Amal Mian A. C. J -By this common judgement we intend to dispose ot the above two appeals. The brief facts leading to the filing of the above appeals are as follows;- R. F. A, No. 9/85-1. 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 i500 Sq, ft. Along- with a hut (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 53610 Sq. Ft. (hereinafter referred to as the plot') for a consideration of Rs. 4,17,U32 from Mrs. R R. Khambatta d/o 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 19 L and thereafter suit No. 76 of 1985. It was also averred that on the above plot there was a small hut consisting of for 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 ills 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 matte alternate arrangements. It was also averred that inspite of the above promise, the appellant failed to hand over the possession and, thereto:e, the matter was reported to the Martial Law Administrator, Zone 'D', w ere the appellant gave an undertaking to vacate the suit property 15th November, 1977. It was also averred that instead of vacating the suit property, by 15th November, 1977, the appellant filed a Constitutional Petition N0. 167/77 in the High Court of Baluchistan, which was dismissed. On the basis of the above averments, the above suit was filed tor 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 posses ion. 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 t at 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 sot 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 plaintiffs 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 plaintiffs are entitled to the possession of the property in question ?"
The respondents in support of the case examined one of the respondents Mahmoodul Hassan Ex.
18 and three witnesses, namely, PW-1 Muhammad Iq^al, a Patwari for proving the mutation in respect of the plot, Ex. 14) PW-2 Bahauddin, an employee of Mr. F. B. Patel (Ex. 15) and PW-3 Mr. F. B.
Patel (Ex. 13), whereas the appellant examined DW.1 Muhammad nad Shafi, a re presentative from the office of a Magistrate lst Class for proving Ex-D/1, D/2 and D13 (Ex. 16), DW-2; Muhammad Javed Ghani for proving Exs. D/4, D/S and D/6 (Ex. 17). He also examined himself as Ex. 19 at page-39 of the paper Book.
After hearing the parties, the learned trial court decreed the suit on lst April. 1985 and dismissed the appellant's suit referred to hereinabove. Upon appeal bearing No. R. F. A 4 of 1984 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 a judgment dated 10th October, 198'. The appeal 11 ant being aggrieved by the above judgment and decree has filed this appeal.
R.F A. No. 12/85.-2 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 the 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 un-warranted and prayed for permanent injunction for restraining the respondents from ejecting the appellant without due process of 1w, The respondents filed written statement >n 23rd June, 1979. On t e 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 plaint needs amendment in view of the contradictory pleas of the plaintiff mentioned in para 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 plaintiff is in adverse possession of the suit property ?
(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 lst April, . 985. Being aggrieved by the above judgement/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 19th 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 Ahmed, 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 Mr. 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 respondents' 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 not recorded :
(iv) That three out of the for 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 court:
(vi) That the appellant was not given fair opportunity to prosecute his suit. He was condemned un- heard.
On the other hand, Mr. Muhammad Zafar, learned counsel for the respondents has urged as follows:-
(i) That since the provisions af Transfer of Property Act, 1882 (hereinafter referred to as the 'Act') have not been extended to Baluchistan States Union, there was no requirement for execution and registration of a sale deed ;
(ii) That since no execution and registration of sale deed was required, the mutation coupled with 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 wa9 given ample opportunity to lead evidence to his suit by the trial court, in as much 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 Ahmad, learned counsel for the appellant has referred to the following cases :-
(i) Bachu Bai F. E. Dinshaw v. Commissioner of Income-Tax, reported in PLD 1967 Kar. 372, in which it was held by a DB 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. Amresan and another, reported} in PLD 1988 Pesh. 169, in which, a learned Single Judge of the erstwhile High Court of West Pakistan at Peshawar, held that mutation proceedings were not intended 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 on some. 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 Sarwar and others, reported in 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) Lai and others v. Mian Dad and another, reported in 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 mutations register are 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.
5. A. M. Khan, Member Board of Revenue, West Pakistan, Lahore reported in PLD 1970 Lah. 614, m which a DB 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) Firdous Khan v. Sayid Azam Shah and 14 others, reported in PLD 19 0 Pesh. 14i in which, a DB 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 enties in the record of rights but 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 ana 3 others, reported in PLD 1973 Lah. 495. Ln the above ca>e also a DB 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 effect 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 others v. Atta Muhammad and another, reported in PLD 1975 Lah.
139. In the above case inter ' Iii, the question before a learned Single Judge of the Lahore High Court was, whether the plaintiff wa> entitled to claim right of pe-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, reported in PLD 1973 SC 347.
(ix) Habibur Rehman and another v. Mst. Wahdania and others, reported in PLD 1984 SC 424. In the above case the facts were that there was a sale transaction through an un-registered sale deed in respect of immovable property valuing more than Rs. 100 and, therefore, was registerable under section 49 of the Registration Act. It was contended before tho 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 of Property Act could not over-ride specific provision, namely section 49 of the Registration Act so as to make an un- registered 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 mi others, reported in PLD 1977 SC 109. In the above cate, the Honourable Supreme Court while construing the provisions of section 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 or 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 the Registration (Amendment) Ordinance, 1962, the only penalty is that the registerable 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 Ahmad, 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 section 18 and 49 of the Registration Act are not attracted to. There can not be any cavil to the proposition th it mutation in the record of rights does not create title in favour of the perse n in whose favour entry has been recorded, nor the mutation entries can be used as documents of title. However, mutation entries raise a reputable presumption in favour of the person in whoso favour the entity 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, os the contrary they are supported by the other evidence, the person in whose favour the entry is made, may rely up n the same, lt is, therefore, paramount to consider, whether the Act is applicable to Quetta and whether section 17 and 49 of the Registration Act are attracted to the instant case.
In this behalf, it may be observed that under section 1 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 or 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, exempt, either retrospectively or prospectively, any part of the territories administered by such Provincial Government from all or any of the provisions mentioned therein, namely, Section 54 paragraphs 2 and 3. Section c9, Section 107 and Section 123. It has also been provided that notwithstanding anything contained in the above Section 1, Section 54, paragraphs 2 and 3, Sections 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 t^e appellant is Unable to produce any notification in terms of above Section I of the Act extending the application of the Act to Baluchistan including Quetta os any judgement, in which, it has been so held However, from the book by Mulla on the Transfer of Property Act, Pakistani 7th edition it appears that the application of the Act was extended to the Baluchistan States Union by th- Baluchistan States Union (Federal Laws) (Extension) Order, 1953 (G C.O. 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 the 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 lead 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 documents which are compulsorily registerable, 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 nr 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 unless it has been registered. It is, therefore, 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, ln the instant case, if there Would have been an un-registered 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 int-rest or title or suit. In this regard, reference may be made to the following cases:-
(i) Pundurang Sakharam Thakur v Narmadabai Ramkrishna Krluskar, reported in AIR 1912 Bombay, 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 provisions of Section 17 of the Registration Act requiring certain document to be registered, has no application until it is first shown that a document is necessary.
(ii) K. Pcmchapagesa Ayyar and another v. K. Kalyanasundaram Ayyar and others, reported in AIR 195"? Madras, 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 as document is employed for effecting any of the transactions specified in Section 17 of the afore said 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 Rehmatullah Sahib alias Baji Sahib and others reported in AIR 1960 Madras, page 274, in which a D B. Of the Madras High Court while construing Section 17 of the Registration is 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 bo 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 in 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 Aegean be pressed into service.
7. However, we may observe that even in those areas where the provisions of the Act h we 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) Taja Singh v. Firm Katyan Das Chat Ram and another reported in 1925 AIR 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 debut was not through an instrument in writing, was not justified.
(ii) Syed Pir Ramai v. Bhai Gurcharan Sirgh and another, reported in AIR 1936 Pesh, page i58, in which, a DB of the Judicial Commissioners of NWFP, 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.P. 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 heme Section 53 of the Transfer of Property Act cannot be pressed into service.
(iii) Gurdtt Singh v. Kalumal and others, reported in AIR 1937 Pesh. in which an Additional Judicial Commissioner of Peshawar held that the Transfer of Property Act does not apply to NWF Province and a stranger can under an implied agreement with the mortgagor pay off his mortgagee and be possessed of the rights of that mortgagee by way of subrogation without any registered instrument.
(iv) Muhammad Hussain v. Secretary of States and others, reported in AIR 1939 Lah. 330 in which, a DB of the Lahore High Court held that the Transfer of Property Act is ,not in force in Punjab and its technical Provision like the one enacted in Section 114-A do not apply to that Province.
(v) Fazal Karim v. Muhammad Karim and others, reported in AIR 1942 Pesh. 43, in which Judicial Commissioner held that although the Transfer of Property Act does not apply to NWFP 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, reported in AIR 1959 Punjab, 215 In the above case, a DB 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, reported in PLD 1975 Quetta, page 22. In the above case, the question before a DB 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 I of the Act, the Courts may press into service the equitable principles contained irther- more, the object in applying the principles contained in the Act as rules of justice, equity and good 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 whose conduct has been above the board, but the same cannot be invoked in aid of a person whose connect may not have been commendable and who may have approached the Court with un- clean hands. It is a well settled principle of law that equity helps those who do equity to others and not to those who defeat equity. In our view the appellant's conduct does not 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 registeration of a sale deed, we may revert to the other contentions of Mr. Muhammad Riaz Ahmed, 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 hut by Mr. FB 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 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".
((Urdu Text)) b!L jjjL. Oljji to-fc lea., ^ ja ff if Jt>l jl^l % 4^} L&'j^44 to* jjl U tS'jjj 17 jjl Uif* J>vs K- e-Uj ((Urdu Text))
Appellant's Plaint Para.-"4. That a dispute arose between Mr. F B. Patti and the plain iff which resulted in his termination from the service in the Si Jo n 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 exparte in favour of the plaintiff and against Mr. P.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 pon 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 proper y 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 Incharge) 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 the 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 Sa/dar Hussain Naqvi, reported in PLD 1956 Sind, 55.
(ii) Siddiq Ahmad v. Estate Officer, Government of Pakistan and another, reported in PLD 1957 of Pakistan (W.P.) 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 alloted to him. Whereas, in the latter 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 M . F.B. Patel uptill 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 3rd October, 1974 (Ex. D/51 and equivalent to Ex. 27) in reply to Mrs. R.R. Khambatta's letter dated 27th September, 197+ (Bx. 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:- Ex. D/53.-"I am therefore writing to yon now. As yon 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 pi session, I have to request you to vacate. I terminate your license and kindly leave within two months".
Ex. D/54.-"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, beeause as you are fully aware, you neither ever looked after this property, since it came w 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 above quoted paras that Mrs. R.R. Khambatta revoked the licence in favour of the appellant for the reason that she would dispose of the plot, by giving him two months notice to vacate, the appellant in his above reply aumilted the factum of gift by Mr. F.B. Pat 1 in favour of Mrs. R.R. Khambatta, in as much as, even he admitted the date ol 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 ever the vacant possession and enters upon the premises under hostile title, he even if 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 l2 years had not expired in terms of Article 144 of the 1st Schedule to the Limitation Act.
12. We are also inclined to hold that the appellant being a stranger to the sale transaction, is not entitled to challenge the same in favour of the respondents when the above sale transaction is supported by the Vendor. The appellants himself has filed the documents to indicate that factually the respondents had paid certain amount towards the sale price through Cheques and cash. However, it was vehemently urged by Mr. Muhammad Riaz Ahmed, learned counsel for the appellant that the respondents in order to prove the sale traciaetion examined Mr. F.P. 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 net dis-owned 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 over-look the fact that he was aged about 88 years with failing health. Mr. F.B. Patel ia his statement before the Martial Law Authorities Bx. 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 (Ex. P/2 equivalent to Ex. 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. 9-12/10 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 confimed by Mr. FB Patel father of the former owner of the said house, Mrs. Rhodahe R. Khambatta.
Now Mr. Dilbar Khan has agreed to vacate the house by 15th November 1977. 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 November 1977 without fail.
Sd/-Dilbar Hussain 3-11-1977"
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 Exs. D/i to D/67, some ol which relate to the alleged amount paid by the appellant for white washing, for getting doors fixed, for getting the other works executed, for payment of taxes, gas and electric bills. Apart from the fact the above documents cannot be relied upon, as the appellant had not pleaded in his written statement or in his plaint that 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. FB Patel since 1947 upto 1975 when he left his service 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 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-1 85 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. I 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. Furtherfore, after the remand order, the appellant was given opportunity a 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 lice nesee ana as his license was terminated by Mr. F.B. Patel as well as Mrs. RR Khambatta, he hao become a trespasser liable to be ejected. Furthermore, the appellant is bound by his above undertaking reproduced herein-above to vacate by 15th November, 1977 (Ex. 45).
We, therefore, dismiss the above two appeals. However, we allow the appellant, sixty days time to band over the vacant possession of the premises in dispute.
There will be no order as to costs.