' JAMAL KHAN MANDOKHAIL, J.--- Facts of the case are that the predecessor of the respondent ("hereinafter called as the plaintiff") filed a Suit No, 136 of 2000 for possession, declaration and permanent injunction against the predecessor of the appellants, namely Mir Khuda Bakhsh Marri, ("hereinafter called as the defendant") before the Court of. The Civil Judge, Quetta ("the trial Court") in respect of a property, description whereof has been mentioned in para-3 of the plaint.
("hereinafter called as the property in question"). The plaintiff alleged that the property in question belonged to the plaintiff's father, namely Cawas Asphand Yar Irani, who bequeathed the same upon a Trust to charity, through a registered Will. According to the plaintiff, his father appointed Rustam Cawas Irani, the brother of the plaintiff, as Trustee, who appointed Mir Khuda Bakhsh Marri, as his attorney to look-after the Trust property. The plaintiff further contended that after the death of his father, he became owner of the property in question.
2. The plaintiff alleged that on 2nd November, 1987, the predecessor of the appellants filed a suit bearing No,53 of 1987 for declaration on the basis of adverse possession against the plaintiffs brother. The said suit was dismissed by the Court of the Additional District Judge-III, Quetta ("the appellate Court") vide judgment and decree dated 15th April, 1990, which remained unchallenged, hence attained finality.
3. According to the plaintiff, the defendant filed another suit, bearing No,72 of 1992, on 1st July, 1992, against him as well as on the basis of an adverse possession. The said suit finally came up before the Hon' ble Supreme Court of Pakistan through Civil Appeal No, K-1870 of 1996. At the time of final arguments before the Hon'ble Supreme Court of Pakistan, the defendant requested for withdrawal of his Suit, which was allowed on 9th December, 1997, hence his second suit also stands dismissed as withdrawn.
4. Thereafter, the plaintiff asked the defendant to vacate the property in question, but he refused to do so, hence the plaintiff filed the present suit against the defendant with the following prayer: "It is therefore, respectfully prayed that the decree may kindly be passed with costs in favour of plaintiff and against the defendant in the following terms---
(a) declaring that plaintiff is legal owner of the property in question;
(b) declaring that the defendant is in wrongful and illegal possession of the property in question;
(c) declaring, that the plaintiff is entitled to the possession of property in question;
(d) directing the defendant to handover the vacant possession of the property to the plaintiff;
(e) restraining the defendant from changing the nature of the property in any way demolishing or further constructing the same;
(f) declaring that the trust through its plaintiff/trustee deserves right of incomes which have been deprived to the trust by the defendant over the period of his illegal occupation and enjoyment of the trust property;
(g) directing the defendant to handover all documents to the plaintiff/trustee, pertaining to property acquired during period of his illegal occupation and enjoyment of the trust property;
(h) any other relief which his Hon'ble Court deems right and proper in the interest of justice;"
5. The defendant filed his written statement, contending therein that the mutation entries effected on the name of the plaintiff were not in accordance with the provisions of the Land Revenue Act, 1967, therefore, he is not the lawful owner of the property in question, as such, the suit is incompetent. It is further added that the registered Will of the plaintiff's father is not applicable to the property in question, which is situated at Quetta Pakistan, whereas the Will has been registered at Bombay, therefore, the suit is not maintainable. An objection was also raised that since the suit for possession filed in the year 2000, after a period of more than 12 years is barred by time. Out of the pleadings, the trial Court framed the following issues: "1. Whether the suit is not maintainable in view of P/O's to D of WIs?
2. Whether the suit is barred by time?
3. Whether the plaintiff has got locus standi to file the instant suit?
4. Whether the plaintiff is the legal owner of the property in dispute?
5. Whether the defendant is in wrongful and illegal possession of 'the property in question?
6. Whether plaintiff is entitled for the relief' claimed for?
7. Relief?"
6. The plaintiff, in support of his case, produced four witnesses, exhibited certain documents and recorded his statement through an attorney. In reply, the defendant produced five witnesses. It is important to mention here that despite provision of several opportunities, the predecessor of the appellants did not appear before the trial Court to record his statement, as such, his right to record his statement was closed on 20th February, 2003, but till 17th April, 2004, no effort was made by the defendant to record his statement. Finally, after hearing the parties, the learned counsel for the parties, the trial Court decreed the suit by means of the judgment and decree dated 27th May, 2004, hence this appeal. During pendency of the appeal, predecessor of the appellants died, as such, they are made as appellants.
7. The learned counsel for the appellants stated that defendant and after his death, the appellants are occupying the property in question for decades, therefore, the suit, after such a long period, was liable to be dismissed, as being barred by time, but the trial Court has failed to consider this legal aspect of the case. He states that the mutation entries on the name of the plaintiff were illegal, on the basis of which, he cannot be consider as a lawful owner of the property in question, therefore, the suit under section 42 of the Specific Relief Act, 1877 ("the Act") was incompetent. He added that the trial Court has failed to properly decide the legal objections raised in the written- statement, nor the evidence has been appreciated in its true perspective, which act amounts to miss appreciation and non-appreciation of the evidence and the material available on the record.
The learned counsel, while concluding the arguments, stated that due to illegalities and irregularities, the impugned judgment and decree are liable to be dismissed.
8. The learned counsel for the respondent opposed the contention and stated that though in the title of, the appeal, the name of the predecessor of the respondent as appellants does mention, but he did not sign the memo of the appeal, as admittedly, he was out of the country. According to him, he did not authorize anybody to file the appeal, therefore, the appeal signed by the counsel is not a proper presentation. The learned counsel contended that possession of the predecessor of the appellants over the property in question was permissive; being an attorney of one of the Trustee (the brother of the original plaintiff), as such, no limitation runs till the time. According to him, possession of the predecessor of the appellants over the property became illegal, when in the year 1997, the predecessor of the respondent asked him to vacate the property in question, but he refused to do so, hence the limitation would starts thereafter, as such, the suit is within time. He argued that the predecessor of the appellants have though raised objection upon the mutation entries effected on the name of the predecessor of the respondent, but he admits the fact that the property in question actually belonged to the grandfather of the respondent. According to the learned counsel, by operation of law, the predecessor of the respondent became owner of the property in question, hence the appellants have no right to challenge the entitlement of the predecessor of the respondent. He added that even otherwise, the appellants or their predecessor never challenged the mutation entries effected on the name of the predecessor of the respondent, therefore, the objection in this behalf is immaterial. The learned counsel, in the end, stated that the trial Court was right in decreeing the suit.
9. We have heard the learned counsel for the parties and have perused the record. The claim of the plaintiff, in his suit, was that he is a lawful owner of the property in question, which was bequeathed by his father for a Trust, which was occupied by the defendant and requested its possession. The appellants raised objection that the suit is barred by time, besides the plaintiff was not a lawful owner of the property in question, hence had no locus standi to file this suit. With regard to the present appeal, the respondent raised an objection that it has not been filed by the predecessor of the appellants, nor had authorized the Advocate to sign the memo. Of the appeal, therefore, it has not competently been filed. To decide the appeal, following points for determination are formed:
(A) Whether the appeal has properly been presented by Mr. Basharatullah, Advocate on behalf of the appellants?
(B) Whether the suit was barred by time?
(C) Whether the predecessor of the respondent had a locus standi to file the present suit?
(D) Whether the predecessor of the appellant, and after his death the appellants are illegally occupying the property in question?
' Point 'A': ' Whether the appeal has properly been presented by Mr. Basharatullah, Advocate on behalf of the appellants?
' It is a fact that Mr. Basharatullah, Advocate had filed the appeal through his signature. The power annexed with the appeal does not clarify as to who was its executant. No doubt, Order XLI, Rule 1, C.P.C. Prescribes that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader, but such pleader must have an authority on behalf of the party to sign the memorandum of appeal, otherwise it presentation will be invalid. On comparison of signature of the defendant, appearing on the original written statement, with the signature on the power, there is apparent difference between the two. It has come on the record that the defendant did not appear before the trial Court to record his statement, as he was seriously ill and was out of the country. There is no evidence to establish his return from abroad, nor signed the appeal or power at some later stage to rectify its deficiency, but admittedly, he did not come up to do so. Facts and circumstances reveals that Mr. Basharatullah, Advocate, was not authorized by the predecessor of the appellants to sign the memorandum of the appeal, therefore, it was filed by an unauthorized person, as such, the same was incompetent. Reliance is placed on a case, titled as Ramzan v.
Sohrab Khan, reported in (PLD 1990 Lahore 314).
' Point 'B': Whether the suit was barred by time?
' The defendant, in his written statement, raised an objection that the suit of the plaintiff is barred by time. As discussed above that the appellants filed two suits, one against the uncle of the respondent and second against me predecessor of the respondent on the basis of adverse possession, but failed to succeed, which means that his possession was not adverse against the owners. Admittedly, the predecessor of the appellants was occupying the property in question on the basis of a power of attorney issued to him by brother of the predecessor of the respondent, therefore, it was permissive possession. The predecessor of the respondent became hostile against the predecessor of the respondent. When in the year 1997, the predecessor of the appellants was asked to vacate the premises. On his refusal to vacate the same, the cause of action accrued to the plaintiff. Thus, from such point to time, the limitation would be calculated. The suit has been filed in the year 2000, after a period of three years of the denial by the predecessor of the appellants, was within time, hence the objection is overruled.
' Point 'C': Whether the predecessor of the respondent had a locus standi to file the present suit?
' The predecessor of the appellants in his written-statement raised a plea that the predecessor of the respondent was not a lawful owner of the property in question on the pretext that the mutation entries effected on his name were not proper and legal. It is an admitted fact that the property in question earlier belongs to the grandfather of the respondent (the father of the predecessor of the respondent), thereafter upon his death, the predecessor of the respondent, being his legal heir, became its recorded owner, therefore, he being a lawful recorded owner of the property, had a locus standi to file the suit. The appellants have failed to show a legal proposition in support of their contention. Under such circumstances, the suit filed by the predecessor of the respondent was quite competent, hence the objection of the appellants has no force in it.
' Point 'D': Whether the predecessor of the appellant, and after his death the appellants are illegally occupying the property in question?
'It is a settled principle of law that possession of a servant, deputee or appointee for the benefit or on behalf of the master or the person, deputing or appointing him is in-fact the possession of the later. Admittedly, the defendant was occupying the property in question with consent of the Trustee/Brother of the plaintiff, as his attorney. The predecessor of the appellants tried to become owner of the property in question on the basis of adverse possession by filing two Civil Suits, detail whereof has been discussed hereinabove, but he failed to succeed, which proves the fact that his possession was not adverse till the year 1997. Thus, possession of the defendant was permissive, till the time when the predecessor of the respondent asked him to vacate the same. Upon his denial to vacate the premises, possession of the predecessor of the appellants became illegal and unlawful. Under such circumstances, cause of action accrued to the predecessor of the respondent, when in the year 1997, the predecessor of the appellants refused to vacate the premises, hence from that period of time, his possession became illegal and after his death, possession of the appellants over the property in question is unlawful. The appellants and their predecessor were since not entitled to retain possession of the property in question, therefore, the trial Court was right in decreeing the suit with direction to the predecessor of the appellants to vacate the same.
10. The defendant was appointed as an attorney, but his conduct is proof of the fact that he misused his status and tried to get an un-due advantage. Late Cawas Asphand Yar Irani specified this property for a Trust, therefore, the predecessor of the appellants might have thought that this is an ownerless property, hence he twice attempted to become its owner, on the basis of an adverse possession, but failed. The property in question was since bequeathed by its previous owner, therefore, his son, the plaintiff, by exercising his authority, has rightly filed the suit, so as to implement the commitment of his father and to establish a Trust in the property in question. The defendant has failed to justify his D possession, whereas the plaintiff has succeeded to prove his case. The trial Court, after proper appraisal of the evidence and the material available on the record, has come to a correct conclusion. Each and every issue has been discussed in the light of the evidence available on the record and keeping in view the fact that the predecessor of the appellants did not appear before the Court, his remaining witnesses do not confirm .The contents of the written-statement. The evidence produced by the predecessor of the respondent was forceful, as compared to the evidence produced by the predecessor of the appellants. The learned counsel for the appellants has failed to point out any illegality, irregularity or jurisdictional defect, warranting us to interfere in the well reasoned impugned .Judgment and decree of the trial Court.
'Thus, in view of what has been stated and discussed hereinabove, the Appeal is dismissed, with cost of Rs,25,000 (Rupees Twenty Thousand Only). Besides, since the appellants and their predecessor are occupying the property in question illegally, w,e,f, 1997, till date, therefore, the appellants shall pay monthly rent of the property @ Rs,5,000 (Rupees Five Thousand Only), till December, 1011. They shall pay an enhanced amount of the rent @ Rs,10,000 Rupees Ten Thousand Only), per month for the last three years starting from 1st January, 2012. The amount should be deposited in the account of the Registrar of this Court, so that the same be transmitted' to the Trust, after its establishment. The, appellants shall vacate the premises by or before 301h June, 2015. The Deputy Commissioner, Quetta, shall get its possession and charge of the property in question. The attorney for the respondent should arrange a meeting of the respondent with the Deputy Commissioner, Quetta, to materialize creation of the Trust. The Advocate General Balochistan should assist the Deputy Commissioner, Quetta, in this behalf, and to submit a fortnight report before the Registrar of this Court for our perusal in Chamber .