MIAN HAMID FAROOQ, J. Respondent No. 1/plaintiff instituted the suit for possession of land measuring one kanal (elaborately described in the plaint), against the petitioner/defendants Nos. 1 and 2, which was resisted through the written- statement, inter alia, pleading that if the plaintiff is proved to be owner of the suit land, then they have become owner of the land on account of adverse possession, as they are in continuous possession of the same for the last 12 years. The learned Trial Court framed 5 issues, recorded evidence of the parties and in the ultimate analysis dismissed the suit, vide judgment and decree dated 23.4.1990. Respondent No. 1 challenged the said decree through the appeal and the learned Additional District Judge, set aside the decree dated 23.4.1990 and remanded the case to the learned Trial Court with the directions to implead remaining co-sharers, as defendants in the suit and then decide it afresh, vide judgment dated 18.11.1990.
Petitioners' revision petition (C.R. No. 774/1991) against the said judgment was dismissed by this Court on 6.5.1991. In the post-remand proceedings, the learned Trial Court impleaded defendants Nos. 3 to 6 in the suit, however, they were proceeded ex parte. Revenue Officer was appointed as local commission, who filed the report, to which both 'the parties raised the objections. Resultantly, with the consent of the parties, the report of the commission was set aside by the learned Trial - Court and Muhammad Afzal Khan, Advocate was appointed as local commission, who submitted his report before the Court on 12.9.1992. The petitioners, statedly, filed the objections to the latest report of the local commission. The learned Trial Court, in the ultimate analysis, dismissed the suit, vide judgment and decree dated 23.5.1993. Respondents Nos. 1 and 2 assailed the said decree before the Appellate Court, through the appeal, and the learned Additional District Judge accepted the appeal and decreed respondent's suit to the extent of 13-Marlas, vide impugned judgment and decree dated 20.4.1995, hence the present revision petition.
2. The respondents are represented by Qureshi Muhammad Saeed Sadi, Advocate, who is an outside counsel. Office has reported that PC Card was issued to the outside learned counsel for today. Despite that none represents the respondents, thus, they are proceeded ex parte.
3. Learned counsel for the petitioner contends that although the petitioners filed the objections to the second report of the local commission, yet the learned Trial Court, without adverting to those objections, decided the suit. He submits that the Appellate Court has decided issue No. 1 on the basis of second report of the Iocal commission in complete ignorance of the fact that the objections to the said report were not decided by the learned Trial Court. He has relied upon Maqsood A.I Butt v. Muhammad Bashir and another (1993 CLC 1361).
4. I have heard the learned counsel and examined the available record. It appears appropriate to reproduce the issues, framed in the suit, which reads as follows:--- ISSUES:
(1) Whether the plaintiff is owner of the suit property?
(2) If issue No. 1 is proved whether the plaintiff is entitled to recover possession of the suit property from the defendant?
(3) Whether the suit is not maintainable and the defendant is entitled to special costs?
(4) Whether the suit is not properly valued for the purposes of Court-fee, if so, its effect?
(5) Relief.
The learned . Trial Court framed four issues, out of which, issues Nos. 1, 3 and 4 were decided in favour of the plaintiffs and the suit was dismissed on the basis of findings on issue No. 2 after holding that the defendants have become owners of the suit land due to adverse possession. It was also held that the report of the local commission "supports the stand of the plaintiff and defendants are in occupation to the extent of 13-Marlas in Khasra in question". The learned Trial Court in view of the evidence on record and relying upon second report of the Local Commissioner, submitted in the Court on 19.9.1992, decided issue No. 1 in favour of respondent No. 1. The petitioners neither filed appeal nor cross-objections against the conclusions arrived at by the learned Trial Court on the said issue and its reliance upon the report of the commission. Thus, the petitioner by their acts and omissions, in fact, acknowledged and admitted the findings of the learned Trial Court on the aforenoted issue and latest report of the local commission as correct. Additionally, the said findings were maintained by the first Appellate Court on the ground that no cross-objections were filed by the petitioners. The petitioners by not filing appeal or cross-objections against the findings on issues Nos. 1 to 3, have, in fact, relinquished their right to challenge those findings, now in the revision petition, when the respondent's appeal was decided against them. It has also rightly been held by the learned Additional District Judge that the learned Trial Court has relied upon the report of the second local commission, which supports the plea of the plaintiffs that defendants are in occupation of the land in question to the extent of 13-Marlas, which findings were not challenged by the petitioners before .The Appellate Court. Findings of both the Courts on issue No. 1 are concurrent and respondents Nos. 1 and 2/plaintiffs have been held to be owners of the land in question. In view whereof, those findings are not open to exception, thus, the same are maintained.
5. Now coming to crucial issue No. 2. The learned Trial Court, after discussing the evidence on record, has held that possession of the petitioners 'qua the suit land is prior to 1972, therefore, they have qualified their prescriptive right and continuous possession over the land in question after the lapse of 12 years of the dispute property, thus, decided issue No. 2 against the respondents and dismissed their suit. It follows therefrom that the learned Trial Court dismissed the suit only on the ground that the petitioners have become owners of the disputed property on account of adverse possession. The learned first Appellate Court has reversed the findings on issue No. 2 on the grounds that plea of adverse possession has been declared repugnant to the injunction of Islam in the case reported as Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063) and that the plea of ownership and adverse possession re self-contradictory.
I have examined the written-statement, filed by the petitioners, and find that it has been pleaded in the preliminary objections that if the respondent are proved to C.L.R. the owners of the property in question, in that case since they are in possession of the land 'in question for the last 12 years, therefore, they have become owners of the land in question as in adverse possession. It would be appropriate to reproduce preliminary objection No. 6. Which reads as follows :-
4. I have heard the learned counsel and examined the available record. It appears appropriate to reproduce the issues, framed in the suit, which reads as follows:--- 1.c.A..4...9:31..?. LS" ) or 4s- 4.:"
(0.1012. ;I c.1, 0.1 j,j1, jt....,(0j1)12 JI LA; ri..r..L J )-1 It is evident from the above that firstly the petitioners have pleaded that they are owners in possession and if proved otherwise, then they are entitled to ownership of the land and to hold on possession of the land due to adverse possession. It has been held in the case reported Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) that the pleas of ownership and adverse possession are self-destructive and that a person who claims himself to be the owner of certain property cannot be allowed to plead at the same time that he is in possession of property hostile or adverse as against the real owner. It appears appropriate to reproduce an extract from the case of Abdul Majeed (supra), which reads as under:- ....................... It is now well-settled that person who asserts ownership over a certain property by purchase would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. The logic behind is that a person cannot claim hostile and adverse possession over a property which he holds in his own right and such a possession lacks the essentials of adverse possession so far recognized for maturity of 'ownership on this count. It has been so held in Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad (PLD 1991 SC 290), the relevant paras of which are reproduced.
7. In the above perspective, I have deeply examined the judgments of reversal and is of the view that the learned Appellate Court has rightly relied upon the case of Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063), to hold that the plea of adverse possession has been declared repugnant to the injunction of Islam.
8. Now coming to the contention raised by the learned counsel regarding objections to the second report of the local commission. It is true that the petitioners filed the objections to the report of the local commission and those were not decided, but it is equally true that the petitioners did not make any effort for getting those objections decided inasmuch as it was neither pointed out to the learned Court to advert to the objections nor any application towards the said direction was filed.
There is another aspect of the case. The learned Trial Court, while deciding issue No. 1 in favour of respondents Nos. 1 and 2, has also relied upon the second report of the local commission and has held that the said report supports stand of the plaintiffs. A portion of findings on issue No. 1, rendered by the learned Trial Court, are reproduced below:--- ".... The latest report of the Local Commission prepared by Muhammad Afzal Khan, Advocate, tendered in Court on 12.9.1992 also supports the stand of the plaintiff that defendants are in occupation to the extent of 113 marlas in the khasra in question. This report is to be accepted as no sound objection has been raised on it."
Although the learned Trial Court relied upon the' second report of the local commission and has held that it supports stand of the plaintiff, yet the petitioners, as noted above, did not assail the findings on issue No.g 1, particularly reliance of the !Earned Trial Court on the report of local commission, through appeal inasmu ch as no cross-objections were riled. When the petitioners have themselves acknowledged the correctness of findings on issue No. 1 and did not agitate the same before the higher forum through any of the modes, then they are precluded from saying at a revisional stage that their objections were not decided by the learned Trial Court. The petitioners should have challenged the findings of the learned Trial Court on issue No. 1 at least through cross- objection. Thus, at this stage, the petitioners cannot be allowed to say that their objections were not decided. Even otherwise, I have also gone through petitioner's objections, and find ..That they are without any substance. More importantly, it has been acknowledged by the petitioners that the local commission inspected the site and measured the questioned land in view of the record and in the presence of Patwari Halqa and the parties. It is .Casually been stated without any prima facie evidence on record that the local commission re-inspected the site without notice to the petitioners. It appears from the tenor of the objections that the petitioners were not serious in objecting to the second report of the local commission.
9. In the above perspective, I have examined the impugned judgment and find that the same is not only in accordance with the record of the case but the same is also in consonance with the law on the subject; particularly, in view of the principles of law laid down in the judgment of Maqbool Ahmad and Abdul Majeed and 6 others (ibid). I am not persuaded to reverse findings of the learned Appellate Court in exercise of revisional jurisdiction of this Court. I have also examined the findings rendered by the learned Trial Court on issue No. 2 and find that the same is not sustainable in law. To my mind, the said findings, as compared to the learned lower Appellate Court's judgment, suffers from grave legal errors, which have been rectified by the learned Appellate Court by reversing the findings of the learned Trial Court and substituting its own findings, which are supported by reasons. I am not persuaded to restore the findings of the learned Trial Court on issue No. 2, which, to my mind, have rightly been reversed by the learned lower Appellate Court.
10. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral v. Ghulam Muhanmad (PLD 1996 Karachi 202), ilamuddin through' legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa v. Ibrahim (2000 CLC 500) can be referred.
11. In view of the above, the present petition is devoid of merits, hence stands dismissed with no order as to costs. es.