' This is a revision petition against the judgment and decree, dated 29-6-1988 passed by the learned Additional District Judge, Multan where the judgment and decree, dated 13-2-1988 passed by the learned Civil Judge has been set aside.
2. The facts necessary for disposal of the present revision petition are that Qamarud-Din the predecessor-in-interest filed N.C.H. Form with Settlement Authorities for the transfer in his favour of the lower portion of House No,135 Ward No,3, Shujabad being an independent portion since 1947.
Abdul Sattar and Abdul Ghaffar the predecessor-in interest of the respondents were residing on the first storey of the said house. They filed C.H. Form for the transfer of the said property. Abdul Sattar and Abdul Ghaffar fraudulently and with the connivance of the Settlement staff got transferred the whole property in their favour. Qamar-ud-Din came to know of it and was to file an appeal but Abdul Sattar came forward and offered that he should not file appeal, and that he shall give them the portion in their possession, on the price of the Settlement Department. Subsequently an agreement to sell, dated 3-7-1963 was also executed to the effect that half (1/2) portion of the property in dispute will be transferred to Qamar-ud-Din after obtaining the P.T.D. From the Settlement Department, and he also admitted in the said document that Qamar-ud-Din is in possession of the property in dispute when he received Rs,750 as transfer price of the portion in possession of Qamar-ud-Din. The agreement to sell was written by a petition writer, and Abdul Sattar predecessor-in-interest of the respondents signed the same and received the consideration. The P.T.D. Was issued to Abdul Sattar and Abdul Ghaffar in 1970, but they did not comply with the agreement to sell, and the petitioners remained in possession of the said portion adverse to the interest of the predecessor of the respondents filed a suit for declaration that the plaintiff is owner in possession on the basis of adverse possession and also prayed for permanent injunction restraining the defendant from interfering in their possession. The suit was resisted by the respondents. On divergent pleadings of the parties the following issues were framed:--
(i) Whether the suit is not maintainable in its present form?
(ii) Whether this Court lacks jurisdiction to entertain the present suit?
(iii) Whether the suit is bad for non-joinder of the necessary parties?
(iv) Whether the plaintiffs have no cause of action?
(v) Whether the plaintiff is owner in possession of the suit property?
(vi) Whether the plaintiff is entitled to permanent injunction as consequential relief?
(vii) Relief.
3. Parties led their evidence and after hearing the arguments the learned Civil Judge decreed the suit on 13-2-1988. That the respondents preferred an appeal which was accepted by the learned Additional District Judge on 29-6-1988.
4. The learned counsel for the revision petitioner has contended that the agreement, dated 3-7- 1963 could not be dubbed as illegal merely because the P.T.D. Was issued in the year 1970, and that the sale could not be completed because of the respondent's failure to obtain P.T.D. In time and that the agreement, dated 7-3-1963 was quite valid as the respondents had already obtained P.T.O. In the year 1959;
5. On the other' hand the , learned counsel for the respondents has submitted that the agreement, dated 3-7-1963 was invalid and illegal.
6. I have given due consideration to the valuable arguments on both sides.
7. The reasoning of the learned Civil Judge on Issue Nos.5 and 6 were:- "PTD (Exh.D-1) was issued to the defendant on 28-1-1970 and even then there being no action taken by them against the plaintiff indicates the intention that the defendants or the predecessor of the defendants did not consider themselves the owners of the lower portion while P.T.O. Had been issued earlier on 7-12-1959. However, D.W.2 has stated that Abdul Sattar died 3/4 years back. The statement of this witness was recorded on 22-9-1986 which shows that he was alive prior to the institution of suit and he did not proceed against the plaintiff or their predecessors for taking possession and why he remained silent during his lifetime hence agreement, dated 3-7-1963 is found valid. Now the question is as to whether on the basis of this agreement the plaintiff can be declared owner. It is an accepted legal position that merely on the basis of an agreement no title is transferred. P. T D . Was issued on 28-1-1970. While the suit was instituted on 30-1-1982 i,e, after 12 years. The agreement is, dated 3-7-1963 (Exh. P.1), thus, by all means the possession of the plaintiff over the disputed property is since more than 12 years. In their reply to the application of ejectment in which the plaintiffs were respondents and they have taken the defence plea that on account of adverse possession they have become owners and that in AIR 1923 Lahore 495- it has been observed that even if agreement to sell is unregistered, the defect of documents is removed by lapse of 12 years adverse possession."
8. The reasoning of the learned Additional District Judge, Multan for setting aside finding of trial Court on Issues Nos.5 and 6 were as under:-- "It was argued by the learned counsel for the respondents that since the respondents had become the owners by adverse possession for a period of more than 12 years, therefore, not only the suit for declaration as to title was maintainable, but also they had otherwise acquired the title to the property in suit by way of adverse possession. But I must say that they did not claim their title on this scope in the relief claimed in the suit, although in the body of the plaint they had mentioned that they had become its owner by adverse possession. The learned trial Court did not frame any issue on the above subject and since during the long period taken in completion of proceedings in trial in the above suit, the respondents did not press the Court for framing the issue on the above controversial point, I see no reason now to order the afresh trial on the above point. The parties have already led their evidence in support or against their respective claim and plea in the suit, and there is nothing on the side of respondents to show that they had been in possession of property in suit openly and in hostility to the title of the appellants. The learned trial Court was, therefore, not justified in holding that they had perfected their title to the property in suit by adverse possession. The observation of the learned trial Court on Issue No,5 also was to the affect that the agreement in dispute did not treat any title to the property in suit in favour of the respondents.
Therefore, the learned trial Court ought not have decreed the suit even at the point of possession of the respondent over the property in suit. The learned trial Court did not observe that the possession of the respondents was ever hostile or .Adverse and the simple possession over the property in suit in no way perfects the title of any person may be found in its possession for a period of more than 12 years. The evidence led through the P.Ws. 1, to 4 also lacks of the facts constituting the adverse possession".
9. The facts admitted on the record are that P T. D . Was issued on 7-12-1959. Agreement to sell is, dated 3-7-1963, P.T.D. Was issued on 28-1-1970. Possession of the petitioner is since 1947. Suit was filed on 30-1-1982. Thus, the possession of the petitioner was of more than 12 years and they considered them owners in adverse possession since 3-7-1963. No doubt the agreement to sell in this case was inadmissible to prove title, it could yet be lawfully referred to ascertain the nature of possession sought to be disturbed. The dictum laid down in the case of Qadir Baldish and others v.
Manga Mal and others (AIR 1923 Lahore 495) observed as under:-- "We think that in this case the deed of sale may be referred to for the sole purpose of determining the nature of the possession taken by the respondents in 1888. On doing so we find that this document supports the finding arrived at by the learned District Judge to the effect that the mortgagees' possession in 1888 was not as mortgagees but under colour of a deed of sale. This deed of sale, not having been registered; created no title in favour of the respondents, thus, leaving them in the position of trespassers and as their possession has extended for over a period of twelve years, they have now become full owners of the land and their possession cannot be disturbed. It was held in 232 PLR 1911, that a mortgagee can set up adverse possession if his possession at its inception was that of trespasser."
10. This dictum is of no help to the petitioner in view of the judgment passed by the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Maqbool Ahmad v. Hakoomat-e- Pakistan (1991 SCMR 2083) whereby it was held that section 28 of the Limitation Act, 1908 (Act No, IX of 1908) is repugnant to the injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. It is further held that the said decision of the Hon'ble Shariat Appellate Bench shall take effect from 31st of August, 1991 and on the said date section 28 aforesaid shall also cease to have effect.
11. The result is that the petitioner is left with no umbrella of adverse possession. In this view of the matter, though for a different reason, the judgment of the learned Additional District Judge cannot be revised. The civil revision is dismissed.