1. This is an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. (C.M.A.
2. No,1934 of 1995) filed in a suit for declaration, injunction and cancellation of documents. Through this application, the plaintiff is seeking interim injunction against the defendants from dispossessing the plaintiff from a land consisting of a strip measuring 408 square yards adjacent to Plot bearing No,SNPA-32, Block Nos.7 and 8, Karachi Cooperative Housing Societies Union, Ltd., Karachi, till disposal of the suit, hereinafter referred to as the land in suit.
3. Briefly, the facts leading to this application are that the plaintiff, is the owner of a House bearing'
4. No,6/2-E, Muhammad Ali Housing Society, Karachi measuring 1658 square yards approximately, who claims to be in physical possession of the land in suit measuring 408 square yards which is adjacent to her plot and which she acquired from its previous owner. As per averments of the plaint this strip of land forms part of Plot No,SNPA-32 Blocks 7 and 8, Karachi Cooperative Housing Society Union and that it was designated as an amenity plot which was subsequently transferred to Maqbool Cooperative Housing Society in the year 1982 as an amenity plot. The defendants are the neighbours of the plaintiff and are owners of House bearing No,6/1-E, Muhammad Ali Cooperative Housing Society, Karachi. The plaintiff has admitted in para. 2(b) of her plaint that she, alongwith the defendants and another neighbour namely Mrs. Jamila Akhtar who is owner of Plot No,6/3-E, are occupying "strips of land" out of the Plot No,SNPA-32 for a considerable period of time. Initially, on 15-6-1982 the plot in question bearing No,SNPA-32 consisting of 408 square yards was allotted to Messrs Rehman Associates for construction of a hospital and accordingly sub- lease was executed in its favour by Karachi Cooperative Housing Society Union. This plot was purchased by the defendants vide deed of conveyance, dated 5-4-1989 and accordingly a sub: licence was also executed in favour of the defendants on 23-8-1994 and the same still subsists. At the instance of the defendants the Government of Pakistan, Ministry of Works, Islamabad, on 17-12- 1992 accorded permission to the defendants for conversion of this amenity plot for residential purpose. Accordingly, the Karachi Development Authority also granted its approval for conversion of amenity plot for residential purpose to the defendant on 26-11994. The Karachi Cooperative Housing Society Union on 25-9-1994 and 13- 10-1994 issued notices to the plaintiff for.removing unauthorised structure and encroachment from the land in suit.
5. The plaintiff, instead of removing unauthorised structure and other encroachments approached the Court of IInd Senior Civil Judge, Karachi East and on 19-10-1994 filed a Suit bearing No,1270 of 1994 for declaration and injunction. This suit was filed against the Karachi Cooperative Housing Society Union Ltd. and Muhammad Ali Cooperative Society Ltd. Along with the said suit an application under Order XXXIX, Rules 1 and 2, C.P.C. was also filed seeking interim injunction against both the Cooperative Societies restraining them from demolishing the construction raised by the plaintiff. This application came up for hearing before the learned Ian Senior Civil Judge, Karachi, East who on 28-3-1995 dismissed the same on the grounds, inter alia, that the plaintiff has failed to establish a prima facie case. It is not known whether any appeal was preferred or not. Now, the plaintiff has approached this Court for declaration that by virtue of prescription/adverse possession she has acquired ownership in the land in suit, cancellation of conveyance deed/lease and for perpetual injunction.
6. The case. of the defendants is that the plaintiff is a trespasser and, therefore, she is not entitled to any equitable or discretionary relief. According to the defendants it is an admitted position that the plaintiff does not own the plot in question and that its occupation by her amounts to a continuing wrong; that the doctrine of adverse possession has been declared to be repugnant to the Injunctions of Islam and Sunnah by the Supreme Court; that the suit is incompetent due to non- joinder of necessary party. According to the defendants the claim of adverse possession is a drastic negative act and subject to very strict proof for treating it as a right through adverse possession.
7. I have heard Mr. Naeemur Rehman, Advocate for the plaintiff and Mr. G.H. Abbassi, Advocate for the defendants. It is strenuously argued by Mr. Naeemur Rehman that the plaintiff by virtue of the fact that she is in physical possession of the plot in question since the year 1965 and by prescription and adverse possession she has acquired full right and title in the land in suit. According to the learned counsel for the plaintiff, the fact that she is in physical possession of the suit land since 1965 had neither been denied by the two Cooperative Societies nor by the defendants. In support of this contention Mr. Naeemur Rehman has referred to several documents filed with the plaint which according to him have not been specifically denied by the defendants. On the other hand, Mr. G.H.
8. Abbassi has prayed for dismissal of this application as well as rejection of the plaint on the ground that the Muhammad Ali Cooperative Housing Society as well as the Karachi Cooperative Housing Societies Union being necessary and proper parties have not been impleaded. He has further stated that no adverse possession can be claimed by a trespasser and against an amenity plot.
9. Both the parties have cited several reported cases in support of their respective arguments which I would like to examine as hereinafter:--
(i) Faizullah Khan and others v. Abdul Razzak PLD 1987 SC 130.
10. In this case, the defendant/appellants were admittedly the true owners of the land involved in the suit and the respondents were in possession of the said land. The appellants instituted a suit seeking possession from the respondents/defendants who raised the plea of adverse possession on the land for over 12 years: The suit was contested and was decreed. Appeal filed against the said judgment and decree of the trial Court was also disallowed. The appellants also filed a suit against the respondents for ejectment which was decreed and the appeal was dismissed. A learned Single Judge of the Peshawar High Court set aside the findings recorded in the first appeal.
11. A letters patent appeal was also filed by the appellants who was dismissed. The Honourable Supreme Court after considering several reported cases held that the claim of the plaintiff to be true owner and of the defendant to be in adverse possession alleging hostile title and interest and the decree for possession by itself has no effect of interrupting the adverse possession once convinced. In view of this finding the appeal was dismissed with no order as to costs,
(ii) Maqbool Ahmed and another v. Munir Ahmed and 9 others 1995 SCMR 482.
12. In this case, the Honourable Supreme Court refused to grant leave to the petitioners who were defendants in a revenue suit wherein they pleaded that the land involved in the suit was not liable to be partitioned on the ground of adverse possession. It was held by the Supreme Court that the plea of adverse possession by the petitioner, who were co-sharer in the suit land, against the respondents was not well-founded as no co-sharer without first partition of the property and without getting respective possession of their share can set up a plea of adverse possession. It was further held that a co-sharer cannot claim adverse possession against his other co-sharers as it is well-settled proposition of law that all the co-sharers are considered to have a joint possession.
13. (see also the case of Jagendra Chandra Kapali Chaudhry v. Arjun Chandra Kapali and others PLD 1964 Dacca 498.
(iii) Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063.
14. In this case Shariat Appellate Bench of the Honourable Supreme Court of Pakistan held that section 28 of the Limitation Act, 1908 as well as Article 144 of the Limitation Act are against Qur'an and Sunnah. This view of Mr. Pir Karam Ali Shah was endorsed by the entire Bench, Maulana Muhammad Taqi Usmani, J, after citing several books written by Faqihs and Muhadiseen agreed to the extent that section 28 of Limitation Act is contrary to Qur'an and Sunnah and held that after section 28 is declared to be repugnant to the Injunctions of Islam, Article 144 remains procedural law and In no manner does it affect ownership and right of a person, Accordingly, it was unanimously held that section 28 of the Limitation Act is repugnant to the Injunctions of Islam in so far as it provides for extinction of the right in property at the determination of the period of prescribed for instituting a suit for possession of the suit property. It was further held that the said decision shall take effect from 3141991 whereafter the section ceased to have in effect, Besides the above view, the following principles were also enunciated by the Honourable Shariat Appellate Bench of the Supreme Court which are as follows:--
(a) That even after expiry of the time prescribed in the Limitation Act, if any person is in unlawful possession of a property, he, according to divine judgment, will be sinful and he will be liable.
15. According to Shariat and morality he is bound to return the suit property to its original owner.
(b) If a person who admits that his possession of more than twelve years on a land belongs to some other persons, on such admission a Court is entitled under Shariah Law to return the property to its original owner.
(c) That in case a Court refuses to entertain any claim on the question of limitation even then such dispute can be referred to the arbitration and the Court is competent to enforce award of such arbitrator.
(d) That in ease the real owner comes into possession of an immovable property from the trespasser then such a trespasser cannot maintain a claim on the around that by virtue of adverse possession he had attained ownership of the disputed land, (underlining is mine).
16. (iv)lquis Begum and 9 others v, Karam Shah and 3 others 1980 CLC 169.
17. In this case, Honurable Supreme Court of Azad Jammu and Kashmir after considering the case=law of Jugandra Chandra Kapali Chaudhry (supra) held that defendant after paying land revenue coupled with the enjoyment of produce as owner had made the plaintiff fully alive that he had been holding the property adversely and in total disclaimer of his title, such settled position of defendant as trespasser spreading over a sufficient long period and acquiesced in by the true owner shall be considered as acquiescence of the adverse nature.
(v) Moolchand and 9 others v, Muhammad Yousaf (Udhamdas) and 3 others PLD 1994 SC 462.
18. In this case, two appeals were before the Full Bench of the Honourable Supreme Court, each filed by the defendants and the plaintiffs, Besides other legal questions pertaining to the property left by a Hindu, the question of adverse possession was also considered. It was held, inter alia, that one co-heirs cannot defeat the claim of other co-heirs by the plea of adverse possession: The rule laid down in the case of Mst, Omai and others v, Hakim Khan and others 1970 SCMR 499 was followed wherein it was held that if property is joint, mere non-participation iii profits of property by one co- heir and exclusive possession by others would not- be sufficient to construe adverse possession.
19. The Honourable Supreme Court reiterated the rule laid down in the case of Mst, Aftaba and another v, Reza Khan and others 1984 SCMR 906 and in the case of Hail v. Khuda Yar PLD 1987 SC 453 wherein it was held that adverse entry and non-participation in the profits of the property would not amount to ouster of the other co-sharers or co-owners, Mr. Naeemur Rehman, learned counsel for the plaintiff has also argued that the right of adverse possession, was accrued to the plaintiff much prior to the decision of Supreme Court in the case of Maqbool Ahmed (supra) and, therefore, her right is protected. In other words, he means that the effect of a Supreme Court judgment is prospective and not retrospective, In this connection, he has referred to the cases of Muhammad Bachal v, Deputy Rehabilitation Commissioner, Hyderabad and others PLD 1962 Kar, 889, Adnan Afzal v, Captain Sher Mail PLD 1969 SC 187 and the case of Al- Suarez Enterprise v, The Federation of Pakistan 1986 SCMR 1917, In the first case a Division Bench of this Court considered the facts of repeal of a statute wherein it was held that when a statute affects existing rights, these provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest, In the case of Al-Suarez Enterprise, the question involved was retrospective effect of a notification issued by the Custom Authorities, It was held that when a vested right was created and a transaction was not open to doubt as fraudulent, then retrospective operation cannot be given to executive orders in order to destroy contractual rights and obligations.already Booted, The case of Adnan Mad PLD 1967 SC 187 is also on the point of retrospective effect of a legislation. However, the present controversy involved in this application is not covered by the provision of section 6 of the General Clauses Act, No doubt, the law is very clear as far as judicial pronouncement by the superior Courts is concerned that such judgments are also prospective in nature and not retrospective. But this plea is not available to the plaintiff as this suit was filed after the target date of 31-8-1991 as set up by the Supreme Court in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063. In the case, certain provisions of Limitation Act, 1908 were declared to be contrary to the Injunctions of Islam. I may observe here that the well- established Islamic Injunctions are not subordinate to the general or common laws of land. Article 2A of the Constitution, 1973 read with Objectives Resolution and section 4 of the Enforcement of Shari'ah Act (Act X of 1991) keep the Islamic laws at a higher level than the other common and general laws of the country. In support, I would like to refer to the case of Sakhi Muhammad v.
20. Munshi Khan PLD 1992 SC 256 where an appeal arising out of a suit for pre-emption, leave to appeal was granted to consider whether a second suit is barred on general principle of res judicata after rejection of plaint in the first suit for non-payment of 1/5th of Zar-e-Panjam by due date. This plea of the appellant was dismissed By the Honourable Supreme Court in the following words:-- "Learned counsel also mentioned that notwithstanding the afore-stated rebuttal of the points raised by him the general principle of res judicata should be given effect in cases like the present one. When asked to base his plea on any jurisprudential source the learned counsel without citing the same could not visualise any except the Roman and Western source. But he was unable even to state that this source of the plea would be available to the appellant/defendant/vendee in this case in Islamic dispensation. As held in several cases by the superior Courts in Pakistan including Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930 and Muhammad Bashir v. The State PLD 1982 SC 139 now in so far as the principles are concerned Islamic jurisprudence and Islamic Law, cannot be subordinated to any other principle which comes in clash with them. This is so on account of Constitutional set up of Pakistan."
21. In the instant case, the plaintiff has admitted in para. 2(b) of the plaint that she alongwith one Jamila Akhtar and defendant is occupying the said strip of land. I am of the tentative view that the correspondence filed as Annexures (IV/A) to (IV/F) does not prove lawful and bona fide possession of the plaintiff on suit land. On the contrary, Annexures (IV/G), (IV/I), (XII/A) and (XII/B) indicate that the cooperative society have never treated the plaintiff as the lawful and bona fide occupier of the suit land, I am of the view that in absence of any legal right it cannot be held that the plaintiff has a prima facie case, The defendants are the purchasers of the suit land and accordingly title documents were executed in their favour. These further shows that the remaining two ingredients for grant of interim injunction are also absent in the plaintiff's case.
22. For the above said reasons, through a short order on 5-9-1996 the plaintiff's application C.M.A.
23. No,1934 of 1995 was rejected with the directions that the order of maintaining status quo shall remain in operation till the expiry of time prescribed for filing of appeal. The above are the reasoning for the said short order.