1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the judgment dated 28-10-1987 of the Lahore High Court; whereby the appellants/defendants' revision in a suit for possession filed by the respondent's side which had been decreed throughout, was dismissed. While granting leave to appeal the following facts and circumstances were noted:- ' Ch. Ali Muhammad Sindhu, predecessor-in-interest of the respondent filed a petition for eviction of the appellants before a Rent Controller on the claim that the property had been transferred to him under the Settlement Law.It was dismissed on the ground of lack of statutory notice served on the appellants. The respondent/landlord then filed a civil suit which was decreed by the trial Court against the appellants. Their appeal was dismissed. Their revision having also been dismissed, leave to appeal was granted to examine the various grounds but the two which have been vehemently pressed and argued are: whether the agreement of sale relied upon from the appellants' side was genuine and if so what was its effect. And secondly, that in any case the appellants had perfected their title through adverse possession.
2. ' The findings of the High Court on these two questions are as follows:- "Plea in regard to the sale agreement and petitioners being in possession in part performance, was, for the first time, taken in the written statement filed in the second ejectment case. Plea of adverse possession, however, does not appear in the aforesaid written statement. Learned Addl. District Judge, in his order dated 23-2-1981, allowing appeal and dismissing ejectment petition, on sale agreement observed; "From the facts that the appellant No,2 had purchased the disputed premises on behalf of respondent, the respondent remained in possession of the premises from 1960 onwards without the respondent taking any proceedings against the appellants regarding recovery of rent or their eviction and the payment of Rs,8,000 by appellants to the respondent, it is borne out that there was some oral agreement for sale of the suit premises between the parties.
3. The respondent himself did not appear to deny the existence of any such oral agreement of sale.
4. Therefore, relationship of landlord and tenant does not exist between the parties". In decision dated 15-11-1981 of this Court (Writ Petition No,132/1981) learned Single Judge in para. II, observed, "thus after the learned Additional District Judge held that there is no relationship of landlord and tenant, the question whether there was any agreement at all, and what is its effect, must be decided in a suit for possession. The apprehension of the learned counsel that the Civil Court may be influenced by the finding of the lower appellate Court or the Rent Controller, cannot be accepted. The Civil Court has to proceed in accordance with law on the basis of the evidence to be produced before it.
5. In this view of the matter, I would not like to express any opinion, one way or the other. No interference is, therefore called for, in view of the law laid down by the Supreme Court in Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139). Leave to appeal, as observed above, was declined by the Supreme Court. In this background, material question that arises for consideration is whether Ch. All Muhammad Sindhu had contracted to sell the disputed property to Nazar Hussain for Rs,8,000 and had also received the amount from him. It is common ground that the aforesaid Nazar Hussain had participated in the auction as attorney of Ali Muhammad Sindhu and offered the highest bid. However, it was not denied that the transfer price was adjusted from the Compensation Book of Ch. All Muhammad Sindhu. Respondent did not admit that his father either sold the property or agreed to sell the same and received Rs,8,000 as its sale price. To the contrary, his case was that his lather had given Rs,8,000 as loan to Asghar Hussain which was repaid to him.
6. To support this plea, reliance was placed on the Pass Book Ext. P.5 which contained reference to a cheque for Rs,8,000 issued to Asghar Hussain in December, 1960. Courts below relied on and accepted this explanation. Asghar Hussain is real brother of defendants who was shown to have been paid the sale price on their behalf. Merely that Nazar 'Hussain acted as attorney for All Muhammad Sindhu and that rent was not paid or that ejectment application was delayed for some time, are not strong circumstances to establish the sale agreement as set up in defence.
7. Auction took place in 1960 and alleged payment of sale price was also made in the period near about. But despite long drawn out litigation between the parties, defendants took no steps to enforce the terms of oral sale agreement. Power of attorney given to Nazar Hussain was also not brought on file. Oral evidence produced to establish sate agreement was not convincing.
8. Statement of Muhammad Iqbal P.W. Who himself had participated in the auction and had lost, was not reliable evidence to favour the petitioners. As observed above, defendants relied on oral agreement of sale. Heavy onus rested on them to prove its terms. Type of evidence produced in support of oral sale agreement was unsatisfactory and was not sufficient to establish the plea.
9. Ordinarily, defendants should have insisted on agreement in writing. No satisfactory reasons are forthcoming as to why this normal rule was departed from. Additionally, mere agreement to sell, even if proved, does not of itself create any interest in or charge on the property. It is only an agreement that sale of the property shall take place on terms settled between the parties. Unless, proper sale deed was executed, title in the property did not pass. Parties are in litigation since 1977 and presently are in the second round of litigation. It is open to grave doubts whether the sale agreement alleged to have been entered into in 1960 was still subsisting and was enforcible through a Court of law. On present records, I am in no manner of doubt, to say that the plea in regard to sale agreement and payment of sale price was not established. Now comes the question of adverse possession. It is clear from the above that adverse possession was pleaded for the first time in the written statement filed in the present suit which gave rise to the civil revision. No such plea was urged prior thereto. There is no convincing evidence to establish that defendants held the property adversely. Their main plank was sale agreement. On the one hand, defendants set up an agreement to sell, acknowledged the title of Ch. Ali Muhammad Sindhu and on the other, they pleaded adverse possession. I wonder whether these pleas can be urged together, may be, in the alternative. To me, they appear to be contradictory pleas. Be that as it may, adverse possession was not established."
10. ' After some arguments learned counsel for the appellants faced with the concurrent findings of fact on the question of agreement going against the appellants could not press it any further except that he tried to show that the findings against the appellants in this behalf should be treated as if the agreement was only invalid on account of lack of registration due to its nature and context. This he repreatedly urged should be held so by this Court; presumably, to gain an advantage on a legal aspect of the second question; namely, of adverse possession. However on this also we agree with the final assessment by the High Court. Though regarding the agreement it did examine an alternative plea also, vis-a-vis, its effect, the final finding with which we agree and affirm is that there was "no manner of doubt to say that the plea in regard to sale agreement and payment of sale price was not established". Thus the only question which really needs examination in this appeal and which has been argued at some length is of adverse possession.
11. ' It is obvious as held by the High Court that the plea based on the sale agreement and that on adverse possession are contradictory inter se. Thus on this ground alone as held by this Court in some recent judgments the appellants must fail. But the learned counsel for the appellants having raised a plea of some public importance we consider it necessary to deal with it. According to him even if the appellants made a false claim of a valid agreement to sell and thus having put up a title on a disproved agreement they can legitimately press their plea of adverse possession also; despite having failed on the validity of the agreement or even its existence. He in this behalf has relied on Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311).
12. It is true as held by the High Court that both the agreement and/or the adverse possession were pleaded by the appellants at much later stage and their claim regarding either of them for good reasons, can be considered as baseless. This controversy of basing ones claim on valid title as also on adverse possession, (if claim on valid title fails) has often been commented upon by the superior Courts before and after independence. It was held in Mst. Ghulam Ilahi v. Muhammad Waris Khan (PLD 1955 FC 31) that the possession is not to be considered adverse if its origin can be referred to a lawful title, whenever that is possible; because, a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title of possession. This in reality is based on the historical and jurisprudential aspect of adverse possession. It has been summed up in the Limitation Act by Shaukat Mahmood at page 730 (Second Revised and Enlarged Edition of 1984) as follows:-- "The rule of adverse possession is based on the principle of "might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State in Pakistan have considered it immoral for it has its origin in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organization of society into rule of law, it gained mandate of law to set at rest the status of long time possession, particularly in absence of claims of true owners of properties. Prescription may he defined as the effect of lapse of time in creating and destroying rights. It is the operation of time as a vesting fact.
13. It is of two kinds namely (1) positive or acquisitive prescription, and (2) negative or extinctive prescription. In positive prescription it is a title of right, e.g. Exercising elementary right for over a prescribed period, but in negative prescription it is a divestive fact, e.g. Prescription of title by adverse possession and limitation. Extinctive prescription or the limitation of action causes not a transfer of right but merely the loss of a remedy. In both forms of prescription fact and right to possession and ownership tend to coincide. It is thus that adverse possession which may arise from dispossession or discontinuance of possession extinguishes the right of the true owner, provided it fulfils certain requirements.
14. ' The adverse possession must not merely be a trespass, but for unmistakable ouster of the real owner, there should be some overt act, under such circumstances of notoriety which clearly posts him with the knowledge of invasion of rights. The constituent conditions of adverse possession are that it must be actual, visible exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If any one of the constituent conditions is lacking in evidence the plea is outright rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession. Where possession of plaintiffs over land, was continuous, exclusive and adverse it would create right of ownership by way of prescription. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, and the possession must be nec vi nec cl. m nec precario that is peaceful, open and continuous. Such possession was to be open, hostile and to knowledge of person entitled to possession. It is unnecessary that real owner should have actual knowledge of the adverse possession so long as it is open and capable of being known by parties interested in the property, or that the owner should be shown to have protested that his rights were being violated and that the possession went on adversely to his protests."
15. Thus in the present context when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, adverse a long continued, possession hostile to him. In other words there must be express and open denial of the title of true owner and animus of exclusive ownership. Accordingly, where possession can be referred to a lawful title it will not be considered to be adverse.
16. In the Privy Council case of Charles Edward Victor Seneviratne Cerea v. Mahatantrigey Iseris Appunhamy and another (AIR 1914 Privy Council 243) it was held that a defendant as in the present case, entering into possession or being in possession on the assumption of lawful title could not divest himself of that title "by pretending that he had no title at all". The possession thus held, was never to be adverse if it can be referred to a lawful title.This view, it appears, was based on and taken from an English authority Thomas v. Thomas (69 English Reports 701). .It was held in this latter judgment that when a father had entered upon an estate of his infant children the presumption is that he entered as their guardian and therefore the statute of limitation does not begin to run against the children until they attain a certin age and from that time the rightful owner may legitimately recover possession. In other Privy Council case wherein also Thomas v. Thomas was relied upon it was held that the possession relied upon by a defendant in similar cases as the present one must be based on a title adverse or independent of that of the plaintiff-- Charles Edward Victor Seneviratne Corea v. Mahatantrigey Iseris Appunamy and another (1912 AC 230).
17. There is further considerable case law on the point that possession is not adverse if it could be referred to a lawful title. It has to be keep in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides.
18. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession, as lawful no adverse possession begins until the denial to the knowledge of the owner Aiyisa Bibi Ammal v. Kalandaras Rowther (AIR 1925 Mad. 1020). The principle underlying the rule that if origin of possession is based on legality, no adverse possession begins until denial to knowledge of owner, seems to be that unless the owner has the notice that a person in possession has developed a definite intention to challenge his ownership and set up an immoral illegal possession like that of trespasser, it would not be open and hostile possession. And the concept of might is right would not till then be relevant. It should be a real usurpation, ravishment rapacity and destruction as against justice, equity, good conscience and fairplay. Until this clear, open and hostile clash between good and bad emerges, starting point of adverse possession is not established. This view is further stengthened by a plethora of authority on the basis of which another rule; namely, that a co-sharer cannot be held to be in adverse possession against another co-sharers, is based.
19. Because where one of the several heirs takes possession his possession is not adverse to his co- sharers as he traces back the same to a lawful title and thus he would not be treated as a trespasser. The further corollary, again developed through case law on this principle regarding co- sharer, is that if a co-sharer also becomes a usurper and openly as well as in a hostile manner revolts against a co-sharer; and either by deceit or by force or other similar elements of treachery, completely ousts a co-sherer; only then, on the basis of another principle of complete ouster he (a co-sharer) also can be treated to have set up adverse possession. The element of the opposition and openness together with hostility and clash would then emerge at that point of time and then onward coupled with the ouster, the start of adverse possession would be set in. In cases where a defendant bases his claim on lawful title say through purchase, all the above mentioned elements are missing. He represents himself as a gentleman law abiding person and claiming no hostility against the owner by basing his right on a lawful transaction, cannot be treated to have set up any claim as "adverse" claim like what has been discussed above. He of course like that of a co-sharer would be treated to have set up an adverse possession and claim on the day he fails in the initial lawful title/claim and makes an open hostile claim; no more pretending to be acting lawfully. And thus coming out openly, notwithstanding his failure to establish title through lawful means, with an illegal and immoral claim of possession with complete openness and hostility to the other.
20. In this case till the present stage of filing of appeal in the Supreme Court the appellant claimed lawful title through purchase. And one of his arguments pressed by the learned counsel is based on the lawful title through purchase. It is only in the alternative that an argument on the basis of adverse possession is being pressed as the same was pressed in the High Court. This is only a fake and concealed hostility to the owner and cannot be treated as open. The defendant/appellant while rigidly maintaining his claim to possession and ownership has based it on lawful title through purchase. It is only in the alternative in order to gain an advantage in litigation that he relies on what he thinks can also be granted through the Court instrumentality. This claim in Courts is totally different from the claim at the spot and in the field, vis-a-vis, reality which he has faced throughout against the ownership rights of the respondent/plaintiff. There is neither hostility nor openness nor adverseness because the appellant has always aimed to have become owner through purchase. If he keeps a concealed intention of converting his lawful pursuit to a treacherous pursuit, at a certain stage, when the requisite period is passed that cannot at all the treated as adverse possession. It is in this context that several judgments, mostly recent, have been rendered to hold that sources of lawful title and adverse possession are contradictory pleas and cannot stand together. They amongst others are: Ghulam Qadir v. Ahmed Yar and others PLD 1990 SC 1049; Mira Khan v. Ghulm Farooq and others 1988 SCMR 1765; Juma Khan and another v. Abdul karim and another 1980 SCMR 364. See also Mst. Ghulam Ilahi v. Muhammad Waris Khan PLD 1955 FC 31; Ayisa Bibi Ammal v. Kalandaras Routher AIR 1925 Mad. 1020; Charles Edward Victor Seneviratne Corea v. Mahutantrig,ey Iseris Apphamy and another AIR 1914 PC 243 and Shah Mohammad Jamil Ata v. Shah Mohammad Hafiz Ata and others AIR 1928 Oudh. 449;- "Possession is not adverse if it could be referred to a lawful title. 1912 AC 230, 69 English Reports 701, I L R 37 Allah 203, 35 Cal. 961, AIR 1926 Oudh 144 and AIR 1926 Oudh 258, con. And rel. On (P-460)".
21. ' In the first mentioned cases there are relevant observations although without an elaborate discussion. They are the necessary corrolary of what has been discussed above in this judgment on the principles underlying and requirements of establishing adverse possession. It has become necessary due to Islamic umbrella to all interpretation in Pakistan's Constitutional set up, through Objectives Resolution and Article 2-A of the Constitution.
22. ' The appellants in this case have based their claim on lawful title for a considerable time. They have never been in adverse possession in the sense discussed above. Therefore, by merely raising contradictory plea of adverse possession on account only of passage of time without satisfying the requisite intention and physical needs of adverse possession, have failed to establish the same.
23. This argument of the learned counsel also fails and with the same the appeal also becomes liable to be dismissed. However, one more point needs to be examined. It relates to an observation in the case of Ahmad Khan earlier noticed and relied upon by the learned counsel for The appellants. It is to the effect that where a vendee remains in possession after the sale of the property "which goes off' or is otherwise defective in law, holds adversely to the vendor. Reliance in that behalf amongst others was placed on Mst. Jasoda Khuar v. Jenak Missir AIR 1925 Pat.
787. Although the said observation has to be taken in the context of the facts in the case of Ahmed Khan yet it is necessary to explain that even in the present case such a situation could have arisen.
24. For example, at an earlier stage of the proceedings the appellants' side could have given up the pretext of lawful title through sale and with this negative declaration could have made a further positive assertion of (and reliance on) their intention onward of immoral grabbing the property through what has already been described as 'might is right'. This line of approach explains "what is stated in the cited judgment; namely, "after sale of property which goes off or is otherwise defective in law". It means that after a fair fight on the basis of lawful title if that claim is given no as having finally failed, from that point of time onward the adverse possession, if other conditions are satisfied, could start. In this case, for example, the appellants have tried to fight on the assumption of a fair fight till the announcement of this judgment. The basis of their claim on lawful title now "goes off". It is only from now onward that if the conditions for adverse possession come into existence and are carried on for the prescribed period; and the law which stands now remains intact till then, notwithstanding the thrust of Islamic Law, jurisprudence and principles, the question of adverse possession (without claim of valid title) might arise after the termination of the new period. This interpretation of the judgment in Ahmed Khan's case is further supported by what follows at page 316 of the report of the case after the aforequoted observation was made. It reads as follows:-- "Learned counsel for the appellant on the other hand relied on the Privy Council's judgment in Jagdev Narain Singh V. Baldev Singh (AIR 1922 P C 272) that mere non-payment of rent does not mature into an adverse possession. That was, however, a case of a tenancy in which the plea of adverse possession was raised on, the bast of mere non-payment of rent. The instant case however stands on a different footing. It is nobody's case that the plaintiffs entered into possession of the suit land as tenants under Haider Khan or Mst. Hawa Jan. Exh. P.W. 4/1 and Exh. P.W.1/1 plainly militate against any such suggestion. Similarly, Noor Ahmad v. Mst. Hubab Jan (PLD 1974 SC 78) relied upon by the appellant's learned counsel has no bearing on this case. That case proceeded on entirely different facts. In that case, the respondent in this Court, Mst. Habub Jan entered into possession of land as legatee under a will executed by her father If Thus as explained above the judgment in the case of Ahmed Khan instead of supporting the appellants' case goes against them. And for the same above explained reasons as also for the view held in Ahmed Khan's case as already explained, the judgment in the case of Mir Laik All v. Standard VacuuM Oil Company (Esso)
25. (PLD 1964 Supreme Court 220) is of no help to the appellants, both on principle as also on distinguishing features of that case.
26. Before closing this judgment it needs to be observed that in recent years on account of complicacity of the law relating to landlord and tenant, particularly in urban areas, considerable cases have started pouring in and many of them reaching the superior Courts also; wherein a clear impression is gained that a tenant when feeling that he would fail in saving his tenancy starts claiming himself as lawful alienee/transferee from the real owner. And when a considerable time passes, starts also pressing the plea of adverse possession. In many cases we have found that the findings of fact regarding documents of title did give clear impression that forgeries, with or without help of advisors, are being resorted to make false claims of title. In some, findings by the lower Courts are absolutely clear regarding forgeries. In others the findings are based on strong probabilities. The latter cases are lesser in number. It is high time that this further immoral element coming in litigation (apart from what is normal in the litigation involving adverse possession) should be checked and blocked at this stage lest this practice also becomes protected through law like that of adverse possession. Accordingly, in future at least when an appellate Court is giving a finding of forgery in a case like the present one the person found guilty thereof should also be put on notice for prosecution with permission of the Court. In this case there is no such question on oral sale agreement. We, therefore, refrain from proceeding any further in this behalf except to leave it open to the parties in such cases to seek remedies for prosecuting the appellants in accordance with the law.
27. ' With the foregoing observations this appeal is dismissed with costs throughout.