' SYED ZAKIR HUSSAIN, J.--- This second appeal is an outcome of the Civil Appeal No, 28 of 2007, arising out of the Suit No, 883 of 2002 (Old No, 1250 of 2000), filed by the appellant against the respondent seeking thereby an order setting aside of the impugned judgment dated 12-1-2008, passed by the learned III: Additional District Judge, Karachi (Central), and the judgment dated 7- 12-2006 of the learned IV-Senior Civil Judge, Karachi (Central), in Suit No, 883 of 2002 (Old Suit No, 1250 of 2000) and dismissal of the suit of the respondent with costs, as well.
2. During the course of the arguments, the learned counsel for the appellant confined his bone of contention to the point of limitation, according to which, the suit was barred since the same was filed in the year, 2000, while the time began to run when the appellant came in possession in the year, 1978, and therefore, since the limitation for seeking possession under section 8 of the Specific Relief Act, is twelve years the suit is hit by the Article 142 of the Limitation Act.
3. In support of his contention, the learned counsel for the appellant placed reliance upon the cases reported in 2006 M LD 89, PLD 2009 SC 95 and 2003 CLC 200. The case-law referred to above, is on the point of limitation, as agitated by the learned counsel.
4. On the other hand, the learned counsel for the respondent states that two courts below, have already given concurrent findings on all material issues, which include the point of limitation in question as well. Both the two courts have concluded that in the instant case, the review of limitation on the cause of action for filing of the suit for possession by the respondent against the appellant, starts from the service of the notice in the year 2000, pertaining to an alleged sale transaction taken place between the appellant, and the brother of the respondent since deceased, against consideration of sale price of the property in question, and therefore, since the suit is also filed in the year, 2000, the same was within time.
5. The learned counsel further states that the possession in the instant case, which remained continuously with the appellant, was under a friendly gesture, and a matter of consent as well, which conferred upon the appellant an status of a licensee of the respondent as to the possession in question, and therefore, it was never discontinued and in the strict sense of the dispossession, no dispossession ever took place until the service of the notice referred to above, which showed a practical hostile intention of the appellant to usurp the property. The learned counsel contends that the appellant failed to establish before the court, the alleged oral agreement of sale in his favour. He could neither produce the brothers of the respondent in support thereof, who allegedly made the sale agreement with him for and on behalf of the respondents, regarding the suit property, nor did he produce any document showing their authorization to enter into any such sale agreement or transfer for and on behalf of the respondent, who is the sole and exclusive owner thereof, and who admittedly, made no deal in the matter of such alleged sale transaction nor any proof as to the payment of allegedly paid consideration wholly or partly on the part of the appellant, has been produced. Similarly, the appellant did file no suit for specific performance of the contract against the respondent in respect with the suit property and likewise, he miserably failed to have forcibly dispossessed the respondent or discontinued his possession by fraud or otherwise. The initial burden to establish the case set forth in the plaint was on the plaintiff/ respondent that stood discharged satisfactorily and now the same burden has stood shifted to the defendant/appellant who has failed to discharge the same. The, appellant admits to have no title over the property in question and hence, he has no right to continue with its possession. As regards the sale transaction, the same has no nexus with the suit of the respondent. The Courts below, therefore, rightly came to the conclusion by their respective judgments on factual and legal aspects that the respondent was entitled to the possession and the appellant, was bound to hand over the same to him and that his such possession did become illegal, after the issuance of the notice in question. In the instant case, the appellant has not claimed any title or right to retain the possession in question under any lawful title, but simply he put forth a legal shelter of barring provision of law that the relief in question or the suit in question is hit by the Article 142 of the Limitation Act, which does rescue the appellant in the matter, owing to expiration of the period of twelve years as limitation period provided thereby, therefor, already prior to the institution thereof.
6. A perusal of the above quoted provision of law indicates twelve years limitation period for suing for possession and that the same start from the date of dispossession or discontinuance of possession.
7. In the instant case, no physical dispossession and discontinuance ever took place but on the date of the above notice, which has been served in the year 2000 when the claim of sale agreement in respect of the same property was put forth by the appellant for the first time, and thereby, he finally emerged to have had no intention to leave the premises and from such stage, the discontinuance or ouster, which, in other words, is to be construed to be dispossession, has taken place by all means, for the status of the appellant as licensee of the respondent in respect with the property in question and its possession, etc. Stood changed altogether and the appellant becomes illegal occupant and user thereof, which of itself being one that has deprived the respondent of its occupation through his licensee, the appellant, amounts to his ouster which is equivalent to dispossession by conduct in terms of Article 142 of the Limitation Act. Even otherwise, the Article 144 of the said Act befit to the respondent's case in point of limitation in which, it is open to an owner of a property to seek possession from the occupant thereof within 12-years of such occupation, irrespective of whether he was dispossessed forcibly or not.
8. The contention that the period of limitation should start from 1978 is misconceived since the year 1978 is indicated as the year of the appellant's having been put to possession with consent of the owner as a friendly gesture or otherwise but for no reason of physical dispossession (giving a cause of action to the respondent to sue the appellant for possession) and such situation continued until the service of the aforesaid notice, which has discontinued the entire relationship of the previous period of time between the parties in all respect as far as the property and its occupation in question, are concerned. Besides, the notice itself determined or discontinued the continuity of the alleged unauthorized possession, if any, involved ill the matter, since the same shows the case of the appellant that he has stood inducted in possession under the sale agreement and against payment of sale consideration there against, or in other words, the past period of illegal possession, if any, as claimed being defence against the suit in hand, stood washed out and a fresh relationship came into being thereby, and hence, the respondent got a cause of action to sue the appellant from. The date of service of notice afresh.
9. Keeping in view the: above, the appeal in hand stands dismissed with cost.