RUSTAM S. SIDHWA, J.---This is an appeal by Noora and others, appellants, against the judgment of a learned Single Judge of the Lahore High Court dated 22-10-1986 dismissing their revision petition.
2. The brief facts of the case are that on 5-7-1974 Noora and 11 others, present appellants, instituted a suit for possession of Ahata measuring 11 marlas 7 sersahi in Khewat No,12, Khatooni No,17, situated in Chak No,604/G.B., Tehsil Samundari, District Faisalabad, against Ahmad Ali and three others present respondents, on the ground that they were owners of the property in dispute, that the respondents had taken the Ahata from them six years back on a temporary basis for their use and occupation, that due to their relationship no rent was fixed and that the respondents had promised to return the Ahata to them when the appellants were in need of the same, but had refused to do so when the demand was made. On respondents' refusal to vacate the property on 4-7-1974 and subsequently on their constant requests till a month before suit, they instituted the suit in the Court of Civil Judge, Samundari. The suit was contested by the respondents. They pleaded that the suit was barred by time and that they were in possession of the property for the last 30/35 years.
3. The learned trial Judge framed the following issues arising out of the pleadings of the parties:--
(1) Whether the suit is barred by time? OPD (2-A) Whether the defendants have matured their title over the disputed property through adverse possession for more than 12 years? OPD.
(1-B) Whether the written statement is liable to amendment? OPP (1-C) Whether the suit is liable to be decreed for the preliminary objections Nos.2 and 3 of the replication? OPP
2. Whether the suit is bad for misjoinder of parties? OPD
3. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction? OPD
4. Whether the plaintiffs have no cause of action to file this suit? OPD (4-A) Whether the plaintiffs are owners of the property in dispute? OPP
(5) Whether the plaintiffs are entitled to the possession of the suit property? OPD
(6) Relief?
' The learned trial Court recorded evidence led by the parties and, vide judgment dated 22-3-1979, decreed the suit for possession of the suit property.
4. The respondents assailed the judgment and decree of the learned trial Judge in appeal. The learned Additional District Judge, Faisalabad, vide judgment and decree dated 24-5-1983, accepted the appeal and dismissed the appellants' suit as being barred by time.
5. Being aggrieved by the above judgment, the appellants preferred a revision petition in the High Court, which was also dismissed by a learned Single Judge on 22-10-1986.
6. Leave was granted in this case to consider as to whether on the facts and circumstances like those of this case, the respondents could rely on their illegal possession so as to defend the appellants' claim which was admittedly based on right of ownership; whether it was not incumbent on the respondents to satisfy the conditions regarding the adverse possession; whether Article 142 would be attracted to the present case; and other related questions as also those raised in the petition.
7. We have heard the arguments of the learned counsel for the appellants and the respondents and have perused the record.
8. The only point in dispute in this appeal is regarding the question of limitation touching issue No,1.
The learned Civil Judge decided issues Nos.1-C, 4-A and 5 in favour of the appellants, issue No,1-B in favour of the respondents and issues Nos.1, 1-A, 2 and 4 against the respondents. As regards issue No,3 the same did not arise for consideration, as deficit court-fee had been made good.
Before the learned appellate Judge issues Nos.1-B, 2, 3 and 4 were not pressed. Only issues Nos.1, 1- A, 1-C and 4-A were argued. The learned Additional District Judge found the suit to be barred under issue No,1 and therefore reversed the Civil Judge's findings on issue No,1-C. As regards issues Nos.1- A and 4-A, he confirmed the findings of the learned Civil Judge. The only matter dealt with by the learned Single Judge of the High Court was regarding limitation covered by issue No,1.
9. What stands out a mile is that the respondents' plea of adverse possessoin has failed and that the appellants' assertion that the respondents had taken the Ahata from them on a temporary basis for their use and occupation and had not returned the same when called upon to do so, stands established. The only question therefore that arises is whether Article 142 or Article 144 of the Limitation Act applies to the instant case. The relevant provisions of both these Articles read as follows:-- 1 2 3
142. - For possossion of immovable property when the plaintiff, while in Possession of the property, has been dispossessed or has discontinued the possession.Twelve yearsThe date of the dispossession or discontinuance.
144. - For possession of immovable property or any interest therein not hereby otherwise specially provided comes adverse to for.Twelve yearsWhen the possession of the defendant be- the plaintiff.
10. Discontinuance of possession in Article 142 means discontinuance of such a sort as gives the impression that the owner has withdrawn with the intention of abandoning the property and that he gap has been filled by another person who has come in to occupy the said abandoned property in consequence of such withdrawal. See Haji Sher Muhammad v. Mst. Amoo (PLD 1960 Kar.
428), Laxminarain Mulchand Kothari v. Vithardas Kanhaiyalal (AIR 1962 Madh. Pra. 31) and Sailu Pahan v. Poltu Chik (AIR 1954 Pat. 368).
' A person can only be stated to have discontinued his possession when another person enters on the property and such entry is adverse to the former, that is to say in contravention of his title. In Laxminarain Mulachand Kothari's case (supra), the plaintiff-appellant sued for declaration of title and possession in respect of a Bagichi consisting of some structure and open land on the ground that his father's Munshi had temporarily permitted certain persons to use the suit property for recreation, that after they had ceased to exist the property reverted to him and the eighteen defendants in possession of the property were holding it as trespassers. In para 11 of the judgment, the High Court held that it was admitted that the Bagichi had been voluntarily abandoned by the plaintiff-appellant's father and it had been found as a fact that since 1925 the premises had been continuously used by the members of a Club for recreation. Abandonment having been established, Article 142 was applied. In Sailu Pahan's case (supra), the plaintiff/respondent's father had left, the village eleven years before the suit and died in 1936 and his brother had also died in 1945. When the plaintiff-respondent went to take possession of the said land, he found the defendants-appellants in possession of the land, who claimed that they had been settled by the landlord. The High Court held that Article 142 of the Limitation Act applied from the date of abandonment. It also held that discontinuance within the meaning of Article 142 was not complete till the land of which possession was alleged to have been discontinued had been taken over by somebody and that mere non-user by the owner did not constitute discontinuance. A number of cases have taken a different view, namely, that where a plaintiff alleges that the defendant's possession is permissive, which is denied by the defendant, there is discontinuance of possession within the meaning of Article 142 and the said Article applies for the purpose of limitation. I do not think this view correctly reflects the, Jaw. A plaintiff who is in possession of property may find himself thrown out from that property by another. He may abandon that property and find later that the same has been taken possession of by another. He may voluntarily give permissive possession of his property to another, only to find later that the other has set up an adverse or conflicting claim against him. One thing is certain that Article 144 is a residuary Article dealing with suits for possession of immovable property not otherwise specifically provided for in the Schedule to the Limitation Act. Article 142 deals with a specific case where the plaintiff, while in possession of the property, has been dispossessed (thrown out by somebody else, who has taken over possession) or while in possession of the property, has discontinued the possession. Now the only question that arises is whether this discontinuance is to be treated as a voluntary form of abandonment, with somebody else taking over possession and the suit having to be filed within twelve years from the date of discontinuance, or a voluntary transfer, of possession under permission or title, with the person inducted later claiming adverse possession and the suit having to be filed within twelve years from the adverse claim being set up. Now Article 144 presupposes that the person holding possession was one who did not initially treat his possession as adverse to the plaintiff. It would therefore include cases where the transfer of possession to him originally was under permission or title. Article 142 carries no such thought. It presupposes a person who has possession but has discontinued it, and there is no question of any assumption that the subsequent person securing possession is one who initially treated his possession as under the plaintiff's title. The discontinuance of possession within the meaning of Article 142 therefore is more in consonance with the view that the discontinuance is a form of abandonment and not a transfer of possession under permission or title. Where an abandonment of property takes place and another person steps in, the other does so as a trespasser or under some assumed title of his own.
His possession is not under a right derived from the plaintiff. This is therefore one of the cases provided for in Article 142. Where the discontinuance of possession is simultaneous with its transfer under some form of permission or title, Article 144 will apply. In Mst. Chandni Begum v. Madhorao Falke (AIR 1953 Madh. Bha. 28), Shinde, C.J.Held:-- "A person can he said to be dispossessed or to discontinue his possession only when another person enters on the property in the possession of the plaintiff and such entry is adverse to the plaintiff. Where the plaintiff is in possession and the defendant has entered on the property but his entry is under a right derived from the plaintiff or is permissive it cannot be said that the entry itself is in contravention of the plaintiff's title, though by reason of subsequent events his possession may become adverse to the plaintiff. Adverse possession means hostile possession, that is, possession which is expressly or impliedly in denial of the title of the true owner. Where possession which is permissive to begin with, becomes adverse to the plaintiff by some act of the defendant Article 144 would apply and not Article 142."
11. In the case in instance the respondents' plea of adverse possession has miserably failed. As held by this Court in Mirza Ghulam Hussain v. Iqbal Ahmad (PLD 1991 SC 290), where a person is inducted into property under lawful permission or title, no adverse possession can be deemed to have originated from the time that he was so inducted, but it can be shown that it became adverse through an aggressive act at some later stage by disclaimer of owner's-permission/title of such a character that the owner can be presumed to know that possession adverse to his title had been set up. In the instant case the respondents have failed in establishing their title by adverse possession. The appellants' case that the respondents had taken the Ahata on a temporary basis for their use and occupation stands made out. A mere permission given to another to reside gratuitously does not amount to a discontinuance of possession. See Syed Zainuddin Hossain v.
Moulvi Muhammad Abdur Rahman (AIR 1933 Cal. 102). Thus, where such a licensee sets up adverse possession, Article 144 of the Limitation Act would apply and not Article 142. See Syed Zainuddin Hossain's case (supra) In the instant case, according to the averments in their plaint, the appellants had given the respondents mere permission to reside gratuitously and when they requested the respondents on 4-7-1974 to deliver vacant possession to them, they refused to do so, and in their written statement raised the plea of adverse possession. The suit was therefore covered by Article 144 of the Limitation Ac as the appellants had twelve years from the said date i.e, 4-7-1974 within which to file the suit. The judgment of the learned Single Judge being in error, deserves to be set aside.
12. For the foregoing reasons, this appeal is accepted, the judgment of learned Single Judge of the Lahore High Court dated 22-10-1986 is set aside and the judgment and decree of the Civil Judge, Samundari dated 22-3-1979 is restored. There shall be no order as to costs.