1. RAJA QURESHI, J.--- Questioned in this appeal is an order passed by the learned Single Judge of this Court on an application (C.M.A. 1934 of 1995) under Order XXXIX, Rules 1 and 2, C.P.C. in Suit No,249 of 1995. The suit instituted by the appellant is for declaration, injunction and cancellation of documents and contains following main prayers:-- "(a) declare that the plaintiff has acquired full right, title and interest by way of prescription/adverse possession.
(b) declare that the plaintiff should not be dispossessed from the premises in suit.
(c) grant permanent injunction restraining the defendants from dispossessing and/or attempting to dispossess the plaintiff from the land in suit.
(d) cancel the conveyance deed, dated 5-4-1989 and lease/sub-licence, dated 23-8-1994 (Annexures "VI/c" and "VI/d" executed in favour of the defendants)."
2. For the purpose of understanding the controversy, it would be necessary to digest briefly the factual aspects in this matter.
3. Briefly, the facts are that the appellants is the owner of the House bearing No,6/2-E. Muhammad Ali Housing Society, Karachi, measuring 1658 sq. yards approximately. She claims to be in physical possession of the land in suit measuring 408 sq. yards being adjacent to her plot. This 408 sq. yards piece of land is a strip which appears to be a part of Plot No,SNPA-32, Blocks 7 and 8, Karachi Cooperative Housing Society Union (hereinafter referred to as the "Society" and the same was designated as an amenity plot. This plot appears to have been transferred to Maqbool Cooperative Housing Society in the year 1982 as an amenity plot. Respondents are neighbours of the appellant and are the owners of House bearing No,6/1-E, Muhammad Ali Cooperative Housing Society, Karachi. The appellant admits that she alongwith the respondent and other neighbour namely Mrs. Jamila Akhtar who is owner of Plot No,6/3-E, are occupying the strips of land out of the Plot No,SNPA-32 for considerable period of time. It seems that on 15-6-1982 the plot in question bearing No,SNPA-32 consisting of 408 sq. yards appears to have been allotted to Messrs Rehman Associates for construction of a hospital, consequent to which sub-lease was executed in its favour by Karachi Society. This plot appears to have been purchased by the respondent in this appeal vide deed of conveyance, dated 5-4-1989 and accordingly, a sub-licence appears to have been executed in favour of the respondent on 23-8-1994 which still continues to subsist. It further, seems that the respondents on their initiative were able to acquire permission from Ministry of Works, Islamabad, on 17-12-1992 for conversion of this amenity plot for residential purpose. Consequently, the Karachi Development Authority also appears to have granted its approval for conversion of the amenity plot for residential purpose to the respondents on 26-1-1994. It, thereafter. seems that the Society had on 25-9-1994 and 13-10-1994 issued notices to the appellant for removing unauthorized structure and encroachment on disputed land. Record further reveals that instead of complying with the notices issued by the Society for removal of unauthorized structure and other encroachments the appellant seems to have approached the Court of IInd Senior Civil Judge.
4. Karachi (East) and on 19-10-1994 filed a Suit bearing No,1270 of 1994 for declaration and injunction.
5. This suit was filed against the Karachi Cooperative Housing Society Union and Muhammad Ali Cooperative Society Limited. As a measure of interim relief, an order of restraint was sought by the appellant against the Societies restraining them not to demolish the construction raised by the appellant. This application for interim relief was dismissed on 28-3-1995 on the premise that the appellant had failed to establish a prima facie case. Whether any appeal was preferred against this interim order is unascertainable from the record.
6. It is in this background that the appellant had invoked the original civil jurisdiction of this Court seeking declaration to the effect that by virtue of prescription/adverse possession she had acquired ownership in the land in suit, cancellation of conveyance deed/lease as well as for perpetual injunction.
7. Mr. Naim-ur-Rehman on behalf of the appellant has strenuously contended that the appellant would suffer irreparable loss after having established a prima facie case with balance of convenience in her favour. He canvassed that section 28 and Article 144 of the Limitation Act, 1908 had not been applied in its true letter and spirit. The appellant was canvassed to be in actual, physical, continuous, visible, hostile and hence adverse possession since 1965, after the appellant had purchased a plot which was adjacent to the strip of the disputed land in 1965. Having remained in continuous possession for over a period of 12 years, actual exclusive and hostile possession was stated to have become adverse and hence once the statutory period of 12 years was over, the same constituted a bar. The learned counsel for the appellant further canvassed that section 28 and Article 144 of the Limitation Act are applicable and adverse possession in favour of the appellant stood established as far back as in the year 1965 and it was after 27 years of such occupation that the Society issued a notice to the appellant which had occasioned the filing of the Suit bearing No,1270 of 1994 for declaration and injunction which order of injunction stood vacated on 28-3-1995. In order to explain as to why the present suit was filed when the earlier suit was already filed by the appellant it was stated that the respondent became party to the earlier suit which in fact, altered the cause of action warranting cancellation of documents issued in favour of the respondent and, therefore, the earlier suit was withdrawn and present Suit No,249 of 1995 was filed before this Court. It was further pleaded that even a trespasser, if he is established to be in settled possession over ,a sufficiently long period and acquiesced by the true owner, the same shall be deemed to be acquiescence of the adverse nature of possession. Provisions of section 28 and Article 144 of the Limitation Act were canvassed to be not applicable beyond 31-8-1991.
8. Reliance has been placed by the learned counsel for the appellant on 1991 SCM R 2063, 1998 SCMR 1996, 1995 M LD 1962. On the other hand, learned counsel for the respondent had vehemently contended that the respondents are enjoying a status of nothing more than a trespasser. He had invited our attention to 1991 SCM R 2063. For the purpose of ready reference, the order of the Court passed in 1991 SCM R 2063 is as follows:-- "For reasons recorded in two separate judgments, the Court is unanimous in holding 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 this decision shall take effect from 31st of August, 1991 and on this date section 28 aforesaid shall also cease to have effect.
9. Order accordingly."
10. Based on the aforementioned, it was contended by the learned counsel for the respondent that the appellant is a trespasser and, therefore, was not entitled to any equitable or discretionary relief. He further, contended that under the scheme of Limitation Act, trespassers and encroachers without title could not obtain an injunction or declaration in terms of the prayer contained in the suit. Such declaration in the suit and injunction in the present appeal could not be granted to the appellant as section 28 had ceased to be on the Statute book and not in a single case relief has been granted by any Court after the cut of date. Consequently, title based on adverse possession could not be granted to, the appellant. The learned counsel for the respondent forcefully contended that the Society who are lessor of the plot have not been joined as a proper and necessary party to the present proceedings in the suit as well as in this appeal. Such Societies are bodies from whom the appellant is seeking possession. Limitation was stated to be applicable on the date of institution and not when the cause of action had accrued. Section 53 of the Transfer of Property Act was relied upon to contend that no positive right had accrued to the appellant but a negative right on account of negligence of the respondent or the Society which would only be defended by the appellant.
11. Having considered the submissions made by the learned counsel, the pivotal controversy seems to revolve around section 28 of the Limitation Act which had been declared to be repugnant to the injunctions of Islam on 31-8-1991, on which date section 28 ceased to have any effect whatsoever, and consequently, not available on the statute book.
12. The next question would be that the claim of the appellant, if any had matured prior to 31-8-1991, then what would be the consequences which are likely to flow. Thirdly whether this Court can give a declaration to the appellant in terms of having acquired full right, and title by way of prescription of adverse possession subsequent to 31-8-1991. Next aspect for consideration could be as to whether the appellant has a right to defend his title acquired by way of prescription of adverse possession, or could resort to the proceedings of the instant nature. Lastly in the absence of Societies not having been joined as proper and necessary parties, was the appellant entitled to the relief sought before the learned Single Judge. Having further examined the aspect as to what has been laid down by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan, while declaring section 28 to be repugnant to the Injunctions of Islam, it would be necessary to visualise that even after the expiry of the time period in the Limitation Act, if any person is in unlawful possession of a property, he according to the divine judgment would be sinful and would liable. According to Sharia and morality, he is bound to return the property to its original owner. In the event if a person who admits that his possession for 12 years on a land belonging to some other person as in the instant case, on admission, a Court would be entitled and justify to return the property to its original owner. It would further be seen that in case the real owner comes into possession of an immovable property from the trespasser then such a trespasser cannot make a claim on the ground that by virtue of adverse possession he has attained the ownership of the disputed land. Such being the spirit of the dictum laid down by the Honourable Shariat Appellate Bench, we would move a step forward in the same direction and observe, that such principles had continued to operate right from over 1400 years but in the Islamic Republic of Pakistan, the same were acknowledged, accepted and declared to be effective for the first time on 31-8-1991 being the cut of date when section 28 of the Limitation Act stood no more on the Statute Book. As such the arguments advanced in terms of the right of adverse possession to have accrued to the appellant much prior to the decision of the Supreme Court in the case of Maqbool Ahmed, therefore, their right stood protected on account of the circumstances that the Supreme Court judgment being prospective in operation and not retrospective in operation but the fact remains that the plea, which has been pressed into service, has been pressed after the target date and moreso the declaration being sought based on the plea could only be given within the ambit, scope of the provisions of section 28 which has ceased to exist on account of the prospective operation of the judgment w,e,f, 31-8- 1991 and, therefore, if an ultimate declaration could not be achieved by the appellant, then in such circumstances, the learned Single Judge has very rightly held the appellant to be disentitled to the interim relief. The fact further remains, that well-established, Islamic Injunctions are not in any way subservient to the general and common law of the land. Even Article 2A of the Constitution read with the Objective Resolution and section 4 of the Enforcement of Sharia Act (Act X of 1991) had always continued to keep the Islamic Laws at a higher level to other general laws of the country.
13. Consequently, the cut of date prescribed is merely, an acknowledgement of the supreme law holding the field. Suffice it to say that Islamic Jurisprudence, and Islamic Law cannot be made subservient to any law or principle of law which comes in clash with them.
14. Even otherwise, adverse possession contemplated by Article 144 had to be adequate in continuity, in publicity, and in an extent to show that the possession adverse to the competitor. Such quality of adequacy, continuity and exclusiveness which could qualify adverse possession is absent in the present set of circumstances, as the owner Societies continued to issue notices to the appellant for being a trespasser and in unlawful occupation. It is not the case of the appellant that the Society owner continued to standby, while the appellant had continued in possession in contravention of his rights. Protests had been lodged by the Society calling upon the appellant to remove the encroachment, and vacate the disputed land. Having said as much, the appellant has not been able to demonstrate to have been in lawful and bona fide possession of the suit land specially when the Society has never treated the appellant as bona fide and lawful occupier of the land, and in the absence of any legal right, the appellant cannot be held to be having a prima facie case.
15. Respondents being the owner of the said land with title documents executed in their favour consequently, the impugned order before us does not warrant any interference which is hereby maintained. This appeal is, therefore, dismissed with no order as to costs.