' The dispute in this case relates to property bearing City Survey No, _934 situated at Tando Adam.
The appellant brought Suit No, 74 of 1966 against the respondent for a decree for possession and for mesne profits on the plea that the property was excessively owned by the appellant and was taken possession of by the respondent without the knowledge or consent of the appellant. The respondent contested the suit and pleaded adverse possession for a period about 16 years prior to the institution of the suit and on that basis claimed to have acquired title by prescription.
2. The Court of Civil Judge, Shandadpur upon evidence of the parties rejected the plea of the respondent holding that the respondent had failed to prove his adverse possession for the prescribed period, and that the appellant is the lawful owner of the property. However, in view of the trial Court the respondent was occupying the property with the consent and permission of the appellant and was, therefore, not a trespasser. In the concluding portion of his judgment the learned trial Court observed : "In view of the above discussion, I reject the pleadings of both the parties that the defendant is a trespasser and the defendant is the owner on the basis of adverse possession. In the result the suit is dismissed. To me it appears that the defendant has been occupying the premises since the year 1959 withs .The knowledge of the plaintiff as licensee."
' Thus the suit of the appellant was dismissed. In appeal the learned District Judge, Tharparkat agreed with the view of the trial -Court and dismissed the appeal of the 'appellant. The appellant has now come up in second appeal before this Court.
3. Before me it was contended on behalf of the appellant that in view of the concurrent finding of the two Courts below upholding the title of the appellant and rejecting the plea of title acquired by the respondent by adverse possession, the Courts below are in. Serious error, in dismissing the suit.
I have gone through the judgments of the two Courts below and find that on a proper examination Of the evidence addticed by the parties proper findings were given by the Courts below in holding that the appellant has established his title and the respondent has failed to prove adverse possession for the requisite period to mature into title. It was, therefore, rightly contended on behalf of the appellant that the Courts below were not justified in non-suiting the appellant on the ground that the respondent was entitled to remain in possession as a licensee when no such case was set up by the respondent in his written statement or otherwise in this evidence. It seems to me that the finding of the Courts below that the possession of the respondent was permissible is also contrary to the pleading of the respondent. In paragraph 3 of the written statement the plea of the respondent was as under "The plaintiff never asked the defendant for possession during the last 14- 15 years. About 16 years back when the defendant was raising construction, the plaintiff had asked the defendant not to raise the construction and to vacate the possession to which the defendant refused. Thereafter the plaintiff remained silent and acquiesced his right."
The finding that the respondent had entered in possession and remained in occupation of the property with the knowledge and consent of the appellant as a licensee is clearly, therefore, contrary to the pleading of the respondent himself. Be that as it may, it is well. Established that a Court is not entitled to dispose of a suit on a plea of fact not raised by the parties. Once the appellant had established his title to the property and the defendant failed in proving any right to possession thereof, the appellant was clearly entitled to a decree for possession.
4. It was contended on behalf of the respondent in the first instance that since the respondent denied the title of the appellant, the onus of proof lay upon the appellant to prove his possession within 12 years prior to the date of the suit to be entitled to the relief sought Learned counsel for the respondent further contended that under Article 142 of the Limitation Act the appellant was required to prove his dispossession within 12 years prior to the date of suit. It may at once be stated that it is incorrect to say that the respondent denied the title of the appellant. In para. 2 of his written statement the respondent had clearly pleaded adverse possession against the title of the appellant implicit in this plea is the admission that the appellant was the true owner of the property, for otherwise, how could the respondent plead open, hostile and notorious possession to the knowledge of the true owner. At any rate, the case of the appellant as set out in the plaint is based on his title and there is no averment anywhere in the plaint that the respondent had dispossessed the appellant. It was, therefore, that the Courts below had framed the issue of adverse possession with the onus on the respondent. No issue was raised or framed as to the application of Article 142, Limitations Act. The respondent is, therefore, not entitled to raise the question of Limitation under Article 142 as such a question would clearly be a mixed question of law and fact. Be that as it may, the distinction between Article 142 and Article 144 of the Limitation Act is well-recognised. In Official Assignee v. Mohammad Hussain (1). I had the occasion to point out the scope of the two Articles in the following passage :- .
"The application of the two rules of limitation contained in these Articles has given rise to a considerable difference of opinion.
(1) PLD 1978 Kar. 27 {{PAGE BLUR}} sii lelowever;,,the.Ieoficensus of judicial opinion favours the view that scis Article 142 it restricted to suits which are in terms and substance: evo7rbased on plaintiff's prior possession which has been lost. By .Aaw dispossession ordiscontinuance, This Article is attracted in cases .a.Tuy.,*here the relief ;possession is sought on the basis of possessory, lath title. Whereas Article 144 is applicable to suits in which theOf: ,,plaintiff sues fonpossession on the basis of his title and if in .Stich,i --f1,5:1? :a. Suit the plaintiff proves his.Title; he is entitled to a decree, unless,? the defendant succeeds in establishing, his adverse possession for a period of more than 12 years." , Clearly the Present Suit is not based on prior possession but on titIdO the appellant in the property which has been established according to the' concurrent finding of the Courts below. There is, therefore, no subStance in the contention that in order robe entitled to a decree for possesSion the B appellant ought to have provedihis possession within 12 years of the date of suit. The principle of law is that a:person in established' Potsession can defend his posiession even without eStablishing title in hiniself against all persons except against the rightful owner.
5. It is next, feebly contended on behalf of the respondent that the finding of the Courtshelow on the question of adverse possession is not Sustainable. I find*, substance in this contention as well.
In the first place the coneurrent,finding on a question of fact is not liable to be assailed', 0,.Seccoick,,appfav8eqoildly, it seems to me that the two Courts below have' bn a propesa$ppreciation of evidence correctly reached the concluSion that' there was no evidence support of the respondent's plea that he had remained ju,,adverse Tossession of the property for more than,12 year's-prior to tjt,e'.Safti.Ivleinterference isi therefore, called for 'on this account. t29,1 t.- 4:1i4f.r-tra:t )oiis . !./ - - lignq
6. In vieWicif ,ithellfIrlitive the appellant is entitled to deermlfort possession: Pis fydaie teliefiegarding mesne profits, . As rightly held by the CourtitiefiWiiii.Evidente was produced by the appellant. The learned counsel foilIteespjiellanCalso does not press this part of the prayer.. . f ..'32;2i; :+'
7, lattbcie.pilAiAr.Hi lin appeal is allowed and the judgment of the Co below is setJfiaptkdet(41t4e;;extent that the suit of the plaintiff is decreed With costs as lo t ye rckerolpr;possession of the property in suit. olawel , 'to ....&;;'jtoi bzA Appeal accepted.' on I bisdi ben *hi] .341 buzzsaitoqib bad ,riebnooif:, l viii u 510i1WV16 Omni fldt tornvit bad woled 1981 CLC ,?Sw 11 infilixtqa 2SW U.1 Zgi OVi JiI31',rIOC[Rf:"7 [Lahore] .,oitzriezotr sels'vba to ofIT 1 A not licrrt I .S./e; er. To bwelzi noi)njintil to noilatfup sfilefefe Khurshid Ahmad, m.Di to noi.iaoupb5Kiru ATTAK AND OTHERS-7 retnioddr4. boa V,1 M.144041:64110 KR icbuss .7 al ..b,1-en.Go.., versus 1,21 LC't dill tof:"'10:;2 Wit Jricr'f :4'
PAKISTAN I3ROADCASTING CORPORATION *nth ba,kiiiihioj noi.wMp OTHERS-Respondents WptIesiitfilSik Order No, 83 of 1980, decided, on 16th November, 1980. {{PAGE BLUR}} {{PAGE BLUR}} 101] ASLAM KHAN KHATTAK '4/-,PkicfrstriN BROADCASTING CORPORATION (Khurihid Ahmad, J) 1415 Civil Procedure' Cede (V of 1908)= ;' '
O. XLI, r.'/3-A read with rr. 23 & 25-Remarid--LOrder, of remand passed by lower appellate Court neither falling under r. 23 nor under r. 25 and justifiable only under r. Dilate Court not showing- sufficient groundst,,for_ reversingivdecreel5of trial Court and directives given by it such as could.Be comPliiit with by ,itself-All parties to case agreeing to recall of order of remand and decision of case on existing evidence' Subject to ',Conditions arrangement arrived` 'at' between-' piities in -&mforinity with law-Order of remand set aside ind r(lcYWWtatipeIlate Court) clirected.To decide case either by ,biatself or ev.,94 same. To any Additional Districtitidge on existing evidence Agibcopiply With directives. [pp. 1415, 1416]A & B 351p3 Ch: 'Muhammad Parooqfor ":1 Yd lrshad Hassan, Dy. Attorney-General for Repo,h36%itslest'141,403''As:' $ashir Ahmed for. Respondents Npse..4 to '9 ind I fro' - ' ' k - ' VI! f-n'r,:.:)t) 6ii: Kespondent,A1o. -10 : Ex parte. l 5d, 0 13t14,m{.,,I Date of, hearing : 16th November. 1980 ?-: =';'5f) 9fli tupotarat'' dft This aPP404d4kted 4gainst the ,order of the Additional District Judge, RawalP1pAt ',Wed 5th Februarx,,!e0 by which 4.. Remanded the cAse;,:for fteskili(ec,istoti to the trig,Court with' cerialh 'directions as leontaTned in paya,graph 1.1 and may be reproduced below
(1) That the person answering the interrogatories be':asted,,alid allowed an opportunity to verify answer to' the interfogateifitis on oath. IF
(ii) To implead the applicants, namely Mirza Anwar Hussain, M Shoab Siddiqui, Aziz i,.Elthrand Khan ..M.i.Thammad Sharif Chaudhry, Muhammad Younas, Muhammad Siddique,- Razi-udDin, Ghulam Ahmad, Bashir Shah and Abdul Hameed as defendants in the suit and any other persons who may be interested in the relief claimed in the suit for or against it and apply immediately for it.
(iii) To implead any other per ciin hic h the plaintiff may wish to implead as defendants for complete, final and effective adjudication `between the parties so as to. Avoid itny:-Inrther litigation.
2. This appeal witgadmitteTfOrititilivleating to consider whether the order of remand was justified when the evidence on record was sufficient to dispose of the entire appeal.
'3. All the parties in the present aPpealqVirii 'iedethitiihe order of the remand-.,passed by the :learned Add,itional. Divicit,414-ge, may be recalled and the case be decided on the existing evidence. The points on which the parties have agreed to the recall orthe femand Order may 'lie stated {{PAGE BLUR}}
(i) That the learned Additional District Judge 'Anil decide the appeal on the basis of the evidence an record.`
(ii) That the learned Additional District Judge shall himself comply with the directives as given in paragraph 11 of the impugned order.
(iii) That the parties shall be at liberty to make any application for additional evidence or for any other matter which shall be decided in accordance with law.
4. In the present case the order of remand did not fall either under rule 23 or rule 25 of Order XLI, C.
P. C. And could only be justified under rule 23-A which is to the following effect :- "23-A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a retrial is considered necessary by the Appellate Court shall have the same powers as it has under rule 23."
The lower Appellate Court had not shown sufficient grounds for reversing the decree of the trial Court and the directives quoted above could even be complied by the lower Appellate Court. The arrangement arrived at between the parties is therefore in conformity with law and it would be appropriate in the circumstances of the case to set aside the order of remand dated 5th February, 1980 and directions be given on the points agreed to between the parties. The order of remand dated 5th February, 1980 is hereby set aside and it is ordered that the learned Additional District Judge shall decide the case on the existing evidence and shall he comply with the directives. In case any application is made for additional evidence or any other application the same shall be disposed of in accordance with law. The parties shall now appear before the learned District Judge, Rawalpindi who shall either decide the case himself or entrust it to any Additional District Judge for disposal in terms of the above directions.
5. Since the respondents have not contested this appeal, there will be no order as to costs. Appeal allowed.