This petition is directed against the judgment of the learned Additional District Judge dated 27.1.2003 in Civil Appeal No, 85/13 of 1999 whereby the decree passed by the Civil Judge Mansehra dated 22.2.1999 in Civil Suit No, 145/1 of 1996 was maintained and appeal of the petitioner was dismissed.
2. Brief history of the case is that Respondent No, 1 brought a declaratory suit against the petitioner and proforma Respondents 3 to 4 claiming to be the owner of House/Plot No, 572/C situated in Mohallah Khan Bahadur through registered sale-deed No, 399 dated 13.9.1966 and that the petitioner has got no concern with it. Two shops and upper storey on it was constructed by the predecessor of petitioner fraudulently which is in fact constructed on a part of the aforesaid purchased plot of the Plaintiff-Respondent No,
1. The plaintiff also claimed Rs, 24000/- as mesne profit for the use of the disputed portion of plot. Possession of the built up shops and upper storey was also prayed for alongwith perpetual injunction against the petitioner and proforma respondents. It was also prayed as alternative prayer that plaintiff-Respondent No, 1 be put in possession of the vacant site after demolition of the two shops and upper storey. In the averments of plaint it was contended that the disputed part of the plot was purchased by him from one Biradar to whom it was allotted through P.T.O. Adjacent to the plot Abdul Jabbar Khan, the predecessor of petitioner was owing Plot No, 571/C which was gifted by him in favour of Mutianwali Mosque and the plaintiff was made to believe that the disputed part is infact part of Plot 571/C owned by him. At the time of construction of the shops and upper storey the plaintiff raised an objection but he was made to believe fraudulently that it is part of Plot No, 571/C on which he became satisfied. On getting knowledge that by constructing shops and upper storey a part of his plot has been illegally trespassed Abdul Jabbar Khan and after his death the petitioner-defendant has utilized the shops and upper storey without any right and that he is entitled to claim mesne profit at the rate of Rs, 24,000/- or the amount fixed by Court. The shops and upper storey were constructed after misguiding the petitioner and since its construction the petitioner and his predecessor have utilized its benefits which is more than cost of construction, thus the petitioner is entitled to be inducted in possession of the disputed property alongwith its superstructure.
3. The suit was contested by the petitioner on facts apart from raising a number of preliminary objections. The trial Court framed issues arising from pleadings of the parties and after allowing the parties to adduce evidence and appointment of a Local Commissioner. The trial Court in the conclusion decreed suit of Respondent No, 1 which was also upheld in appeal.
4. I heard the learned counsel for the parties and perused the record. The plaintiff-Respondent No, 1 has purchased Plot No, 572/C from one Biradar through registered Sale-Deed No, 399 dated 13.9.1966, which was allotted to the vendor through PTO No, 183753 issued on 8.7.1961 copy Ex. PW.1/1.
The disputed land bequeath the two shops and an upper storey, on it is claimed to be part .of the aforesaid purchased plot Bearing No, 572/C. In rebuttal claim of the petitioner-defendant is that the shops have been constructed by the predecessor of the petitioner in the year 1972 on ancestral property and is not a part of Plot No, 572/C allotted to Biradar and consequently transferred to the plaintiff. The moot question for determination and conclusive resolution of dispute between the parties is as to whether the land beneath the two shops is or is not part of the purchased plot Bearing No, 572/C and if found part of the said plot could the plaintiff be granted a decree for declaration which is discretionary relief why the sops were constructed by predecessor of the petitioner in 1972 and at the time of construction the plaintiff was made to understand that the land under construction was not a part of Plot No, 572/C?
5. The plaintiff Respondent No, 1 in support of his plaint produced Javed Khan Settlement Clerk as PW.1 who brought, the original registered PTD where at page 18 House No, 572/C was allotted to one Biradar Ex. PW.I/I photostat copy of PTD was admitted to be correct. When subjected to short cross- examination he admitted that the area mentioned in the PTD as 2880 sqft. was tampered by making an overwriting of the figures 8 and 0 and the overwriting does not contain the initial of authority concerned. In view of the clear admission of the PW.1 regarding tampering with the figures mentioned in the PTD Ex. PW.1/1 it was the burden of the plaintiff to explain the overwriting and he was supposed to establish that he has purchased an area of 2880 sqft. through registered sale-deed dated 18.5.1964. Qazi Muhammad Ayaz was produced to prove the execution of gift deed Ex. PW.2/1 dated 18.5.1964 by predecessor of the petitioner in favour of Motianwali Mosque. He also produced the registered sale-deed in favour of plaintiff Bearing No, 399/1 dated 13.9.1966 copy Ex. PW.2/2. Muhammad Tariq record clerk M.C. Manshera was produced as PW.3 who brought on record the site-plan of the two shops and flats owned by the plaintiff as Ex. PW.3/1 attested on 16.7.1984. However, he deposed that there is no site-plan of the Motianwali Mosque and the shops available in M.C. record. The plaintiff Respondent No, 1 himself appeared as PW.4 and reiterated the same facts as alleged in the plaint. He stated that when Abdul Jabbar Khan the predecessor of petitioner started construction at the disputed site then vacant, he raised an objection but he was told that he has purchased Plot No, 571/C. Since Abdul Jabbar Khan was respectable man he accepted his explanation and became quiet. Recently he got the knowledge that Plot No, 571/C was gifted by him in 1964 in favour of Mutianwali Mosque and he was no more owner adjacent to the purchased plot of the plaintiff where after the suit was filed. He admits that Plot No, 572/C was purchased by him in the year 1966 and Abdul Jabbar Khan has died in 1974. Before his death he started/construction of the shops, on the disputed site in the year 1972. The house built on his purchased plot Bearing No, 572/C was reconstructed by him in the year 1984 and before starting construction an Engineer was brought on the site who also took measurement of the land for the proposed construction. He has admitted that when he purchased the house from Biradar the allottee and shifted to it, it was containing boundary wall but it was temporary because it was not cemented. He denied the suggestion that he has colluded Rehabilitation Clerk in tampering the record. He admitted that he was given possession of the two shops and a Court yard by Biradar, the vendor at the time of purchase.
6. The petitioner produced his special attorney Sadaq Khan as solitary defence witness who was examined as DW.1. He stated that the disputed land was owned by Abdul Jabbar Khan who gifted it to Mst. Shagufta Gul and Nisar Khan. The property owned by Biradar was a house surrounded by boundary wall and the disputed land falls outside the boundary wall of the said house and had never been a part of plot owned by Biradar. The shops and upper storey were constructed by Abdul Jabbar Khan and Sarwar Khan the father of aforesaid donees in the year 1969. At the time of construction the plaintiff asked Abdul Jabbar Khan that the intervening wall should remain as joint which was accepted. The plaintiff reconstructed his purchased property after obtaining sanction from the Municipal Corporation in the year 1984-85. His deposition in chief remained intact during lengthy cross-examination.
7. Local Commission was deputed for determination of the nature and extent of construction by the plaintiff and as to whether the petitioner-defendant has made any construction on Plot No, 572/C.
The commission visited the site on 27.5.1997 in presence of parties and clerk of the Settlement Department alongwith record. After specifying the disputed Plot No, 572/C he made measurement keeping in view the total area of the plot as 2880 sqft. although it was stated to be an overwriting by the record keeper of Rehabilitation who appeared as PW.1 before the Court. Taking into account the aforesaid measurement in his opinion that the entire construction of the two shops and upper storey is made on the land falling as part of the aforesaid plot duly purchased by the plaintiff. Not only the land beneath the shops but half of the adjacent street towards south was also reported to be part of the said plot. The petitioner raised objections on the report of local commission on which the local commission was summoned and examined as CW.1. He exhibited his report as CW.1/1 and admitted the same to be correct and based on local enquiry on the spot. Though he denied the suggestion that he has special relations with the plaintiff or that he used to stay in shop of the plaintiff or that he has obliged the plaintiff by giving a favourable report but he has rejected the suggestion that the record of Plot No, 572/C produced before him was not tampered with although PW.1 has stated as follows:-- In this way the deposition of CW.1 is against the record and statement of the concerned official.
Eyen then the trial Court accepted the report of local commission.
8. This is undisputed fact that plaintiff-Respondent No, 1 has purchase Plot No, 572/C from Biradar the allottee to whom the allotment was made in the year 1966. This is also an established fact that the area mentioned in the allotment order copy Ex. PW.1/1 area is recorded in a column which is not meant for recording the area and the concerned official of the rehabilitation has admitted that overwriting is made in figures '8' and `0'. The said official appeared as witness of the plaintiff but he was neither abandoned nor declared hostile and plaintiff is bound by his statement. It is also a fact that the plaintiff-respondent purchased the aforesaid allotted plot through registered sale-deed Ex. PW.2/2 but there is no mention of measurement in the sale-deed and only boundaries are mentioned. The recorded boundaries are, towards east general thoroughfare and Mutianwali Mosque, towards west house of Muhammad Iqbal Khan etc, towards south and north general thoroughfare. The property sold was disclosed to be consisting of two rooms. The sale took place in 1966 and the plaintiff while appearing as PW.4 stated that there were two rooms in the house at the time of its purchase and rest of the area was vacant site. He stated living in it since its purchase in 1966. At the time of construction over the disputed land he raised an objection but he was told by Abdul Jabbar Khan that he has purchased Plot No, 571/C and he is raising construction thereon.
Being a respectable man he believed him and kept quiet. Later on he came to know that Plot No, 571/C was gifted by him in the name of Mutianwali Mosque in the year 1966 and he was no more owner in the area and the construction made by him was in fact upon an area of Plot No, 572/C which is owned by him (the plaintiff). Abdul Jabbar Khan died in the year 1974 while the construction was started in his life time in the year 1972. He has also admitted that in the year 1984 he reconstructed his purchased house and before starting construction he brought an Engineer on the spot who made measurement and thereafter prepared the site-plan (Ex. PW.3/1). He has also admitted that at the time of purchase and shifting his abode to it there was a boundary wall of the purchased house but stated of his own that it was temporary. The suit was instituted on 24.11.1996.
9. In Ajab Din and others us. Muhammad Shah and others (PLD 1986 Peshawar 30), in identical circumstances decree was refused to a plaintiff who failed to establish his possession over the suit land for the last 12 years and the plaintiff had acquiesced in the ownership of the defendant due to his possession over the suit property for decades and his possession was not questioned by the plaintiff and thus he was found not entitled to claim any share in the property possessed by the defendant.
10.In another identical case reported as Imami vs Ibrahim and others (MR 1929 Oudh 292), it was held that where the defendants built on the plaintiff's land on the bona fide belief that they had a good title to the property, the large investment they made being evidence of their bona fide belief, and where the plaintiffs never objected to the infringement upon his right though they knew of the mistaken belief of the defendants and thus encouraged the defendants in their building. It was held that suit of the plaintiff could not be decreed being estopped by the doctrine of acquiescence.
In the present case the plaintiff respondent though allegedly raised objection at the time of construction over the disputed land in the year 1972 but Abdul Jabbar Khan the predecessor of Defendant No, 1 explained to him that he is raising construction on his own land on which the plaintiff felt satisfied and he raised no objection till the institution of the suit in the year 1996. In the case reported as Ghulam Hussain and 3 others vs. The Custodian, AJK, Government and four others (1986 CLC 2983) the term 'adverse possession' was discussed and the following conclusion was drawn:-- "To determine the nature of possession for the purpose of adverse possession, whether it was on account of a valid sale, invalid or without sale, would not matter, all that matters is the attitude of the person who is in possession of it. If he asserted his possession as an owner in denial of the right of true owner and such assertion was open and continuous and it was continued for more than twelve years in same position, it would be adverse as is provided in Section 28 of the Limitation Act."
In AIR 1940 NAG 49 Full Bench has observed as follows:-- "The question is whether the possession exceeding the prescribed period of limitation confers upon him the original tenant's right. Section 28 Limitation Act--No doubt speaks only of extension of right but as pointed out by their lordships of the Privy Council in 11 M.LA 345 at page 363, after the expiry of the prescribed period of limitation not only is' the remedy barred but the title is extended in favour of possessor."
11.In the case of Mst. Shah Sultana reported in 1987 SCM R 1791 the Hon'ble Supreme Court of Pakistan has laid down the following dictum:- "It is well-settled that where the case set up is of dispossession from or discontinuance of possession of immovable property the limitation for bringing suit for possession is governed by Article 142 of the Limitation Act. In such a case the plaintiff must prove dispossession from the immovable property within 12 years preceding the date of the suit. In the present case it has been found as a fact by the Courts below that the plaintiffs were not dispossessed within 12 years prior to the institution of the suit. Therefore, the suit of plaintiff was rightly held as barred by limitation as in such a case it is not necessary for the defendants to establish by positive evidence their adverse possession. As regards mutation entry which was subsequently reversed we do not agree with the learned counsel that this document had no evidentiary value. We are unable to hold that the Courts below by relying on this document had committed such an error as to vitiate the finding of fact relating to possession of the respondents recorded by them."
12.In the present case counsel for respondents contended with vehemence that plaintiff has relied upon documentary evidence in the shape of registered sale-deed and the allotment order but in rebuttal the petitioner-defendant has failed to substantiate her title on the land beneath the two shops and upper storey through any documentary evidence. In view of the aforementioned dictum of the august Supreme Court of Pakistan it was not the burden of defendant to substantiate her title when already in possession of the same with the belief of ownership for more than 12 years.
The construction was undisputedly made in 1972 by spending huge amount and the plaintiff- respondent was satisfied on the explanation offered by predecessor of the petitioner-defendant and remained silent upto the year 1996. It is always burden of the plaintiff to establish the averments made in the plaint through cogent evidence and the plaintiff cannot get benefit of the weakness of defendant if he could not establish his case through his own evidence. It is an established principle of administration of justice that possession is 9 points out of 10 and it shall be always the burden of claimant who is out of possession to establish his title and possession during the preceding 12 years and if such burden is not discharged the possession even as trespass for more than 12 years when it is upon continuous and hostile for 12 years would be sufficient for dismissal of the claim of claimant who is out of possession.
13. In the wake of the aforesaid discussion I arrived at the conclusion that the two Courts below have not properly appreciated the evidence brought on record and the law applicable to the facts and circumstances of the case. Consequently I accept this revision petition, set aside the impugned judgment of Additional District Judge-II, Mansehra dated 27.1.2003 in Appeal No, 85/13 of 1999 and the decree and judgment of the learned Civil Judge-V, Mansehra dated 22.2.1999 in Civil Suit No, 145/I of 1996 and dismiss the suit of the Respondent No, 1 with no order as to costs.