ZAFFAR HUSSAIN MIRZA, J.-- The revision petition of the petitioners having been dismissed by a learned Single Judge of the Baluchistan High Court, vide order dated 3rd May, 1986, the petitioners now seek leave to appeal there from.
2. The petitioners are the children of one Abdul Hafeez Qureshi, who had purchased plot bearing Khasra No.7160, Khewat No. 190, Khatuni No.235, situate in Ward No.20, Circle No.3, Tehsil Quetta, measuring 12770 sq. Ft. From its owner by means of registered sale-deed dated 26th July, 1944. The said Abdul Hafeez Qureshi expired in 1968, leaving the petitioners and their mother as his legal heirs. The mutation in regard to this property was recorded in favour of the petitioners in the year 1971. In the same years the petitioners and their mother filed a suit for possession against the respondents on the allegations that a portion of the aforesaid plot measuring 2665 sq. Ft. Was illegally occupied by them and a katcha construction raised thereon. The respondents resisted the suit and pleaded that out of the entire plot owned by deceased Abdul Hafeez Qureshi they had purchased from him an area of 2692 sq. Ft. In the year 1953 by means of an agreement executed between them and the deceased, in pursuance whereof they were put into possession and ever- since then they have remained in possession in their own right. On the aforesaid allegations the respondents raised the plea that the suit was barred by limitation as the respondents have remained in hostile and notorious possession of the property in dispute for more than 12 years before the institution of the suit. The main issue on which the parties went to trial was the question whether the suit was barred by limitation.
3. During the course of the evidence recorded by the trial Court the respondents produced a document Ex.D/1 which showed that the portion of the land in occupation of the respondents was purchased by them but the trial Court observed that the document was Para Patwar and was subsequently rejected. Nevertheless relying on the document for collateral purposes the trial Court formed the opinion that it was evidence of the possession of respondents since the year 1953, which continued until the death of late Abdul Hafeez Qureshi in 1968. In this view of the case, the trial Court held that the suit was barred by limitation and accordingly dismissed the same by its judgment dated 30th August, 1984.
4. The petitioners being dissatisfied challenged the judgment of the trial Court in an appeal but the same was dismissed affirming the decree passed by the trial Court. Ultimately the petitioners filed a revision petition in the High Court as stated above which was also dismissed by the impugned order. The learned Judge in the High Court declined to interfere with the concurrent finding of fact arrived at by the Courts below to the effect that respondent No.1 had come into possession of the disputed property through mutation No.190 dated 25th July, 1953. It will be pertinent to reproduce the reasons that prevailed with the learned Judge in his own words as under:- "Now as the respondent No.1 became the real owner and came in possession of the land in the year 1953 he therefore held its possession openly and notoriously against the petitioners. It cannot therefore be said to be mere permissive possession as contended by the learned counsel for the petitioners. The authorities relied by the learned counsel for the petitioner as such in no way strength his contentions; but on the contrary support the contentions of the respondent No. 1. There is wealth of law on the point that even if a person comes into possession of a property as a real owner on void documents and no suit is brought within a period of 12 years the claim of the seller becomes time barred. In that context reliance is placed on (1) AIR 1919 P.C.44 (ii) AIR 1941 Nag 72, (iii)
AIR 1941 Pat. 219, (iv) AIR 1953 Pat 365, (v) AIR 1956 Pat. 308. Admittedly as the petitioners had lost their possession in any manner in the year 1953 and the suit has been brought in the year 1971 on face of it is time-barred. In the such view of the facts I have no option but to agree with the contentions raised by the learned counsel for the respondent that the suit is time-barred under both Article i.e. Article 142 and Article 144 of the Limitation Act and the learned trial Court as well as the First Appellate Court has taken the correct view of the facts and law involved therein."
5. In support of this petition learned counsel has vehemently contended that the Courts below were not justified in relying upon a mutation entry in the revenue record which was cancelled. He further contended that the plea of adverse possession was not raised anywhere in the written statement of the respondents, nor was any issue framed on that question, consequently the petitioners could not be non-suited on that ground. After hearing the learned counsel at length we find no force in the contentions raised. The perusal of the plaint shows that the petitioners have brought the suit on the basis of their previous possession arising out of title in the suit land and subsequent dispossession. According to their case as set up in the plaint they were dispossessed in August, 1969, but all the Courts below have held that they had failed to prove this fact by the evidence produced which on the other hand proved that the respondents were in possession of the property since 1953. It is well-settled that where the case set', up is of dispossession from or discontinuance of possession of immovable property the limitation for bringing a suit for possession is governed by Article 142 of the Limitation Act. In such a case the plaintiff must prove dispossession from the immovable property within 12 years preceding the date of the suit. In the present case it has been found as a fact by the Courts below that the plaintiffs were not dispossessed within 12 years prior to the institution of the suit. Therefore, the suit of the plaintiffs was rightly held as barred by limitation as in such a case it is not necessary for the defendants to establish by positive evidence their adverse possession. As regards mutation entry which was subsequently reversed we do not agree with the learned counsel that this document had no evidentiary value. We are unable to hold that the Courts below by relying on this document had committed such an error as to vitiate the finding of fact relating to possession of the respondents recorded by them.