SALMAN HAMID, J.---On 15-5-1985 Masers Nisar Ahmed, Muhammad Akram, Ghulam Abbas, all sons of Muhammad Qasim and Muhammad Sachal, Muhammad Yahya and Nazar Muhammad all sons of Muhammad Daud filed Rent Case No,16 of 1985 in the Court of 1st Rent Controller/Senior Civil Judge, Shikarpur against Muhammad Shaaban, son of Muhammad Chhuttal for his eviction from House No,C.S.No,27/51, Khair Shah Muhallah, Shikarpur (the Property) on the ground of personal bona fide need, default and impairment. After service Muhammad Shaaban (sic) filed written objections, wherein it was mentioned that the property is comprised of a room only and it was not a house, as claimed by the above named persons. It was further mentioned in the Objections that the property was sold to him as far back as in 1960 against adequate consideration and that such consideration was fully paid in instalments of Rs,200 a month which process of payment of instalment came to an end in 1980. It was also mentioned in the Objections that this was an arrangement effected through a compromise reached between the parties through one Mr. Aslam Khan Pathan. On the basis of such background, Muhammad Subhan completely denied that he was a tenant; in fact he claimed himself to be an owner in possession of the Property.
2. The Rent Case, amongst other dates, came up for hearing before the referred court on 26-6-1986 when it was dismissed for non-prosecution. The record of the file would show that despite dismissal of the Rent Case on 26-6-1986 and despite the fact that Muhammad Shaaban had claimed ownership of the property and denied the relationship of landlords and tenant altogether, neither the Rent Case was got restored nor any suit for declaration that Muhammad Shaaban (sic) is not an owner of the Property was ever filed.
3. After about sixteen years from the date of dismissal of Rent Case and claim of Muhammad Subhan that he was an owner in possession of the property, on or about 20-8-2002 a Second Class Suit No,8 of 2002 for possession and recovery of Rs,5000 as consideration for use and occupation of immovable property was filed by as many as seventeen plaintiffs before 1st Senior Civil Judge, Shikarpur against four defendants. Plaintiffs Nos.1, 2, 10, 11 and 12 in the suit were the persons who, earlier in time, in 1985 filed Rent Case against Muhammad Subhan, while rest of the plaintiffs were either sons, daughters, grandsons and granddaughters of Muhammad Qasim or Muhammad Daud. Narration of the plaint in Suit No,8 of 2002 would show that this time Muhammad Subhan was shown therein as a servant of Muhammd Qasim and Muhammad Daud, the two brothers who were running a business of rice husking in a mill and that this servant (Muhammad Subhan) was put in possession of the property by these two brothers in or about 1973. This stand of the plaintiffs, it would be seen was in total contrast to the stand taken in the Rent Case.
4. The defendants in Suit No,8 of 2002 on their turn filed an application under Order VII Rule 11, C.P.C.
For rejection of plaint on the grounds that the plaint was undervalued and proper court fees was not paid; the plaintiffs had no cause of action to file such suit; earlier Rent Case No,16 of 1985 was filed and was dismissed for non-prosecution which fact was not disclosed in the plaint and that the plaint was barred for non-joinder and mis-joinder of parties. After hearing, this Application was allowed in terms of Order dated 30-6-2003 when the plaint on the ground that the suit was hit by the principle of res judicata and that it was hopelessly beyond the statutory period of limitation was rejected.
5. Civil Appeal No,11 of 200, as a result of rejection of plaint was thus preferred which was decided by the IIIrd Additional District Judge, Shikarpur, which was dismissed in terms of Order dated 2-10- 2007 upholding the Order of the court below. Aggrieved by above two Orders, present Revision Application came into being.
6. In the above facts and circumstances of the case, learned counsel for the applicants argued that both the courts below did not consider the fact that the defendants who were arrayed in the Suit were in possession of the property, adverse to the interests of the applicants and the law of limitation was therefore not applicable. It was also argued that the previous litigation (Rent Case) was against Muhammad Subhan whereas the Suit No,8 of 2002 was against the defendants who were persons other than Muhammad Subhan and therefore question of mis-joinder and non- joinder of parties does not arise. It was next contended that the question of res judicata does not arise inasmuch as that the Rent Case was dismissed for non-prosecution and therefore it was not a "case decided". It was lastly contended that since fresh cause of action had accrued to the applicants against the respondents, Suit No,8 of 2002 was competent.
7. Learned counsel for the respondents argued that Muhammad Subhan, against whom the Rent Case was filed was shown as tenant of the property. As against such categorization of Muhammad Subhan, i.e, tenant, the Suit that was filed by the applicants mentioned him as a servant of the two original owners of rice husking mill who put him in possession of the property and that he (Muhammad Subhan) having "delivered possession of major portion of the property without consent of plaintiffs express or implied" Suit No,8 of 2002 emanated. It was thus argued that according to applicants own showing the possession of the property was with Muhammad Subhan and if they (Applicants) were of the view that its possession was "delivered" at best a case of sub- letting could have been initiated. It was also argued that the plaint itself shows that, "the subject matter" of the Suit, i.e, the property was shown to be under litigation and if such was the case, two scenarios emerge. First was that the property was not part of the litigation disclosed in the plaint, thus free from disputes and Secondly if it (the Property) was indeed involved in litigation, Suit No,8 of 2002 was not maintainable. Resultantly it was argued that the applicants themselves were not clear as to whether Muhammad Subhan was a tenant or otherwise. It was also argued that despite the fact that in the Rent Case Muhammad Subhan categorically .Mentioned that he was an owner of the property, the same was not challenged by the applicants and that even the Rent Case which was dismissed for non-prosecution was not got restored. Arguing on the point of limitation, it was mentioned that according to applicants' own showing Muhammad Subhan was in occupation of the property from 1960 onwards and further that in the Objections those were raised by Muhammad Subhan it was clearly mentioned that he has become owner thereof from 1980 onwards. Despite such a stand having been taken by Muhammad Subhan, it was argued that the applicants remained quiet and did not file any litigation to dislodge the claim of Muhammad Subhan. Finally it was argued that the Orders passed by the two courts below were with jurisdiction and such courts having come to the conclusion that the Suit was beyond the period of limitation, dismissed the same.
8. Arguments heard. Perused the record.
9. It is a matter of record that in the first instance Rent Case was tiled against Muhammad Subhan wherein he took the stand that he is in occupation of the property in the capacity of an owner and not as a tenant. Despite such claim of ownership of the property by Muhammad Subhan, no steps was of initiating litigation were taken by the applicants. Their non-action to such a claim by itself shows that they accepted Muhammad Subhan as an owner in possession of the property. It is also a matter of record that the applicants remained quiet up to the year, 2002 when and for the first time against the claim of Muhammad Subhan's ownership to the property Suit No,8 of 2002 for possession thereof from the defendants/respondents herein was filed. It would be seen from the plaint of Suit No,8 of 2002 that again in such suit it was alleged that Muhammad Subhan "delivered" the possession of the property to the present respondents and even the prayer therein was to the effect that the possession of the Property be handed over back to the applicants. Entire narration of the plaint by itself showed that the respondents were treated as sub-tenants of Muhammad Subhan, for which the proper remedy was a rent case on the ground of subletting and not the suit.
10. Even if it is presumed that ownership of Muhammad Subhan in the property was disputed by the applicants, there is nothing on record to accept such dispute, save that in Suit No,8 of 2002 it was mentioned that the property is in litigation. In such a situation the applicants are at liberty to pursue remedy in such litigation. Keeping aside this aspect of the matter apart, and if it is presumed that no litigation had been tiled by the applicants against Muhammad Subhan, then the right time for such litigation was immediately after 1985/86 within the period of limitation when Muhammad Subhan claimed ownership of the property. This it seems was not done and the time for litigation fall prey to the limitation period.
11. The two courts below having confronted with the above position, rightly came to the conclusion that the suit tiled by the present applicants in respect of the property to which Muhammad Subhan had claimed ownership having not been disputed, the same could have not been brought into the litigation by way of filing Suit No,8 of 2002. Both the courts below while dismissing the claim of the applicants rightly came to the conclusion that despite knowledge of claim of ownership of the property by Muhammad Subhan in 1985/86, the applicants having remained quiet lost their right to such an effect by virtue of limitation and that such right could have not been claimed after the period of limitation.
12. Even if it is presumed that no Rent Case was tiled by the applicants against Muhammad Subhan, the fact would remain the same that they were in the knowledge of the fact that Muhammad Subhan was in occupation of the property since 1960 or at best since 1980 when ownership thereof was claimed by Muhammad Subhan. If limitation of 12 years on the basis of adverse possession is calculated even from 1980 or even from 1985 onwards inasmuch as that the applicants claim the benefit of adverse possession of the property and for that limitation was twelve years, still Suit No,8 of 2002 was hopelessly time-barred. Needless to mention that the law of adverse possession does not hold the field any longer and such argument was good only for the persons claiming adverse possession and not available to the applicants. Therefore the precedents cited by the learned counsel on the point of adverse possession require no discussion and/or mention.
13. It is well-settled by now that the provisions of revision apply only to cases involving illegal assumption and non-exercise or irregular exercise of jurisdiction by the courts. It is nobody's case that the two courts below exercised jurisdiction not vested with them by law or that such courts have failed to exercise jurisdiction so vested in them by law or have acted in the exercise of jurisdiction illegally or with material irregularity. On the contrary the orders passed by the courts below would show that the applicants were non-suited on ground of period of limitation with the result that the litigation that was commenced by them ended up against them. These are the reasons for dismissal of this Revision Application on 14-2-2011.