' SARDAR ABDUL HAMEED KHAN, J.---The supra noted appeal has been filed against the judgment and decree of Additional District Judge Dheerkot dated 18-8-2009, whereby the learned Additional District Judge set aside the judgment and decree of Civil Judge Dheerkot dated 30-10-2008.
2. The brief facts forming background of the appeal are that Muhammad Shawaal and others plaintiffs/ respondents, brought a suit for declaration on the basis of adverse possession and in alternate prayed for perpetual injunction. It was alleged by them that land comprising Khasra No, old 193 new 196 measuring 15 kanal 2 marlas situated in village Saisar Tehsil Dheerkot is entered in the name of defendant in the revenue papers. It is further stated that the plaintiffs are in possession of half of the land. It is contended that the possession of the plaintiffs are also entered in the revenue record. It is further contended that father of the plaintiffs were in possession of 8 kanals land and after his death the plaintiffs are in possession of the said land. It is stated that fore-fathers of the defendants were resident of District Muzaffarabad. It is further alleged that defendants are owner of 1.1/2 shares and their family left their resident and shifted to India. It is alleged that defendant was brought by the Soldiers of freedom in 1947 and when defendant stood major the respectable of village Neela but got allotted land from village Saisar in the name of defendant without possession. It is further contended that the land was in possession of father of the plaintiffs from Dogra Regime, therefore, the father of the plaintiffs filed a suit in the court of Sub- Judge Bagh for adverse possession. It is averred that a Jirga was convened by the respectables of locality and was decided that 8 kanal land out of Khasra No, old 193 new 196 shall remain in possession of the plaintiff's father, however, the rest of the land shall be handed-over to the defendant. It is further reiterated that defendants appeared before Sub-Judge Bagh and executed an agreement dated 21-10-1971 in favour of the plaintiff's father, which was attested by Sub-Judge.
It is stated that land is in ownership and possession of the plaintiffs since 1971, therefore, the possession of the plaintiff is more than 20 years and the plaintiff has also made improvements over the suit land. It is further stated that the defendant was duty bound to get cancelled the allotment to the extent of 8 kanals in the light of agreement dated 21-10-1971 (Exh.PA) but the defendant has refused to do so.
3. The suit was contested by the defendant by filing written statement stating therein, that plaintiffs have got no cause of action and the agreement dated 21-10-1971 is concocted and forged one. It is stated that the, suit of the plaintiff is time barred. It is further contended that the suit land is in possession of the defendant, therefore, the suit for adverse possession could not be filed. It is submitted that no prayer for possession has been made, therefore, the suit is liable to be dismissed. It is further submitted that the defendant got allotted evacuee land. In presence of plaintiff's father and obtained property rights transfer order and the plaintiffs father did not approach the relevant forum in time, hence, the suit is liable to be dismissed. It is alleged that some of plaintiffs filed a review petition before the Custodian Evacuee Property on 4-6-2002, which was dismissed on 30-10-2003 with costs, thereafter, two sisters of plaintiffs filed another revision petition titled "Rafique Jan and another v. Shaikh Gulzar" which was also dismissed on 9-1-2007. It is contended that the plaintiffs are neither in possession of the land nor have constructed any house over the suit land.
4. After filing the written statement learned Civil Judge framed as well as 7 issues in light of pleadings of the parties and provided them the opportunity to lead evidence. After hearing the learned counsel for the parties the learned Sub-Judge Bagh dismissed the suit vide judgment and decree dated 30-10-2008. Plaintiffs/respondents felt aggrieved from the said judgment and decree filed an appeal before learned Additional District Judge Dheekot on 29-1-2009 and the learned 1st Appellate Court after hearing the learned counsel for the parties set aside the judgment and decree passed by the trial Court and decreed the suit filed by the plaintiffs on the basis of adverse possession, hence, this 2nd appeal.
5. Sardar Muhammad Arif Hussain Khan, Advocate, the learned counsel for the appellant reiterated the facts and grounds narrated in the appeal and vehemently contended that the suit filed by the plaintiffs was time barred. The learned counsel further argued that the land is in possession of the defendant/appellant, therefore, the decree on the basis of adverse possession is against the record without lawful authority because the learned 1st Appellate Court could not appreciate the evidence in true perspective. The learned counsel submitted that the agreement dated 21-10-1971 is forged one and not proved by the plaintiffs/respondents by producing evidence, therefore, the judgment and decree recorded by the learned trial Court is un-exceptional and in accordance with law but the learned Additional District Judge Dheerkot without considering the documentary evidence brought on the record has decreed the suit which is liable to be set aside. The learned Advocate also submitted that the possession of the defendant/ appellant was proved from the revenue record, therefore, decree on the plea of adverse possession could not be passed. The learned counsel further submitted that the law relating to the adverse possession has been amended and no decree can be passed against the real owner of land on the basis of adverse possession, on this score the judgment and decree of 1st Appellate Court is also liable to be set aside and prayed for acceptance of the appeal. The learned counsel referred the following case in support of his submission:--
6. 2013 SCR 250 and un-reported case decided by apex Court on 13-6-2012 titled "Aziza Begum v.
Muhammad Hussain".
7. On the other hand, Sardar Atta Elahi Abbasi, Advocate, and learned counsel for the respondents, supported the impugned judgment passed by the learned Additional District Judge and submitted that the agreement dated 21-10-1971 executed by defendant in favour of plaintiff's father attested by Sub-Judge Bagh has been prov.Ed on the record, after the said agreement the defendant has no right over 8 kanals land from Khasra No, 196, however, the learned trial Court could not consider the such document and dismissed the suit illegally, arbitrarily, hence, the judgment of the trial Court has rightly been set-aside by learned Additional District Judge through the impugned judgment, which is liable to be maintained. The learned Advocate also contended that the plaintiffs have already approached the Custodian, however, their prayer was rejected vide judgment dated 30-10-2003 and the review petition was dismissed. The learned counsel for the respondents argued that the judgment of the 1st Appellate Court is well reasoned supported by the revenue record, which is liable to be up-held The learned counsel vehemently contended that the Court below has mis-construed the law provided in Section 6 of General Clauses Act, and also failed to interpret the impugned instrument (Exh.PA). The learned counsel for the respondents lastly prayed for rejection of the appeal with exemplary costs and referred the following case law in support of his contention:- 2001 MLD 493, 1998 SCR 369 (sic) and 1983 CLC 699.
8. I have heard the learned counsel for the parties and gone through the record of the case and also perused the case law referred by the parties with my utmost care.
9. The moot point which emerged for the scrutiny of the impugned judgment of the 1st appellate Court and record of the case is:- "That though the agreement dated 12-10-1971 (Exh.PA) does not create any right of ownership, however, the long standing possession of the respondents (Plaintiffs) has matured before 1997, the date of repeal of the law relating to adverse possession laid down in section 28 and Article 144 of Limitation Act 1908. It is further held by the 1st appellate Court, that this right of adverse possessions is an accrued right before the repeal which is protected under section 6 of General Clauses Act.
Therefore, in alternative decree for adverse possession was issued in favour of respondents."
10. In view of the above findings of the Court, it is found that the 1st appellate Court reached the conclusion that when a right has accrued to someone, the future repeal/enactment cannot defeat the right. But in my view the Court has erred in construing the law, holding the field at the time of institution of some cause/suit.
11. The law regarding accrued right is provided in Section 6 of General Clauses Act as well as in section 56-C of Interim Constitution Act, 1974.
12. It is pertinent to mention that a declaratory suit was filed by Haji M. Latif (the father of respondents 1 to 3 and 6 and 7 and other) on 21-6-2005 and amended plaint was filed on 14-12- 2006 whereas the section 28 and Article 144 of Limitation Act, 1908 was firstly repealed w,e,f, 4-12- 1996 by promulgation of Ordinance LIV of 1996 and later the amending Act IV of 1997 was promulgated which received the assent of President on 14-4-1997 and was published in official Gazette on 25-4-1997. Wherefrom, it is evident that at the time of institution of subject suit by respondents section 28 and Article 144 of Limitation Act (law relating to adverse possession) was not on the statute book of the State. Before giving finding on the point in the light of the merit of the case, it would be useful to discuss in detail the relevant provisions of Interim Constitution Act, General Clauses Act, as well as the precedent case law, which reads as follows, respectively.
' Azad Jammu and Kashmir Interim Constitution Act, 1974. 56-C Effect of repeal of laws.---Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Act, the repeal shall not, except as otherwise provided in this Act,--
(a) Revive anything not in force or existing at the time at which the repeal taken effect;
(b) Affect the previous operation of the law or anything duly done or suffered under the law;
(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) Affect any penalty; forfeiture or punishment incurred in respect of any offence committed against the law, or
(e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.
' General Clauses Act:-
6. Effect of repeal.---Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not;
(a) revive anything not in force or existing at the time at which the repeal takes effect; or.
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; ' 2004 YLR 1395 (Lahore).
(case titled "Mst. Zainb Bibi and 5 others v. Muhammad Sharif" decided by division bench of Lahore High Court wherein it is reported at page 1398 that:- "The provisions of section 28 of Limitation Act, 1908, have been declared repugnant to the injunctions of Islam by the honourable Supreme Court of Pakistan in the case of Maqbool Ahmed v.
Government of Pakistan and others 1991 SCMR 2063 and the same ceased to have effect w,e,f, August 31, 1991. It is well-settled by now that no decree can be passed on the ground of adverse possession after the target dated i,e, 31-8-1991. See Mst. Walayat Jan and 7 others v. Habib Ullah Khan and 4 others 1992 MLD 751, Abdul Latif and 5 others v. Manzoor Ahmed and others 1993 MLD 177, Muhammad Ashraf and others v. Bholu and others 1994 MLD 81, Abdul Hameed and another v.
Mst. Aaleeman (deceased) through Legal Representative and others 2002 YLR 3864 and Muhammad Aslam and another v. Mohammad Sarfraz Khan and others 1996 MLD 1216. Similarly no plea of adverse possession could be raised in defense nor was it available to any defendant nor any suit for recovery of possession could be dismissed after the target date on the ground of title having matured in favour of defendant on the basis of adverse possession. In the circumstances stated above the question of limitation would not arise."
' 2004 YLR 1918 (Lahore).
' Case titled "Allah Yar and 9 others v. Ghulam Sarwar" decided by Mr. Justice Muhammad Sajjad Akhtar of Lahore High Court where it is observed:- ---S. 42---Limitation Act (IX of 1908), S.28---Suit for declaration for possession on basis of ownership -- Defendants raised the plea of adverse possession---Trial Court decreed the suit--- Appellate Court set aside the judgment of the Trial Court---Copy of Register Haqdaran Zamin showed the plaintiffs in possession of the suit land---Defendant admitted that he cultivated the suit land as a tenant---Discrepancies in the depositions of the witnesses did not shatter the case of the plaintiffs particularly in view of the documentary evidence and the admission of the defendants -- Adverse possession could not be established by bare word of mouth --- Section 28 of the Limitation Act, 1908 having been declared to be repugnant to the Injunctions of Islam by the Supreme Court, said section ceased to have effect after the target date i,e, 31-8-1991--- Appellate Court in the present case, accepted the plea of adverse possession on 5-9-1994 after the target date---Validity---No such plea could be accepted after the target date as prescriptive title under S.28 of the Limitation Act, 1908, stood extinguished---suit could not be dismissed by accepting the plea of adverse possession---Decree on the ground of adverse possession also could not be passed after the said date---Judgment of the Appellate Court was unsustainable in law, consequently the revision petition was allowed and judgment and decree of the Appellate Court was set aside and that of the Trial Court upheld.
(2008 CLC 960 /Karachi).
' Case titled "Ghulam Muhammad v. Province of Sindh" wherein it is held that:- ' ---Ss. 42 & 54---Limitation Act (IX of 1908), S.28 [omitted by S.2 of Limitation (Amendment) Act (II of 1995)] Declaration of title---Adverse possession---Scope---Plaintiff claimed to be in possession of government land for more than thirty years and sought declaration of title on the basis of adverse possession--Validity---After declaring S. 28 of Limitation Act, 1908, repugnant to injunctions of Islam by Supreme Court, the same ceased to have effect---No decree could be passed on the ground of adverse possession after the target date viz. 31-8-1991, fixed by Federal Shariat Court and promulgation of Limitation (Amendment) Act, 1995---Plea raised by plaintiff to have decree on the basis of adverse possession was no more available to him to protect illegal and hostile possession over government land--- Plaint was rejected in circumstances.
13. So far as argument of the learned counsel relating to accrued right in light of section 6(c) of General Clause Act and section 56-C of Interim Constitution Act is concerned. It is pertinent to note that above quoted sections are analogous. There is a close analogy between section 6 of General Clauses Act 1897 and section 56-C of the Interim Constitution Act, 1974. In fact, section 56-C of Interim Constitution Act, 1974 has been enacted with a view that General Clauses Act, 1897 does not apply to constitutional matters. Hence, the arguments have to be considered only with reference to section 6(c) of General Clauses Act. This view of the Court is also fortified by PLD 1967 Karachi 300 (titled "Habib Ullah Khan and others v. Pakistan and others" decided by division bench).
14. Another aspect of the case is regarding the interpretation of the instrument Exh.PA dated 21-10- 1971 has also been considered. By now, it is settled principle of law that for interpreting any instrument/ document, it should be given natural meaning and all words in a deed must be taken into consideration and it must be read as whole, and be considered in totality. It is also the intent of law that a document should be read and considered in its plain and simple language without putting on it any premium to achieve the object for which no provisions have been laid down. It may also be added that the agreement is to be construed in accordance with its terms and in the light of facts known to both the parties. This view of the court is fortified by PLD 1994 Queta 47, 1994 MLD 754, 2007 SCMR 236 and 2008 MLD 1571.
15. In the light of above principle of interpretation of a document, the agreement Exh. PA is plain one whereby the Executor of the deed has given the right to possession and not the right to ownership.
It is pertinent to mention that the land in question is an evacuee property and, the appellants have got PRTO of the subject land, which is itself conditional. Hence, the decree of the trial Court to this extent for protection of the possession of the respondents deemed to have been passed in a legal fashion.
16. In view of the above reproduced constitutional and codal provisions and the case law, it is concluded that the law of adverse was the law of "Might is Right", which have been declared un- Islamic by the Supreme Court of Pakistan and was given effect from 31-8-1991. Thereafter this law was introduced in the State territory through promulgation of Ordinance LIV of 1996 dated 4-12- 1996, which was later on enacted through Act IV of 1997, which received the Estate of worthy President of Azad jammu and Kashmir on 14-4-1997 and all was published in official Gazette on 25- 4-1997, whereas, the plaintiffs/ respondents filed the suit before the trial Court on 21-6-2005 after the period of more than 9 years. Where from, it is evident that the instant suit was instituted at the time, when, the law of adverse possession was not holding the field, hence, the respondents were not entitled to the decree on the basis of adverse possession and the same was rightly done by the learned trial Court. The learned 1st appellate Court, in my consider view, fell in error of law, while deciding the controversy in favour of the Respondents, herein. Case law referred by the parties need not to be discussed as the same relates to proposition of the cases pending adjudication at the time of enactment in question, hence has no direct relevancy to the moot point in hand.
17. The Crux of the above detailed discussion is that the appeal of the appellant is accepted.
Judgment under challenge, passed by the learned Addl. District Judge, Dhirkot dated 18-8-2009 is hereby vacated. Resultantly, the judgment and decree passed by the learned Civil Judge, Dhirkot dated, 30-10-2008 stands restored. However, the parties shall bear their own costs.
' The file shall be consigned to record after due completion by sending back the record of the learned Courts below.