' UMAR ATA BANDIAL, J.---This revision petition is directed against the concurrent findings given by the two learned lower Courts through their judgments delivered respectively on 8-2-1996 by the learned trial Court and 19-9-2001 by the learned lower Appellate Court. These judgments have decreed the suit of the respondent/plaintiff claiming possession of 8 Kanals land situate in Khasra No,1340, village Nathoke, Tehsil. Cantt. District, Lahore.
2. The further claim by the respondent/plaintiff in respect of mense profit for the said land has not been specifically dealt with or adjudicated by the learned Courts below.
3. The admitted facts of the case are that agricultural land measuring 242 Kanals and 3 Marais was allotted by the Border Area Committee to the respondent/plaintiff. The plaintiff obtained confirmation or his allotment by Mutation (Exh.P.1) in the Revenue Record on 25-4-1970. This mutation includes the suit property bearing Khasra No,1340 measuring 8 Kanals. The said allotment was subsequently cancelled by the Border Area Committee. That was followed by two rounds of litigation in which the respondent/plaintiff succeeded and the allotment was restored to him consequent upon the judgment of this Court dated 28-10-1985 in I.C.A. No,6 of 1997.
4. According to para.5 of the plaint, the Jamabandi for 1982-83 of the subject Revenue Estate showed the presence of a school on Khasra No,1340 belonging to the respondent/plaintiff in the following words "{{URDU TEXT}}" . A perusal of the record, however, shows that neither this nor earlier Jamabandis have been exhibited in evidence. The same position is also reflected in the Jamabandi for the year 1990-91 wherein Column No,4 regarding cultivation shows the said land to be in the possession of the Provincial Education Department, the petitioner herein. On the other hand, the petitioners/defendants claim the existence of their school on the suit-land since 1962 in the status of an owner in possession. The statement of the District Education Officer, defendant No,4 in the suit, (D.W.3) in this behalf is relied by the learned counsel for the petitioners to demonstrate their entitlement to the suit-land on the ground of adverse possession. The judgments of the learned Courts below have, however, declined to consider that plea upon the assumption that the judgment of the Honourable Supreme Court on the subject was retrospective.
In the case of Maqbool Ahmed v. Government of Pakistan 1991 SCM R 2063 extinguishment of right to property on the ground of limitation provided by section 28 of the Limitation Act, 1908 has been struck down as being un-Islamic. However, the rule under this judgment has been expressly made operational with effect from 31-8-1991 and not earlier.
5. Learned counsel for the petitioners contends that the said approach taken by the learned lower Courts disregards the terminal date fixed by the said judgment of the apex Court. In the present case the facts whereof go to back 1962, the rule laid down by the Honourable Supreme Court is prima facie, not applicable. A perusal of the record shows that apart from the oral statement of D.W.3 and the admission in the plaint there is documentary material on record to indicate longstanding possession of the petitioners/defendants over the suit-land. There is also evidence on record to show the failure by the respondent/plaintiff to secure possession of the suit-land in 1970, when his allotment was confirmed by mutation or at any time thereafter when he has allegedly retained the possession of his remaining allotted land. The learned counsel for the respondent has referred Exh.P.4 to rebut the contention of the learned counsel for the petitioners.
This exhibit is an application dated 2-11-1989 by the respondent/plaintiff for demarcation of the land allotted to him which is claimed specifically to include Khasra No,1340 but without mention of any school being built thereon. This application and its consequent demarcation report dated 17- 12-1989 giving possession of the land allotted to the respondent are unhelpful because these documents conceal the factum of the school which is admitted by the respondent in his plaint.
6. As there is public interest activity, namely, elementary school for children that is admittedly being carried on the suit-land for the last several years, therefore, this Court is of the view that a judicial pronouncement about the legal title and status of the suit-land occupied by the school must be based on solid evidence. In this behalf it is noted that the learned Courts below have disregarded the petitioners' important plea of adverse possession on a misappreciation of the law laid down by the judgment of the apex Court in Maqbool Ahmed's case. The facts of the present case have prima facie occurred prior to the target date given in the ruling. Secondly, even if such plea were to be disregarded the record shows a causal treatment of the matter by both sides to the dispute. Resultantly, relevant law has not been quoted to the learned Courts below and evidence germane to the controversy has not been produced. The record does not show clearly as to when the school came into existence on the suit-land. Documentary evidence from the Revenue Record and respondent's official record that is available to the parties on the question of possession should have but was not brought on the record of the Court. It is observed that the plea expressly taken by the petitioners/defendants that their school was constructed on the suit-land in 1962 and they have held, operated and maintained the same on the suit-land as owner in possession requires closer scrutiny. Such consideration was deflected' in the impugned orders by a misreading of judgment of the Honourable Supreme Court in Maqbool Ahmed's case supra.
7. In the light of foregoing discussion revision is accepted, the judgment of the learned Courts below are set aside and the matter is remanded to the learned Senior Civil Judge, Lahore, for causing hearing and decision in the suit in accordance with law after consideration of, inter alia, the petitioners' plea of adverse possession taken in the written statement and such other pleas of the parties that are disclosed by their pleadings. This shall be done after framing issues arising in the controversy and granting an opportunity to the parties to lead further evidence in the case.
8. In parting, upon the request of the learned counsel for the parties it is further directed that as - this an old matter, therefore, the suit should be decided expeditiously by the learned trial Court preferably within a period of six months after the appearance of the parties before the learned trial Court. No order as to costs.