' ABDUL MAJEED MALL1CK, J.-This appeal, by leave, arises out of the judgment of the learned Single Judge of the High Court, dated 27th December, 1975, whereby the findings of the subordinate Courts were set aside and plaintiff-respondents' suit for possession was decreed.
2. Ghulam Muhammad and Nathoo, occupancy tenants, mortgaged ' their rights for Rs. 30D to Ilam Din and Sahiboo, ancestors of present defendant-appellants, vide mortgage-deed dated 6th Asooj, 1963 Bk, and delivered possession of the suit land to the mortgagees. Ghulam Muhammad died issueless. Nathoo, who succeeded Ghulam Muhammad, also died leaving behind Mst. Bibi Rani, his widow Mst. Bibi Rani died on 28th Kartak 1998 Bk. On 14th March, 1961, Revenue Officer attested the mutation No. 109, of extinction of occupancy tenancy, in favour of Mst. Said Begum and Dewan Begum, landlords. Defendant-appellants challenged the mutation in a suit on 1st November, 1962 and claimed the land in their own right, as reversioners of Mst. Bibi Rani, and by adverse possession. Their suit was dismissed on 27th January, 1965. Their successive appeals also failed on 26-10-1967 and 19-7-1969. Meanwhile, Muhammad Shafi, plaintiffs- respondent, and Lal Hussain, ancestor of other plaintiff-respondents, purchased the land from Said Begum and Dewan Begum, vide sale-deed dated 27th November, 1967. They brought suit for possession on 22nd December, 1969. The defendant-appellants resisted the suit, among others, on the ground of limitation. The trial Court accepted the title of plaintiff-respondents, but ,dismissed the suit for want of limitation. The learned District Judge concurred with the trial Court and rejected the appeal. The learned Single Judge of the High Court, however, disagreed with the subordinate Courts and allowed decree for possession on holding the suit within time.
3. Section 62 of the Jammu and Kashmir Tenancy Act, which was in force in pre-Independence period, provided that an occupancy tenant, whose rights were subject to mortgage, when died without heir to succeed under section 67 of the Act, the right of mortgage shall also extinguish. In the instant case mortgagor-tenants died without any heir to succeed their tenancy. Mst. Bibi Rani also died on 28th Kartak 1998 Bk. Consequently, tenancy and mortgage extinguished simultaneously and suit land reverted to the landlords. But mortgagees remained in possession.
The present controversy has arisen out of this position.
4. A preliminary argument of the learned counsel for the appellants is that on the death of mortgagors and extinction of tenancy the suit land reverted to the plaintiffs, as legal representatives of deceased tenants. Therefore, they shall be considered as mortgagors for the purposes of settlement of the controversy. In support of this suggestion or attention was invited to a case of Dr. Arshad Mahmood v. Dr. Mumtaz Hussain , The term "legal representative" as defined in section 2 (II) C. P. C. Means "a person who in law represents the estate of a deceased person and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued". A close study of this definition reveals that plaintiffs do not fall within the scope of legal representatives of deceased mortgagors, by any standard. The fact of the matter is that tenancy and mortgage extinguished as contemplated under section 62 of the Tenancy Act by virtue of absence of heir to succeed the tenancy. Moreover, plaintiffs, who were landlords, have not acquired the tenancy rights by succession, nor it has devolved on them as legal representatives. In fact the tenancy rights emanated for the proprietary title of landlords accompanied by certain conditions. Consequently on non-fulfilment of such conditions it reverted to the source of its origin and merged in it under the statute. In other words, the landlords re-acquired interest in the land by virtue of their own title. The contention is, therefore, repelled.
5. In the case of a mortgage with possession the limitation for redemption or possession is sixty years, under Article 148 of the Limitation Act. The consensus of opinion is that when a mortgage is paid off, or satisfied by a usufruct, or extinguished otherwise under law, mortgagee is under an obligation to retransfer the possession to the mortgagor at his instance. Where a mortgagee remains in possession after the satisfaction of the mortgage, mere possession from then onwards, does not become adverse. Much more is required to set the time running against the mortgagor. In support of this opinion reference may be made to Alaf v. Mardana and others , Keshab Lal Goswa mi v. Bhola Nath Gangoadhya and others , Gobind Ram and others v. Musammat Ram Koer and others , Abid Ali Khan v. Har Pershad and another and Court.Of Wards v. Devi Dawala .
6. Next it was argued that on extinction of the mortgage the possession of the mortgagees, automatically changed its character as trespass ; from then onwards, mortgagees occupied the land as trespassers. Consequently their continuous possession, a period of more than twelve years, constituted Adverse possession. Reference was made to Jumo Khan v. Ramzani , Suleman and 3 others v. Custodian Evacuee Property, West Pakistan, Lahore and 2 others and Sahibzada Sharaf Sultan and others v. Brig. Shahzada Sher Muhammad Jan .
7. The word, 'Trespass' as defined in Stround's Judicial. Dictionary, Fourth Edition, means :- "Trespass.-(1) "Trespass' signifies any transgression of the law under treason, felony or misprision of either".
(2) "A trespass in an injury committed with violence ; and this violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person, or tangible and corporeal property, of the plaintiff. Of actual violence, an assault and battery is an instance ; of implied, a peaceable but wrongful entry upon the plaintiff's land".
In presence of the above given definition the trespass suggested in this case if at all it was a trespass may be termed as implied trespass. But in that case too, it was essential to show that1 2 3 4 5 6 7 8 9 entry or possession was wrongful one.
8. One of the essentials of trespass is the acknowledgement of other person's possessory title or right to the immovable property. A trespasser is not possessed of legitimate right when he enters into the property of another person. Contrary to this a mortgagee enters into possession under the cove of title of the mortgage. On extinction of his title, he is under an obligation to retransfer the property to its owner. The only difference is that he lases his right by virtue of termination of title.
The distinction between the two is obvious. In or opinion on satisfaction of the mortgage from then onwards, the possession of mortgagee does not ipso facto turn out to be a trespass. I C shall continue as permissive possession. Even non-payment of rent will not affect its character. The other view can be, that on elimination of right of mortgage, possession of mortgagee, technically becomes a trespass. But again implied trespass or actual trespass by itself, like mere possession, would no constitute adverse possession. Other allied conditions are also to be fulfilled to constitute adverse possession. In order to succeed, a trespasser whether actual or by implication, like other cases, has to prove strictly the necessary conditions constituting the adverse possession. We therefore uphold the view expressed in Haji Sher Muhammad's case .
9. The trial Court held that limitation started running against the plaintiff from the time of acquisition of title, under Article 144. In its view the period of twelve years started from the time of extinguishment of tenancy and the suit was dismissed, on this count, as time-barred. All the Courts are in agreement that the Article 144 is attracted in this case. Difference of opinion occurred only in respect of the point of commencement of the limitation. The subordinate Courts were of the view that on termination of tenancy and extinction of the right of mortgage, the possession of mortgages, ipso facto, changed its nature into trespass and from then onwards they remained in possession as trespasser. It was held that limitation started running immediately on acquisition of right to sue for possession.
10. "Acquisition of right" and "cause of action" are not one and the same thing. Unless there is a right, there is no cause of action. Acquisition of right precedes to a cause of action. In restricted sense "cause of action" means state of facts which give rise to a right of action or to bring an action before a tribunal to seek redress against the infringement of such right. Again, cause of action and accrual of cause of action relate to a definite period when a right is injured or infringed.
Cause of action emanates from acquisition of right, and not vice versa. On this premises of the proposition, we find that approach of the subordinate Courts was erroneous.
11. We have examined the scope of the terms "acquisition of right" and "cause of action". As stated earlier all the Courts are in agreement that limitation in the case is controlled by Article 144. The time of commencement of limitation is given in column three of the schedule. In this column it is laid down that under Article 144, the limitation in suit for possession, begins from the time of adverse possession of the defendant. Therefore, under law limitation for bringing the suit for possession started running from the time of adverse possession of defendant-appellants and not from the time of acquisition of title of interest of plaintiff-respondents.
12. Next we come to the question of adverse possession. The rule of adverse possession is based on the principle of "might is right." Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State and Pakistan have considered it immoral for having its source of origin in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organisation of society into state of rule of law it gained mandate of law to set at rest the status of long time possessions, particularly in absence of claims of true owners of properties. The constituent conditions of adverse possession are that it must be actual, visible, exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equitable consideration, is allowed on the strength10 of strict and sound proof. If any one of the constituent conditions is lacking in evidence the plea is outrightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession.
13. The other legal aspect of adverse possession is that whenever defendant attempts to defeat the plaintiff's suit for possession on the plea of adverse possession, onus of proof is placed on such defendant. Likewise, in a suit for possession where plaintiff acquires title in suit property when defendant is already in possession under a right, plaintiff is under an obligation to prove his title and nothing more. Defendant, who defends his possession on the ground of adverse possession or limitation, onus to prove that suit is beyond limitation, is on such defendant in the light of G provisions of Article 144 of the Limitation Act. The Legislature very wisely incorporated, that defendant who was already in possession under a title or permissive possession, is best at knowledge as to how and when his possession became adverse. This leads to the conclusion that Article 144 envisages commencement of limitation at the time when 'defendant's possession becomes adverse and (ii) that onus lies on defendant in order to defeat the suit, as beyond time.
14. Another and important aspect of the case was ignored altogether. This aspect is that mutation relating to extinction of tenancy, free from the right of mortgage, was attested on .14th March, 1961.
The ladies, to whom the land reverted, became alive to their right on attestation of the mutation.
On the other hand present defendant-appellants challenged the mutation and title of the proprietors, in a suit institued on 1st November, 1962. In this suit among others, they raised the plea of adverse possession, in para. 5 of the plaint, Exh. P. A. Their claim of adverse possession relating to previous period was rejected by all the Courts. Thus defendant-appellants, were clearly estoppel from claiming adverse possession with effect from the time of death of Mst. Bibi Rani (1998 Bk.). This plea is barred as res judicata. It is undisputed that previous suit was between the same parties and in respect of the same subject-matter. Section 11 of C. P. C. As such fully applies to the case. In the circumstances it is held that limitation started running with effect from 1st November, 1962, the date of institution of defendant's suit. The present suit having been instituted on 22-1.2-1969 is, therefore, obviously within time. In view of the aforesaid circumstances the appeal being devoid of force is dismissed with costs. PLD 1974 Lah. 312 PLD 1965 Lah. 611 AIR 1930 Cal. 402 83 I C 740 AIR 1930 Oudh 13 AIR 1938 Lab. 675 PLD 1959 Kar 60 PLD 1971 Lah. 77 PLD 1963 Lah. 606 PLD 1960 Kar. 428