' SYED ZAKIR HUSSAIN, J.--- This revision application is preferred by the applicants against the judgment and decree dated 6-8-1997 and 16-8-1997 respectively passed by the learned III Additional District Judge Karachi (West) Central in Civil Appeal No,51 of 1992 affirming the judgment and decree passed by the learned 1st Senior Civil Judge, Karachi (Central) in Suit No,427 of 1967 whereby the applicant's ancestors, namely, late Haji Akhtar Hussain, the plaintiff of the suit referred to above, had been refused the relief of possession, which he had claimed against the ancestors of the respondents, namely Abdullah since deceased, the defendant thereof, in respect with the Plot No,1, Allama Usmani Cooperative Housing Society Limited 'B' Road, Nazimabad, Karachi, (hereinafter referred to as the Society) and that of mesne profit claimed on his part against illegal possession thereof on the part of the said deceased Abdullah. The Civil Appeal No,51 of 1992 preferred against the said findings by the said Haji Akhtar Hussain also stood dismissed and during the pendency of such appeal, owing to the death of the said appellant, his sons and daughters joined the proceedings as appellants with the permission of the court.
2. Necessary facts mentioned in the suit are that the said Haji Akhtar Hussain got allotment from the Society in respect with the suit property mentioned above together with possession, which had been lying vacant. The parties,. Namely, Haji Akhtar Hussain and Abdullah mentioned above, had been strangers to each other at that relevant time. The said Abdullah forcibly occupied the said plot and' raised" unauthorized construction thereon and on being approached to vacate the same, he refused to do so and hence the suit in question had to be filed by the said Haji Akhtar Hussain in the year 1967 on the basis of the refusal of the defendant to vacate and hand over the vacant possession of the suit plot to the plaintiff on 11-8-1965. Owing to the death of the defendant, Abdullah, his legal heirs were joined in the month of May, 1990 in his place as defendants while the other defendants remained in tact and similarly, as already stated above owing to the death of the plaintiff, Haji Akhtar Hussain, during the pendency of the appeal, his legal heirs stood joined in the proceedings at the relevant time thereof.
3. Initially, the court of XXIII Civil Judge IInd Class, Karachi, dismissed the suit of the plaintiff by the judgment and decree whereby the suit was decreed on 21-12-1980 with mesne profit in favour of the plaintiff. The said judgment was challenged before the first appellate forum that allowed the appeal and dismissed the suit on the ground that the plaintiff had failed to prove his prior possession and the suit was barred by time as well. Against the said findings, the plaintiff filed Civil Revisions Applications Nos.272 of 1984, 273 of 1984, 274 of 1984, 275 of 1984 and 276 of 1984, which were heard on 30-4-1990 and disposed of by the judgment of even date in the terms that the matter was remanded to the court of first instance with the direction to allow the parties to join the necessary parties being descendants of the deceased parties, and file amended plaint, on 26-5- 1990; the respondents were directed to file written statement on 7-7-1990; the learned trial Judge was directed to frame the issues on 7-7-1990; he was directed to decide the suit according to law by 30-11-1990.
4. In such view of the matter, the second round of the litigation took place and again the suit was heard and disposed of by the then First Senior Civil Judge, Karachi (Central) on the basis of the evidence of the parties by way of judgment and decree dated 29-4-1992 and 3-5-1992 whereby the suit was dismissed with no order as to costs. The Civil Appeal No,51 of 1992 preferred against such findings, was also dismissed by the learned District Judge, Karachi (Central). Against the said findings of the appellate forum, the present civil revision application, has been filed with the prayer that the said findings may be set aside and the suit be decreed in favour of the applicants for the relief of possession with mesne profit with costs etc. Accordingly.
5. On 8-10-2010, by its short order, this court, for the reasons to be recorded later on dismissed the revision application in hand. The following are the reasons for the same:---
6. The record shows that there happened to be two rounds of litigation, which has started from the court of first instance to the High Court in similar fashion that the suit was decided, then the appeal was decided and thereafter, the revision application was decided, as already discussed above.
7. The main point is a mixed question of fact and law that is "Whether the said plaintiff late Haji Akhtar Hussain had been in possession of the suit property and he stood .Dispossessed on the part of the late defendant Abdullah and others, as alleged. The other point is also a mixed question of fact and law, which relates to the limitation to file the suit for possession under section 8 of the Specific Relief Act and or whether the suit was barred by section 8 for want of title to sue for possession thereunder.
8. The evidence is confined to the statement of the said plaintiff and his witness, the honorary member of the society concerned. The plaintiff in his evidence deposed to have been in possession of the suit property under membership/allotment of the Society. His such statement was supported by his witness referred to above. The said witness, could not produce any positive proof as to the fact that the Society to possession of the said plot and had delivered the same peacefully to the plaintiff in the year 1963 or onwards, either as its licensee or allottee etc.
9. On the contrary, the witness of the plaintiff admitted that no possession order or receipt as to 'handing over and taking over possession of the said plot had ever been in existence as a matter of 'record of the Society even, and the same is the case of the plaintiff who also admitted to have got no such document. The allotment does not show possession, and the other material, which could substantiate such claim of the plaintiff, is also missing and therefore, the very prerequisite condition that the Society had been in possession of the suit property, is not established and then the claim of the plaintiff that the Society put him in possession under the allotment is left unestablished on his part.
10. The other controversy involving the point of limitation or the fact that the suit is barred under section 8 for want of title etc can be resolved as follows: that a suit under section 9 of the. Specific Relief Act, can be brought by any person who has been illegally dispossessed. Against such illegal occupation within six months of such dispossession and he would not be questioned as to the title but simply he would be required to prove his prior possession and dispossession without due course of law and such a suit can even be brought by such person against the actual owner of such landed property'. In a case of same nature, where a suit is brought by an encroacher against any person other than the actual owner, on the basis of prior possession and illegal dispossession, the same is maintainable under section 8 of the Specific Relief Act within a period of twelve years in terms of Article 142 of the Limitation Act. In other words, a suit by an encroacher against another encroacher is maintainable but not against the actual Owner as the prior possession by itself, is a title by application of the maxims: possession follows title; title follows possession, against the whole world except the actual owner.
11. In the instant case, I am of the view that the suit was within time and not barred by law yet the suit was liable to be dismissed, for its story as to possession and dispossession does not stand to have properly been stuffed with positive piece of evidence, -and the court was right to hold, that the plaintiff failed to discharge his burden to such effect, and the suit was rightly dismissed and consequently, the appeal was bound to have had the same fate.
12. The learned counsel for the applicants failed to satisfy this court that the impugned' findings warrant any interference by this court in this second round of the litigation, too.
13. I have noticed that the original plaint 'of the suit carried a verification but neither on oath nor before any commissioner for taking affidavits, and, therefore, the same is hit by the Civil Courts Rules, which required that each plaint must carry verification endorsement on oath before a commissioner for taking affidavits.
14. The plaintiff expired during the pendency of the appeal of the second round and his legal heirs stood joined. They are the same persons who have filed the instant revision application. They cannot claim to have had the knowledge of the time preceding their birth particularly to the effect that the allotment carried the possession of their ancestor and he stood dispossessed by the other party as he has alleged in the first instance in the plaint of his suit, which as already stated above, was not verified on oath and was therefore, not legal and hence, no weight can be given to any verification of the contents of the application in hand on oath of the present applicants for the reasons discussed above.
15. Besides, the society was not impleaded as party throughout and the suit therefore, stood hit by the law of non-joinder and misjoinder of the parties and after a lapse of period of 43 years, no joining of such party is open to be allowed as the time of limitation against a newly joined party, is to run from the date it has stood so joined and therefore, if such joining would take place, then too, the suit would remain barred against them for the expiry of the limitation period of twelve years, and in absence of a necessary and proper party no suit is open to be said to have properly been filed or framed respectively in terms of Orders I, II, IV and VII of the C.P.C. And the suit therefore, stands hit by the aforesaid provisions of law, too. The learned counsel when confronted with the above position had no answer.
16. Consequently, in keeping with what has been discussed above, the application in hand has stood disposed of as dismissed by the aforesaid short order, followed by the reasons in hand, accordingly.