' AJMAL MIAN, ACTG. C. J.-By this common judgment we intend to dispose of the above two appeals. The brief facts leading to the filing of the above appeals are as follows :- R. F. A. No, 9 OF 1985
1. The respondents filed a suit on 10th December, 1980 in the Court of Senior Civil Judge, Quetta against the present appellant for the recovery of possession of land measuring 1500 sq. Ft.
Alongwith a but (hereinafter referred to as the "suit property") situated in Khasra No, 1327, Ward No,
21. Tehsil Quetta, on the basis of the averment that they had purchased the land bearing No, 1327 Ward No, 21, Quetta, measuring 53,610 sq. Ft. (hereinafter referred to as the 'plot') for a consideration of Rs, 4,17,032 from Mrs. R. R. Khambatta daughter of Mr. F. B. Patel on 2nd May.
1975. The original number of the suit is not available on record. However, the above suit on transfer to the file of learned Additional District Judge, Quetta was assigned Suit No, 4 of 1982 and thereafter Suit No, 76 of 1985. It was also averred that on the above plot there was a small but consisting of four rooms covering an area of about 1500 sq. Ft. As shown in the map. It was also averred that the appellant/defendant was an employee of Mr. F. B. Patel in his St. John Mills and he was given the suit property as an employee. It was further averred that the possession of the land was delivered to the respondents, but the appellant and Mr. F. B. Patel requested the respondents for 2-3 months time for vacating the suit property as the appellant was to make alternate arrangements. It was also averred that in spite of the above promise, the appellant failed to hand over the possession and, therefore, the matter was reported to the Martial Law Administrator, Zone "0", where the appellant gave an undertaking to vacate the suit property by. 15th November, 1977. It was also averred that instead of vacating the suit property, by 15th November, 1977 the appellant filed a Constitutional Petition No, 167/77 in the High Court of Baluchistan, ' which was dismissed. On the basis of the above averments, the above suit was filed for the above relief. The appellant filed his written statement on 10th December, 1980 wherein, he raised legal objections as to the valuation of the suit property, the validity of the sale transaction in question and also pleaded adverse possession. However, he admitted the factum that he was given the suit property in 1947 while in service of Mr. F. B. Patel for his good services for his life. He also denied the factum that he had promised to vacate the suit property. He pleaded that the signature on the above undertaking to vacate the suit property, given by him before the Martial Law Authorities was obtained under duress. On the basis of the pleadings of the parties, the following five issues were framed "(1) Whether the suit has not been properly valued for the purpose of court-fee ?
(2) Whether the property in question was not lawfully transferred in the name of the plaintiff ?
(3) Whether the plaintiff are owner of the property in dispute ?
(4) Whether the defendant is in adverse possession of the disputed property if so to what effect ?
(5) Whether the plaintiff are entitled to the possession of the property in question ?
The respondents in support of the case examined one of the respondents Mahmoodul Hassan Exh.
18 and three witnesses, namely, P. W. 1 ' Muhammad lqbal, a Patwari for proving the mutation in respect of the plot (Exh 14), P. W. 2 Bahauddin, an employee of Mrs. F. B. Patel (Exh. 15) and P. W. 3 Mr. F. B. Patel (Exh. 13), whereas, the appellant examined a W. 1 Muhammad Shafi, a representative from the office of a Magistrate 1st Class for proving Exhs. D/1, 0/2 and D/3 (Exh. 16), D. W. 2 Muhammad Javed Ghani for proving Exhs. D/4, D/5 and D/6 (Exhs. 17). He also examined himself as Exh. 19 at page 39 of the Paper Book.
' After hearing the parties, the learned trial Court decreed the suit on 1st April, 1985 and dismissed the appellant's suit referred to hereinabove. Upon appeal bearing No, R. F. A. 4 of 1985 to the High Court, the case was remanded by a judgment, dated 10th September, 1985. After the above remand order, the learned trial Court allowed the appellant to cross-examine the respondent No, 1 and also examined the appellant. The suit was again decreed by judgment, dated 10th October, 1985.The appellant being aggrieved by the above judgment and decree has filed this appeal. R. F.
A. No, 12 OF 1985 ' The appellant filed Suit No, 116 of 1979 on 20th May, 1979 for declaration that the respondents were not vested with the power to evict appellant from the suit property without due process of law, that the sale entered in the revenue record on 1st May, 1975 in favour of the respondents was illegal, void and unwarranted and prayed for permanent injunction for restraining the respondents from ejecting the appellant without due process of law. The respondents filed written statement on 23rd June, 1979. On the basis of the pleadings of the parties, the following eight issues were framed "(1) Whether the plaint needs amendment due to want of particulars of the suit property ?
(2) Whether the suit is not maintainable in view of the contradictory pleas of the plaintiff mentioned in paras. 1 to 4 and 5 of the plaint ?
(3) Whether the plaintiff is not entitled to the discretionary relief because the plaintiff is a trespasser ?
(4) What was the accommodation provided to the plaintiff by his former employer Mr. F. B. Patel ?
(5) When the services of the plaintiff was terminated ?
(6) Whether the plaintiffs is in adverse possession of the suit property Z ?
(7) When the possession of the plaintiff became adverse to the owner and to what extent of the property ?
(8) Whether the plaintiff is entitled to the relief claimed ? "
' Since the appellant had not produced any evidence, the above suit was dismissed by a judgment/decree, dated 1st April, 1985. Being aggrieved by the above judgment/decree, the appellant filed appeal bearing No, R. F. A. 3/85 to the High Court of Baluchistan, which was allowed by a judgment, dated 10th September, 1985 with a direction to examine the appellant and to allow the cross-examination of the respondent No,
1. After recording of the above evidence and hearing of the parties, the learned trial Court again by its judgment/decree, dated 10th October, 1985 dismissed the suit of the appellant. The appellant being aggrieved by the above judgment/decree has filed the present appeal.
3. Mr. Muhammad Riaz Ahmad, learned counsel for the appellant in support of the above appeals has urged as follows :- "(i) That mere mutation in the revenue record does not create any right or title and since there was no sale-deed executed and registered by Mrs. R. R. Khambatta the respondents had not acquired any title to the plot ;
(ii) That for proving the sale, the respondents examined Mr. F. B. Patel, who has not supported the respondent's case and, therefore, even the payment of the sale consideration and the sale transaction have not been proved ;
(iii) That the seller's statement was nor recorded ;
(iv) That three out of the four respondents have not been examined in support of the case and, therefore, the respondents have failed to prove their case ;
(v) That the documents filed by the appellant to prove his adverse possession have not been considered by the learned trial Cou. t ; and
(vi) That the appellant was.Not given fair opportunity to prosecute his suit. He was condenined unheard."
' On the other hand, Mr. Muhammad Zafar, learned counsel for the respondents has urged as follows :- "(i) That since the provisions of Transfer of Property Act, 1882 (hereinafter referred to as the 'Act') have not been extended to Baluchistan except to the Baluchistan States Union, there was no requirement for execution and registration of a sale-deed ;
(ii) That since no execution and registration of a sale-deed was required, the mutation coupled wi h the other evidence, was sufficient to prove the title of the respondents ;
(iii) That the appellant having admitted the fact that he entered upon the suit property as a licensee while working as an employee in the Mill of Mr. F. B. Patel, is not entitled to raise the plea of adverse possession ;
(iv) That the appellant was given ample opportunity to lead evidence in his suit by the trial Court, inasmuch as, about 23 adjournments were given, but the appellant failed to produce the evidence ; and (v)That even otherwise, after the remand order of the High Court, the above plea of not being given the fair opportunity to prosecute the case, is no longer available."
4. The basic question in the instant case apparently is, as to whether there was any legal requirement to get a sale-deed executed and registered with the Sub-Registrar. Mr. Muhammad Riaz Ahmed, learned counsel for the appellant has referred to the following cases :-
(1) Bachu Bai F. E. Dinshaw v. Commissioner of Income-tax PLD 1967 Kar. 372, in which it was held by a D. B. Of the erstwhile High Court of West Pakistan, Karachi Bench that section 53-A of the Transfer of Property Act does not create any title in favour of transferee, but he can only protect his possession against the transferor or the person claiming through him.
(ii) Mst. Bibi Mukhtiar v. Mst. Amrezan and another PLD 1968 Pesh. 169, in which, a learned Single Judge of the erstwhile High Court of West Pakistan at Peshawar, held that mutation proceedings were not int, nded or designed to create title, but at the most, a mutation can be used as an item of evidence in support of the transaction under mutation. It was also held that the Court must insist on some evidence other than mutation in support of sale.
(iii) Mian Ghulam Ahmad v. Muhammad Sar war and others 1968 SCMR 573. In the above case, the Honourable Supreme Court while declining leave against the judgment of the High Court of West Pakistan, held that mutation does not create title over the property. It was further held that the person challenging the gift in favour of a widow on the ground that she inherited limited interest under the customary law, the proper forum was a civil Court and not revenue authorities.
(iv) Lad and others v. Mian Dad and another 1968 SCMR 842. In the above case. The Honourable Supreme Court while declining leave against the judgment of the erstwhile High Court of West Pakistan for quashment of mutation entries, held that the entries in mutation register not in the nature of title deeds and have value only as evidence in support of title and that the question of title can be determined only by a civil Court.
(v) Muhammad Iqbal v. S. A. M. Khan, Member, Board of Revenue, West Pakistan, Lahore PLD 1970 Lah. 614, in which, a D. B. Of the Lahore High Court held that mutation does not create right and that a party aggrieved by an entry in mutation, was not an aggrieved person within the meaning of Article 98 of the Constitution of Pakistan, 1962 and, therefore, was not entitled to maintain a writ petition.
(vi) Firdus Khan v. Sayid Azam Shah and 14 others PLD 1970 Pesh. 141 in which, a D. B. Of the erstwhile High Court of West Pakistan at Peshawar held that mutation and entries in record-of- rights are not deeds of title and that the validity or otherwise of a transaction does not depend on the mutation or entries in the record-ofrights hut on the facts whether there was a valid transaction in existence which was given effect to in the revenue papers. It was further held that through the mortgage deed was given effect in the revenue record by mutation, but since it was not registered, it does not create any interest or right in favour of the mortgagee.
(vii) Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others PLD 1973 Lah.
495. In the above case also a D. B. Of the Lahore High Court held that the mutation effected under section 42 of the West Pakistan Land Revenue Act, 1967 does not create title in favour of any person, nor does adversely affect the rights of any person, but the object is to correct the entries in revenue record to facilitate recovery of land revenue.
(viii) Munawar Khan and another v. Atta Muhammad and another PLD 1975 Lah.
139. In the above case, inter alia, the question before a learned Single Judge of the Lahore High Court was, whether the plaintiff was entitled to claim right of pre-emption in respect of a sale transaction, of which, sale-deed was not registered. It was held that the argument of non- registration of sale-deed when possession had been passed to the vendee is no longer available to defeat a suit for pre-emption. Reliance was placed on the case of Sultan Muhammad v.
Muhammad Siddiq PLD 1973 SC 347.
(ix) Habibur Rehman and another v. Mst. Wandania and others PLD 1984 SC 424. In the above case the facts were that them was a sale transaction through an unregistered sale-deed in respect of immovable property valuing more than Rs, 100 and, therefore, was registrable under section 49 of the Registration Act. It was contended before the Honourable Supreme Court that by virtue of section 53-A of the Transfer of Property Act, the appellant was entitled to claim title. It was held by the Honourable Supreme Court that section 53-A of the Transfer of Property Act could not override specific provision, namely, section 49 of the Registration Act so as to make an unregistered document to create title. It was further held that though the purchaser could not claim any title as owner in the property, whether as a legal or as an equitable owner, yet would have a charge on property for amount paid by him towards purchase of property in question.
(x) Malik Muhammad Ishaque v. Messrs Erose Theatre and others PLD 1977 SC 109. In the above case, the Honourable Supreme Court while construing the provisions of sections 17 and 49 of the Registration Act held that section 17 applies not only in case of transfer declaration etc. Of vested rights but also of contingent rights in immovable property. It was also held that an agreement to sell or purchase an immovable property not by itself creating any present right in property, but merely creating a right to obtain another document creating or declaring such right. It was also held that in terms of section 49 of the Registration Act after its amendment by Registration (Amendment) Ordinance, 1962, the only penalty is that the registrable document, not registered, is rendered inoperative in respect of rights in property, but the provision that it could not be received as a piece of evidence, was no longer available after the amendment of the above section 49."
5. The cases cited by Mr. Muhammad Riaz Ahmed, learned counsel for the appellant referred to hereinabove, in our view have no direct application to the present case, if we were to hold that the Act is not applicable to Quetta and that the provisions of sections 17 and 49 of the Registration Act are not attracted to. There cannot be any cavil to the proposition that mutation in the record-of- rights does not create title in favour of the person in whose favour entry has been recorded, nor the mutation entries can be used as documents of title. However, mutation entries raise a rebuttable presumption in favour of the person in whose favour the entry is made. The above presumption can be rebutted by the person challenging such entry by producing evidence contrary to the mutation, but if the mutation entries are not rebutted, on the contrary they are supported by the other evidence, the person in whoseavour the entry is made, may rely upon the same. It is, therefore, paramount to consider,, whether the Act is applicable to Quetta and whether sections 17 and 49 of the Registration Act are attracted to the instant case.
' In this behalf, it may be observed that under section in of the Act, it has been inter alia provided that the Act or any part thereof may by notification in the official Gazette be extended to the whole on any part of a Province and the Federal Territory of Karachi by the Provincial Government concerned. It has been further provided that any Provincial 'Government may from time to time by notification in the official Gazette, exent either retrospectively or prospectively, any part of the territories administend by such Provincial Government from all or any of the provisions mentioned therein, namely, section 54 paragraphs 2 and 3, section 59, section 107 and section 123. It has also been provided that notwithstanding anything contained in the above section 1, section 54, paragraphs 2, 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Registration Act under the power conferred by the first section of that Act or otherwise. Learned counsel for the appellant is unable to produce any notification in terms of above section 1 of the Act extending the application of the Act to Baluchistan including Quetta or any judgment, in which, it has been so held. However, from the book by Mulla on the Transfer of Property Act, Pakistan 7th Edition, it appears that the application of the Act was extended to the Baluchistan States Union by the Baluchistan States Union (Federal Laws) (Extension) Order, 1953 (G G.
0. 4 of 1953) (in respect of non-agricultural land). It is an admitted position that Quetta has never been a part of any Baluchistan States Union. In this view of the matter, section 54 of the Act which provides that a sale in the case of tangible immovable property of the value of 100 rupees and upwards or in case of a reversion or other intangible thing, a registered document is necessary, is not attracted to.
6. This leads us to the second limb of this aspect, namely, whether sections 17 and 49 of the Registration Act are attracted to the instant case. It may be observed that section 17 specifies the aocuments which are compulsorily registrable, which include, a sale-deed of an immovable property valuing more than 100 rupees, whereas, above section 49 provides that no document required to be registered under this Act or under any other law providing for or relating to registration of documents shall operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or confer any power to adopt, C unless it has been registered. It is, tnerefore, evident that in order to attract sections 17 and 49, there should be a document which is required to be registered. If there is no. Document in respect of a transaction, the above sections cannot be pressed into service. In the instant case, if there would have been an unregistered sale-deed, the above two sections would have been very much attracted to. But since no sale-deed was executed, the above sections cannot be invoked in aid to defeat the respondent's interest or title or suit. In this regard, reference may be made to the following cases :-
(i) Pandurang Sakharam Thakur v. Narmadabai Ramkrishna Keluskar AIR 1932 Bom. 571, in which, a D. B. While dealing with the question of adoption under Hindu Law and the legality of the transaction entered into by an adopted son held that the provision of section 17 of the Registration Act requiring certain documents to be registered, has no application until it is first shown that a document is necessary.
(ii) K. Panchapagesa Ayyar and another v. K. Kalyanasundaram Ayyar and others AIR 1957 Mad.
472. In the above case, a D. B. While dealing with section 17 of the Registration Act held that the Registration Act unlike Transfer of Property Act strikes only at documents and not at transactions. It was also held that the Registration Act does . Not require that a transaction affecting immovable property should be carried out by a registered instrument, but it only enacts that where a document is employed for effecting any of the transactions specified in section 17 of the aforesaid Act, such document must be registered notwithstanding that the transaction is one which the law does not require to be put into writing.
(iii) Syed Abdullah Sahib v. Syed Rahmatullah Sahib alias Bali Sahib and others AIR 1960 Mad. 274, in which, a D. B. Of the Madras High Court while construing section 17 of the Registration Act held that under the said Act, registration is obligatory in respect of the documents specified therein, but there is nothing to require a transaction to be effected by a registered instrument It was further held that a bargain or an arrangement between the parties may comprise several transactions and that the question whether there should be writing or registration of the document, would depend on each of the transactions and not on their cumulative result."
We are inclined to hold that the provisions of section 17 of the Registration Act are applicable only if there is a document and that such document is required to be registered in terms of the above section. It must follow that if no document has been executed which is required to be registered, in terms of section 17 of the Registration Act, neither the above section 17, nor section 49 of the aforesaid Act, can be pressed into service.
7. However, we may observe that even in those areas where the provisions of the Act have not been made applicable, the Courts have applied the principles enunciated in some of the sections of the Act as rules of justice, equity and good conscience. In this regard, reference may be made to the following cases :- "(i) Teja Singh v. Firm Kalyan Das Chet Ram and another AIR 1925 Lah.
575. In the above case, a learned Judge of the Lahore High Court held that although the equitable principles underlying the Transfer of Property Act are followed but the Act itself with its technicalities, does not apply. It was held that dismissal of a claim purely on technical ground that the assignment of a debt was not through an instrument in writing, was not justified.
(ii) Syed Pir Kamal v. Bhai Gurcharan Singh and another AIR 1936 Pesh. 158, in which, a D. B. Of the Judicial Commissioners of N.-W. F. P. Held that though the provisions of the Transfer of Property Act are not applicable to the above Province, but the Courts in N.-W. F. Province have to adopt principles underlying the Transfer of Property Act as rules of equity and that it is not incumbent upon them to apply rules of procedure laid down by the Act. And hence section 53 of the Transfer of Property Act cannot be pressed into service.
(iii) Gurdit Singh v. Kalumal and others AIR 1937 Pesh. 5, in which, an Additional Judicial Commissioner of Peshawar held that the Transfer of Property Act does not apply to N.-W. F. P and a stranger can under an implied agreement with the mortgagor pay off his mortgagee and be possessed cif the rights of that mortgagee by way of subrogation without any registered instrument.
(iv) Muhammad Hussain v. Secretary of States and others AIR 1939 Lah. 300 in which, a D. B. Of the Lahore High Court held that the Transfer of Property Act is not in force in Punjab and its technical provisions like the one enacted in section 114-A do not apply to that Province.
(v) Fazal Karim v. Muhammad Karim and others AIR 1942 Pesh. 43, in which, a Judicial Commissioner held that although the Transfer of Property Act does not apply to N.-W. F. P. But it has been long the custom for the Courts in that province to apply the principles laid down in it as principles of equity.
(vi) Messrs Ram Gopal Dula Singh v. Sardar Gurbux Singh Jiwan Singh and others AIR 1955 Pb.
215. In the above case, a D. B. Of the Punjab High Court held that the principles of the Transfer of Property Act are applicable to the Punjab because they are based on justice. Equity and good conscience, but the rules of procedure are not applicable.
(vii) Manzoor Hussain and 5 others v. Legal Representatives of Shah Jahan and 2 others PLD 1975 Quetta 22. In the above case, the question before a D. B. Of the erstwhile High Court of Sind and Baluchistan at Quetta was, whether section 53-A of the Transfer of Property Act could have been pressed into service. In that context, it was held that though the Act may not be in force in an area, yet the principles contained in the Act are followed as rules of justice, equity and good conscience.
8. We are also inclined to hold that in the areas where the provisions of the Act have not been extended by issuing a notification in terms of section 1 of the Act, ,the Courts may press into service the equitable principles contained in some of the provisions of the Act as rules of justice, equity and good conscience. We are further inclined to hold that technical provisions providing technical procedure cannot be made applicable to the areas where the Act is not applicable. Furthermore, the object in applying the principles contained in the Act as rules of justice, equity and good1 conscience is to foster the cause of justice and not to defeat the same. The above principles can be pressed into service in aid of a person whos conduct has been above the board, but the same cannot be invoked in aid of a person whose conduct may not have been commendable and who may have approached the Court with unclean hands. It is a well-settled principle of law that equity helps those who do equity to others an not to those who defeat equity. In our view the appellant's conduct does nor warrant invoking of any equitable principle.
9. Having held that the Act is, not applicable to Quetta and that there was no requirement for execution and registration of a sale-deed, we may revert to the other contentions of Mr. Muhammad Riaz Ahmad, learned counsel for the appellant. But before touching upon the same, it will not be out of context to observe that in the pleadings, the case of the appellant was that he was given the but by Mr. F. B. Patel while he was in his service as an employee in 1947, whereas, in his deposition, he has come out entirely with a different version, namely, that he was given an open site in 1935 by Mr. F. B. Patel and that he had raised seven rooms on that open site at his own cost.
In this regard, it may be pertinent to reproduce para. 4 of the plaint of the respondent's suit, para. 4 of the appellant's reply in his written statement and also para. 4 of the plaint of the appellant's suit which read as follows:- Respondent's Plaint : "Para.
4. That the defendant was an employee of the Patel in the Saint John Mills belonging to the Patel".
Appellant's Written Statement. {{URDU TEXT}} Appellant's Plaint.
"Para.
4. That a dispute arose between Mr. F. B. Patel and the plaintiff which resulted his termination from the service in the St. John Steel Mills and the plaintiff filed an application under the Industrial Relations Ordinance of 1959, before the Labour Court against Mr. F. B. Patel for the redress of his grievance in the year 1975. The Labour Court proceeded ex parte in favour of the plaintiff and against Mr. F. B. Patel. However, at various occasions in the matter in dispute, appeal was preferred by both sides. Ultimately the case was remanded to the Labour Court for adjudication upon the matter and the same is pending before the Labour Court. However, the plaintiff by virtue of his post in the St. John Steel Mills as a Clerk continue to remain in possession of the property in question.
Even till today it is to point out that the plaintiff was promoted from the post of clerk to the post of Manager (Office lncharge) and held this post for about 25 years."
' After having admitted the above fact in the pleadings, in our view, the ocular evidence contrary to the above produced by the appellant, is liable to be ignored. The effect of the above admission is that plaintiff's status was of that of a licensee as he got the possession as an employee from Mr. F.
B. Patel. In this regard, reference may be made to the following cases :-
(i) Jamal Pervez v. Syed Safdar Hussain Naqvi PLD 1956 Sind 55.
(ii) SiddiaqAhmad v. Estate Officer, Government of Pakistan and another PLD 1957 Kar.
887.
' In the former case, a learned Single Judge of the erstwhile Sind Chief Court held that after the termination of an allotment in favour of a Government employee, his status becomes of a trespasser in relation to the accommodation allotted to him. Whereas, in the latter case, a D. B. Of the erstwhile High Court of West Pakistan at Karachi, held that the Courts in Pakistan are not bound to apply the principles of common law prevalent in England but if the Courts are satisfied that the principle is in accord with equity and good conscience and applicable to conditions obtaining in Pakistan, the Courts would not hesitate to act upon the same. It was further held that under the common law, a master can eject his servant from the premises allotted to him in his capacity as a servant without recourse to a Court of law and with use of minimum force.
10. The appellant has also admitted in his statement that he remained in service with Mr. F. B. Patel uptil 1975. The position of the appellant was of a licensee and, therefore, so long as he remained a licensee, he could not have claimed an adverse possession against his licensor. First time, the appellant asserted the adverse title is in his letter, dated 3rdG October, 1974 (Exh. D/54 and equivalent to Exh. 27) in reply to Mrs. R. R. Khambatta's letter, dared 27th September, 1974 (Exh.
D/53). It will be advantageous to reproduce sub-para. (2) of Mrs. R. R. Khambatta's above letter and sub-paras. (2) and (3) of the appellant's above letter, which read as follows:- Exh. D153 : "I am, therefore, writing to you now. As you are aware this plot was transferred to me many years ago. However, I allowed you to stay on it as it did not inconvenience me. Now, as I am selling the plot with vacant possession. I have to request you to vacate. I terminate your licence and kindly leave within two months."
Exh. DI54 "Yes, I know it was gifted away to you by your father, F. B. Patel, Esquire, long ago and for your information, I may mention here, it was mutated in your name, in Quetta Tehsil Records, on 5-8- 1953.
' I am sorry to write, I cannot accede to your this request as this property is under my adverse possession for the last many years and you have lost your title, whatsoever, in this regard, because as you are fully aware, you neither ever looked after this property, since it came in my possession nor you ever paid any tax, Municipal Tax or Urban Immovable Tax, whereas I have been spending huge amounts in maintaining this property for keeping it worth-living."
It is evident from the abovequoted paras. That Mrs. R. R. Khambatta revoked the licence in favour of the appellant for the reason that she would disp Ise of the plot, by giving him two months' notice to vacate. The appellant in his above reply admitted the factum of gift by Mr. F. B. Patel in favour of Mrs. R. R. Khambatta, inasmuch as, even he admitted the date of mutation in her favour as 5th August, 1953. The factum of gift has also been admitted by him in his plaint of the aforesaid suit.
11. Apart from the fact that a licensee after having received the possession from his licensor cannot set up an adverse title, unless he hands over the vacant possession and enters upon the premises under hostil title, even if we were to hold that the appellant was entitled to set up adverse title, the starting point for the limitation would be the above date of 3rd October, 1974, whereas, the respondents filed the suit as mentioned hereinabove, on 10th December, 1980, which would be within limitation. The appellant's alleged hostile title on account of alleged adverse possession was not matured, as 12 years had not expired in terms of Article 144 of the First Schedule to the Limitation Act.
12. We are also inclined to hold that the appellant being a strange to the sale transaction, is not entitled to challenge the same in favour o the respondents when the above sale transaction is supported by the vendor. The appellant himself has filed the documents to indicate that factuall the respondents had paid certain amount towards the safe price throug cheques and cash.
However, it was vehemently urged by M. Muhamma Riaz Ahmed, learned counsel for the appellant that the respondents in order to prove the sale transaction examined Mr. F. B. Patel, who in his cross-examination had shown his ignorance about the above sale transaction. If we read the statement of Mr. F. B. Patel as a whole, it would become apparent that he had not disowned the sale transaction but what he had stated in the cross-examination was that he was not aware of the date as to the sale, etc. One cannot overlook the fact that he was aged about 88 years with failing health. Mr. F. B. Patel in his statement before the Martial Law Authorities Exh. P/1, dated 3rd November, 1977, admitted the factum of sale in favour of the respondents. Furthermore, the appellant in his undertaking, dated 3rd November, 1977 (Exh. P/2 equivalent to Exh. 45) promised to vacate the premises by 15th November, 1977. It may be advantageous to reproduce the same, which reads as follows:- "Mr. Dilbar Hussain son of Abdullah Khan, resident of H/No, 912/10 Jinnah Road, Quetta was summoned in this office on 03 Nov.
77. It was found that he is occupying the land in question illegally and unlawfully. He is neither the tenant of the applicant nor any way has concern with title of the land.
' His illegal and unlawful occupation of the said house was also confirmed by Mr. F. B. Patel father of the former owner of the said house, Mrs. Rhodahe R. Khambatta.
' Now Mr. Dilhar Khan has agreed to vacate the house by 15th Nov.
77. He has also agreed that as matter is referred to the Martial Law authorities he will not refer this matter to any civil Court and vacate the house on 15th Nov. 77 without fail.
(Sd.)
Dilbar Hussain 3-11-77"
Though the appellant had filed the aforesaid constitutional petition in this Court, which was dismissed with the observation that the appellant could file a suit in a competent civil Court for declaration that the above undertaking was not binding on him, but he has not filed any such suit.
The appellant, therefore, cannot get away from the above admission.
' The appellant has also produced a number of documents referred to hereinabove Exhs. D/1 to D/67, some of which relate to the alleged amount paid by the appellant for white-washing, for getting doors fixed, for getting the other works executed, Tor payment of taxes, gas and electric bills. Apart from the fact that the above documents cannot be relied upon, as the appellant had not pleaded in his written statement or in his plaint that K he had raised any construction at his own cost, the above documents do not prove adverse title. Admittedly, the appellant was not paying any licence fee or rent to Mr. F. B. Patel since 1947 up to 1975 when he left his sei vice and, therefore, the factum that he had carried out maintenance work or got the gas or electricity installed or had paid the bills in respect thereof, would not improve the appellant's case.
13. Adverting to Mr. Muhammad Riaz Ahmed's contention that all the respondents had not been examined as witnesses, it will suffice to observe that one of the purchasers could have been examined in support of the suit. There is no legal requirement that all the purchasers should come into witness-box.
' It was also contended that the vendor was not examined. In this regard, it may be pointed out that the appellant had filed an application for summoning of Mrs. R. R.. Khambatta, which application was consented to by the respondents, which is at page 185 of the trial Court file, but she could not be examined as her brother appeared and stated that she had settled down in England.
It was also urged by Mr. Muhammad Riaz Ahmed, learned counsel for the appellant that though the respondent No, 1 had signed the plaint as an Attorney, but no Power-of-Attorney has been produced. It may be pointed out that no such plea was raised in the written statement, nor it was agitated before the trial Court and, therefore, the appellant cannot be allowed to raise the above point first time before us. Further more, after the remand order, the appellant was given opportunity as directed by the High Court.
14. For the foregoing reasons, we are of the view that the appellant has failed to prove adverse possession to the property in accordance with law and that since he was a licensee and as his licence was terminated by Mr. F. B. Patel as well as Mrs. R. R. Khambatta, he had become a trespasser liable to be ejected. Furthermore, the appellant is bound by his above undertaking reproduced hereinabove to vacate by 15th November, 1977 (Exh. 45).
' We, therefore, dismiss the above two appeals. However, we allow) the appellant sixty days time to hand over the vacant possession of they premises in dispute.
' There will be no order as to costs.