' Z. A. CHANNA , J.-This 1st appeal by the original defendant No. 1 is directed against the judgment delivered on 8-5-1974 by a learned Additional District Judge, Karachi, whereby he decreed the suit filed by respondent No. 1 herein and directed appellant's ejectment from the land in dispute.
2. The dispute in the present proceedings relates to a portion of plot No, 25, row 8, measuring 400 square yards, of which 100 square yards are commercial and the remaining residential, in Firdous Cooperative Housing Society Limited, Karachi hereinafter referred to as the Society. This plot was originally allotted by the Society to respondent No, 2 herein, Syed Mukarram Ali Naqvi, who claims to have been put in possession of the plot by the Society, except for an area of about 25 square yards which was in unauthorized occupation of the appellant. On the basis of the allotment and right of possession, he filed a suit against the appellant on 9th June, 1965, for declaration of his right and for possession of the area allegedly occupied unauthorisedly by the appellant, claiming that the appellant herein had subsequent to his being put in possession of the plot by the Society encroached upon another 75 square yards of his plot.
3. The appellant herein contested the suit and in his written-statement, which was filed on 1-5-1968, he raised a number of technical pleas regirding, the locus stand' of respondent No. 1 to institute the suit, insufficiency of court-fee, under valuation of the suit and the defect for non-joinder of necessary parties. On merits his main defence was that he has since 1949 been in continuous possession of the entire area which is in his occupation and had accordingly acquired a right to the land in dispute by adverse possession.
4. During the pendency of the suit, respondent No, 2 transferred his right, title and interest in the plot in favour of respondent No. 1 herein, and applied under Order I, rule 10, C. P. C., read with Order VI, rule 17, of the said Code for transposing the name of respondent No. 1 as plaintiff and his own name as defendant No,
2. Despite the opposition of the appellant herein this application was allowed by the learned trial Court on 14th November, 1969, and in consequence respondent No. 1 filed an amended plaint on 17th February, 1969, while revised written statement was filed by the appellant herein on 25-2-1970.
5. The suit came up for hearing before a learned Additional Sessions Judge, Karachi, who framed the following issues on the pleadings of the parties :- "(1) Whether the plaintiff has got locus standi for the institution of the present suit ?
(2) Whether the suit is undervalued and proper court-fee has not been paid, if so, what is the deficiency ?
(3) Whether the suit is bad for non-joinder of necessary parties, if so, what is its effect ?
(4) Whether the defendant alongwith other hutment holders was offered alternate accommodation in 1963, which he refused to accept, if so, what is its effect ?
(5) Whether the defendant has obtained any sort of right, title or interest over the land in suit on which his hutment stands ?
(6) Whether the plaintiff is entitled to possession and declaration ?
(7) What relief ?"
6. Before the trial Court, the plaintiff led the evidence of ex- Acting Secretary of the Society, Mr. Mahfooz Ahmad, and a former Secretary of the Society, Mr. Jamilur Rebman, and the husband and the attorney of respondent No. 1 herein, Mr. Syed Khalid Ahmad. They produced a number of documents, including certificate of allotment in favour of respondont No, 2, letter of possession, and an agreement in form 'A' entered into by the Society with respondent No. 1 on 16th December, 1968, entitling her to 99 years lease of the plot on completion of a building thereupon in accordance with the terms and conditions stated in the said agreement and the rules of the Society. The appellant, on the other hand, examined himself, Maqsood. Ahmad, who claims to be a construction supervisor and a neighbour of the appellant, Mushtaq Ahmad, senior supervisor P. I. A., who claims to be living in the hutment area of Firdous Colony, and Qadir Bux, who lives in Haji Murid Village adjacent to Firdous Colony and claims to be the Chairman of Union Council No,
16. Certain documents were also produced on behalf of the appellant, including his ration documents, a chit of Director of Census and certain papers relating to resettlement of refugees.
7. The learned trial Court, on the basis of the above evidence, held on all issues against appellant herein, and came to the conclusion that respondent No. 1. Having been granted a permanent lease by the Society for construction of a building, had the right to maintain the suit, that there was no evidence in support of the claim of the appellant herein for adverse possession of the area in dispute, that respondent No. 1 herein was entitled to eject the appellant herein and that the suit was properly valued and stamped. It accordingly decreed the suit.
8. Aggrieved by the judgment and decree of the trial Court, the appellant herein preferred an appeal to the High Court, which was dismissed in limine by a learned Single Judge by his order dated 9-8-1971. The appellant herein thereupon preferred a Letters Patent Appeal, which too was dismissed in Iimine on 27-9-1971. Undeterred, the appellant herein took the matter to the Supreme Court, which held that a learned Single Judge of this Court was competent to admit a first appeal but was not competent to dismiss the same, that the appeal raised several serious questions of law, namely, "(1) whether an allottee, under a Housing Scheme framed by a Housing Society, has any right to maintain a suit for a declaration of title and possession, or, should he have sued in the name of the Housing Society itself ; (2) whether the appellant, who claims to be a licensee under the Government could set up title by adverse possession against the Government of the Housing Society or its allottee", that even on facts there was a serious dispute as to whether the finding of the trial Court, that the appellant had encroached upon the lands in dispute was based upon any evidence at all, and that a subsidiary question also arose as to whether the appellant was liable to be evicted from the entire lands in his possession or only the area allotted to the respondents over which he is alleged to have encroached. The Supreme Court accordingly directed that the appeal be heard on merits by a Division Bench of this Court. On the basis of this direction, this appeal was deemed to have been admitted to regular hearing and accordingly we have heard Mr. Z. U. Ahmad, who appears for the appellant, and Mr. Syed Zahid Hussain, Advocate for the respondent, at some length.
9. The first contention of Mr. Z. U. Ahmad was that respondent No. 1, being a bare allottee of a plot in a Housing Society, which itself was a licensee of Government was a mere sub-licensee and thus had no right in rem in the plot and could not maintain in her own name a suit for declaration and possession. According to him, she could only have sued with or in the name of the Society. He contended that the status of respondent No. 1 was that of a mere licensee as defined in section 52 of the Easements Act, 1882, and gave her no right or title in the land itself. In support of his contention he relied upon the Supreme Court decision in Abdullah Bhai v. Ahmad Din(1) wherein Kaikaus, J., drew a distinction between lease and license and observed that "the criterion for distinguishing between lease and license is simple i,e, whether any right in immovable property itself, a right in rem, is passed to the person concerned."
10. In the instant case, however, respondent No. 1 was not a bare allottee of the plot in question, but further possession of the plot was actually given to her, as deposed to by Jamilur Rehman, ex- Secretary of the Society and also a registered agreement, though it purports to be in the nature of a A sub-license, was executed by the Society in her favour. This agreement, Inter alia, provides that on the completion of the building on the plot in accordance with the prescribed terms and conditions, the sub-licensee would be entitled to lease of the plot for 99 years.
11. The question as to the status, rights and title of an allottee in the scheme formulated under the K.
D. A. Ordinance, 1957, was considered by a Division Bench of this Court, to which one of us was a party, in Haji Noor Muhammad v. K. D. A. (2) wherein, while repelling the contention that under the terms of the allotment and the regulations of the K. D. A., an allottee in a Housing Scheme or Society is a mere licensee, having no right in the allotted land until the allottee builds a house and executes a regular lease with the {{FOOT NOTE}}
(1) PLD 1964 SC 106 (2) PLD 1975 Kar. 373 {{FOOT NOTE}} ' K. D. A., it was held that such an allottee has a real right in the immovable property itself, and has in fact a right in rem in respect of the plot allotted to him. Reliance for this view was placed upon the decision of the Supreme Court in Kalimuddin Ansari v. Director Excise and Taxation (1) upon which the trial Court has mainly relied in the instant case for holding that respondent No. 1 had a locus stand: and could maintain the suit without impleading the Society. This view was endorsed by their Lordships of the Supreme Court in their order admitting the petition for leave to appeal and they repelled the contention that 'respondent No. 1 could not maintain the suit in her own name.
The relevant portion of the order reads as follows:- "Learned counsel further contended that the respondent being a licensee under the Firdous Co- operative Housing Society in law could not maintain a suit in her own name for possession against the petitioner and that leave should be granted to consider this point also The Courts below have found against the petitioner on this point and we find ourselves in agreement with the view formed by them."
' In view of the above observation of their Lordships of the Supreme Court, there appears to be no further room for argument to question the right of respondent No. 1 to maintain the suit in her own name, without joining the Society.
12. Mr. Z. U. Ahmad contended that the above view of the Supreme Court was modified in its final order allowing the appeal and for this he C relied upon the following observation of Hamoodur Rahman, C. J. (as he then was) :- "In the present case, however, there is yet another and stronger ground on which we feel that the first appeal in the High Court should not have been dismissed in limine. The appeal did raise several serious questions of law, mainly :-"whether an allottee, under a Housing Scheme framed by a Housing Society has any right to maintain a suit for declaration of title and possession, or, should have sued in the name of the Housing Society itself.
13. The above observation of the Supreme Court merely pointed out a serious question which arose in the appeal, but did not in any way modify or overrule the view taken at the time of admitting the appeal that respondent No. 1 was competent to file the suit.
14. In view of the above position, we find it unnecessary to consider the authorities reported in PLD 1958 Lab. 99 and 96 Indian cases 410 upon, which Mr. Z. U. Ahmad sought to place reliance in regard to the rights and status of a licensee, specially as they deal with different types of licences but not allotments in a Housing Scheme,
15. It was next contended by Mr. Z. U. Ahmad that the appellant herein is a licensee from Government, having been settled by the Government in the area in his occupation. It may be pointed out that no such plea was raised by the appellant herein, either in his original or amended written statement. Even in this evidence in Court he did not claim that he was a licensee from Government or that he had been settled on the plot by the Government. All that he stated was that other refugees were settling on the plot and hence he also constructed a but on this plot and has been residing therein since 1949. The only other witness who speaks of the settlement of the refugees. {{FOOT NOTE}}
(1) PLD 1971 SC 114 {{FOOT NOTE}} ' on the land subsequently granted to the Society is Mushtaq who states that he is living in the hutment area in the Colony and had occupied this area after he was shifted from Saddar in the days of Prime Minister Liaquat Ali Khan. He further stated that the appellant also came there in the same days. Nothing has been stated to show that any specific or even implied permission was granted by the authorities to the appellant to occupy the plot in question. Mushtaq has produced two letters, one dated 14th December, 1954, from the Deputy Secretary, Ministry of Refugees and Rehabilitation, and the second bearing the date 31-1-1955, from the same Ministry, relating to grievances of the refugees residing in Golimar. The first letter merely acknowledges the receipt of a representation which was addressed by the refugees to the Minister for Refugees and Rehabilitation and the second intimates the Hon. Secretary of the Majlas-e-Aural. Abadkari, Golimar, that the Rehabilitation Commissioner, Karachi, would see a deputation of the Majlis.
Mushtaq has also produced a cutting from the Daily JANG' of 25th November, 1955, requiring unsettled refugees, who have not so far obtained their in identification cards from the Rehabilitation Department, to obtain such a card. No such identity card has been produced by the appellant herein. There is thus neither documentary nor oral evidence in support of the contention that the appellant herein was a licensee from the Government or had been settled in the area in his occupation by Government's Agents. It appears that it was only in the arguments In the trial Court and later on in the appellate Court that this point was raised. Since this point was neither D taken by the appellant herein in his written statement nor there is any evidence in support thereof, the claim of the appellant herein that he is a licensee from the Government, directly or indirectly, stands unsubstantiated.
16. It was next contended by Mr. Z. U. Ahmad that the appellant herein was in possession of the area in his occupation since 1949 and therefore he has right of adverse possession over the area both as against the Society as well as respondent No. 1 herein. According to the plaint, the appellant herein originally was in possession of only 25 square yards of the plot when it was allotted to respondent No, 2 but subsequently he encroached upon a further area of 75 square yards. The appellant, on the other hand, vehemently denied that he made any encroachment on the plot after the land was granted to the Society and claims that he has been in occupation of the same area in his possession right from the beginning. The two points which thus fall for consideration in respect of this issue are whether the case will be governed by Article 142 or 144 of the Limitation Act, 1908, and on whom lies the burden of proof. It may be pointed out that according to the issues which were framed by the learned trial Court the burden of this issue was on the appellant herein.
Mr. Z. U. Ahmad, however, strenuously contended that the case is governed by Article 142 of the Limitation Act, as respondent No. 1 is relying on mere allotment and was never in possession of the plot, particularly the area in the occupation of the appellant, and the burden of disproving the adverse possession of the appellant for the prescribed period lay on respondent No. 1, specially in view of the admission made in the plaint that the appellant was in possession of a portion of the plot when the plot was first allotted to respondent No, 2 herein.
17. In support of the above contention the learned counsel relied upon a Full Bench decision of the Madras High Court, reported as Official Receiver v. Cheva Govindaraju and another (1). In that case the question referred to {{FOOT NOTE}}
(1) AIR 1940 Mad. 798 {{FOOT NOTE}} ' the Full Bench was whether, in a case where the plaintiff sets up a case of permissive possession and fails to prove it, the burden lies upon the plaintiff to prove that he was in possession within 12 years of the suit or whether the onus is upon the defendant to prove adverse possession for a period of 12 years. In that case, Leach C. J., with whom the other two learned Judges concurred, after referring to certain decisions of the Privy Council, observed as follows :- "In view of these decisions of the Privy Council, it cannot in my judgment be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows, in addition to title, that he has been in possession of the property within 12 years of the suit.
The Privy Council has declared that to be the effect of Art. 142 and that suits for ejectment come within that Article. It may be a hardship that a person who proves a title to property should lose it to a trespasser unless, he can also show that he has been in possession within 12 years of the suit, but that is what the Limitation Act says and the Court must administer the law and drafting his plaint in a manner which disguises the real nature of the suit will not help a plaintiff."
18. The question whether in a suit for recovery of possession of immovable property and claim for adverse possession, Article 142 or 144 of the Limitation Act would apply has been discussed at length in Noor All Pir v. Patricia Dinshaw (1), to which one of us was a party. In that decision the distinction between the scope of Article 142 and that of Article 144 of the Limitation Act and the question of onus of proof in a claim for adverse possession were thus dealt with :- "(6) One material question which has arisen in this case, and which generally arises in cases of adverse possession, is with regard to onus of proof. The determination of this question is dependent on whether a case comes under article 142 or article 144 of the Limitation Act, though in this case arguments have been addressed with reference to both these articles. The distinction between these two articles was very aptly brought out by Sajjad Ahmad, J., in Khisro Nawaz v.
Khadimullah and others. The Judicial Committee of the Privy Council also took the same view in Chowdhury and anoiher v. Gobar Ali Khan and others (18 I C 17), that is, if a suit comes under Article 142, the plaintiff has to prove that he had been dispossessed from, or had discontinued possession of, the disputed land within twelve years immediately pre ceding the commencement of the suit.
On the other hand, if a suit comes under Article 144 of the Limitation Act, that is, if it is based on the title of the plaintiff to the land, then the plaintiff must prove that he is the real owner of the disputed property, and, on such proof being given, the burden shifts to the defendants, who is then required to prove that his possession became adverse to that of the plaintiff more than twelve years before the date of the suit. In this connection we would reproduce the following observation of the Judicial Committee of the Privy Council in The Secretary of State for India v. Challikani Rama Rao and others (AIR 1916 P C 21) :- ' Nothing it better settled than that the onus of establishing title to, {{FOOT NOTE}}
(1) PLD 1974 Kar. 335 {{FOOT NOTE}} ' property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a date to say, "1 am here; be your title to the property ever so good, you cannot turn me until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions."
' It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession. In an ordinary suit for declaration it cannot be doubted that the onus of establishing possession for the requisite period would rest upon the plaintiff Nothing further is needed than the acknowledgment of the undisputed fact that these islands formed in the sea belonged to the Crown. The fact is fundamental : until adverse possession against the Crown is complete that is to say, is for the period of sixty years, that fundamental fact remains, and that fact forms subsisting title.' "
' In another case, Kuthali Moothavar v. Peringati Kunharan Kutty (1), the following observation was made : "Standing a title in A, the alleged adverse possession of B must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. The onus of establishing these things is upon the adverse possessor. Accordingly when the holder of title' proves that he too has been exercising, daring the currency of his title, various acts of possession, then the quality of these acts, even though they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds."
' The same view was taken by the Privy Council in Basant Kumar Roy and others v. The Secretary of State for India and others; Mst. Allah Rakhl and others v. Shah Muhammad Abdur Rahim and others
(2) and Raja Rajgea Maharaja Jagatigit Singh v. Raja Partab Bahadur Singh (3). Thus, under Article 142 of the Limitation Act, the plaintiff has to prove dispossession from or discontinuance of possession of the disputed land within 12 years immediately before the institution of the suit. But, under Article 144 of this Act, it' is enough if the plaintiff proves his title as real owner of the land, and then the onus is on the defendant to prove that this title became extinguished more than twelve years before the date of the suit."
' We are in respectful agreement with the above observations and view.
18. The onus thus of showing that he was in possession of any part of the plot for the requisite period of 12 years was on the appellant herein. We have carefully analysed the evidence on this point and consider that he has not been able to discharge this burden. No doubt, the appellant herein, in his evidence in Court has reiterated his claim in the written statement that he has since 1949 been in occupation of the same area which he presently occupies and that he has made no further encroachment or added to the said area and he has been supported in this behalf by D. W.
Mushtaq, and to {{FOOT NOTE}}
(1) AIR 1922 P C 181 (2) AIR 1934 P C 77
(3) AIR 1942 P C 47 {{FOOT NOTE}} ' some extent by D. W. Qadir Bux, but it is not possible to place any reliance on their evidence.
20. In support of his claim that he has been in occupation of the area in dispute since 1949 the appellant herein has produced his ration cards and documents and chit of the Director of Census.
The ration cards and documents, however, were for the years 1956-57 and 1958-59. The appellant herein has not produced his ration cards or ration documents for the earlier period which seems to suggest that he possibly came to occupy the area sometime in 1956. The Census Slip also does not advance the case of the appellant as it neither hears any date nor the name of the appellant.
21. The evidence of D. W. Qadir Bux is also unhelpful to the appellant herein as he is not living in the same area or neighbourhood but in Haji Murid Village, which is half a mile away from the but of the appellant herein. Moreover, he does not specifically say as to when the appellant herein came to occupy the area now in his possession. All that he states is that he knows the appellant herein since 1952 and that he is residing in the hutment area of Firdous Colony without even stating that he is residing there since 1952. This witness claims that he was Patron of the Anjuman of the Refugees of the Firdous Colony but has admitted that he was never its office-bearer. He has, however, not explained how he became the Patron of this Anjuman when he was living at a considerable distance from the hutment area and moreover was never elected to an office of this Anjuman. He has also not cared to explain under what circumstances he came to know the appellant.
22. There is thus on this point only the bare word of the appellant and that of Mushtaq. D. W.
Mushtaq is obviously interested in the appellant and admitted in his cross-examination that he had come with the appellant. Furthermore, he claims to be the Secretary of the Anjuman which was formed to strive for the rights of the refugees. He is thus clearly interested in seeing that neither the appellant nor any other refugee is evicted.
23. The oral testimony of the appellant and Mustaq, which does not find support from any documentary or other evidence, nor it is supported by any other residents of the area, which is admitted thickly populated, does not carry any conviction. We are accordingly of the view that there is no reliable evidence in support of the claim of the appellant herein that he has been residing in the area presently in his occupation since 1949 or even for a period of 12 years before the appellant filed the suit. Moreover, the appellant himself, at certain stages of the proceedings, took the plea that he was a licensee of the Government or at any rate was residing in the area in his occupation with the permission of Government, which admittedly was then owner of the entire areas. He thus cannot claim adverse possession against the Government or the Society, which is a grantee of the land from Government, or an allottee of the Society. The claim of adverse possession thus, in or opinion, fails.
24. It was finally contended by Mr. Z. U. Ahmad that the court-fee paid on the plaint was insufficient.
He has based this contention on the fact that the court-fee was paid on the value of the land according to the allotment price fixed by the Society and not on the market rate, which was certainly much more. He referred us to the evidence of D. W. Mushtaq Ahmad, according to whom the market value for the residential area in Rs, 200 per square yard and for commercial area Rs, 800 to 1,000 per square yard. The witness, however, did not state on what basis he gave this value, nor is there any evidence to indicate whether the appellant is in occupation! Of the residential or commercial area. Furthermore, the witness was giving evidence in 1971, while the suit was filed six years previously, and thus his evidence has little bearing on the value of the disputed land in 1965.
Also no evidence was led with regard to any contemporaneous sales of land in the locality, which would have been a good guide for determining the market value of the disputed land. Mr. Z. U.
Ahmad also sought to rely on this point on the evidence of P. W. Islam, but his evidence is of no help to the appellant, for, all that helms stated is that he is unable to say whether the value of commercial plots in Firdous Colony is Rs, 500 and residential plots is Rs, 100 per square yard. There is thus no tangible evidence to indicate that the market value of the land in dispute at the time of filing the suit was higher than that stated in the plaint. It might also be mentioned that since the area in dispute was in physical possession of the appellant herein and litigation was in progress between the parties, the market value would undoubtedly be much less than the value of the adjoining area which was not so encroached upon. We are accordingly unable to agree with the contention of the learned counsel for the appellant that the suit has been under-valued or no proper court-fee paid thereon.
25. No contention was raised before us, nor is there any evidence on record to suggest, that the appellant herein is in occupation of any area outside or beyond the plot allotted to respondent No. 1.
26. For the reasons stated above, we are of the opinion that there is no merit in this appeal. We would accordingly dismiss it with costs.
' I. MAHMUD, J.-I agree