' AJMAL MIAN, J.- By this common judgment, we intend to dispose of the above five L.P. As. which are directed against a common judgment/ decree dated 25-6-1970, passed by a learned single Judge.
2. The brief facts leading to the filing of the above five appeals are that respondent No.1 (hereinafter referred to as the S.I.T.E.), was incorporated under the Companies Act, 1913 in 1948, mainly financed by the Government of Sind with the sole object of causing rapid industrialization of Karachi and Sind. In order to establish an industrial estate at Karachi, the Government of Sind in exercise of the powers conferred upon it under section 271 (3) of the City of Karachi Municipal Act, 1933, by their resolution No.147-A/47, dated 10-9-1947 excluded an area of about 4,500 acres from the Karachi Municipal Limits and reverted the same to the Government. By a Government resolution, dated 2- 6-1947 No.2366-F/47 of the Revenue Department and No.24-1-B/47 of the Department of Agriculture and Industries, the Government of Sind vested in respondent No.1 the aforesaid areas boundaries of which were defined in the above resolution, Exhs. 15 and 14 respectively. It may be pertinent to reproduce para. 2 of above Exh.15 as it has direct bearing to the point in controversy: "The question of control over the plots leased out prior to 10th September, 1947 to the Bone Mill and the Shark Liver Oil Factory, and to other Companies or private individuals, as also over the roads, villages and graveyards existing within the area will be decided in due course. Government also reserve the right to resume control of the land which may be required out of this area for the West Wharf Railway."
' After the issuance of the above notification and vesting of the land in respondent No.1, it took the possession of the land by fixing pillars etc. No resistance or opposition was offered except near one of the graveyards as the people of Shershah village thought that respondent No.1 was going to demolish the graveyard. After that litigation started. One Muhammad Ibrahim son of the Khamiso for self and for other members of the Brohi Jamat of Shershah village filed Suit No.80 of 1950 (hereinafter referred to as the first suit) on 28-1-1950 for declaration and injunction, alleging therein that 150 years ago the plaintiff's ancestors migrated from Khurasan, came and settled down in Sind and that the Mirs, who were the rulers of Sind at that time granted the Jamat free of rent a tract of land in perpetuity near Karachi and the Jamat settled down on the land and made a village of their own. In the above suit S.I.T.E. i.e. respondent No.1 was impleaded as defendant No.1 and Umed Ali Shah son of Shershah was impleaded as defendant No.2. By a Court order dated 2-5-1952 the Government of Pakistan and K.M.C. were impleaded. It was also alleged in the plaint of the first suit that defendant No.2's father was a saintly man and Jamat named the village after his name namely, Shershah. It was averred that S.I.T.E. had illegally interfered with the right of the plaintiff and so also defendant No.2 Umed An Shah by asserting adverse title and by leasing out some portions of land. The above suit was resisted by the above defendants in the said suit. The defendants had denied the title of the said plaintiff. After the trial of the suit, the same was dismissed by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench by a judgment/decree, dated 23-4-1959 on the ground that the plaintiff had not prayed for further relief in the form of possession and, therefore, the suit was hit by section 42 of the Specific Relief Act. L.P.A. No.19 of 1959 filed against the above judgment and decree was dismissed by a Division Bench of the said Court on 5-12-1961. However, the appeal filed in the Supreme Court, namely, C.P. No.K-29 of 1963 was allowed by a judgment dated 19-12-1963 and the case was remanded to the learned Single Judge with the direction to decide which property was in custodia legis and what property was in actual physical possession of the plaintiff in the suit and to proceed in the suit on merits in respect of the property/land which was to be found in custodia legis or-in physical possession of the plaintiff or his Jamat. After the above remand, the parties had produced further evidence, but eventually the suit was again dismissed, by a judgment and decree dated 30-10-1968 on the ground that there was no land in custodia legis and that the plaintiff also failed to prove any land in possession of his Jamat, against which the plaintiff in the said suit filed L.P.A. No.208 of 1968, which we have disposed of by a separate judgment of even date.
3. The S.I.T.E. filed Suit No.575 of 1952 (hereinafter referred to as the main suit of the S.I.T.E.), (corresponding L.P.A. No.115 of 1970), on 27-5-1952 for declaration, injunction, and possession against the legal heirs of Umed Ali Shah son of Shershah, defendants Nos. 1 to 6 and six other persons i.e. defendants Nos. 7 to 12 who had allegedly unauthorisedly occupied the small portions of the land mentioned in the plaint. The above suit was renumbered as Suit No. 48 of 1958. After that the S.I.T.E. filed four more suits on 26-1-1962 namely, Suit No.141 of 1962 (corresponding L.P.A.
No.76 of 1972), Suit No. 142 of 1962 (corresponding L.P.A. No.75 of 1972), Suit No.143 of 1962 and Suit No.144 of 1962 (corresponding L.P.A. No.77 of 1972). However, suit No. 143 of 1962 was withdrawn as the S.I.T.E. received the possession of the land from the defendant, who was transfree of the land from Saleh Shah, one of the defendants in the said suit.
' The S.I.T.E. filed yet another suit, namely, Suit No. 111 of 1965 (corresponding L.P.A. No.78 of 1972) on 18-11-1965.
' It may be pertinent to state that Suit No.141 of 1962 was filed against Saleh Shah one of the legal heirs of Umed Ali Shah as defendant No.1 and one Amin as defendant No.2 for declaration, injunction, damages and possession of land, measuring 1.35 acres allegedly illegally occupied by Amin with the consent and connivance of Saleh Shah. As Amin handed over the possession of the above land to the S.I.T.E., he was dropped from the above suit on 1-5-1969.
' It may also be mentioned that Suit No.142 of 1962 was filed against Shaleh Shah as defendant No.1 and one Mushtaq as defendant No.2 for declaration, injunction, damages and possession of land, measuring 1.35 acres allegedly illegally occupied by Mushtaq with consent and connivance of Saleh Shah. During the pendency of the above suit two more defendants were added namely, Nisar Ahmad and Gulzar Ahmad on the ground that Mushtaq handed over the possession of the suit land to the above newly-added defendants on 1-12-1966. The amended plaint was filed adding the above two persons as defendants Nos. 3 and 4 on 8-5-1967.
' It may also be stated that Suit No.144 of 1962 was filed against Saleh Shah as defendant No.1 for declaration, injunction, damages and possession of land, measuring 1.35 acres allegedly illegally occupied by Haji Ashraf Abdullah Chipa (who was impleaded as defendant No.2) with the consent and connivance of Saleh Shah. Against said Haji Ashraf Abdullah Chipa an ex parte order was passed on 19-9-1966.
' It may also be stated that Suit No.111 of 1965 was filed against Saleh Shah as defendant No.1 and Messrs Ghulam Muhammad and Shaikh Ata Muhammad as defendants Nos.2 and 3 for declaration, injunction, damages and possession of land, measuring 1.75 acres adjacent to plot No.C/147 allegedly illegally occupied by said defendants Nos. 2 and 3 on 9-4-1965.
' It may be pertinent to point out that Suits No.141 of 1962 and 144 of 1962 were contested by Saleh Shah only, whereas in Suit No.142 of 1962 and Suit No.111 of 1965 the defendants in addition to Saleh Shah had put in written statements but during the proceedings they did not participate. No evidence was produced on their behalf nor any arguments were advanced. Factually, the above two Suits were also contested by Saleh Shah alone. On 9-11-1959 it was ordered that the evidence in the first suit (Suit No.80 of 1950) shall be read as evidence in suit No. 48 of 1958. It may also be stated that on 16-10-1969 the main suit of the S.I.T.E. was consolidated with the above four suits which were also filed by the S.I.T.E. After recording evidence and after hearing the contesting parties, the learned Single Judge by his judgment/decree dated 25-6-1970 decreed the above suits. The appellant, Saleh Shah son of Qasim Ali Shah being aggrieved by the above judgment and decree filed the above five appeals on 3-8-1970. During the pendency of the above appeals Saleh Shah expired on 31-12-1972, and therefore, his legal heirs appellant Nos. 1(i) to (xviii) have been impleaded as the appellants.
' It may be pertinent to mention that the plaintiff in the first suit Muhammad Ibrahim Khamiso had lodged a police report, on the basis of which 145, Cr.P.C. proceedings were initiated in the Court of the learned VIth A.C.M. at Karachi, and the land in dispute (a piece of land) was attached by an order dated 28-8-1949 (Exh. 125 of First Suit) and the above attachment order was raised by a final order dated 31-1-1950, in which it was held that said Muhammad Ibrahim and Umed Ali Shah were in joint possession of the land in dispute.
' It may also be mentioned that Saleh Shah also filed Suit No.50 of 1959 for declaration and injunction which was dismissed on 23-9-1959 on the ground of want of service of a notice under section 80, C.P.C. on the Government. Neither any appeal was filed against the above dismissal order nor any fresh suit was filed by Saleh Shah.
4. In support of the above appeals Mr. Afzal Nabi, learned counsel for the appellants has urged as follows:
(i) That the appellant is the owner of the suit land by virtue of the grant or in any case by adverse possession.
(ii) That under above resolution No.2366-F/47 dated 2-6-1947 Exh. 15 Shershah Village has been excluded and said village includes land around it, the land transferred to the S.I.T.E. does not include the village and the land around it.
' On the other hand Mr. Syed Tariq Ali learned counsel for the S.I.T.E. has contended as under:
(i) That the appellant has failed to prove his title to the land either by virtue of any grant or by adverse possession.
(ii) That Exh.15 is to be read as a whole and land around Shershah Village was not part of the village and, therefore, only the village has been excluded under above Exh.15 and not the land around it.
5. Adverting to the above first contention of the learned counsel for the parties, it may be observed that the case set up by Saleh Shah was that his grandfather Syed Shershah was the absolute proprietor of land of Shershah village which was owned and possessed by him before the conquest of Sind by the British Government. His ownership and possession was recognized as a rent free grant in perpetuity in lieu of his meritorious services and help rendered to the then British Military Commander, Sir John Kein during the first Kabul war of 1839-45. It was further averred that Syed Shershah named the above-habitated area as Shershah village after his own name. It was also averred that after the death of Shershah Syed, Umed Ali Shah continued and remained in possession of this land without any interruption from any quarter until his death in 1951. It was further averred that the S.I.T.E. or for that matter any other person other than the answering defendants have no right or title to the land, and if any, have lost by prescription due to continuous and uninterrupted adverse possession and such right stood extinguished and waived.
' In the first suit (Suit No.80 of 1950) the plaintiff Muhammad Ibrahim examined himself and five other witnesses namely, P.W. All Muhammad Exh.16, P.W. Faiz Muhammad Exh.21, P.W. Ghulam Hussain Exh.22 and Qadir Bakhsh, Exh.37.
' The S.I.T.E. examined D.W. 1 Nazir Ahmed Exh.39 its Estate Engineer, D.W.2 Abdul Razzak, Secretary Adamjee Industries, whereas Saleh Shah examined Uzair Ahmad Exh.112, a clerk from the Registrar's office, Gul Muhammad Exh.114, Tapedar Mangopir, Muhammad Suleman son of Rab Din, Exh.115 Assistant City Survey Officer.
' K.M.C. examined Aftab Ahmad Jafri, land Surveyor of the K.M.C. Exh.120 and Ghulam Jilani, Production Manager, Grand Trunk Tannery Exh.124.
' After the remand order by the Honourable Supreme Court, Muhammad Ibrahim plaintiff in the first suit examined 17 more witnesses and Syed Saleh Shah also examined himself. The Court appointed Mr. Zaheeruddin Pathan Consultant/Architect as the Commissioner for submission of his report, who apart from his report Exh.155 also submitted a number of plans namely Exh.151, Exh.153, Exh.154 and Exh.154/1. The above ocular and documentary evidence are part of the record of the first suit (Suit No.80 of 1950) and the same are reflected in the paper book of L.P.A. No.208 of 1968 except the above plans and various other plans produced by the parties.
' The S.I.T.E. in its above five consolidated suits examined P.W. 1 Fateh Muhammad, Land Surveyor K.M.C. Exh.9, P.W. 2 Nazir Ahmad Civil Engineer S.I.T.E. Exh.10, P.W.3 Muhammad Amin, Deputy Collector and Land Requisitioning Officer Exh.11, P.W. 4 Gul Hassan, Assistant City Survey Officer Karachi Exh.12, P.W.5 Mirza Kadir Beg, Inquiry Inspector of the K.M.C. Exh.13, whereas Saleh Shah produced Aftab Ahmad Jafri, Land Surveyor K.M.C. Exh.14, himself as D.W. 2 Exh.15, D.W. 3 Hussain son of Khamisa resident of Shershah village Exh.16, Fateh Muhammad another resident of Shershah Exh.17 (D.W.4), D.W. 5 Abdullah City Surveyor in C.D's. office, Exh.18, D.W. 6 bur Muhammad a resident of Shershah village Exh.19, D.W. 7 Shah Beg a resident of Shershah village Exh.20, D.W. 8 Hussain son of Haji Suleman a resident of Shershah village Exh.21.
' The documentary evidence comprised of various plans, old correspondence between Umed Ali Shah, Collector's office and K.M.C., extracts from the revenue record of rights, Afrin Namas in the name of Umed Ali Shah, and a mortgage deed of 1890 etc.
6. We have gone through the ocular as well as documentary evidence on record and we find that there is no documentary evidence as to the title of Shershah to the Shershah village or the land around it. The ocular evidence produced by Saleh Shah referred to hereinabove is of no assistance and even otherwise does not inspire confidence.. Syed Saleh Shah examined himself in the above five consolidated suits as well as in the first suit (Suit No.80 of 1950). He reiterated the stand taken by limed Ali Shah and by him in the present litigation. In his plaint of Suit No.50 of 1959 (which was dismissed on 23-9-1959 on the ground of want of service of a notice under section 80, C.P.C., as pointed out hereinabove) he had averred that the Sanads granted by General John Kein the British Commander were lost in flood but in his deposition before the Court, he came out with the assertion that Nasir Shah who got married with the widow of Sher Shah, out of spite destroyed the Sanad documents. The above two inconsistent pleas stand belied by the fact that he had produced some very old documents in the first suit (Suit No.80 of 1950) namely, a Sanad dated 13/17-10-1921 issued by the Collector of Karachi conferring the privilege of a chair in the Collector of Karachi Darbar on Syed Umed All Shah son of Sher Shah Exh.23. Afrinnamas of the years 1917 to 1928 Exhs.25 to 34 in the name of Syed Umed Ali Shah son of Sher Shah. Letter of appreciation for rendering services during the plague in Karachi in 1898 addressed to Syed Nasir Shah Exh.n (all exhibited in Suit No.80 of 1950) i.e. the first suit.
' In our view, the learned single Judge has rightly concluded that factually there were no Sanads in favour of Syed Sher Shah or Syed Umed Ali Shah.
' Mr. Afzal Nabi has pressed into service the above old documents in furtherance of Saleh Shah. In our view, the above documents do not establish title of Sher Shah or his successor-in-interest either to the Sher Shah village or the land around it. At the most the above documents indicate that umed All Shah was a respectable person having some influence in the Government circle, and has been described in about two letters as Zamindar.
' Mr. Afzal Nabi then referred to the above mortgage deed on non-judicial stamp paper of Re. 1 and Rs. 2 dated 20-4-1890 Exh.15/5, whereby umed Ali Shah had created a mortgage in favour of Sanbhoon son of Sooba Khan Brohi shopkeeper in respect of an agricultural land comprising 18 survey numbers situated in Makan Umer Golo, Tapo Hub, Taluka Karachi against a loan of Rs.400. It has been vehemently urged by Mr. Afzal Nabi that if umed Ali Shah would not have been the owner of Sher Shah village and the land around it, he could not have created the above mortagage in 1890. In our view, the above contention is untenable for more than one reason. Firstly, no survey numbers have been given in the above mortgage deed, on the contrary umed Ali Shah has been shown as the resident of village Lyari quarters, whereas the alleged mortgaged land was shown to have been situated in Makan Umer Golo, Tapo Hub, taluka Karachi and not in Shershah village. The conclusion that this land was not situated in Shershah village is further strengthened by, the description of boundaries, which indicates that 14 survey numbers were south of village Shershah.
Secondly, the land around the Shershah village had survey numbers the detail of which is given by Suleman Assistant Surveyor Exh.115 of the First Suit (Suit No.80 of 1950). The above witness had produced three property registers, one relating to Shershah village of the year 1873 and two other inquiry registers Waling to 1921-22 and 1941-42. He has deposed that the village site of Shershah was surrounded by certain plots of land which were agricultural land which were surveyed and had Survey Nos. 81, 82, 83, 84, 85, 88, 91, 92 and 93. He has further deposed that according to the entries relating to the period 1870 to 1920, the above survey numbers were leased out temporarily for five years in 1907 upto the year 1930. He has also deposed that there were entries in the register relating to the subsequent period also upto 1940. He has also deposed that in 1939 Government resumed the possession of Plot Nos. 81, 82, 83, 84, 85 and 88 from the lessees and transferred the possession of Plot Nos. 82,83,84 and 85 to the Corporation for the extension of sewage farm and that the possession of Plots Nos. 81 and 88 was transferred to the Military Authorities for laying water pipelines in 1947. He also produced the copies of the relevant entries from the above registers (Exhs.81 to 86 of the first suit). The above old record belies the appellant's contention that the subject-matter of the above mortgage was the land around the Shershah village or that Shershah had any title to the land around the village. It may also be pointed out that above witness was examined by the appellant in the above first suit (Suit No. 80 of 1950) as his witness, and therefore, his own witness has belied the appellant's case. Thirdly, the above mortgage deed executed by Umed Ali Shah cannot be used as a piece of evidence as it is not a document containing the admission adverse to his interests.
' Mr.Afzal Nabi learned counsel for the appellant also referred to the correspondence exchanged between Umed All Shah, Saleh Shah and Government functionaries. In this connection, he has referred to Umed Ali Shah's letter dated 9-1-1930 addressed to the Land Manager and Architect, Karachi Municipality, Exh.15/1, in which it was stated that the writer was surprised to read the Land Manager's letter No.65, dated 2-1-1930 describing the use of but as a Masjid as unauthorised. It was also stated that the but or Masjid was erected by Sher Shah, the owner in his lifetime prior to 1901. It was also asserted that the village was not within the municipal limits. The Land Manager's letter dated 23-5-1941 addressed to Umed All Shah Exh.15/2 intimating to him that the excavation of earth near the village had been stopped. Land Manager and Architect, Municipal Corporation's letter dated 2-7-1940 addressed to Syed Umed All Shah Exh.15/3 informing him with reference to his application dated 29-3-1940 that the Municipal Corporation did not propose to acquire Shershah village for Sewage Farm cultivation, Chief Officer, Municipal Corporation's letter dated 9-5-1940 addressed to Umed All Shah with reference to his letter dated 22nd ultimo regarding unauthorised occupation of his land by some persons informing him that he may take action against unauthorised persons in a Court of law. Exh.15/6, Umed Ali Shah's application dated 25-4-1921 addressed to the Commissioner in Sind Karachi stating therein, that his father Sher Shah had expired, who had a village in his name as a Jagir for his good services to the Government and that no taxes were levied on that Jagir by either parties (Government as well as Zamindar). It was further stated that the writer (Umed Ali Shah) has rendered valuable services to the Government and because of that Afrinnamas for good efficient services were issued to him. He requested that some land be granted to his two sons and the land in his father's name be transferred in his name, Umed Ali Shah's application dated nil addressed to the Administrator of Karachi in response to the Press note issued by him in the English Dawn of 21-10-1948 Exh.15/7 informing the public that Umed All Shah had no authority to grant leases of the village land. It was stated that he was surprised to read the above Press note and that his title, to the property namely the area of land comprised of Survey Nos. 82, 83, 84, 85, 86 and 87 known as Shershah village be appreciated. Reference was also made to his previous letters addressed to the Administrator of Karachi dated 20-9-1948, 27-9-1948 and 4-10-1948. It was also stated that the entire village was given to his father namely, Sher Shah by her Majesty Queen Victoria by a grant by virtue of which these plots were owned by his father and had been so recorded in the record of rights. Reference was also made to certain other letters.
' Office memorandum from the Health Division, Karachi dated 21-6-1950 stating therein that the Ministry of Interior (Home Division) had advised that the City Deputy Collector had arrived at a correct finding in the matter. The land should be treated as Corporation's land and administrative action should be taken to resume possession of the land leaving Umed Ali Shah to seek his remedy in a Court of law.
' Secretary to Karachi Administration letter dated 4-7-1950 addressed to the Collector of Karachi Exh. 15/9 pointing out the above office memorandum Exh.15/8 ' One Azizur Rehman Khan's application dated 19-9-1948 addressed to the Administrator Karachi Exh.15/10 with reference to the leasing out of land in Shershah village by one Pakistan General Commission Agency.
' Syed Saleh Shah's letter dated 25-10-1948 addressed to the City Deputy Collector Karachi Exh.59 asking for a copy of the above applica tion Exh.15/10.
' One Sher Shah Attorney of Umed Ali Shah's application dated 12-1-1949 addressed to the City Deputy Collector of Karachi Exh.15/11 requesting him that prohibitory Order No.GTS/1436/1948 in respect of Shershah village be vacated.
' Umed All Shah's application dated 15-3-1949 addressed to the City Deputy Collector Karachi Exh.15/12 declining to appear before him in connection with the inquiry about the land in Shershah village for the reasons stated therein.
' Umed Ali Shah's application addressed to the Administrator of Karachi dated 3-5-1950 Exh.15/13 stating therein that a Sub-Inspector of Chakiwara attached to Baghdadi Police Station had taken certain documents mentioned therein from him in connection with the inquiry of Shershah village.
' Secretary Karachi Administration's letter addressed to Umed All Shah dated 3-6-1950 Exh.15/15 informing him that all the connected papers were submitted to the Central Government and after the receipt of the papers his request for the return of the documents would be considered.
' Deputy Collector's letter dated 17-3-1949 addressed to Umed Ali Shah Exh.15/16 asking him again to appear in the inquiry. There are some other correspondence exchanged between Umed All Shah and the Karachi administration namely, Exhs.15/18, 15/19, 15/20, 15/21, 15/21-A, 15/22, 15/23, 15/24 and 15/31. The above exhibits comprised of mostly the applications of umed Ali Shah of the years 1948, 1949 and 1950 reiterating his title to the Shershah village, after the above Press note dated 21-10- 1948. All the above correspondence/applications do not prove title of Syed Sher Shah or of his successors in title to the land around the village. At the most it shows that no taxes of rent were recovered by the K.M.C. or Government from the occupants of Shershah village, nor the ocular evidence referred to hereinabove proves the factum of title of Shershah to the land around the village. The residents of the village as referred to hereinabove have deposed that Shershah was the owner of the village who used to allot land to the villagers without charging any rent etc. It may be pointed out that under para. 2 of the resolution dated 2-6-1948 Exh.15 the village has been excluded. The subject-matter of the suits is the land around the village and not the village though it has been contended by the learned counsel for the appellant that the land around the village is a part of the village.
7. The testimony of Muhammad Suleman the Assistant Survey Officer, Exh.115, Nazir Ahmad Exh.39 and Aftab Ahmad Jafri Exh.120 recorded in the first suit (Suit No.80 of 1950) and the S.I.T.E's. ocular and documentary evidence in the instant suits belie the appellant's case. It may be pointed out that P.W. 3 Muhammad Amin Exh.11 has produced an order of the Deputy Land Commissioner dated 2-10-1959 Exh.11/1 passed upon L.C. Forms I and II filed under M.L.O. 64 by declarants Syed Saleh Shah and Syed Ismail Shah sons of Qasim Ali Shah, in which it was held that the said declarants had no title inter alia to the said land, namely, the land around the village Shershah. It may also be pertinent to refer to an inquiry conducted by the City Deputy Collector Karachi Mr. Ben F. D'Souza in or about 1940 upon the report of his Inspector of City survey that Umed All Shah was selling land situated around the village of Shershah. He submitted his final report on 28.5. Exh.74 (year is torn, probably it was 1949) of Suit File No.80 of 1950, in which he traced out the history and pointed out that Umed Ali Shah had no title to the land. No appeal was filed by Umed Ali Shah against the above order.
' It may be observed that on the basis of the record, it can safely be concluded that Saleh Shah failed to prove title to the land around the Shershah village on account of alleged grant by the British Government.
8. As pointed out hereinabove the question remains, whether he has succeeded in proving his title by adverse possession. The question arises what limitation period/the period of prescription will be applicable to the instant case namely 12 years, 30 years or 60 years. The learned Single Judge has examined the appellant's case as per his averment that 12 years period is applicable and has held that even on the basis of 12 years period no case of adverse possession has been made out. In this regard it may be pertinent to mention that Mr. Syed Tariq Ali has referred to the following cases:
(i) John Clark v. G.H.D. Elphinstone and W.H. Anderson, Appeal Cases Vol. VI, 1881 page 164, in which the House of Lords while construing the provisions of Ceylon Ordinance No.8 of 1834 and No.22 of 1871 observed that although acts done upon parts of a district of land may be evidence of possession of the whole, yet as regards lands within a disputed boundary acts of ownership by either party outside the boundary are no evidence of title to the lands within it.
(ii) Ramzan and others v. Fakir Muhammad and others AIR 1925 Sind 201. In the above case a Division Bench of the Sind Chief Court with reference to a plot of land measuring 636 square yards held that where a party is in possession of a part of land with defined boundaries in assertion of claim to whole is evidence of possession of the whole.
' Omanhene Kobina Foli v. Chief Obeng Akessee AIR 1934 P C 185 in which the Privy Council while hearing an appeal against a judgment and order of West African Court of Appeal with reference to a dispute relating to landed property observed that: "In questions of disputed ownership of land, occupation and possession of portions of the disputed area is not relevant evidence of title to the whole area unless it can be reasonably attributed to a right to the whole area. The portions so occupied may be so numerous and so closely adjoining that they practically cover the whole area. Alternatively, the occupation of a portion may be reasonably attributable to a right of ownership in a larger area, as, for instance, occupation of a portion of a field may be attributed to a right extending over the whole field. But the area must be defined; in other words, it must be attibutable to an existing boundary."
(iv) Secretary of State v. Chimanlal Jamnadas and others AIR 1942 Born. 161, in which a Division Bench of the Bombay High Court held that mere fact that a person remained in long possession of the Government land without any title would not divest the Government from its ownership or the title to resume the land so long as the person has not proved any acquisition of right by him by adverse possession against the Government.
(v) Zainab Bai v. Ibrahimji and others PLD 1962 (W.P.) Kar.
209. In the above case a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, quoted with approval certain passage on the question of adverse possession given in the commentary by Rustamji on the Limitation Act at page 826 of its sixth edition, which reads as follows: "No matter in what jurisdiction the determination of what constitutes adverse possession may arise, the decisions and text books are unanimous in declaring that the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation. Whenever any of these elements in lacking, no title by adverse possession can ripen."
(vi) Lal and another v. Mst. Jante, 1968 SCMR 131, in which the Honourable Supreme Court of Pakistan while dismissing the appeal against the judgment of the erstwhile High Court of West Pakistan, Lahore observed that entries in the record of rights (Jamabandis) to the effect that tenant claimed adverse possession are not such entries of unequivocal assertion of hostile title. It was held that it is necessary for a tenant asserting adverse title to land originally taken as a tenant to give notice to that effect to the landlord.
(vii) Muhammad Hakim v. Sher Alam, 1973 SCMR 284. In the hbove case the Honourable Supreme Court of Pakistan while declining to grant leave against the judgment of the Peshawar High Court observed that adverse possession must be open, overt and hostile to the knowledge of the true owner and that mere entry in the revenue record would not support the plea of adverse possession.
'It is evident from the above-cited cases that possession of a part of land of a defined survey number may be a piece of evidence for adverse possession of the whole if possession of part of land is in relation to the assertion of the whole survey number but every possession of a portion of a survey number cannot constitute adverse possession for the entire land. It is also evident that in order to constitute an adverse possession, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation and if any of the above elements is lacking the claim of adverse possession will be defeated. It is also clear that simpliciter possession by an unauthorised occupant of Government land does not result in adverse possession. Nor even an entry as to the adverse possession in the revenue record would be sufficient piece of evidence to prove adverse possession.
' In the instant case the revenue record produced by the appellant's own witness Muhammad Suleman, City Surveyor referred to hereinabove belies the plea of adverse possession. It may also be pointed out that Umed Ali Shah in his undated application filed after October 1948 Exh.15/7 referred to hereinabove had averred'that Sher Shah's property was comprised of Survey Nos. 82, 83, 84, 85, 86 and 87. He has not referred to any other survey numbers. The above survey numbers were subject to leases from 1900 onwards upto 1939/1940. The Government issued press note on 21-10-1948 informing the public that Umed All Shah had no right or title to deal with the land in Shershah village or around the village. The S.I.T.E. was handed over the possession of the land mentioned in Exh.15 in 1948. Admittedly the respondent is no longer in possession of the land which has already been handed over to the S.I.T.E. and, therefore, even otherwise the plea of adverse possession is no longer available in respect of the above-said land and there is no adverse possession. The S.I.T.E. had filed the above five suits in respect of small portions of the land which were unauthorisedly occupied by the defendants referred to hereinabove, in addition to reliefs of declaration and injunction.
' The learned Single Judge has rightly pointed out the discrepancies as to the area which Saleh Shah was claiming. In declaration filed under M.L.O. 64 referred to in Exh.11/1 the order dated 2-10- 1959, it has been pointed out that Saleh Shah as well as his brother Ismail Shah had filed declaration in L.C. Forms I and II. In columns 3 of L.C. Form I Saleh Shah had shown the area more or less 15,000 acres but in column 12 of the same Form he had been shown an area of 10,000 acres exclusively in his possession, while his brother Ismail Shah who had also allegedly inherited equal share from his late father Syed Qasim All Shah had mentioned in columns 3 and 12 of L.C. Form I only an area of 5,000 acres, though in the instant suit both the brothers had claimed equal share by inheritance from their father. In Suit No.50 of 1959 filed by Saleh Shah he sought declaration that he was the sole owner of 15,000 acres of land inherited from his ancestors Umed Ali Shah and Sher Shah, which was dismissed on 30-9-1959 for want of service of a notice under section 80, C.P.C. as pointed out hereinabove. Additionally, in the instant suits the S.I.T.E. had claimed the ownership of the land measuring about 4,000 acres. The appellant has als claimed the said area in his written statements. However, during the arguments Mr. Afzal Nabi, before the learned single Judge had produced Exh.Z-4 (a plan) and according to Saleh Shah's counter-affidavit of 11-6-1970 in the suit they claimed about 2,600 acres. P.W. 24 Zaheeruddin Pathan Architect, who was appointed Commissioner in the first suit (Suit No.80 of 1950) in the plan Exh.154/1 indicated the village area in red colour but has not given the area in terms of acreage.
' Mr. Afzal Nabi has also referred to the factum that umed All Shah granted 576 leases and got them registered with the Sub-Registrar's Officer during the period from 30-9-1948 to 27-2-1950 Exhs.113 to 113/573 as proved by D.W. 3 Uzair Ahmad a clerk from the Registrar's Office, District Karachi Exh.112 in the first suit (Suit No.80 of 1950) in addition to the oral grant of about 2,500 leases.
In our view, the above leases cannot prove adverse possession of the appellant over the portions of lands in dispute, which are the subject-matter of the present suits, nor it will nullify the factum of taking over of the possession by the S.I.T.E. of the land covered by resolution dated 2-6-1948 Exh.15.
Then it was contended by Mr. Afzal Nabi that in section 145 proceedings the A.C.M. by his order dated 31-1-1950 (Exh. 19 of the firt suit) has held that Shershah village was in possession of the appellant and Muhammad Ibrahim Khamissa the plaintiff in the first suit (Suit No.80 of 1950) and, therefore, the above order also lends support to the appellant's case. In this regard, it may be observed that the learned A.C.M. by his order dated 31-1-1950 passed under section 146(1), Cr.P.C.
(Exh.125 of the first suit) had attached a piece of land and not the entire village, namely the piece of land in front of Shershah village bounded on the North by Shershah village, East by Dhori, South by Lyari River and West by Hub Road which according to P.W. 24 Zaheeruddin Pathan of the first suit is marked as 'M' in Plan Exh.
151. The above-attached triangular land with its base measured on the plan about 1" with its two sides each measuring about 1" and its height about 4". On the basis of the scale of the above plan namely 1" equivalent to 800 feet, the area works out about 2,646 square yards only. The above area in the alleged joint possession of the appellant and Muhammad Ibrahim would not prove adverse possession of the appellant either over the entire Shershah village or the land around it. The learned A.C.M. in his above order dated 31-1-1950 Exh.19 has not said about the physical possession of the appellant and Muhammad Ibrahim in respect of the entire village or the land around it, but had referred to the land in dispute which was only the above small piece of land measuring 2,646 square yards. Additionally the above finding recorded in a summary criminal proceeding is not binding in a civil proceeding.
9. Reverting to the second contention of Mr. Afzal Nabi that under para. 2 of Exh.15 i.e. under the resolution dated 2-6-1948 Shershah village is excluded and since the land around the village is part of the village, the S.I.T.E. has no title to the said land as it has not been transferred the same, it may be observed that Mr. Afzal Nabi has referred to subsection (21) of section 3 of the Land Revenue Code, 1879 (Bombay Act V of 1879) which gives the definition of the term 'Village' by providing that the village includes a town or city and all the land belonging to a village, town or city.
In our view, the above definition is not relevant for the purposes of the present case. It may be observed that under the above resolution No. 2366-F/47 Exh.15 the Government vested in the S.I.T.E. the land, boundaries of which were mentioned in the accompanying statement namely; "North:-- From Boundary Pillar No. 120 to Boundary Pillar No. 140 South:-- From Boundary Pillar No. 19 to and along the Municipal Sewage Farm upto the Western termination of the Sewage Wall and thence to the Causeway crossing on the Lyari River and therefrom along the northern bank of the Lyari River cutting the Mauripur Railway and going upto Boundary Pillar A and thence to Boundary Pillar No. 80.
East:-- From Boundary Pillar No. 140 to Boundary Pillar No. 144 and thence in a straight line to east of Orangi Nai to Boundary Pillar No. 19.
West:-- From Boundary Pillar No. 80 along the eastern boundary of Mauripur Airport to a point on the Hab Chowki Road where the the original Municipal Boundary crossed the road and thence along the former Municipal Boundary Line upto Boundary Pillar No. 120."
' In para. 2 of the above resolution quoted hereinabove in para. 2, it was provided that the control over the plots prior to 10-9-1947 to the Bone Mill and the Shark Liver Oil Factory and to the other Companies or private individuals as also over the roads, villages and graveyards existing within the area would be decided in due course. The above resolution was preceded by certain internal correspondence by the department and notings. In this regard, reference may be made to the Secretary to the Government of Sind, Revenue Department's letter dated 17-11-1947 addressed to the Collector of Karachi, Exh.18/1, City Deputy Collector's letter dated 24-3-1948 addressed to the Collector of Karachi Exh .18/3 and note dated 20-3-1948 Exh .18/4 of the City Deputy Collector, Karachi which clearly indicate that only the village where the people had their hutments and houses were excluded and not the land around the village. It cannot be denied that the land transferred and of which the possession was taken over by the S.I.T.E. falls within the boundaries mentioned in the statement accompanied to the above resolution dated 2-6-1948 Exh.15. In this regard, reference may be made to map of a town and environments of Karachi as corrected upto 1894 Ex. 151, and Exh.49 an Index map to the new industrial area surveyed in 1947 issued by the Director-General Survey of Pakistan which indicate that Shershah was a very small/tiny village. Mr. D'Souza in his above report Exh.74 of the first suit file has also dilated on this aspect. The other documents on record also indicate that initially the village was on 3-4 acres but was extended with the passage of time. After partition of India across the road, a new colony under the name of Shershah Colony came into existence as pointed out by P.W. Zaheeruddin Pathan the Commissioner appointed in the first suit (Suit No. 80 of 1950) in his plan Exh.154.
10. We are, therefore inclined to hold that the land around the village which have survey numbers is not part of the village as contended by the (learned counsel for the appellant.
' The learned Single Judge has decreed the suits of the S.I.T.E. to the extent of declaration, injunction, and possession for the portions of the lands mentioned in the suits and has not awarded any damages for the use. The judgment is well-reasoned and does not call for any interference in these appeals.
11. For the aforesaid reasons, the above appeals have no merit, and therefore, they are dismissed.
There will be no order as to costs.