' GULZAR AHMED, J.---By this direct Civil Appeal, the appellant has challenged the judgment dated 10-4-2012, whereby the respondent No, 1 's IInd Appeal No,35 of 2010 was allowed by the learned Judge in Chamber of the High Court of Sindh at Karachi, holding that the Suit of the petitioner was time barred and thus set aside the Judgments and Decree of the trial Court so also of the Ist Appellate Court and dismissed the Suit.
2. At the outset, the question of limitation of this Appeal was taken-up for that the office has noted that it is time barred by 19 days. Application for condonation of delay in filing of the appeal has been filed by the appellant, Mr. Abdul Hafeez Lakho learned Senior Advocate Supreme Court for the appellant submitted that arguments in the IInd Appeal were concluded on 29-3-2012 when the Judgment was reserved. The Judgment is dated 10-4-2012, but it was announced on 18-4-2012 and that the certified copy of the judgment was made available to the appellant, the Decree was prepared on 9-6-2012 and its certified copy was delivered to the appellant on 11-6-2012 and therefore, the appeal was filed by the appellant on 4-6-2012 was within time as limitation for filing of the appeal is to be counted not from the date of the judgment but from the date the decree was made and delivered to the appellant.
3. Mr. Ejaz Ahmed learned Advocate Supreme Court for the respondent No,1 did not object to the submissions made by the learned counsel for the appellant.
4. We have considered the submissions of the learned counsel for the parties in this regard and have found that on 18-4-2012 when the impugned judgment was announced, the appellant on the same day had applied for obtaining of certified copy of decree and that such decree was prepared on 9-6-2012 and its certified copy was delivered to the appellant on 11-6-2012. The appellant has already filed the appeal on 4-6-2012 in this Court, thus apparently there was no delay in filing of the appeal by the appellant. The application for condonation of delay is disposed of accordingly.
5. As regards the merit of the appeal, Mr. Abdul Hafeez Lakho learned Senior Advocate Supreme Court for the appellant has contended that the learned. Trial Court has decreed the suit of the appellant and such decree was maintained by the Ist Appellate Court and that such concurrent findings were not liable to be up-set or disturbed by the learned Judge of the High Court in IInd Appeal for that there was nothing on record to show that the trial Court and the 1st Appellate Court in their judgments and Decree have committed error which may attract the provision of section 100, C.P.C. Learned counsel further contended that point of limitation was framed as an issue by the Trial Court and both the trial Court as well as Ist Appellate Court have attended to this issue in their respective judgments and have given the findings on it in favour of the appellant and therefore, such concurrent findings could not have been altered or disturbed in IInd Appeal, in which the Court exercises a very limited jurisdiction.. Learned counsel further contended that the case of the appellant was that of the continuing breach, therefore, the fresh limitation is available to the appellant at every moment of the time during which the breach continues. He contended that the respondent No,1 has unlawfully occupied the land belonging to the appellant in respect of which the appellant had filed a suit in 1985, but as the respondent No,1 had promised to give compensation to the appellant, the said suit was allowed to be dismissed for non-prosecution in 1988 but as the respondent No,1 failed to keep its promise, the second suit filed by the appellant in 2001 was not time barred rather was saved by the provisions of section 23 of the Limitation Act being the case of continuing breach. In support of his submissions learned Senior Advocate Supreme Court for the appellant heavily relied upon the case of Nooruddin and others v. Pakistan and others (1997 CLC 1971). He has also relied upon the case of Pathana v. Mst. Wasai and another (PLD 1965 SC 134).
6. On the other hand Mr. Ejaz Ahmed learned Advocate Supreme Court for the respondents contended that the trial Court has not properly adverted to the legal issue of limitation and that the Ist Appellate Court altogether did not discuss the issue of limitation and merely on other issues decided the fate of the Appeal. He contended that the issue of limitation being question of law, the same is covered by section 100, C.P.C and the IInd Appellate Court was justified in adverting to it and deciding the appeal on it which is in accordance with law. In the end he supported the impugned judgment.
7. We have considered the submissions of the learned counsel for the parties and have gone through the record.
8.
8. The facts of the matter in brief are that the appellant filed Suit No,20 of 1985 against respondents in respect of 2 acres of land said to be unauthorizedly occupied by the respondents and thereby claiming declaration to the same effect plus mesne profits, damages and injunction. The said suit was dismissed for non-prosecution on 9-8-1988. The appellant again filed second Suit No,75 of 2001 with the same prayer as was made in the earlier suit. The appellant in the suit claimed that it is owner of two plots of land one comprising of 40-0 acres and the other comprising of 60-0 acres at Makan Lat Deh Gharo un-surveyed Taluka Mirpur Sakro, District Thatta having purchased the same through Sale Deed dated 12-8-1967. It was claimed that the appellant was in physical possession of the suit land and that on 40-0 acres of land it has installed its factory while the 60-0 acres of land was lying vacant without any construction. It was alleged that in 1985, the respondents illegally and forcibly encroached upon the area of 02-0 acres of land out of 60 acres of land and constructed a Telephone Exchange with residential accommodations. Pursuant to this action of the respondents, Suit No,20 of 1985 was filed. It is alleged that on account of giving of assurance by the respondents to settle the matter, the appellant did not pursue this suit and allowed it to be dismissed for non-prosecution on 9-8-1988. It is alleged that while the appellant was raising boundary wall on its land, the respondents addressed a letter dated 25-10-2001 to stop construction. Upon which it is alleged that the appellant served a Legal Notice dated 30-10-2001.
The appellant thereafter filed second Suit No,75 of 2001. The respondents filed written statement, in which it denied the claim of the appellant that the 02-0 acres of land on which Telephone Exchange was constructed belonged to appellant. It was alleged that respondents have purchased 02-0 acres of land for construction of Telephone Exchange building from Government of Sindh vide Deputy Secretary (Land Utilization) Board of Revenue Hyderabad Sindh, letter dated 5-6-1974 and the costs of the land was also paid to the Government. The respondents disputed the ownership of the appellant to the said land and denied that it has given any assurance to the appellant during the pendency of earlier suit No,20/85, The respondents urged that the suit was hopelessly time barred. Issues were framed. Evidence was recorded and thereafter learned trial Couri vide its judgment dated 29-7-2008 decreed the Suit. The respondents filed appeal, which did not succeed and accordingly vide Judgment dated 8-1-2010, it was dismissed. The respondent filed IInd Appeal in the High Court of Sindh at Karachi, which through impugned Judgment was allowed and the Judgments and Decree passed by the two Courts below were set aside and the Suit of the appellant was dismissed as time barred.
9. The only question that needs to be dealt with by us in this appeal is whether the Suit of the appellant was time barred and whether the High Court while dealing with the IInd Appeal was justified in setting aside the concurrent Judgments and Decree of the trial Court and that of the Ist Appellate Court. From the narration of the facts as noted above, it is apparent that .There was dispute between the parties with regard to the ownership and possession of 02-0 acres of land on which the respondents have constructed a Telephone Exchange. As per the appellant's own averments in its plaint that in 1985, the respondents have encroached upon 02-0 acres of land and constructed a Telephone Exchange and residential accommodations. It filed Suit No,20 of 1985 with claims as already noted above, but allowed the said suit to be dismissed for non-prosecution on 9-8-1988. It is asserted by the learned counsel for the appellant that the suit was allowed to be dismissed for non-prosecution because the respondents have given assurance to settle the matter out of Court. This assertion of the learned counsel for the appellant apparently is not born out from any independent evidence on the record because had such assurance been given by the respondents during pendency of the earlier suit, the more appropriate and logical way of having the same disposed of by an application either made by the appellant itself or jointly by the parties reflecting the purported assurance of the respondents. Dismissal of the suit for non-prosecution on its own does not reflect that such may have resulted on account of assurance of settlement out of Court by the respondents. Mere assertion of the appellant in its plaint and in oral statement of its witness will not lend any sanctity to it unless it was supported by an independent piece of evidence, more so when this assertion was specifically denied by the respondents in their written statement. Be that as it may, from the perusal of the record, it is apparent that it was in 1985 when the appellant filed its first Suit No,20 of 1985, and complained of encroachment upon its land by the respondents. The respondents at no period of time admitted the claim of the appellant that the land on which the Telephone Exchange was constructed either belonged to the appellant or that the respondent have dispossessed the appellant from the land in question. Respondents claimed its own title to the land on the basis that it has purchased the same from the Government of Sindh by payment of its consideration. It was the case where parties were claiming adverse title to the land in question and at the same time the appellant claim was that it has been dispossessed from the land in question by the respondents, which fact admittedly occurred in the year 1985.
Considering the implication of earlier Suit No,20 of 1985 goes totally out of equation for that nothing turns on it on account of its dismissal for non-prosecution. The cause of action to the appellant against the dispossession commenced from the year 1985 and it is also admitted in the plaint, the grievance against which the appellant came to raise in 2001 by way of Suit No,75 of 2001. It is also pleaded in plaint that further cause of action was arisen on 10-11-1995 when notice period as per legal notice dated 24-10-1995 expired and finally on 30-11-2001 when the period stipulated in legal notice dated 30-10-2001 expired and continues day today. The cause of action which arose to the appellant in the year 1985 that of dispossession from his land could not have been renewed or provided fresh cause of action on the same ground by sending of two legal notices as mentioned in the plaint. The said two legal notices were only an extension of grievance of dispossession which occurred in the year 1985 and nothing new turn on them as regards question of dispossession was concerned. The reliance on the learned Senior Advocate Supreme Court for the appellant on section 23 of the Limitation Act to support the plea that the case was of continuance reach, which provided fresh limitation at every moment of such breach. Section 23 of the Limitation Act reads as follows:- "23. Continuing breaches and wrongs. In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues."
10. This section on its reading provides for two eventualities where the breach or wrong may be continuing one, one in the case of breach of contract and the other in case of wrong independent of contract and it provides that fresh period of limitation begins to run at every moment of the time during which the breach or the wrong as the case may be, continues. The question in the present case does not relate to breach of contract as admittedly there was no contract between the parties in respect of their, lis that was brought before the Court in the first instance. Although the appellant pleaded assurance from the side of the respondents to settle the matter out of Court but as has already been discussed above that from the record of the case such plea of assurance never came to be proved by the appellant. In any case (without admitting the same) the assurance will not be a contract as requirement of making of a contract is absolutely not available to assume or to establish the same. Thus the matter boils down to second ground that of a wrong independent of a contract and it was to be established by the appellant that it was a case of such wrong and fresh period of limitation begins to run at every moment of time during which the wrong continues. It is admitted fact that in the year 1985 the respondents have already built a Telephone Exchange and residential accommodations on the land of 02-0 acres which were permanent structures and continued to exist and, are also existing today. The very existence of a permanent structure since 1985 apparently will amount to complete dispossession of the appellant from the land in question and the limitation in this regard will stand matured on the date of such dispossession with no element of any continuity of it. In the case of Balakrishna Savalram Pujari Waghmare and others v. Shree Dhyaneshwar Maharaj Sansthctn and others (AIR 1959 SC 798), it was observed as follows:-- "We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it."
11. To this effect, reference is also made to a full Bench judgment of the Lahore High Court in the case of Khair Muhammad Khan and another v. Mt. Jannat and others (AIR 1940 Lahore 359), where appellant who was plaintiff had instituted a suit for perpetual injunction directing the defendants to demolish a chabutra (platform) constructed by them on a portion of a courtyard which, it was alleged, was the joint property of the mohalladars and has been reserved for their common user. It was complained that the chabutra obstructed the passage of carts and other vehicles from the outer thoroughfare into the courtyard and caused great inconvenience to them and other persons living in the Mohalla. It was prayed that the defendants be directed to demolish it. The defendants denied that the land on which the chabutra had been constructed belonged to mohalladars collectively. They alleged, that it was their exclusive property and they could use it in any way they liked. In the alternative, they pleaded that even if the land underneath the chabutra were found to be the common property of the mohalladars the suit was barred by limitation as the chabutra had been in existence for more than six years before the institution of the suit. The trial Court decided both these points against the defendants and decreed the suit. On appeal, the District Judge affirmed the findings that the chabutra had been constructed on a portion of a courtyard which was the common property of mohalladaRs, After examination of the evidence, he came to the conclusion that only a part of the chabutra had been constructed in 1925, that the plaintiffs had extended it to its present dimensions about two years before the institution of the suit and that this recent extension obstructed the passage of carts and carriages to the courtyard. He held that the suit was governed by Article 120 of Limitation Act, under which the plaintiff had six years to sue from the date of the construction. He therefore, found that the suit was barred by time qua the portion of chabutra which had been constructed in 1925, but it was within limitation as regards the extension which had been made within six years of the suit. In IInd Appeal, the Single Bench came to the conclusion that the structure in question was in the nature of encroachment upon common property and thus constituted a continuing wrong and therefore, the suit was governed by section 23 bf the Limitation, which lays down that in such cases a fresh period of limitation begins to run at every moment of time during which the wrong complained of continues. The ruling being conflicting, the learned Judge referred the case to the Division Bench who in turn made a reference to the Full Bench. The Full Bench of the Court after examining the threadbare the facts of the matter and law observed as follows:-- "After careful consideration, I see no reason to doubt the correctness of the view taken in this Court in the cases cited above, that where the act complained of amounts to complete ouster of the plaintiff the injury is complete at the date of the ouster. To such cases S. 23 does not apply, and the plaintiff has six years from the date of obstruction to sue for declaration or injunction and 12 years for possession."
12. We tend to agree with the above stated law as it seems to enunciate the correct application of section 23 of the Limitation Act and in the facts and circumstances of the present case as has already been discussed above section 23 of the Limitation Act will not be applicable to the case in hand as by raising of a permanent structure by the respondents in the year 1985 the dispossession has occurred and has accordingly matured the cause of action. The only provision that deals with the case of dispossession is Article 142 of the Limitation Act which provides for 12 years period during which a suit against dispossession could be filed. Admittedly the suit was filed by the appellant almost about 16 years from the day it claimed to have been dispossessed from the land in question and thus would be barred by time.
13. We have gone through the Judgment in Nooruddin's case, which is a Judgment written by his Lordship Mr. Justice Sabihuddin Ahmed as a Single Judge of the Sindh High Court and find that the said case to be distinguishable from the facts and circumstances of the present case as there was no case of competing title between the parties, the title of the plaintiff in the suit was an admitted one and the question was with regard to payment of compensation by the Post and Telegraph Department, on the basis of acquisition of land for which there was ample evidence of negotiations in respect of payment of compensation to the plaintiff. We have gone through the impugned judgment and find that the learned Judge in Chamber has amply discussed the point of limitation of the suit filed by the appellant in the year 2001 and has supported his conclusion by discussing plethora of judgments including that of this Court and also the Nooruddin's case.
14. As regards the question as to whether the learned Judge in chamber while dealing with Hnd Appeal had the jurisdiction to set aside the concurrent findings of the two Courts below, we may note that section 100 of C.P.C. Provides that "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:-
(a) the decision being contrary, to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits.
16. It has already been stated above that the question of limitation was considered by the trial Court in its judgment but the Ist Appellate Court did not specifically dealt with this question in its judgment and did not record any finding on the point of limitation of the suit. It was incumbent upon the 1st, Appellate Court to have dealt with all the issues that were dealt with and considered by the trial Court and ought to have applied his mind and record his own findings on them. More so when there was a specific issue with regard to the very maintainability of the suit on the point of limitation. By not adverting to such important aspect of the matter, the 1st Appellate Court apparently has made a grave error which went to the very route of the matter i,e, about the maintainability of the suit on the point of limitation. In the case of Shaikh Fazlul Jamil and others v.
Shaikh Helaluddin (AIR 1927 Patna 256), the matter was with regard to section 14 of the Limitation Act and the Court was hearing IInd Appeal under section 60, C.P.C. And it was observed as follows:- - "It was contended, however, on behalf of the respondents that the finding of the learned District Judge that the decree-holder acted in good faith was a finding of fact which could not be challenged in second appeal. But the whole question in this appeal is whether the facts found attract the operation of S. 14 of the Limitation Act and the question is a mixed question of law and fact which, this Court has undoubtedly power to go into."
17. In the case of Noor Akbar and others v. Mureed (1991 CLC Note 245 at p.191) a judgment of the Lahore High Court, it was held that in dealing with an appeal under section 100, C.P.C. Erroneous finding on question of limitation which is not supported by oral and documentary evidence on record cannot be sustained and accordingly dismissed pre-emption suit as time barred by accepting the vendees second appeal. The question of limitation being mixed question of law and fact, thus, it will be open for 'consideration in IInd Appeal for that it will come within the mischief of decision being contrary to law and having substantial error or defect in the decision having bearing on merits of the case. Learned counsel for the appellant has relied upon the case of Pathana (supra), which has been considered by us and we find that in the facts and circumstances, as discussed in the said case, this Court was justified in holding that there was no occasion for the High Court for exercising jurisdiction under section 100, C.P.C. For that there was no mistake in the decision of the Ist Appellate Court to attract the said provision. In the present case, the question of limitation was very much floating on the surface of the case and while the trial Court adverted to it but the 1st appellate Court altogether omitted to consider and deal with it and give any finding on its, own. The decision of the trial Court being based upon erroneous assumption with regard to the applicability of section 23 of the Limitation Act and the Ist Appellate Court having not applied its mind to such aspect of the matter, such decisions of the lower Courts constitute a grave error or mistake and in our view, such error or mistake will always be open for decision in the IInd Appeal under section 100, C.P.C. By the High Court. Indeed, if such avenue as provided by law is diminished or curtailed for correcting the error or mistake on the question of limitation by the High Court, it will result into a very anomalous situation and not only emasculate the provision but will render the remedy of IInd Appeal altogether nugatory in that regard. Of course such is not the mandate of law.
18. We are, therefore, of the opinion that in the case where the two Courts below or either of the Courts below make any error or mistake in deciding the question of limitation, the same will be open for agitation in IInd Appeal and the High Court will be justified to decide the same in accordance with law.
19. For all that has been discussed above, we are of the considered view that the appeal has no force, the same is therefore, dismissed leaving the parties to bear their own costs.