' KHALILUR REHMAN, KHAN, J.-This certified appeal under clause 10 of the Letters Patent, is directed against the judgment of a learned Single Judge of this Court dated 26th June, 1967 passed in R. S. A. No, 39 of 1965 (BWP), upsetting the concurrent judgments and decree of the two Courts below.
2. Facts are that appellants filed a suit for possession of the land measuring one kanal and one marla situate in Narowali, district. Rahimyarkhan. Their case was that they had purchased the same from one Mathra Das vide registered sale deed dated 24th July, 1947 and the transaction was confirmed by the Custodian vide order dated 9th August, 1962. The respondents-defendants entered into unlawful possession of the land during this period. Hence the suit.
3. Respondents/defendants who contested the suit did not seriously dispute the factum of the sale in favour of the appellants or the subsequent confirmation by the Custodian but pleaded adverse possession besides raising some technical pleas as regards the frame of the suit and the question of limitation. The main controversy between the parties therefore, was restricted to the question of limitation and defendants/ respondents claim of adverse possession. Following issues therefore, were framed.
(1) Is this suit barred by time ? O.D.
(2) Have the plaintiffs been in possession of the property in dispute within 12 years before this suit ?
O.P.
(3) Have the defendants Nos. 1 to 4 acquired an adverse title in the property in dispute by prescription ? O.P.
(4) Is the property in dispute properly described in the plaint ? If not, what is its proper description ?
O.P.
(5) Are the plaintiffs owners of the property in suit ? O.P.
(6) Relief.
' Learned trial Judge found Issue No, 1 in favour of the plaintiffs-appellants and rejected the respondents objection that order of the Custodian was bad as the defendants/respondents although being in possession of the disputed land, were not made party to the proceedings observing that the Court "is incompetent to give its findings which are antagonistic and adversely to the finding of the Custodian". Court was aware that the jurisdiction of the Civil Court was barred under section 41 of the Pakistan Administration of Evacuee Froperty Act (XII of 1957). As regards the issue relating to the adverse possession of the respondents and acquisition of the title by prescription, learned trial Judge, we may say, took pains in going through the entire revenue record and the other documentary evidence relied upon by the parties and found : "The evidence of defendants Nos. 1 to 4 has failed to prove that they have acquired adverse title. D.
W. 3 stated that only two rooms were constructed in 1953, but D. W. 1 has not touched this point.
Rather it can be deduced from the wording used be him that the houses were definitely more than two even before 1953, This is, no doubt, a contradiction which is not in consonant to the assertions of the defendants. Moreover D.W. 3 is also an interested witness being related to D.W.
1. The defendants did not produce any of the parent occupants (tenants) of the property in dispute in support of their averments and presumption, therefore, goes against them. Under these circumstances the assertions of the defendants Nos. 1 to 4 are abased."
4. In appeal against the decree of the trial Court before the learned first appellate Court finding of the trial Court on Issue No, 5 was not contested. The learned Additional District Judge in the appellate order noticing this aspect of the case observed :- "This first issue about the ownership of the property was hotly contested in the lower Court but in the appellate Court Mr. Muhammad Jafar Hashmi the Advocate for the appellants had to agree in the course of arguments that he has to accept the orders of the Custodian who had passed title of this property to the respondents Nos. 1 to 12. The respondents Nos. 1 to 12 got the sale confirmed from the Custodian's Department by orders E. P. 2 and P. 3 and the Civil Court has no jurisdiction to those orders when the jurisdiction is barred by section 41 of the Pakistan Administration of Evacuee Property Act, 1957. The Civil Court cannot question the legality of anything done under the aforesaid Act by order or at the instance of the Custodian or in respect of any matter which the Custodian is empowered under the aforesaid act to determine i,e, the law of the land and then the appellant did not approach the Costodian Department to claim the title of this plot they are shut out from claiming the same through the Civil Court on any grounds. So long as the matter was pending before the Custodian and the publication of notice was also made, the appellants did not approach the Custodian to vest them with the title of this property. The appellants have actually no case for consideration by the civil Court when the title has been transferred by the orders of the competent authority in favour of the respondents Nos. 1 to 12 Sh. Elahi Bakhsh and others.
' The question of adverse possession, however, was re-canvassed before the learned first appellate Court. Learned Additional District Judge rejected respondents' contention that they had completed the period of 12 years and thus acquired title in land in dispute even before the sale in favour of the appellants taking the view that in that event they should have approached the Custodian for necessary declaration. The aspect that they had otherwise acquired title in the property through prescription, was examined at length with reference to the evidence on the file. He concurred with the finding of the learned trial Court observing :- "The respondents have produced a notice No, 337 dated 25th May, 1953 issued by the Secretary, Improvement Trust, Rahimyarkhan to them to prove their possession Exh. P-1 and have also produced the Jamabandi from year 1945-46 Exh. 6, - Jamabandi for the year 1949-50 Exh. P. 7 then for 1953-54 Exh. P. 8 and 1957-58 Exh. P. 9 which all show the possession of the respondents and the appellants cannot claim this property by reference to rent deeds Exh. D. 3 and D. 4 and it is very much obvious that this land was barren before it was forcibly occupied by the appellants and the ownership was always in the owner when the land is barren. So far the rent deeds are concerned the lower Court rightly rejected the same by holding that the appellants have not specially shown that deeds pertain to this particular land when they own land adjoining to this land. The ownership of the appellants of the adjoining land further shows that they have trespassed on the land in suit finding the owners to have flown.To Bharat after the partition of the land."
5. In second appeal before this Court, it appears, question of title of the present appellants based on the sale deed in their favour and as confirmed by the learned Custodian , was again contested.
On merits, however, only the plea as regards limitation in filing the suit, was raised before the learned Judge in Chambers.
6. The learned Judge in Chambers appreciated the objection of the respondents with regard to the competence of the Custodian to confirm the sale in favour of the appellants and for various reasons noticed in the judgment, accepted the same. He found the document of sale in favour of the appellants to be defective as "in view of the provisions of sections 60 and 61 of the Registration Act, because it was not sealed by the Registration officer-". His Lordship then Went on to say that "the Deputy Custodian by his order dated 20th April, 1962, while holding that the application Was a very belated one, condoned the delay. The sale transaction was confirmed by him subject to confirmation by the Custodian in Whose Court the record of the case was forwarded for final order". The learned Judge then observed :- "It appears from the short and simple order dated 9th August, 1962, passed by the Custodian that he did not at all apply his mind to the question of limitation involved in the case. He only confirmed the order of the Deputy Custodian. Had the Custodian considered this important aspect of the question it is doubtful if he had finally approved of the transaction.
(5) The order of the Custodian is subject to further attack under the provisions of sections 3 and 4 of the Displaced Persons (Land Settlement) Act, 1958, which came into force on 23rd September, 1958. It was the duty of the respondents under section 3 to submit to the Rehabilitation or the Settlement Authorities full information relating to the land in dispute nor later than 90 days from the commencement of this Act.
(6) The prescribed period in which an application for confirmation of such transfer could be made was 60 days, under section 20 of the Administration of Evacuee Property Act, 1957, and the Rules framed thereunder. Those provisions were not complied with by the respondents although it was incumbent upon them to do so and also to intimate the Custodian of their interest and possession, if any of the land, before the enforcement of the D.P. (Land Settlement) Act, 1958.
(7) The D.P. (Land Settlement) Act, 1958, provided the respondents with a second opportunity under section 3 to supply information to the authority concerned, not later than 90 days from 23rd September, 1958. No action again was taken by the respondents, within the time allowed, therefore on the authority of PLD 1964 SC 58 (Qutab Ali v. Custodian), it must be held that the respondents concealed the proper facts from the Custodian and so the property became concealed property."
' It was thus concluded :- "As such Civil Court has jurisdiction in the matter despite the provisions of law shutting out jurisdiction of the ordinary Courts in respect of order passed or acts done under the Ordinance,. If the authority concerned exceeds the statutory powers vide PLD 1964 SC 126 (135).
' The learned Judge, however. It may be noticed with respect, without expressly setting aside the finding on Issue No, 5, proceeded to examine the question of adverse possession set up by the respondents and without referring to the evidence on the file. Proceeded to hold : "The respondents have pleaded their possession and dispossession, so under Article 142 of Limitation Act, it was for them to prove that their possession of the suit land was within 12 years. The entries to the Jamabandis placed on the record do not support their case and there is no other conclusive reliable evidence to prove the possession of the respondents within 12 years. Even the learned District Judge has found that the appellants may be right to some extent that the contesting respondents have never been in possession of that land. As such the suit is liable to be thrown out as barred by Limitation."
7. The judgment of the Learned Judge in Chambers, we may observe with profoundest respect, cannot be sustained. Onus of Issue No, 5 was on the appellants-plaintiffs. They had discharged this onus by pr ducing the sale deed Exh. P. 4 duly confirmed by the Custodian vide order dated 9th August, 1962. Both the orders of the Deputy Custodian date 30th April, 1962, and the Custodian dated 9th August 1962, have been exhibited on the record as Fah. P. 2 and Exh. P.
3. This finding was not assailed by the respondents in the first appeal before the Additional District Judge, The respondents-defendants therefore, were estopped to challenge the same in second appeal. Moreover, reasons such as that the Deputy Custodian could not condone the delay in moving the application for confirmation, or the order of the Custodian lacked reasons or that the parties had not reported the matter to the Rehabilitation Authorities in terms of section 3 of the Displaced Persons (Land Settlement) Act, 1958, were nor sufficient to assume jurisdiction as ousted b section 41 of Act XII of 1957. Section 41 is mandatory inter and its bare reading leaves no room for doubt that it was intended oust the jurisdiction in regard to the matters within the exclusive do of the Custodian. The learned Judge, moreover has not expressly aside the finding of the two Courts below on Issue No,
5. We are therefore, constrained to hold that the appellants are the owners of the property in dispute.
8. Questions of limitations in the institution of suit and acquisition of title by the respondents- defendants by prescription are covered by the first three issues. The learned trial Judge, as already noticed after considering the entire evidence on the file, held that the appellants-plaintiffs, were in possession of the suit land within 12 years of the institution of the suit.. It is not quite correct to say, as observed by the learned Judge in Chambers, that the learned first appellate Court did not concur with this finding of the learned trial Court. The first appellate Court, as noticed above, has given his own reasons for holding that the appellants would be deemed to be in possession of the suit land on the basis of their title as it was lying "barren". Be that as it may, both the Courts below have recorded a concurrent finding of fact that the respondents were not in possession of the suit land so as to claim adverse possession. In our view question of possession or dispossession loses significance when the suit for possession based on title is filed within the period of limitation as prescribed under Article 144 to the Schedule of Limitation Act. Article 144 prescribed a period of 12 yea for filing a suit for possession. This period of 12 years starts rennin against the plaintiff when the possession of defendants becomes adverse to him. It is only on the expiry of this period of 12 years that, under section 28 of the Limitation Act, his title in the property stands extinguished. It having been found as a fact that the land in dispute was for the first time, shown in the possession of the residents of the locality (Maqbooza Bashindgan) in the year 1960-61, question of acquiring tilt by prescription did not arise as the suit was instituted in the year 1963,
9. There is yet another aspect of the case. Evacuee property as defined in subsection (3) of section 2 means (a)
(b) ... Property of an evacuee obtained by transfer on or after the first day of March 1947, until the transfer is confirmed by the Custodian.
' Under section 7 all evacuee property stood vested and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947. As provided under section 5, the provisions of the Act and the rules or Orders made thereunder were to take effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law. As already noticed, this being a finding of fact that the defendants-respondents were not in possession of the property till 1960-61 the question of running the time against the evacuee owner before the Independence or the Custodian after the Independence, did not arise. The time would not run against this property by virtue of section 5 of Act XII of 1957. The title of the appellants was put into obscurity on account of the provisions of the evacuee laws and, therefore, they required enforceable title only when sale was confirmed in their favour by the Deputy Custodian on 30th April, 1962. The suit was instituted immediately thereafter on 30-1-1963. There is abundant case-law that this Court in second appeal cannot upset a concurrent finding of fact. In so far as the finding was that possession of the defendants- respondents was shown, for the first time. In the Jamabandi for the" year 1960-61, question of their acquiring title by prescription or the suit of the appellants plaintiffs being barred by limitation, did not arise. For the proposition that the concurrent finding of fact cannot be upset in second appeal there is abundant case-law and we need not burden this file except to cite a recent judgment of the Supreme Court reported as Mir Abdullah v. Muhammad Ali and 2 others. Rule has thus been reaffirmed : "..Both the trial Court and the lower. Appellate Court had taken into consideration the whole of the evidence on file and had discussed it in detail. The findings of fact arrived at by them even if erroneous could not be the subject of second appeal........."
10. For all these reasons the appeal succeeds. The judgment of the learned Judge in Chambers is set aside with the result that judgment and decree of the two Courts below shall hold the field. As no one has appeared to oppose this appeal, there will be no order as to costs. 1977 SCM R 280.