' On 4-6-1963 Nabi Bukhsh predecessor in interest of Bashir Ahmed and nine others, the appellants, filed suit for the possession of suit land against Mian Taffazal Hussain predecessor of Muhammad Hussain and nine others, the respondents before the Senior Civil Judge Rahimyar Khan on the basis of title, possession and dispossession within 12 years before the filing of the suit.
2. In the plaint it was averred that Haveli Khan, the original owner of the suit land had sold the land alongwith Ihata to him (Nabi Bukhsh) on 3-2-1953 vide registered sale-deed dated 8-3-1953 and delivered possession to him. It was further averred that after the delivery of the possession of the suit land to him (Nabi Bukhsh), Tuffazal Hussain deceased defendant predecessor of Muhammad Hussain and 8 others and Ghulam Muhammad respondent/defendants took unauthorised possession of 23 killas of rectangle 62/10 and that Muhammad Ismail defendant/respondent and the predecessor of the other respondent-defendant took possession of kills Nos. 5 and 6 of rectangle No.
62. Nabi Bukhsh deceased the predecessor of the appellants also claimed Rs. 4,204.96 as mesne profits. The plaintiff produced Muhammad Abdullah P.W. 1, Khushi Muhammad P.W. 2, Abdul Ghafoor P.W. 3, Muhammad Yaqoob P.W. 4, Khadim Hussain P.W. 5, Khan Muhammad Patwari P.W.
6, Ali Muhammad Shah, the attorney of Haveli Khan deceased and himself appeared as P.W.
7. He tendered documents Exh. P1 rozenamcha dated 17-3-1953 and Exh. P2 rozenamcha dated 26- 4-1963. On the other hand the defendants produced Rehmat Ullah D.W. 2, Muhammad Sharif D.W. 3, Wazir Khan D.W. 4, Jalal Din D.W. 5, Muhammad Ismail D.W. 6, Abdullah D.W. 7, Atta Ullah D.W. 8 and Tuffazal Hussain appeared as D.W.
1. They tendered documents Exh. Dl. Panchayat-nama, Exh. D2 judgment of the civil Court and D4 decree sheet. The suit was resisted whereon 11 issues were framed. The issues are as under:-
(1) Has the plaintiff no cause of action to bring this suit? O.D.
(2) Has the plaintiff no cause of action to claim mesne profits of the property in dispute? O.D.
(3) Has this suit been filed within time? O.P.
(4) Is the plaintiff estopped from raising pleas different from the written statement filed in a suit brought by defendants Nos. 1 and 2 against the plaintiff and others? O.D.
(5) Was the father of defendant No. 3 an owner of the property in dispute at the time of its sale in plaintiff's favour? O.P.
(6) Did the plaintiff purchase the property in dispute from the father of the defendant No. 3 and paid the consideration for it? O.P.
6.A) What is the effect of the abatement of the suit filed by defendants Nos. 1 and 2? O.P.
(7) Was the sale-deed regarding the property in dispute obtained through fraud, collusion and undue influence? O.P.
(8) Are defendants Nos. 1 and 2 protected under sections 41 and 53-A of the Transfer of Property Act? O.D.
(9) Is the plaintiff a bona fide purchaser of the land in dispute for value without notice? If so what is its effect on this suit? O.P.
(10) Is the plaintiff entitled to receive any amount as mesne profits. If so what amount and from whom? O.P.
(11) Relief.
' The trial Court finding all issues against Nabi Bukhsh plaintiff dismissed the suit on 31-7-1965.
Feeling aggrieved by this judgment and decree, Nabi Bukhsh filed appeal before the learned District Judge Rahimyar Khan who dismissed it on 13-5-1966, hence this second appeal.
3. Before me concurrent findings of the Courts below on issues Nos. 3, 6, 6-A, 7 and 8 have been challenged. The learned counsel for the appellants submitted that Nabi Bukhsh, the predecessor- in interest of the appellants had purchased the suit land through registered sale-deed on 8-3-1952; the suit having been instituted on 25-5-1963, being within 12 years, was well within time. The learned counsel further submitted that the findings of the Courts below on issues No. 6, 6-A, 7 and 8 were against facts and law and that the evidence and circum stances relatable to these issues were not properly examined and appreciated by the Courts below. Conversely the learned counsel for the respondents supported the judgments and decrees of the learned Courts below.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned councel for the appellant. As for issue No. 3 of limitation, both the Courts below have concurrently held that Nabi Bukhsh plaintiff and Haveli Khan as well, were never in possession of the suit land within 12 years before the institution of the suit. Since it was a suit for possession, therefore the material question for determination is as to which out of the two articles i.e. 142 and 144 of Limitation Act, would be applicable to the case in hand. It is by now well settled that the distinction between the two articles is that if the plaintiff brings the suit on the allegation, that he was in possession and was subsequently dispossessed within 12 years, prior to the filing of the suit, the case would be governed by Article 142, but if the plaintiff ha never been in possession and his claim is based on title alone and not on possession, then Article 144 would be attracted. In the instant case Nabi Bakhsh plaintiff categorically stated in the plaint that after having purchased the land through registered sale-deed, he acquired its possession. Thereafter he went to Chak No. 51/P and when he came back on the following day, he discovered that the defendant Tafazzal Hussain and another who were the influential persons had taken the possession of Killas Nos. 3 to 25 of rectangle No. 62/10 and that Killas Nos. 5 and 6 of rectangle No. 62 were taken possession of by Muhammad Ismail defendant and the predecessor-in-interest of defendant Allah Rakha, Mst. Rehmat Bibi, Mst.
Sardaran, Mst. Sharifan and Mst. Hussain Bibi and Mst. Rasul Begum. In his statement before the Court, he also stated so. Since dispossession implies coming in of a person and driving out of another person from the possession, it is therefore very much obvious that the plaintiff had brought the suit on the allegations of his dispossession within 12 years before the filing of the suit. That being the factual aspect of the matter I am of the view that the suit is covered by Article 142 and as such the onus was on the plaintiff to prove his possession and subsequent dispossession within 12 years before the institution of the suit. Whether Nabi Bukhsh was dispossessed within 12 years before the suit or not, is a question of fact. Both the learned Courts below after having applied conscious mind, to the relevant evidence on the file have held against the appellant. The learned Courts below have given reasons for the conclusion arrived at by them which find support from the material on record. The finding of the Courts below do not suffer from misreading/non-reading of any material evidence. For all these reasons, I am convinced that the Courts below have rightly decided the issue of limitation against the plaintiff. Since the suit was not filed within time; the same could have been dismissed on this score alone.
5. Issue No. 6 is again an issue of fact. The Courts below have concurrently decided this issue against the appellant. The learned District Judge after having discussed the entire relevant evidence produced by the parties has stated that:- "Keeping in view the analysis of the evidence of both the parties which I have discussed earlier I am of the opinion that the plaintiff appellant failed to prove if he purchased the property in dispute from Haveli Khan and paid its consideration. I have already come to the conclusion that possession of the property was never transferred to Nabi Bukhsh appellant. I may also mention that the evidence of D.W. 7 Abdullah is material because according to him, his father never sold the land to the plaintiff-appellant, therefore in my opinion, issue No. 6 has been rightly determined by the learned trial Judge."
' The learned counsel for the appellant has not been able to shake these observations of the learned District Judge. I further find that both the Courts have not only properly appreciated Issue No. 6-A, 7 and 8 but have also come to right conclusions. The submissions made by the learned counsel do not hold any water.
6. For what has been stated above, it is not a fit case for inter-ference with the concurrent finding of the learned Courts below. The appeal is, therefore, dismissed leaving the parties to bear their own costs.