' MUHAMMAD AZAM KHAN, C.J.---The appellants filed a declaratory suit in the Court of Civil Judge Hajeera on 24-1-1994 for cancellation of decree dated 30-3-1962 in respect of land measuring 9 kanal survey No,702, situate in village Mandhol. The respondent Mansoo Khan filed a counter suit for declaration on 11-8-1994 in respect of same land for declaration to the effect that their adverse possession in the land has matured into ownership. They have constructed house and are residing there and have made improvements at a costs of Rs,500,000. Both the suits were consolidated. The learned Additional Sub Judge 1st Class vide judgment dated 11-1-1997 dismissed the suit filed by the appellants while the suit filed by the respondents was decreed on the ground of adverse possession. Feeling aggrieved the appellants filed an appeal before Additional District Judge Hajeera on 27-3-1999. The Additional District Judge Hajeera accepted the appeal and set aside the judgment and decree of Sub-Judge. The suit for possession filed by Mansoo Khan was dismissed having no cause of action and failure to prove adverse possession. Feeling aggrieved the respondents filed an appeal in the High Court. A learned single Judge'in the High Court vide judgment and decree dated 20-5-2003 accepted the appeal, set aside the judgment and decree of Additional District Judge Hajeera and restored that of Sub Judge Hajeera.
2. Syed Nazir Hussain Shah Kazmi, advocate, while arguing on behalf of the appellants contended that the decree passed by the High Court in favour of the respondents on the ground of adverse possession is a nullity in the eye of law. Section 28 and Article 144 of the Limitation Act were deleted on 7-12-1996 and decree in favour of the respondents was passed on 11-1-1997 when the law was not in existence and decree cannot be passed on the said ground. He further argued that the decree in favour of Mansoo Khan is not legal one and it has been passed on the basis of an agreement to sell. The decree for ownership cannot be granted on the basis of agreement to sell.
The High Court has not applied correct law. The learned counsel argued that even otherwise adverse possession of the respondents was not proved. He further argued that during hearing of appeal before District Judge the record was burnt. An application fore construction of record was filed before the District Judge. The District Judge Pallandri on 31-12-1993 ordered the parties that if they chose so, they will file fresh suit within a period of three months. He asserted that the appellants filed suit within the period of three months while Mansoo Khan filed suit beyond the period of three months which was time-barred and liable to be dismissed. The High Court accepted the appeal against law. He referred to an unreported judgment of this Court recorded in the case titled Alif Din v. Qazi Nazir Ahmed and others (Civil Appeal No,175 of 1998 decided on 13-5- 1999).
3. While controverting the arguments of the counsel for the appellants, Sardar Shamshad Hussain Khan, counsel for the respondents, argued that the law was amended on 7-12-1996 and the decree was passed before 11-1-1997. The law was in existence at the time of passing the decree. For the sake of arguments, even if it is assumed that Article 144 and section 28 of the Limitation Act had been omitted by amendment before passing of decree, then, too, the decree is valid one because the law is always prospective. The rights accrued to a party before amendment of law cannot be taken away unless specifically provided in the amending law. The learned counsel argued that the record was burnt and period of limitation for reconstruction of record in Article 181 is three years.
Fresh suit is filed within time. The learned counsel referred to the case reported as 1996 CLC 1545.
He argued that the respondents remained in possession of land on the basis of title and if it is assumed that the title was defective, then, too, a decree of adverse possession on the basis of defective title can be passed in favour of the respondents. He referred to and relied upon the cases reported as AIR 1923 Lahore 495, PLD 1964 SC 220, PLD 1975 SC 311 and 2001 M LD 493. He requested for dismissal of appeal with costs. The learned counsel lastly argued that it .Is a settled law that such suits or applications where no period of limitation is prescribed, the same can be filed within a period of three years under Article 181. The District Judge was not competent to issue direction for filing suit within the period of three months. A Court has no jurisdiction to pass an order against law.
4. We have heard the learned counsel for the parties and perused the record. It is evident from the record that respondents filed a suit in the Court of Sub Judge Hajeera on 11-8-1994 for declaration to the effect that their adverse possession in the land has matured into ownership and they are entitled for a decree on the ground of adverse possession. Section 28 of the Limitation Act was amended on 24-6-1992. While considering the effect of amendment brought in section 28 of the Limitation Act on 24-6-1992, this Court in the case titled Isamdad Khan and another v. Muhammad Khurshid Khan and others (Civil Appeal No,52 of 2005, decided on 10-4-2012) observed that after amendment of section 28 a suit for possession of immovable property after the period of limitation is barred but the right of ownership is not extinguished and a decree of declaration on the ground of adverse possession can only be passed after the defendant/owner admits the claim of adverse possession of the plaintiff. It has been observed in the same judgment in para 11 as under:-- "11. Through the amendment of 1992, a proviso has been attached to section 28. A perusal of the proviso shows that in the light of deletion of word "extinguishment" and insertion of word "bar", an exception has been created that if an owner of property admits the claim of a person who is in possession of the property, then a decree of ownership can be passed in his favour. We may observe here that the effect of proviso is that it creates an exception to the main section since in the original section the ownership rights of the owner remain in tact after period of limitation prescribed to file suit for possession of immovable property, the decree on the ground of adverse possession can only be passed if the defendant-owner admits the claim of the person, who claims decree on the ground of adverse possession. Otherwise the decree in favour of a person claiming adverse possession cannot be passed."
5. The suit by the respondents was filed after promulgation of amendment on 24-6-1992 and in the written statement filed in the suit titled Mansoo Khan and others v. Maroof Khan and others. The defendants-owners have not admitted the adverse possession of respondents. Herein, therefore, the suit for declaration on the ground of adverse possession was not maintainable and a decree cannot he passed. Hence, the decree in favour of respondents is a nullity.
6. We have considered the argument of the counsel for the appellants that through an amendment, section 28 and Article 144 of the 1st Schedule of the Limitation Act, have been deleted and a decree on the ground of adverse possession cannot be passed. It is by now a settled law that repeal of law shall not affect the rights accrued to a party and C repeal will not affect the proceedings pending in a Court. In lsamdad Khan's case (supra), this Court has observed as under:- "(8)'The deletion of section 28 and Article 144 of the Limitation Act will not affect the suits filed in the Court. The suit shall continue to be governed by the law which was in existence at the time of filing the suit."
7. We have also considered the arguments of the counsel for the appellants that the suit filed by Mansoo Khan on 11-8-994 was beyond' the period of limitation. We have perused the record. The appeal against the judgment and decree of Sub Judge Hajeera dated 29-12-1984 was filed before the District Judge. During pendency of appeal the record was burnt on the night falling between 30th and 31st May 1990. Mansoo Khan filed appeal on 11-10-1993 for reconstruction of record. The Additional District Judge Pallandri vide order dated 31-10-1993. Observed that the record is not available and while exercising power under section 151. CPC, he ordered that if the parties so chose, they may file fresh suits in the competent Court with in a period of three months.
8. In compliance of the said order Maroof and others, appellants herein, filed suit on 24-1-1994, which is within limitation fixed by the Additional District Judge. While Mansoo Khan and others filed suit on 11-8-1994, which is beyond the period fixed by the District Judge. The District Judge fixed period of three months on 31-10-1993. The period of three months completes on 31-1-1994. The suit filed by Mansoo Khan appears to be time barred. The proposition directly came under consideration of this Court in similar circumstances in a case titled Alif Din v. Qazi Nazir Ahmed and others (Civil Appeal No,175 of 1998 decided on 13-5-1999). In the said case in similar circumstances in the result of fire incident, which took place in District Courts Rawalakot, on the night intervening between 30th and 31st May, 1990, the record was burnt. Alif Din filed an application for reconstruction of record on 8-7-1990. The District Judge on 12-4-1992 expressed opinion that it was not possible to reconstruct the record. He directed Alif Din to file fresh appeal. The parties were directed to appear before Sub Judge Hajeera on 14-6-1992. It was argued by the counsel for the respondents that the plaintiff could file fresh suit within three years when the efforts to reconstruct the record failed, under Article 181 of the Limitation Act. This Court observed that when a period of limitation has already expired. The Court granted a concession to the parties for filing the suit. The order was legal one. It was observed in paras 4 and 5 of the judgment as under:-- "4. A perusal of the order shows that it is not specifically stated in it that the plaintiff shall file fresh suit on or before the next date of hearing. Therefore it has to be seen as to whether it has been rightly construed by the Courts below that the suit had to be filed on or before the date fixed by the learned District Judge. As the facts are, the suit filed by the appellant was dismissed on 8th July 1990 because the appellant failed to deposit the security within time. The learned District Judge gave a new chance to the plaintiff to file a fresh suit. This order was accepted by the respondents and was not challenged before the High Court or this Court. Therefore, there is no occasion to examine the power which was available to the learned District Judge to grant another chance to the appellant to file a fresh suit. Since that order had attained finality, it has to be accepted as it was, but it has to be said that the appellant was fortunate that he received a sympathetic treatment at the hands of learned District Judge who not only allowed him to file a fresh suit but also gave him ample time of two months for appearance before the trial Court. In order to evaluate the order as to whether the District Judge had intended that the suit should be filed before 14th June 1992 it will be seen that no suit was pending before the learned Sub-Judge when the learned District Judge ordered the parties to appear before him. The question therefore arises as to what were the parties supposed to do by appearing before the Sub Judge on 14th June 1992? Obviously the purpose was that the parties should be present so that fresh summons may not have to be issued. It pre-supposes that suit should have been filed earlier or could be filed on that date. This is the reasonable interpretation which flows from the order. Any other interpretation would lead to ridiculous results. If it is assumed that no time was fixed by the learned District Judge, the question would be as to what would be the limit for filing the fresh suit? If 14th June was not the last date then what was the terminus quo a fresh suit? It cannot be assumed that the plaintiff could file the fresh suit at ally time at his pleasure. We do not see any other purpose for which the parties to appear on a particular date except that fresh suit be filed on or before that date.
(5) There is another angle from which the matter can be examined. Let us assume for a while that the learned District Judge did not fix any period for filing a fresh suit. Whenever a period is not fixed for doing a particular thing such thing has to be done within reasonable time. The learned District Judge allowed the appellant to file a fresh suit on 12th June. He filed the suit on 12th August which means he took more than four months. In our opinion this cannot be treated as a reasonable time in the circumstances of the present case, particularly keeping in mind that parties were directed to appear before the trial Court on 14th June. Appellant was given a fresh opportunity to file a fresh suit when he had recorded a blind alley after the Courts failed to construct the record: He should have filed it within days and should not take months to file the fresh suit. In our considered view that alone would have been a proper conduct on part of the appellant."
9. From the above analysis, the suit apparently appears to be time barred. But there is another aspect of the matter that the suit filed by ' Mansoo Khan was for declaration on the ground that a declaratory decree be passed in his favour on the ground of adverse possession. Maroof Khan filed fresh suit for possession on 24-1-1994. After filing of suit by Maroof Khan and others fresh cause of action arose to Mansoo Khan and he could file the suit on the basis of fresh cause of action. The suit filed by Mansoo Khan and others was within time. As we have already held that after amendment brought in section 28 of the Limitation Act, a declaratory decree on the ground of adverse possession can only be passed if an owner- defendant admits the claim of the plaintiff. As the appellants, herein, defendants before the trial Court, have not admitted the claim of Mansoo Khan, therefore, declaratory decree on the ground of adverse possession cannot be passed in favour of Mansoo Khan.
10. Now we proceed to examine whether the plea of adverse possession in defence was proved by Mansoo Khan or he failed to prove the same. We have gone through the record. The trial Court passed a decree of adverse possession in favour of respondents, herein, on the ground that possession of the respondents, plaintiffs therein, is proved from the year 1954-1955 and they are in possession of the land. It may be observed that mere entry in the Revenue Record cannot be considered as a proof of adverse possession. The adverse possession must be actual, open, exclusive, continuous, hostile and adverse to the knowledge of real owners and they have not admitted them as owners of the land openly. It has been laid down by this Court in the referred judgment that the adverse possession must be active, open, exclusive, continuous, hostile and adverse to the knowledge of real owners and they have not admitted them as owners of the land openly. The relevant observations are as under:-- "14. Before proceeding further we may observe that the law of adverse possession is based on the doctrine of 'might is right'. Mere entries in the Revenue Record are not sufficient to prove the possession of a party as adverse against real owners. The party must prove that his possession over the suit land is actual, open, exclusive, continuous, hostile and adverse to the knowledge of real owners and they have not admitted them as owners of the land openly. Our said view is fortified from the cases reported as Khair Muhammad v. Khuda Bakhsh and 2 others (1976 SCM R 69), Gulab and 6 others Muhammad Younis and 7 others (PLD 1983 SC (AJ&K) 89) and Tasawar Hussain Shah alias Tasweer Hussain Shah v, Muhammad Yousaf and 7 others (PLD 2001 SC (AJ&K)
27)
' In the case reported as Khair Muhammad v. Khuda Bakhsh and 2 others (1976 SCM R 69) it was observed as under:-- "On the merits of the case, we find that the learned Judge has rightly held that the mere entry of the petitioner or his predecessor-in-interest as a tenant-at-will not paying any Lagan or Batai owing to assertion of ownership did not, in law, amount to an open and overt act of hostile or adverse possession against the true owners.
' We are also in agreement with the High Court that in any case, in order to succeed in a claim based on adverse possession, the plaintiff has to show that he has been in continuous and uninterrupted adverse possession for the prescribed period of twelve years."
' In the case reported as Gulab and 6 others v. Muhammad Younas and 7 others (PLD 1983 SC (AJ&K) 89) it was observed as under:-- "(12) Next we come to the question of adverse possession. The rule of adverse possession is based on the principle of "might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior courts of the State and Pakistan have considered it immoral for having its source of organ in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organization of society into state of rule of law, it gained mandate of law to set at rest the status of long time possessions, particularly in absence of claims of true owners of properties. The constituent conditions of adverse possession are that it must be actual, visible, exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equitable 'consideration, is allowed on the strength of strict and sound proof. If anyone of the constituent conditions is lacking in evidence, the plea is outrightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession."
In the case reported as Tasawar Hussain Shah alias Tasweer Hussain Shah v. Muhammad Yousaf and 7 others (PLD 2001 SC (AJ&K) 27) it has been observed as under:-- ....It is well settled principle of law that costs of improvements can be awarded only if it is shown that the same were made on the land to which the concerned party has title and were made in good faith."
11. It is on the record that the appellants, plaintiffs before the trial Court, tried to take the possession of land in the year 1972-1973, which was resisted by the respondents. It is also on the record that the appellants previously tried to take possession of the land in the year 1967. The respondents resisted. A criminal case was registered against the appellants. Again the appellants filed a suit for possession of the land on 28-10-1980, which was resisted by the respondents and they claimed their adverse possession. Fresh suit has been filed by the appellants on 21-1-1994. From all the above events the possession of respondents is proved to be adverse against the appellants. The case of adverse possession is not proved from the record.
12. As we have alreadyobserved that after amendment in section 28 of the Limitation Act on 24-6- 1992 the suit for possession by an owner beyond the period of limitation is barred, but his ownership rights remain intact, therefore, a declaratory decree for declaring a person in adverse possession as owner cannot be passed except the owner admits the claim. Since the owners- defendants, appellants herein, have not admitted the claim of rival plaintiffs, respondents-herein, the decree of declaration on the ground of adverse possession was a nullity. The judgment and decree of the High Court is not maintainable, which is hereby set aside.
13. Since adverse possession of the plaintiffs, respondents-herein, against the appellants, rival plaintiffs, has been proved, their suit for possession was beyond the limitation and was also liable to be dismissed. Resultantly the appeal is accepted. Both the suits filed by the plaintiffs and respondents are dismissed with no order as to the costs.
' Before parting we may observe that since section 28 and Article 144 of the 1st Schedule of the Limitation Act have been deleted, the appellants are at liberty to resort to any remedy available to them under law