' NASIM SIKANDAR, J.---On 31-7-1984 the present respondents Abdul Karim and two others as plaintiffs approached the Civil Court at Lahore by way of a "Suit for possession and recovery of charges/ compensation for the use and occupation of property". According to the plaintiffs/now respondents in December, 1976 they purchased a portion of the property situated in Canal Park,'
Gulberg, Lahore as described in para. 1 of the plaint by way of three registered sale-deeds from one Mrs. Catherine Mills, deceased wife of Mr. P. Mills. Further that on becoming owners of the said property they demanded vacant possession from the defendants as also the charges/compensation at the rate of Rs,1000 per month for use and occupation of the premises since the time of their purchase. -Allegedly the defendants/present petitioners promised to vacate the possession but subsequently resiled. In para. 3 of the plaint it was stated:-- "That Mrs. Catherine deceased got the premises in dispute vacated from the defendants father A.S. Clive on 27-6-1975 through Bailiff of the Court and she got its possession, but a few days after the defendants father once again trespassed into the premises, remained in illegal occupation of the premises till his death. After his death defendants Nos. 1 and 2 are illegally and unauthorisedly in occupation of the property in dispute and defendants Nos. 3 and 4 being heirs of A.S. Clive although are not in actual physical occupation they are made defendants to the suit as proper parties."
2. The defendants/present petitioners raised preliminary objections against the maintainability of the suit, that it was bad for mis-joinder and non-joinder of necessary parties, that the plaintiffs had no locus standi tofile the suit, that the property had not been correctly described, that they had not come to the Court with clean hands, that the suit was not correctly valued for the purposes of court-fee and jurisdiction and that it was time barred. On facts possession of the part of the property known as SXX-25-S-20, Canal Park, Gulberg was admitted. However, it was strongly averred that the alleged sale-deeds on the basis of which the plaintiffs/now respondents were claiming ownership were bogus, based on fraud, void ab initio, illegal and without consideration.
Further that Mrs. Catherine Mills, the alleged transferor was not competent to sell the suit property in favor of the plaintiffs/now respondents. Therefore, the grant of prayer for possession and compensation in favor of the plaintiffs was opposed.
3. On pleadings of the parties learned trial Court framed the following issues:--
(1) Whether the present suit is not maintainable in its present form? OPD.
(2) Whether the suit is bad for mis-joinder and non-joinder of the necessary parties? OPD.
(3) Whether the plaintiffs have got no cause of action and locus standi to file the suit? OPD.
(4) Whether the suit property has not been correctly described in the plaint? OPD.
(5) Whether the plaintiffs have not come with clean hands in the Court? OPD.
(6) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction?
OPD.
(7) Whether the suit is barred by time? OPD.
(8) Whether the plaintiffs are owners of the property in dispute and are entitled to the possession and other relief claimed by them? OPP. .
(9) Relief.
4. After recording of evidence learned trial Court dismissed the suit by way of its judgment, dated 17-7-1995. Earlier issue No, 8 "if the plaintiffs were owners of the property in dispute" was discussed at length and finally the Court came to the conclusion that the plaintiffs had failed to discharge the burden to prove that they were in fact owners of the disputed property and; therefore, were entitled to get possession from the defendants. Issues Nos. 1, 3 and 5 were also decided against theplaintiffs and in favor of defendants in the light of the findings recorded on issue No,8. Issue No,2 was decided against the defendants on account of failure to produce any evidence while issue No,4 was found against the plaintiffs that they had failed to prove the site-plan Exh.P.12. The objection of the defendants regarding valuation of the suit for the purposes of court-fee converted into issue No,6 was also rejected for lack of evidence. In case of issue No,7 a very brief discussion was made and the objection was rejected by the trial Court. Para. 17 of the judgment pertaining to issue No,7 reads as under:-- "(17) The learned counsel for the defendants have contended that the suit is barred by time. They have contended that the sale-deeds were executed in favor of the plaintiffs in 1976. But they have filed the suit for possession on 31-7-1984 after a period of 8 years. But the plaintiffs have contended that they have filed the suit when the defendants refused to vacate the premises and payment of charges. I, therefore, am of the view that the suit of the plaintiffs is not barred by time. The issue is decided against the defendants."
5. The present respondents/plaintiffs however, succeeded in first appeal. Learned Addl. District Judge, Lahore on 14-3-1996 accepted the appeal by setting aside the findings of the trial Court on issues Nos. 1, 3, 5 and 8. As regards issue No,7 it was found that cross-objections were filed after expiry of 30 days of their service and, therefore, were barred by time. On merits of plea of limitation the Court held "that as discussed above, the plea of adverse possession of the respondents have failed which has never been established and recognized at any stage, therefore, the findings of the trial Court on issue NO.7 is upheld. Resultantly, cross objections of, the respondents are dismissed."
6. The acceptance of appeal by the first appellate Court is challenged by way of this revision petition inter alia, on the grounds that it is based upon the erroneous view of law and erroneous assumptions of facts, that the impugned order is contrary to law and facts, that the Addl. District Judge exercised jurisdiction not vested in it particularly for the reason that many facts mentioned in the judgment were neither before the Hon'ble Court nor were alleged before the trial Court, that the learned first appellate Court exercised its jurisdiction with material irregularity -inasmuch as it completely overlooked the overwhelming evidence of continued possession of the defendants/present petitioners since the time of partition of India in the year, 1947 and accordingly fell in error by maintaining the findings of the trial Court on issue No,7, that the previous litigation between the late Mrs. Cathrine Mills and the defendants/present petitioners were not appreciated by the learned appellate Court in true context and, therefore, the Court failed toexercise the jurisdiction vested in it by law, that the learned first appellate Court exercised his power arbitrarily which was a negation of the ratio settled by the Hon'ble Supreme Court of Pakistan in re. Madan Gopal and 4 others v. Maran Bepari and 3 others, (PLD 1969 SC 617) and re. Joseph Klein and others v. Eliahu (Leo) Heiman and others (PLD 1948 Privy Council 91), that the learned first appellate Court despite mentioning Exh.D.l., Exh.D.3 to Exh.D.5, copies of the ejectment proceedings between the late Mrs. Cathrine Mills and the present petitioners failed to appreciate, that in case of Exh.D.3., an ejectment petition, present petitioners/defendants through Exh.D.4., their written statement clearly made a preliminary objection of being in adverse possession and also that the said Mrs. Cathrine Mills was not sister of Gorge Tailer Patinger, the original owner, failed to consider these aspects of the matter, that the said ejectment petition having been dismissed on 26-6-1975 vide order Exh.D.5 the claim of the defendants/ present petitioners qua adverse possession could not be said to have remain unaccepted, that the learned Addl. District Judge also failed to appreciate that Mrs. Cathrine Mills by way of a frivolous petition under sections 132 and 307 of Succession Act (Exh. D10) attempted to take possession of the suit property by showing Malik Nihal Ahmad and Sardar Khan as the persons in occupation of the suit property which never materialized.
7. The respondents in support of the impugned first appellate order rely upon the ratio settled in re.
Naik Muhammad and another v. Manzoor Ahmad and others (1983 SCM R 13), re. Maqbool Ahmed v.
Government of Pakistan, (1991 SCM R 2063) and re. Anjum Khan and others v. Firdaus Khan and another (PLD 1989 Lahore 333).
8. After hearing the learned counsel for the parties I am inclined to allow this civil revision under section 115, C.P.C. For the following reasons:--
(I) The possession of late father of the present petitioners namely A.S. Clive since the year, 1947 till the time of his death as claimed by the petitioner in his statement in the year, 1983, remains completely uncontroverted from the record. The first ejectment petition filed by Mrs. Catharine Mills, the predecessor in interest of the present, respondents was dismissed for non-prosecution as well as for non-deposit of process fee on 7-9-1965 (Exh.D.l). Her second application under section 13 of the Urban Rent Restriction Ordinance, 1959 against the father of the present petitioner made on 5- 1-1969 was also dismissed for non-prosecution on 21-9-1970 through Exh.D.2. In the third application under the similar provisions of the said Ordinance filed on 6-10-1970 she claimed to have obtained letters ofadministration in respect of the property in question which allegedly belonged to her brother. In para. 4 of the petition (Exh. D-3) it was stated that in the year, 1947 A.S. Clive, father of the petitioner "gave in understanding in writing to pay Rs,45 p.m. As rent of the house in his possession, acknowledging himself as tenant". In para. 6 of the petition it was stated that she continued to receive rent from the late father of the present petitioners till August, 1947 on behalf of her sister who was in India and that thereafter he stopped payment of rent from September, 1947. Further that on getting letters of administration of the property in question in April, 1964 she became entitled to receive the 'rent from the said A.S. Clive in her own right and accordingly on his refusal he was claimed to be a defaulter since April, 1964 to August, 1970. As a ground of eviction it was also stated that the respondent late A.S. Clive without the permission of the petitioner constructed new quarter on the vacant land which was behind the house and thereby damaged the property: Exh.D.4 is the written statement filed by the late father of the present petitioner on 8-1-1973 in the suit "for perpetual injunction restraining the defendant from making any construction on the open land and appertaining to House No,20, Street No,5, Canal Park, Lahore re. "Mrs. Catharine Mills v. A.S. Clive". In para. 3 of the preliminary objections late father of the petitioner raised the defence of being in adverse possession for more than 12 years. In para.1 on merits the relationship of plaintiff Mrs. Catharine Mills with Gorge Tailer Patinger, alleged real owner of the property was expressly denied. Also the execution of claimed Will by him in favor of the plaintiff or her sister was disputed.
It was also specifically pleaded that neither the sister of the plaintiff nor the plaintiff herself was ever granted letters of administration. The claim of adverse possession was repeated a number of times in the written statement (Exh.D.4). On the basis of adverse possession the defendant A.S., Clive claimed to have every right to make changes in the structure of the property in his possession as also to make reconstruction. The fourth application by Mrs. Catherine Mills under section 13 of the Rent Ordinance was dismissed on account of lack of evidence of the petitioner/alleged landlord through Exh.D.5 order, dated 26-6-1975. Exh.D-6 is an application under section 192 read with section 307 of the Succession Act seeking eviction of unauthorized occupants from the property which was claimed to be the subject-matter of letters of administration. The petition arrayed Malik Nihal Ahmad and Sardar Khan as respondents. Exh.D-8 is a copy of the application/objection made by latefather of the present petitioner seeking appointment of a Local Commissioner to ascertain the factum of possession at site. On this application temporary relief was allowed on 27-6-1975. The Court appointed late Mian Muhammad Ibrahim, Advocate as Local Commissioner who reported that it was only the objector/petitioner A.S., Clive who was in possession of the suit property. Exh.D.15 is the copy of another application under section 192 read with section 307 of the Succession Act, 1925 moved before the District Judge claiming that Mrs. Catharine Mills had already been given letters of administration of the property in question on 10- 4-1964 and that her previous application under the said provisions of the Succession Act, 1925 was returned by the Senior Civil Judge to be presented before the appropriate Court i,e, the District Judge. That application was dismissed on 22-9-1976 through Exh.D-9 when Mrs. Cathrine Mills appeared in person before the Court and disowned the plaint. Before the District Judge Lahore she stated that the suit was filed without her consent. The District Judge, observed that although a power of attorney in favor of Malik Muhammad Qayyum, Advocate existed on record yet the application did not bear her signatures. Exh.D-12 is the copy of an interim order on the application under section 192 of the Succession Act, 1925 wherein learned counsel for the petitioner Mrs. Catherine Mills expressly conceded that A.S. Clive was in possession of portion of the property in question and that she had no intention to seek any relief against A.S. Clive. That petition was dismissed by District Judge Lahore on 15-7-1977. In all these documents the possession of late father of the present petitioner was invariably admitted. By the time the written statement Exh.D:4 was filed on 8-1-1973 in the civil suit filed by Mrs. Catherine Mills, predecessor in, interest of the plaintiffs/present respondents for perpetual injunction, the adverse possession of the late father of the petitioner had already been completed. As a matter of fact the possession of the late father the present petitioner at least since, 1947 as admitted by Mrs. .Catherine Mills in the ejectment petition Exh.D.3 had A already become final and absolute when she approached the Rent Controller by way of first ejectment petition on 7-7-1965. The predecessor in interest of the plaintiffs/present respondents had in fact lost her right to re-enter or re-possess the property in possession of late A.S. Clive as early as the year 1959. Thus she was not entitled to re-enter or convey the property in view of the ratio settled in re. Faizullah Khan and others v. Abdul Razzaq, (PLD 1987 SC 130). During this time, and even thereafter till the alleged sale in favor of the plaintiffs/present respondents,she was never able to prove A.S. Clive as a tenant or a person A who had entered in possession of the property as a licensee. A.S Clive on the other hand, right from day one when he was sued either on civil or on rent side always pleaded to be in adverse possession and, therefore, in his own right. The claim of the defendant/present petitioner that earlier A.S. Clive and after his B death he was paying all bills for use of utility and taxes was not challenged in the cross-examination. The Appellate Court rejected that claim only on the ground that such receipts were of relent origin only. These findings of the appellate Court are against the declared and admitted position of the plaintiffs/ present respondents. The plaintiffs/present respondents could not claim a better title or deny the defence which had accrued many years earlier to December, 1976. Learned Addl. District Judge equally erred in law by rejecting the claim of adverse possession on the ground and with reference to Exh.P-17 and Exh.P-18. The claim of adverse possession per se means absence of ownership. I am in agreement with the learned counsel for the petitioners that the first appellate Court confused C the idea of ownership and adverse possession which having matured on expiry of the statutory period conferred a right on the possessor not to be dispossessed. Learned first appellate Court was also wrong in making a reference to the judgment of the Hon'ble Shariat Court of Pakistan. The adverse possession of the late father of the present petitioner/defendant in the suit having completed in late fifties was a past and closed transaction D and could not be rejected or refused on the ground of a subsequent judgment of the Court recorded more than 25 years after the maturity of adverse possession. A reference in that regard can be made to the ratio settled in re.
Muhammad Ashraf v. District Judge, Lahore and 6 others, (PLD 1993 Lahore 566).
(II) The plaintiffs/present respondents as is clear from the contents of para. 3 of the plaint as reproduced above, were fully aware of the factum of possession of late A.S. Clive. The claim that he was dispossessed by the bailiff under the orders of the Court on 27-6-1975 and that he subsequently re-entered illegally in the property is not supported from the record. On the other hand it is very much evident that Mrs. Catherine Mills sought the ejectment of late A.S. Clive in the garb of a direction of the Civil Court on an application under section 192 read with section 307 of the Succession Act obtained against Malik Nihal Ahmad and Sardar Khan who were found to be in possession as per report of the Local Commissioner Exh.D-22. Therefore, the claim of the plaintiffs/present respondents that the eviction oflate A.S. Clive from the property in question was completed on 27-6-1975 is not supported from the record. The fact that the order sought to be executed was not passed against late A.S. Clive being apparent from the record the statement of Muhammad Aslam P.W.1 bailiff of Civil Court. Lahore and report Exh.P2 on the Warrant of Dakhal Exh.P-1 is hardly of any significance. Even otherwise in his cross-examination the witness admits that the warrant of possession did not mention the name of A.S. Clive. Also on the face of it the claim of possession in the petition under the Succession Act was mala fide as the petitioner had already failed in four rent petitions. It is also surprising that the Civil Court obliged the petitioner with a warrant of possession without their being any proof of letters of administration in her favor.
(III) The order of the learned Court of first appeal/Addl. District Judge is not only a result of misreading and non-reading but a case of reading something which was never a part of the record. For example there appears absolute no record to support his observation that letters of administration were issued in favor of Mrs. Catherine Mills on 10-4-1964. It needs to be noted that said Mrs. Catherine Mills in the aforesaid litigation between herself and A.S. Clive never identified any such date nor a copy of such letter was ever produced before the Court of Senior Civil Judge and later the District Judge. It also needs to be noted that both applications Exhs.D.12 and D-13 filed by Mrs. Cathrine Mills under the said provisions of Succession Act were ultimately dismissed.
(IV) The findings of the Addl. District Judge on issue No,8 as against those earlier recorded by the trial Court are again a result of mis-reading and non-reading of evidence. In the earlier litigation between the parties Mrs. Catherine Mills claimed a right to administer property on the basis of alleged letters of administration of her late brother which were never brought on record.
Subsequently by way of Exh.P16 a mutation was entered in favor of two alleged, sisters of late Gorge Tailer Patinger in equal shares on 19-1-1976. Only some days thereafter on 30-3-1976 the mutation was amended to declare Mrs. Catherine Mills as sole legal heir of her alleged brother on the ground that her sister had also died and she was entitled to inherit her. Even if that be so, as observed above the adverse possession of the late father of the petitioner had completed in the year, 1959 who could not be dispossessed by the legal heirs of the owner or the alleged successors in interest of the legal heir.
(V) The contents of para. 3 of the prayer indicate purchase of litigation by the present respondents/plaintiffs in the suit. Abdul Karim, P.W.4 one of the three purchasers/plaintiffs could not properly explain his alleged presence when warrant of dispossession of Malik Nihal Khan and another was executed on 27-6-1975. Admittedly he along with other plaintiffs/now respondents had purchased the land/property in question through the said three different sale-deeds one and a half year thereafter' in December, 1976. His claim of being in possession of an agreement to sell of that land was never supported from record. He has mentioned the names of the gentlemen of whom he claims to be an associate. All these gentlemen are known litigants in the Courts of City of Lahore. In his cross-examination the plaintiff/witness failed to establish the means through which he purchased the property in question at the relevant time. His statement with regard to the delivery of possession at the time of purchase is not only contradictory but also against the record.
He admits that he never saw late Mrs. Catherine Mills in possession of the property in dispute which was a part of the bungalow comprising 9 kanals of land. In his cross-examination the witness fails to answer vital questions with regard to exact time and place of execution of the alleged sale-deed executed in favor of the plaintiffs. Learned trial Court rightly found that the alleged sale-deed in favor of the H plaintiffs/now respondents were never proved in accordance with the provisions of Qanoon-e-Shahadat Order. The photocopies of the behi register placed on record do not contain the actual signatures and thumb-impressions of the parties to the transaction. The copies of behi register No,4, Jild No,128. Sub-Registrar, Lahore obtained on 28-11-1987 contain the recitals of delivery of possession against the admitted position of the plaintiffs/respondents that they were never put into possession as far the property under possession of A.S. Clive was concerned. Nothing has been brought on record as to the fate and whereabouts of the original sale-deeds. In absence of a proof of their loss, misplacement or being in possession of the other I party the certified copies of the aforesaid behi register merely reproducing the recitals of the alleged registered sale-deeds were, therefore, rightly rejected by the trial Court as proof of ownership of the plaintiffs/present respondents. The statement of P.W.2 Charlas Filap Mills alleged son of late Mrs. Catherine Mills appears highly doubtful. The gentleman is unaware of any previous litigation between her mother and late A.S. Clive. He is also not aware of filing of two applications under the provisions of Succession Act by her mother. His claim of havingdispossessed A.S. Clive in execution of warrants against said Malik Nihal Khan and another, as observed earlier, is also against the record. This gentleman is the same person who on 7-7-1999 during the pendency of these proceedings filed a Civil Suit for "Declaration to the effect that registered Sale-deed No,4489 and registered with Sub- Registrar Cantt. Lahore vide Behi No,1, Jild No,143, page No,1.01 to 106, dated 13-12-1976 is based on fraud, forgery, misrepresentation and the same is illegal, void ab initio having no legal effect on the property/ inherited rights of the plaintiff and is liable to be declared illegal, void and be declared illegal void and with permanent injunction" before Civil Court at Lahore. That suit was filed against one of the plaintiffs/present respondents Abdul Karim P.W.1 along with the present respondents/defendants. Therefore, the statement of Charlas Filap Mills as P.W.2 in support of the plaintiffs/present respondents is otherwise not worthy of serious consideration. Either he lied before the Court as P.W.2 or subsequently he filed a false suit against one of the three alleged purchasers of land from his mother.
9. The site map produced by the plaintiffs/present respondents having been rejected for cogent and relevant reasons by the trial Court, the decree passed by the first appellate Court was not executable in absence of reversal of these findings through plausible reasons. There reasons are totally missing in the impugned judgment.
10. In view of the aforesaid reasons the case-law relied upon by the present respondents is clearly distinguishable.
11. .