' The facts of the case are that the plaintiff-appellant purchased the suit house for consideration of Rs, 6,000 on 1-11-1957 from Sh. All Muhammad, respondent. The present suit was filed on 7th of May, 1958 against respondents 1 to 3 for their ejectment from the suit house on the ground that they had forcibly taken the possession thereof and at the asking of the appellant to vacate the house, they had refused to do so. Muhammad Yousuf respondent denied the title of the plaintiff as well as of Sh. Ali Muhammad respondent and asserted that he was owner of the house on account of his adverse possession, fully known to the plaintiff for more than 12 years before the institution of the suit. He also claimed that at the time when respondent Sh. Ali Muhammad sold the house in favour of the appellant, he had no title to the suit property. As many as 3 issues were framed by the learned trial Court on the basis of the pleadings of the parties I as to whether the plaintiff was owner of the house in question, whether the plaintiff or his predecessor-in-interest has been in possession of the suit house within 12 years prior to the institution of the suit, and whether the defendant Muhammad Yousuf has been in possession of the suit house for more than 12 years. The learned trial Court held that since the plaintiff asserted possession and dispossession in the plaint, therefore, Article 142 of the Limitation Act was applicable. According to the learned trial Court illegal occupation or dispossession of the plaintiff commenced on Ist of April, 1945 and since the suit was filed on 7th of May, 1958 when adverse possession had matured and the plaintiff failed to show that he was in possession of the house during 12 years preceding the institution of the suit, therefore, the same was liable to be dismissed. The findings of the learned trial Court in this behalf have been affirmed by the learned Additional District Judge, Lahore.
2. The case of Muhammad Yousuf, respondent, has been that he occupied the house in question without the consent of its owner in 1937 and since then he has been in possession thereof without any interruption. According to him neither Sh. All Muhammad respondent, nor the appellant ever inquired from him about the possession of the house. He has stated that he did not know as to who was the owner of the property at the time when he occupied it. Since it was not locked from outside therefore, he entered the same and occupied it. He produced many witnesses in order to show his occupation from 1937. The case of the appellant as well as Sh. All Muhammad, previous owner of the house is that Muhammad Yousuf occupied the house in question as tenant in 1949 and since he refused to acknowledge the title of the appellant after the sale of the house in question, therefore, the present suit was filed against him. They have produced on record various documents which have been duly exhibited by the learned trial Court to the effect that they have been paying taxes to the relevant authorities and receiving and paying electricity and water bills. According to them Muhammad Yousuf, respondent was never acknowledged as owner of the house by any of the authorities concerned. It is, however, admitted by them that Muhammad Yousuf never paid any rent to any of them. The version of Muhammad Yousuf respondent, that he occupied the house in 1937 has been disbelieved in view of the entries in the relevant municipal record showing him to be in occupation in 1945. His name is not shown in the relevant file nor in the relevant record maintained by the Municipality in the years 1940. It has been held that since the plaintiff-appellant has himself admitted the illegal occupation of Muhammad Yousuf, respondent, therefore, it is for him to show that he has been in possession of the house during the 12 years preceding the institution of the suit as required by Article 142 of the Limitation Act. Since the appellant has failed to do so, therefore, his suit has been dismissed.
' It has been contended by the learned counsel for the appellant that when the version as put forward by Muhammad Yousuf has been rejected then there is no reason to disbelieve the version of the appellant that he occupied the house as tenant in 1949. It is contended that the explanation given by the plaintiff-appellant with regard to his averments as contained in para. 3 of the plaint has been illegally ignored. The appellant while appearing as his own witness explained that by illegal occupation of Muhammad Yousuf respondent, he meant that since he refused to pay the rent to him, therefore, he was occupying the house as such. According to him since all the taxes have always been paid first by Sh. Ali Muhammad and thereafter by the plaintiff-appellant, therefore, possession of Muhammad Yousuf respondent cannot be deemed to be hostile as against the appellant and no overt act in this behalf can be ascribed to the respondent. It has been held in Behari Lal and others v. Narain Das and another (1) that where in a suit for possession, plaintiff pleads possession and dispossession the suit is governed by Article 142, it cannot be said that in all cases Article 144 is to govern the case once the plaintiff has proved title to the property, it is also held that dispossession may be either actual in the sense of an existing actual possession being forcibly terminated by actual dispossession, or it may be a legal constructive possession being terminated by a legal dispossession. The plaintiffs in that case filed a suit for possession against the defendants alleging that they were the owners of the house in dispute and had given the same on
(1) A I 8 1935 Lab. 475 lease to Nabi Bakhsh defendant No, 2 in the year 1927, that subsequently Nabi Bakhsh had given a sub-lease to defendant No, 1 who denied their title and denied that he was a tenant under Nabi Bakhsh. The Court had therefore, deemed their suit for rent againstNabi Bakhsh but dismissed the same against the other defendants. As a consequence thereof suit for possession was filed by the said plaintiffs against the defendants denying their title. The same was dismissed by the learned trial Court holding that the plaintiffs had the title in the house but had failed to prove possession within 12 years of the suit. The learned trial Court dismissed the suit after having applied Article 142 of the Limitation Act and further held that since the suit was barred by time, therefore, it was not necessary to go into the question whether defendant No, 1 had proved adverse possession. The same view was taken by the lower appellate Court in second appeal in the High Court, the learned Single Judge referred the case to a Division Bench on the ground of conflict of rulings whether in the circumstances, as mentioned above, Article 142, or Article 144, Limitation Act would be applicable. The case was ultimately dealt with by a Full Bench which held that in the circumstances narrated above, Article 142 of the Limitation Act would be applicable.
' In the present case, as discussed above, possession and dispossession has been pleaded by the plaintiff-appellant. It has been admitted by him that the respondents have illegally occupied the house meaning thereby that the plaintiff-appellant was dispossessed from the house when it was illegally occupied by the respondents.
4. Even the language of the relevant Article 142 supports the view taken in the case referred to above. Period of 12 years would start from the date of dispossession or discontinuance in a case for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued to be in possession. In such a case the plaintiff is obliged to show that he has been in possession of the property during the 12 years preceding the institution of the suit and if he fails to do so the defendant who claims the ownership on account of adverse possession need not be called upon to prove his title on account of adverse possession irrespective of the fact that the plaintiff has proved his title to the property. The same view has also been taken in Dant and another v. Maleri Ram and others (1), Ahmad All and others v. Hata and others (2), Ruhella and others v. Masira and others (3), Daulu Ma! v. Rawal Bakhsh and another (4), Gursahal Kandu and another v. Chhedi and another (5). It has been held in all these cases that in a case falling under Ankle 142 of the Limitation Act the claimant must prove his possession within twelve years next preceding the date of the institution of the suit and in such case an inquiry into the question of adverse possession is irrelevant. Similar view has been taken in Shivji Mahraj and others v. Barat Lal and others (6). It has been held that it is not necessary for the Court to consider the defendant's evidence if the plaintiff in a suit for the possession has failed to prove his possession within the statutory period as in the absence of such proof he will be out of Court.
5. The latest view on the point is contained in Hoff Sher Muhammad v. Mst. Amoo and others O. It has been held that Article 142 clearly speaks of dispossession or discontinuance of possession. The dispossession refers to actual physical dispossession. Such a dispossession involves collision and expulsion. As for
(1) AIR 1922 Lah. 432 (2) AIR 1939 Lah. 217
(3) AIR 1928 Lab. 32 (4) AIR 1930 Lab. 608
(5) 79 I C 964 (6) AIR 1956 All. 207 PLD 1960 Kar. 4et discontinuance of possession it seems clear that the expression has not been used in the sense of mere abandonment. An abandonment simpliciter does not disentitle the owner because constructive possession in spite of mere abandonment or non-user, remains with the owner. On such abandonment therefore, there must be intrusion by another. Unless there is such intrusion there is no one against whom the owner has to defend his title. It has also been held that there has therefore, to be an abandonment without animus revertendi followed by somebody else obtaining actual possession. It has been held that in order to establish such a discontinuance of possession it must be shown that the owner has withdrawn with the intention of abandoning the property and that the gap has been filled by another person who has come to occupy in consequence of such withdrawal.
6. The view as taken in 1960 Karachi appears to be very much rational. In such cases where title of the plaintiff has been fully proved and it is not shown that he has been forcibly dispossessed or rather expelled from the premises in question it will have to be seen whether his discontinuance of possession means his withdrawal from the premises with the intention of abandoning the property and as a consequence of that another person has filled in the gap by occupying the property.
In the present case, it is not proved on record nor it is the case of respondent No, 1, Muhammad Yousuf that he forcibly dispossessed or expelled the plaintiff-appellant from the house in question.
According to him he on one fine day found the house unlocked from outside and entered and occupied the same without the consent of the owner, rather without inquiring as to who was its owner. The question arises whether the property in the given circumstances had been abandoned totally with the intention of never occupying the same, particularly in view of the fact that all the taxes, bills etc., were always paid by the real owner t. e. Sh. All Muhammad respondent and after him by the appellant, Both the Courts below have also concluded that Muhammad Yousuf respondent occupied the house in 1945. According to the entry in the relevant record maintained by the Municipal Committee his, version about his occupation of the house during the period preceding 1945 has been rejected. It is also admitted on record that uptil now the relevant municipal and taxation record mentions the name of Sh. Ali Muhammad and after him that of the appellant as owner of the house, at the same time showing Muhammad Yousuf as its occupier. The document which has been relied upon by both the Courts below in finding Muhammad Yousuf respondent occupying the property from 1945, is Exh. D. W. 7/A, copy of the assessment of the Taxation Department for the year 1945-46. It is admitted by both the Courts that the document was placed on record after the plaintiff-appellant had concluded his evidence and as such he was not given any chance to rebut the evidence produced by the respondent. It is also admitted that the said document was exhibited while it was just placed on the file. It was never duly proved in evidence i,e, no official of the relevant Department was ever produced along with the relevant record to prove the contents of the document. In the absence thereof, I really fail to understand as to how the document was exhibited. When it is admitted by both the Courts below that the plaintiff-appellant was not given an opportunity to explain the genuineness or otherwise of the document, as referred to above, they were obliged under the law to do the needful in this behalf as the document Bah. D. W. 7/A has adversely affected the right of the plaintiff-appellant in the property in question, therefore, in the interest of natural justice he should have been given an opportunity to rebut the genuineness of the entries made therein. The record shows that if the said document had not been placed on the file then there was no option for the Courts below but to accept the version of the appellant in view of the fact that the counter-version of Muhammad Yousuf respondent, that he occupied the house in 1937 had been rejected.
7. Further, as discussed above, since the appellant or his predecessorin-interest, Sh. Ali Muhammad, has not been proved to have been forcibly dispossessed from the house In question, therefore, it will have to be seen in the given circumstances whether Sh. All Muhammad and after him the appellant discontinued the possession of the house as if they had been withdrawn therefrom with the intention of abandoning the same.
8. As a result of the above discussion, the judgment and decree passed by both the Courts below cannot be sustained in law. The same is hereby set aside. The appeal is accepted without any order as to costs and the case is remanded to the learned District Judge, Lame, for entrusting the same to a competent Court for its fresh decision, in accordance with the law and in the light of the observations made above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.