M. TABASSUM AFTAB ALVI, J. --- The supra titled appeal has been directed against the impugned judgment and decree dated 14.03.2011, passed by learned Additional District Judge, Mirpur, whereby judgment and decree dated 30.09.2005, recorded by Senior Civil Judge, Mirpur, were maintained.
2. The precise facts culminating into filing of the instant appeal are that respondents-plaintiffs filed a suit for declaration-cum-correction of entry of revenue record and recovery of possession, before Senior Civil Judge, Mirpur, on 10.12.2001. It was stated that land comprising survey No. 988 measuring 7 Kanals, 9 marlas situated in village Ballah, was under ownership and possession of father of plaintiffs alongwith other co-sharers, out of which land measuring 7 Kanals, 6 marlas, was acquired for construction of "town abbadi" through an award, while rest of un-awarded land measuring 3 marlas was continuously falling in their ownership. However, during settlement of 1991- 92, Settlement/Revenue Department, respondents-defendants No. 5 to 7 declared the aforesaid 03 marlas land as an integral part of old survey Nos. 985/986 and then converted it into new survey No. 586/1 measuring 4 marlas which was shown under the ownership of Government, defendant No. 8, by showing possession of plaintiffs as "Ghair morusi". Thereafter, upon the application of father of defendants No. 1 to 4 namely Fatal Ellahi son of Bagha, entry of plaintiffs possession was removed and mutation No. 37 was attested in his name on 20.01.1993. The aforesaid entry was challenged as against true facts, consisting of malice, ineffective and against vested legal rights of plaintiffs. It was maintained that on the basis of the aforesaid entry pertaining to ownership of Government, defendant No. 8, the suit land was allotted in the names of defendants No. 1 to 4 which allotment was. Later on abrogated from their names vide Government notification dated 21.08.1997.
The plaintiffs in this regard relied upon report of Estate Officer, Municipal Corporation -Mirpur, dated 21.08.1997. It was further stated that despite cancellation of allotment, defendants No. 1 to 4 without any lawful justification - occupied the land in dispute and started construction of boundary wall to protect their unlawful possession. The above boundary wall, however, despite repeated efforts of respectable persons of locality neither demolished by them nor possession was handed over to plaintiffs. The suit was, however, resisted by defendants through written statement, wherein contents of plaint were controverted. The learned Trial Court on the basis of pleadings of parties framed twelve issues. After recording evidence of both the parties, the suit filed by plaintiffs- respondents was allowed vide judgment and decree dated 30.09.2005. Feeling aggrieved from the aforesaid judgment and decree, an appeal was filed before Additional District Judge, Dudyal, which after hearing was dismissed, vide impugned judgment and decree dated 14.03.2011. Against the judgments and decrees supra, the instant second regular appeal has been filed.
5. Mr. Abdul Majeed Mallick, the learned counsel for appellants vehemently argued that land in dispute was awarded in favour of Government, against which only a reference could be filed under Section 18 of the Land Acquisition Act, 1894, before Reference Judge, hence, suit filed by plaintiffs was not maintainable. The learned counsel pressed into service that as matter pertained to correction of revenue record which was falling within exclusive jurisdiction of Revenue Court, therefore, keeping in view the provisions of Section 172 of Land Revenue Act, 1967, the jurisdiction of Civil Court was barred. He further emphasized that Section 53 of the Land Revenue Act, 1967, was not attracted in the given case and in this regard concurrent findings of the Courts below are erroneous. The learned counsel while referring Exh."PN/1", submitted that plaintiffs moved an application for allotment of land in dispute, which important document was not considered by the Courts below. He further argued that suit filed by plaintiffs was hopelessly barred by time, which important aspect was also not considered by the Courts below. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Sardar Khan v. Ghuiam Hussain and 31 others [2003 SCR 77].
(ii) Haji Muhammad Hussain and others v. Malik Fateh Muhammad and others [PLD 1953 Baghdad- ul-Jadid 10].
(iii) Khisro Nawaz v. Khanimullah and others [PLD 1962 Peshawar 124].
(iv) Bindhyachal Chand and others v. Ram Gharib Chand and others [AIR 1934 Allahabad 993].
(v) Abdul Latif and others v. Nawab Khajeh Habibullah and others [AIR 1939 Calcutta 354].
In case of Sardar Khan, supra, it was held by the apex Court, that jurisdiction of Civil Courts in cases where correction of any entry in the record-of-rights or in the periodical record or register of mutations is concerned, has been excluded and these matters are within exclusive competence of Revenue Officers.
In case of Haji Muhammad Hussain and others, it was held by the then High Court of Bagdad-ul- Jadeed, that Article 142 of Limitation Act, deals with a case when a plaintiff while in possession of his property was dispossessed or discontinued the possession, however, Article 144 of the Limitation Act, is a residuary and applies only to suits for possession of immovable property to which no other Article is applicable. It was further opined that Article 142 would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed and such a suit must be brought within 12 years of the date of dispossession. In case of Khisro Nawaz, ibid, it was held by the Peshawar High Court, that period of limitation for a suit either under Article 142 or 144 is primarily to be determined from the averments in the plaint. Where a plaintiff seeks possession of immovable property on the basis of possessory title and alleges dispossession or discontinuance of possession therefrom, the Article applicable to the case is Article 142 of the Limitation Act, 1908, which gives a period of twelve years for such suit commencing from the date of alleged dispossession or discontinuance of possession. In case of Bindhyachal Chand and others, supra, it was, held by the Allahabad High Court, that Article 144 of Limitation Act, 1908, is residuary Article applithble on all suits for possession of immovable property not otherwise especially provided for in the Act.
In Abdul Latif and others' case it was inter alia, held by the Calcutta High Court, that suit by a person for establishing title and recovering possession of reformed land is governed by Article 144 and not by Article 142 of Limitation Act, 1908.
6. Sardar Muhammad Azam Khan, the learned counsel for appellants owned the arguments of the learned counsel Mr. Abdul Majeed Mallick and added that plaintiffs moved an application Exh."PN/1" for the purpose of allotment corisidering the land in dispute was as awarded, hence, they solicited allotment, therefore, suit was bad in law.
7. Ghazala Haider Lodhi, the learned counsel for respondents, strenuously argued that plaintiffs were owners of the land to the extent of 07 Kanals, 09 marlas, out of which 07 Kanals, 06 marlas was awarded, however, 03 marlas land was not awarded for construction of "Town Abadi". The learned counsel emphasized that a separate file pertaining to 03 marlas land was prepared, however, later on neither the land in dispute was awarded nor plaintiffs were paid compensation thereof. The learned counsel pressed into service that allotment of appellants-defendants which was made in the year 1993, was cancelled by Government vide notification dated 21.08.1997, which was not challenged by them before any forum, hence, the same got finality under law, therefore, appellants have no locus standi to file the instant appeal. The learned counsel argued that suit was not merely for correction of revenue record, but it was filed for declaration as well as for recovery of possession, which reliefs especially, in the shape of decree for possession, could not be granted by Revenue Officers, therefore, Civil Court was competent to adjudicate upon the matter. The learned counsel further submitted that land in dispute was allotted to defendants in the year 1993, whose allotment was abrogated on 21.08.1997, while suit was filed on 10.12.2001, which was within prescribed period of twelve years limitation. She maintained that there are concurrent findings of facts of the Courts below which cannot be challenged in second appeal and craved for dismissal of appeal.
8. After hearing the learned counsel for parties at great length, I have perused the contents of appeal and examined the record with utmost care.
9. A contemplate perusal of para-1 of the plaint reveals that plaintiffs specifically pleaded that land comprising survey No. 988 measuring 7 Kanals, 9 marlas, situated in village Ballah of Tehsil Mirpur, was falling in the possession and, ownership of their father alongwith other share-holders, out of which 7 KanaIs, 6 marlas was awarded, while 3 marlas land was not acquired through award. The defendants i.e. Appellants, herein, and pro-forma respondents No 8 & 9, specifically pleaded in written statement that 3 marles land was awarded, however, no proof was adduced in evidence by defendants to prove that the land in dispute measuring 3 marlas, was awarded in favour of Government for construction of Mirpur Town. The plaintiffs, however, produced before the Trial Court an order of Estate Officer of Municipal Corporation, Mirpur, dated 16.09.1997, as Exh.'PH' which being an important document goes to the root of the case, hence, reproduced as under-- {{URDU TEXT}} A perusal of the aforesaid order Exh.'PH' reveals that disputed land was never awarded in favour of Government, as alleged by appellants-defendants. The Estate Officer, categorically incorporated in supra order that disputed land was unlawfully allotted in the names of appellants and pro-forma respondents, namely Abdul Khaliq, Muhammad Sodagar and Muhammad Sajawal son of Fazal Ellahi, which was cancelled by the Government. The above order was not challenged by the appellants before any forum, which got finality under law. A glance perusal of written statement filed by Allotment Authority of Municipal Corporation, Mirpur, also reveals that 3 marlas land of plaintiffs was never awarded. Even witness of appellants namely *Abdul Qadeer Qureshi, Record Keeper Land Acquisition Mangla Dam, through statement dated 19.06.2004, categorically deposed that 7 Kanals, 6 marlas land out of survey No. 988 was awarded, therefore, on the basis of the aforesaid documentary evidence and statement of witness of appellants-defendants, I have no hesitation to hold that concurrent findings on issues No. 1 and 2 were recorded by the Courts below strictly on the basis of documentary and oral evidence, hence, approved. The contention of the learned counsel for appellants that land in dispute was awarded in favour of Government, hence, plaintiffs could file reference before the concerned Reference Court under Section 18 of Land Acquisition Act, 1894, is accordingly repelled.
10. The disputed land was allotted to defendants-appellants in the year 1993. However, admittedly their allotment was cancelled which fact is crystal clear from letter of Estate Officer, Municipal Corporation, Mirpur dated 21.08.1997, Exb."PL". The assertion of plaintiffs regarding cancellation of unlawful allotment of the land in dispute is also proved from letter of Municipal Corporation, Mirpur, dated 22.04.2003, Exh."PN". The learned counsel for appellants admitted that allotment of their clients was cancelled by the Government, however, they submitted that despite cancellation of the allotment, appellants are aggrieved from the judgments and decrees of the Courts below, on the basis of their possession. As per my humble view, the appellants occupied the land in dispute unlawfully whose status is of trespassers, hence, their unlawful possession cannot be protected through the instant second regular appeal, hence they are not -entitled for any relief under law.
11. Mr. Abdul Majeed Mallick, the learned counsel for appellants strenuously argued that suit filed by plaintiffs was hopelessly barred under Article 142 of Limitation Act, 1908, hence, submitted that concurrent findings on issue of "limitation 'are not sustainable. Before embarking upon the aforesaid point it looks appropriate to reproduce Article 142 of Limitation Act, which speaks as under:- {{TABLE}} 1 2 3
142. For possession of , immovable property when the plaintiff while in possession of the property, has been it.
Dispossessed "4* **or has discontinued the possession.. Twelve years The date dispossession discontinuance. Of the or {{TABLE}} Now the question for determination is whether Article 142 is applicable in the instant case? A bare reading of Article 142 reveals that period of limitation for filing a suit for possession of an immovable property, when the plaintiff while in possession of property has been dispossessed from or has discontinued possession, is twelve years from the date of dispossession or discontinuance of possession. The determining factor, therefore, is the date of dispossession or discontinuance of possession. To establish discontinuance of possession it must be shown that the owner has withdrawn the intention of abandoning the property and the gap is filled in by another person, who has come to occupy in consequence of such withdrawal. However, when a suit is' filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title then Article 142 is not attracted in such case. It appears from plaint that plaintiffs filed suit on the basis -of title and not on the basis of dispossession. A suit for possession on the basis of title can be filed at any time by the owner of immovable property. A similar proposition came under consideration before the apex Court in a case titled Feroz Din Khan v. Muhammad Latif Khan & 5 others [PLJ 2012 SC (AJ&K)
46]. At page 52 of the report, it was held as under-- "The above Articles have been perused and considered by the Courts and the rule of law, laid down in the above-rererred authorities, is that Article 142 of the Limitation Act is applicable only if a suit for possession of immovable property is filed on the ground that the party was in possession of land and has been dispossessed or its possession is discontinued, but when a, suit for possession of immovable property is filed on the basis of title, then Article 142 is not applicable and Article 144, governs the period of limitation. After the deletion/omission of Article 144, no other Article of the Limitation Act governs the limitation for filing a suit op the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title." - The proposition supra was also considered by the Hon'ble Supreme Court in a case titled Mqsood Hussain Shah v. Noor Hussain Shah and 03 others [PLD 1989 SC (AJ&K) 45), wherein at page 49 of the report it was opined as under:- "7. Next, it is to be seen as to whether the suit would be governed by Article 142 or Article 144 of '.Imitation Act. The plain reading of Article 142 of the Limitation Act, shows that the Article will be attracted only if there is an averment in the pleading that the party seeking possession was "Dispossessed or discontinued the possession." No such averment has been made by eitherbf the parties in their pleadings. The plaintiffs-appellants averred in the plaint that the respondents were holding the possession of suit land as tenants-at-will, as they were related to them. The respondents-defendants have taken the pleas as the suit filed by the plaintiffs was time-barred and their possession over the suit land had ripened into ownership through prescription."
It was further held at page 50 of the precedent case as under:- "14. It follows from the above survey of the case-law that before Article 142 of the Limitation Act could be held applicable to a case it is to be shown that either the party seeking possession was forcibly dispossessed or it voluntarily abandoned the possession- and the other party entered into possession. No such eventuality exists in the case in hand and as such Article 144 of the Limitation Act, would govern the case and Article 142 has no application. Eventually, the suit filed by the plaintiffs is based on their title and the defendants-respondents resisted the same on the ground of adverse possession and not on the ground of 'dispossession' or Viscontinuance' of possession.
Therefore, the proper Article of 'Limitation Act applicable in the instant case would be Article 144 and not Article 142 of the Limitation Act. The learned Single Judge in the High Court has observed' that once the limitation starts running against a party it would not stop. But the question in the instant case is as to how the limitation can be said to have started, running against the plaintiffs- appellants where their suit for possession is based on title and the same was instituted about two and a half months after the dismissal, of the appeal filed by the defendants-respondents in previous suit. In case reported as Sarwar and another v. Malik Hakim Khan and others' (PLD 1958
(WP) Lah. 568), it was held that an unsuccessful claim to the ownership' in judicial proceedings would not change the character of the possession. If the possession at the time of the institution of the suit was permissive, it would remain permissive, even after the negation of unsuccessful claim of the ownership, unless after the decision of the suit the tenant does some overt acts which may have the effect of denyin the title of the landlord In the aforesaid case th reliance was placed on 'Muhammad Mumtaz Ali Kha v. Mohan Singh' (AIR 1923 PC 118), `Mandavra Waman Saundalgekar v. Raghunath Venkates Deshpande' (AIR 1923 PC 205), Wainapill Marakayar v.
Ramanathan Chettiar' (AIR 1924 P 65), Sheilal Nthabahi v. Kalangsang Gulabsang (Al 1927 Born.
667), `Sohawa Singh v. Kesar Singh' (AIR 1932 lah. 586) and Dalip Singh v. Rannia' (25 P.R. 1915). It follows from this that after the dismissal of the appeal of the respondents-defendants in the previous suit, their possession would remain permissive, unless defendants-respondents do some other overt acts rendering the nature of their possession hostile and notorious and continue to be, in, possession for more than 12 years. As stated earlier, the suit for possession was instituted 2 months after, the claim of the adverse possession made by the respondents was finally negative,"
The aforesaid view was reiterated by the apex Court in another case titled Dewan Ali Khan v.
Jahandad Khan and others [1995 SCMR 116] wherein it was observed as under:--- "As is evident from the case-law, referred to above, it is now settled law that Article 142 of the Limitation Act, is not applicable to a case where the plaintiff himself does not allege in the plaint that he was `dispossessed' or 'discontinued the possession' of the disputed land from a certain date. Thus, we approve the view taken by this Court in Maqsood hussain Shah v. Noor Hussain Shah [PLD 1989 SC (AJ&K) 45] and are constrained to dissent from the one taken in Abdul Rehman's case."
The similar proposition came under consideration before the High Court of Bagdad-ul-Jadeed, in a case titled Haji Muhammad Hussain and others v; Malik Fateh Muhammad and others [PLD 1953 Baghdad-ul-Jadid 10]. At page 14 of the report, it was held as follows:--- "The main question on which the present suit hinges is whether Article 142 or Article 144 applies to such a case. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary Article and applies only to suit for possession of immovable property to which no other Article is applicable. The very Wording of Article 142 clearly shows that this Article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 12 years of the date of dispossession. Therefore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaint who in order to succeed, must show that the dispossession was not prior to 12 years before the suit was filed. Article 144 of the Limitation Act would only apply to suits for possession where no other Article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and he brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession, the onus lies on him to prove that the date of his dispossession was within 12 years of the suit, while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other Article of the Act then on proof of title the plaintiff's suit cannot be dismissed until the defendants further prove his suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years."
After survey of the case-law on the point in issue, I am of the considered view, that suit filed by plaintiffs-respondents was for recovery of possession on the basis of title, therefore, same was not hit by Article 142 of the Limitation Act, 1908. Even otherwise suit from the date of allotment of land in question in favour of appellants which happened in 1993, was also filed within twelve years, hence, the contention that suit was barred by time is devoid of any force, therefore, repelled.
12. Mr. Abdul Majeed Mallick, the learned counsel for appellants, strenuously argued that suit filed by respondents-plaintiffs was also hit by Section 172 of The West Pakistan Land Revenue Act, 1967, hence, concurrent findings of the Courts below on issue No. "'are not sustainable. A perusal of the plaint reveals that plaintiffs not only filed suit for correction of revenue record, but it was also filed for seeking declaration, that out of 7 Kanals, 9 marlas land, only 7 kanals, 6 marlas was awarded, while 3 marlas land was falling in their ownership and for recovery of possession, which reliefs could not be granted by Revenue Courts, hence, the only remedy available to plaintiffs was to file suit before the Civil Court, which was rightly filed, hence, contention is overruled.
13. The contention of the learned counsel for appellants Sardar Muhammad Azam Khan, that plaintiffs themselves moved an application Exh.'PN/1' for allotment of land in dispute is also misconceived. A glance perusal of Exh.'PN/1 reveals that one of the plaintiffs Muhammad Siddique, moved an application to Collector Mangla Dam, that how much land was awarded and to what extent compensation was paid to the owners? It was reported by the Collector that compensation was paid to the extent of 07 Kanals, 06 marlas from survey No. 988, whereas for 03 marlas land in respect of which file No 2 was prepared, no compensation was paid. The aforesaid application was never moved by plaintiffs for allotment of land in dispute as alleged on behalf of appellants. The contention is, therefore, against the contents of application and report of Collector which supported the Claim of plaintiffs and not the defendants-appellants.
14. There are concurrent findings of both the Courts below against appellants and it is settled principle of law that High Court while considering second appeal shall not interfere with the concurrent findings of facts recorded by the lower Courts, unless, the Courts below, while recording findings on question of facts, either mis-read the evidence or ignored any material piece of evidence available on the record or the same was perverse. Ordinarily, the concurrent findings on question of facts are conclusive in absence of any irregularity on account of mis-reading and non- reading of evidence, thus, where the Courts below have concurrently given findings of facts and no mis-reading or non-reading of evidence has been found, the second appeal is not maintainable.
After deep deliberation and examining record, I am of the view that Courts below neither mis-read nor non-read the evidence, hence, the instant appeal is not maintainable.
15. The crux of above discussion is that finding no substance in the instant appeal, the same is hereby dismissed. The costs shall follow the eventualities. RSA dismissed.