of permissive possession and law of limitation applicable in such cases, therefore, the findings recorded are illegal and are accordingly reversed. Resultantly, this civil revision is allowed, judgment and decree dated 22.11.2000 passed by the learned Appellate Court is set aside and that of the learned Trial Court dated 23.6.1994 is restored.