1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 14-11-1981 of the Lahore High Court whereby petitioners' civil revision, arising out of decree against them, in a suit for possession based on title, was dismissed.
2. The plaintiffs (respondents) claimed in the suit filed on 20th of March, 1972 that they were the owners of the suit land, while the defendants were tenants; but they had stopped paying lagan and also started denying the title of the plaintiffs. And, on their refusal to re-acknowledge the plaintiffs as owners about a month prior to the institution of the suit they (the plaintiffs) were constrained to file the suit. Plea taken from the petitioners' side in the written statement was that they (and not the plaintiffs) were in fact the owners and they being in possession as owners, the plaintiffs had no right to file the suit.
3. Several years after the filing of the written statement, an application was moved from the petitioners' side to amend their written statement so as to include the plea that they were in adverse possession of the land for more than twelve years therefore they had become the owners; and further that the civil Court had no jurisdiction to hear the suit-the learned counsel explained that this jurisdictional plea was raised on the assumption that the petitioners were tenants. The application for amendment was dismissedin 1979. A revision filed before the District Court in this behalf was also dismissed in the same year. The original pleadings as noted earlier having been put to issues, respondents' suit was decreed on 23-2-1980. The first appeal of the petitioners was dismissed on 2-6-1981 and the revision filed by them in the High Court having been dismissed on 14-I1-1981 they have now sought leave to appeal.
4. Learned counsel for the petitioners has contended that the learned appellate Court having considered the question of adverse possession on merits (though the decision thereon was against them) the learned Single Judge in the High Court wrongly refused to consider the evidence in this behalf, on the assumption that this plea was not taken by the defendants in their original written statement and their application for amendment of the pleadings have been refused, this plea could not be considered in revision. Learned counsel also contended that the judgment of the appellate Court on question of adverse possession was liable to be set aside on merits; that if the petitioners were not permitted to raise the plea of adverse possession and they were treated to be as tenants liable to ejectment on denial of title of their landlords, then the question of bar of jurisdiction of the civil Court should have been considered; that the suit was time-barred; and, lastly, in any case, the amendment in the written statement should have been allowed by the trial Court.
5. We do not agree with the learned counsel that the plea of adverse posses--sion was as such taken in paragraphs 3 and 4 of the written statement. In the averments made therein, the plea taken was that the defendants and not the plaintiffs were the owners of the suit land and in that connection they asserted to be in possession. Plea was not then taken that the ownership was on account of adverse possession. It was for this reason that separate subsequent application was made with specific prayer that the defendants be permitted to take the plea of adverse possession. The view of the learned Single Judge in the High Court was accordingly correct that the plea of adverse possession not having been raised in the written statement, in the circumstances of this case, could not be allowed to be raised, nor could any weight be given to it. This being the position regarding merits of the plea of adverse possession, the question of limitation of twelve years as asserted from the petitioners side, would not arise either.
6. It is noted in the impugned judgment that the learned counsel for the parties had conceded at the Bar before the appellate Court that "the respon--dents were owners of the disputed property meaning thereby that the peti--tioners had foregone their right, if any, regarding the so-called ownership rights.' Looked at from this aspect also, the plea in so far as the ownership of the suit land is concerned has no force.
7. Regarding the plea that the civil Courts had no jurisdiction to entertain the dispute between the parties, learned Single Judge observed as follows :- "It is pertinent to note that this question was initially not raised in the pleadings. It was however thought proper to make a belated applica--petition before the trial Court for amendment raising an objection that the Court did not have jurisdiction to decide the matter. This application was admittedly rejected on 17-3-1979. Learned counsel has contended that his party had a fair case for trial and for that reason the trial Court could not have rejected the application. The argument is misplaced, because a party is ordinarily not allowed to raise by way of amendment an inconsistent plea. No doubt the petitioners have taken it up in their appeal before the learned Additional District Judge, but as it appears from the record the same was not pressed at the time of arguments. Even there was no indication that the rejection of the application for amendment was ever disputed before the learned Appellate Court."
8. The afore-quoted observation with regard to the plea of jurisdiction is unexceptionable. In addition it may be remarked that on the one hand the petitioners asserted that they were themselves the owners and were thus not liable to pay any batai to the plaintiffs and on the other they wanted to take the plea through an amendment of their written statement that they being tenants, the dispute between them and their landlords (the plaintiffs) could not be adjudicated upon by a civil Court. These were obviously inconsistent pleas. The application for amendment besides being highly belated was otherwise liable to be dismissed on the afore-mentioned ground. After bearing the learned counsel in support of this petition, we do not find any force in it and the same is dismissed.