CH. SHAHID SAEED, J, - This civil revision has been directed against judgment and decree dated 28.01.2002 passed by learned Additional District Judge, Faisalabad who dismissed the appeal filed by the petitioners and partly accepted the appeal of the respondents regarding issue No. 10. These appeals were filed against the preliminary decree dated 07.10.2000 passed by the learned Trial Court.
2. The precise facts of the case are the predecessor-in-interest of the present respondents namely Mst. Jannat Bibi filed a suit for partition regarding property No. P-12/W-8, St. No. 1, Montgomery Bazar, Faisalabad (portion-B) alleging therein that the suit property was originally allotted to one Mehar Din. After his death, the property devolved upon his two daughters namely Mst. Jannat Bibi and Mst. Sardaran Bibi in equal shares. It was further alleged in the plaint that the property was handed over to Mst. Sardaran Bibi subject to payment of rent at market rate.
3. The suit was hotly contested by the defendants. The written statement was filed wherein plea was taken that Mst. Jannat Bibi had sold her share in the property in the year 1970 to the predecessor-in-interest of Mst Sardaran Bibi against consideration of Rs. 10,000/- in cash, i.e tola gold, V/z Kg Chandi/silver and another house at Katchi Abadi Fatehabad, Faisalabad.
4. Out of divergent pleadings of the parties, eleven issues including that of relief were framed by the learned Trial Court who after recording oral as well as documentary evidence passed the preliminary decree dated 07.10.2000. Both the parties assailed the decision of the learned Trial Court where appeal of the petitioners was dismissed while the appeal of the respondents for compensation on account of use and property of the disputed house was partly accepted and rate of rent for usage and occupation of plaintiff's share in the disputed property was enhanced from Rs. 500/- to Rs. 1000/-. Hence this civil revision.
5. Learned counsel for the petitioners inter alia contends that the appeal of the petitioners was dismissed on the principle of res judicata which was not the case of the Petitioners before the learned first Appellate Court; that earlier, the suit was withdrawn by the respondents without the permission to i.e fresh one, therefore, the instant suit of the respondents was not maintainable under Order XXIII, Rule 1, C.P.C. Which fact was not considered by both the learned Courts below; that the suit was also barred by limitation and that the plea of adverse possession taken by the petitioners was also not taken into account by the learned Courts below. Learned counsel avers that the impugned judgments and decrees are perversed, colourful and they. Sgffer from non- appraisal of evidence available on record, therefore, the Civil Revision in hand be allowed and the impugned judgments and decrees be set aside.
6. Learned remarried counsel appearing on behalf of respondent No. 4 Mst. Zareena Bibi daughter of Mst. Jannat Bibi supports the version of learned counsel for the petitioners.
7. " On the other hand, learned counsel for the respondents No. 1 to 3. Have vehemently opposed this civil revision and supported fully the impugned judgments and decrees. He avers that the suit earlier filed was regarding portion A, which was withdrawn and then suit regarding portion B was filed, therefore, Order XXIII, Rule 3, C.P.C., does not attract. Adverse possession and title simultaneously cannot be claimed under the law as these are obstructive to each other. There is no receipt of payment of consideration amount as claimed by the petitioners. Both the learned Courts, below have concurrently rejected the claims and; assertions of the petitioners, so these are (impumed from interference unless a gross illegality, misreading or non-reading of evidence has been committed by the learned lower Courts, which could not be pointed out by learned counsel for the petitioners. He prays that the civil revision be dismissed.
8. ' Arguments heard. Record perused.
9. The moot point in this case is as to whether Mst. Jannat Bibi, predecessor-in-interest of respondents had abandoned her share in the disputed property in favour of the predecessor-in- interest of the petitioners which is covered under Issue No. 1.
10. The emphasis of learned counsel for the petitioners-defendants before this Court was on the points that the suit was not maintainable under Order XXIII, Rule 1, C.P.C.; that the petitioners are owners in possession of the disputed property under the principle of adverse possession and that the suit was barred by limitation.
11. The record shows that previously, the; respondent-plaintiff filed suit regarding portion A of the suit house, while the instant suit is regarding portion B of the same. The previous suit regarding Portion A was dismissed as withdrawn on 28.05.1998 by the learned Civil Judge, Faisalabad which has no bearing on this case, as both the suits are regarding different portions, so the contention of learned counsel for the petitioners that the suit was not maintainable under Order XXIII, Rule 1, C.P.C.
Is misconceived. Even if a suit is not decided on merits and is dismissed as withdrawn, the aggrieved party has the right to i.e a fresh suit within the period of limitation and the law places no bar in this regard.
12. The predecessor-in-interest of respondents- plaintiff Mst. Jannat Bibi is admittedly real sister of predecessor-in-interest of the petitioners-defendants. there is also no denial that the portion-B was devolved upon them in equal shares. However, the petitioners claim that Mst. Jannat Bibi had sold her share to them is without any proof. They have failed to prove any receipt on account of payment of consideration, so mere assertion of the petitioners in this regard is insufficient to believe that Mst. Jannat Bibi has sold her share to the petitioners. In absence of documentary evidence, I am convinced that Mst. Jannat Bibi is joint owner with predecessor-in-interest of the petitioners and cannot be ousted on one pretext or the other.
13. Regarding claim of the petitioners on account of adverse possession, it has already been declared by the superior Courts that he same is against the injunctions of Islam, as such claiming ownership by the petitioners on the basis of adverse possession is nether in accordance with the injunctions of Islam nor prevailing law set by the superior Courts.
14. As far as the maintainability of the suit under Limitation Act, 1908 is concerned, the respondents' assertion is that they handed over their share to predecessor-in interest of the present petitioners Mst. Sardaran Bibi with the agreement that Mr. Sardarani Bibi will pay compensation/rent for occupation and usage of their share in the property and when the same was denied, the cause of action accrued to them. In the matter in hand, there is recurring cause of action as whenever the rent/compensation is denied to the respondents there arises a cause of action. So, I find no force in the judgment of petitioners' side that the suit was barred by limitation.
15. The judgments and decrees passed by learned lower Courts are exhaustive and well-reasoned who consistently held against the petitioners which are impumed from interference in the Constitutional jurisdiction of this Court until and unless there a gross illegality, misreading or non- reading of evidence has been committed by the Courts below, which could not be pointed out by learned counsel for the petitioners, as such, I am not inclined to interfere in the concurrent findings of learned Courts below.
16. The result of whole discussion is that the civil revision in hand is without any substance, hence dismissed.