' NASIR ASLAM ZAHID, J.---The above appeal, by leave of this Court, calls into question the order, dated 27-2-1993 of the Lahore High Court (Bahawalpur Bench), whereby appellants' revision petition was dismissed confirming the judgments of the trial Court and the appellate Court. Leave was granted by order, dated 13-6-1994 which reads as under:- "This is a petition for leave to appeal against the order, dated 27-2-1993 passed by a learned Single Judge of the Lahore High Court in Civil Revision No,93-D of 1993 filed by the petitioners against the concurrent judgments/decrees of the two Courts below i.e, of the learned Civil Judge, Rahimyarkhan, and the learned District Judge, Rahimyarkhan, in Civil Suit No,286-1 of 1985 and Civil Appeal No,22 of 1992, respectively, decreeing the respondents' suit for declaration and permanent injunction dismissing the same in limine.
(2) The brief facts are that the land measuring 280 Kanals was purchased in a public auction by Wahid Bakhsh, predecessor-in-interest of the present petitioners, from the Provincial Government, out of which 66 Kanals, which is the subject-matter of the present petition, is in possession of the respondents. It appears that on 4-9-1969 the petitioners filed suit for possession against the respondents but the same was held to have been abated on 7-2-1972 on the ground of failure to bring on record legal representatives of one or more of the deceased defendants. The appeal filed by the petitioners against the above abatement was also dismissed on 6-1-1975. No further proceedings were filed by the petitioners in respect of the above suit. It seems that the respondents filed present suit on 14-5-1985 for declaration and permanent injunction on the basis of the following two pleas:--
(i) that they were the owners of the suit land on account of the fact that Wahid Bakhsh was a benamidar for them to the extent of suit land; and
(ii) that they had become. Owners by virtue of adverse possession.
(3) The above suit was resisted by the petitioners. However, the learned Civil Judge, after framing issues, recording evidence and hearing the parties, through his judgment/decree, dated 27-9-1987, held that the benami transaction was not proved but decreed the suit on the basis of plea of adverse possession. The above judgments/decrees have been maintained by the two Courts below. The petitioners have, therefore, filed the present petition for leave to appeal.
3. In support of the above petition, Sh. Masood Akhtar, learned, Advocate-on-Record appearing for the petitioners, has vehemently contended that in presence of the plea of Benami transaction, it was not open to the respondents to have raised the plea of adverse possession as the latter was an inconsistent plea with the former plea. His further submission was that the three Courts below erred in accepting the plea of adverse possession in spite of the above inconsistent and self- destructive plea: He has relied upon the judgments of this Court in the case of Ghulam Qadir v.
Ahmad Yar and others (PLD 1990 SC 1049) and the case of Mirza Ghulam Hussain and another v. Cli.
Iqbal Ahmad (PLD 1991 SC 290).
4. We are inclined to grant leave to consider the above contentions. Leave A is, accordingly, granted."
We have heard the arguments of Sh. Masood Akhtar, learned, Advocate-on-Record for the appellants and Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for respondents No,5. Other respondents have remained ex parte. With the assistance of the learned counsel, we have perused the record including the depositions of the witnesses before the trial Court.
2. As noted in the leave granting order, the suit filed by the respondents on 14-5-1985 for declaration and permanent injunction was based on the following pleas:--
(a) Respondents were the owners of the suit land measuring 66 Kanals as Wahid Bakhsh was 'benamidar' to the extent of the suit land.
(b) Respondents had even otherwise become owners by virtue of adverse possession.
' Sh. Masood Akhtar, learned, Advocate-on-Record for the appellants, has submitted that the two pleas, namely, one of benami transaction and the other of adverse possession were inconsistent and, therefore, self-destructive. It was, however, submitted that having failed to establish their plea that Wahid Bakhsh was benamidar for them to the extent of the suit land (66 Kanals) from which it follows that their initial possession of the suit land was based on legal title and having failed to establish such plea under the law respondents could not take up the inconsistent plea of adverse possession. Learned counsel for the appellants relied upon the two judgments of this Court referred in the leave granting order. In the case of Ghulam Qadir v. Ahmad Yar (PLD 1990 SC 1049) it was held that when a party pleads that it had a valid title through purchase and subsequent inheritance, it would become impossible for such a party to succeed in the alternative on the plea that the possession being open and hostile, title had matured otherwise on account of influx of time through adverse possession.
' In the other judgment of this Court in the case of Ghulam Hussain v. Iqbal Ahmad (PLD 1991 SC 290), the question has been dealt with in detail. In this judgment reference was made to a passage from "Limitation Act by Shaukat Mahmood" (Second Revised and enlarged Edition of 1984) which reads as follows:-- "The rule of adverse possession is based on the principle of 'might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State in Pakistan have considered it immoral for it has its origin in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organization of society into rule of law, it gained mandate of law to set at rest the status of long time possession particularly in absence of claims of true owners of properties. Prescription may be defined as the effect of lapse of time in creating and destroying rights. It is the operation of time as a vesting fact.
It is of two kinds namely (1) positive or acquisitive prescription and (2) negative or extinctive prescription. In positive prescription it is a title of right, e.g. Exercising easementary right for over a prescribed period, but in negative prescription it . Is a divestive fact, e.g. Prescription of title by adverse possession and limitation. Extinctive prescription or the limitation of action causes not a transfer of right but merely the loss of a remedy. In both forms of prescription fact and right to possession and ownership tend to coincide. It is, thus, that adverse possession which may arise from dispossession or discontinuance of possession extinguishes the right of the true owner, provided it fulfils certain requirements.
' The adverse possession must not merely be a trespass, but for unmistakable ouster of the real owner, there should be some overt act, under such circumstances of notoriety which clearly posts him with the knowledge of invasion of rights. The constituent conditions of adverse possession are that it must be actual, visible exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If any one of the constituent conditions is lacking in evidence the plea is outright rejected. It is for this reasons that Courts have always insisted on cogent and positive evidence in support of adverse possession. Where possession of plaintiffs over land, was continuous, exclusive and adverse it would create right of ownership by way of prescription. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, and the possession must be nec vi nec cl, m nec precario that is peaceful, open and continuous. Such possession was to be open, hostile and to knowledge of person entitled to possession. It is unnecessary that real owner should have actual knowledge of the adverse possession so long as it is open and capable of being known by parties interested in the property, or that the owner should be shown to have protested that his rights were being violated and that the possession went on adversely to his protests."
' Thereafter, with reference to the case under consideration whether alternative pleas had been taken, one on the basis of sale agreement and the other on the basis of adverse possession it was observed as follows:-- "Thus, in the present context when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, adverse a long continued, possession hostile to him. In other words there must be express and open denial of the title of true owner and animus of exclusive ownership. Accordingly, where possession can be referred to a lawful title it will not be considered to be adverse."
' Both the above reported judgments, relied upon by learned counsel for the appellants, have been distinguished in the impugned orders by the High Court as follows:-- "The case, as laid down in 'PLD 1990 SC 1049' is not to the effect that in no case both the pleas are destructive of each other whereas it has been observed in the facts and circumstances of that case that after having pleaded that the plaintiff had inherited the property and was owner on that account it was different rather impossible to prove that he was owner of the land through adverse possession. In this case the petitioners themselves alleged in the previous suit that the possession of the respondents was illegal and it was in defence that a plea was raised that they were also benamidar. In this case plea of adverse possession was very much available to the respondents who continuously remained in possession according to the petitioners illegally. In the second case (PLD 1991 SC 290) it has been held that where the origin of possession could be referred to lawful means it cannot be held that the party was in adverse possession. In this case also the said rule is not applicable because the petitioners themselves alleged in 1969 that the respondents were in illegal possession of land."
3. The principle is well-established that pleas of lawful title and adverse possession in the same case are contradictory pleas and cannot stand together. Reference can be made to a recent Full Bench (3 Judges) decision of this Court, dated 6-11-1998 in Civil Appeal No,341 of 1993 (Abdul Majid v. Muhammad Subhan) where it has been held as follows:-- "In this context it was also stressed that the defendants having continued in hostile possession which was adverse to the claim of ownership of the plaintiff, therefore, they had matured title through efflux of prescribed period of limitation. This argument is misconceived and does not take into consideration that all along the case of the appellants was that they had purchased the suit land through registered sale-deed, dated 10-1-1962 and mutation No,133 attested on 21-3-1964, therefore, they could not set up the plea of adverse possession over the property of which they had claimed to be the owners through purchase. To say that one is owner by purchase and at the same time through adverse possession rather sounds ridiculous and in any case these are contradictory pleas irreconcilable with each other. It is now well-settled that person who asserts ownership over a certain property by purchase would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. The logic behind is that a person cannot claim hostile and adverse possession over a property which he holds ii his own right and such a possession lacks the essentials of adverse possession so far recognized for maturity of ownership on this count. It has been so held in Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad (PLD 1991 SC 290), the relevant paras. Of which are reproduced:-- 'The possession is not to be considered adverse if its origin can be referred to a lawful title, whenever that is possible, because, a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered, he had some lawful title of possession. This in reality is based on the historical and jurisprudential aspect of adverse possession'. And again; "A defendant entering into possession or being in possession on the assumption of lawful title could not divest himself of that title 'by pretending that he had no title at all". The possession, thus, held, was never to be adverse if it can be referred to a lawful title' .
'Possession is not adverse if it could be referred to a lawful title. It has to be kept in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession as lawful, no adverse possession begins until the denial to the knowledge of the owner'.
' Reference can be made to certain other relevant observations of this Court in Mirza Ghulam Hussain v. Ch. Iqbal Ahmad (supra):-- "After a fair fight on the basis of lawful title if that claim is given up as having finally failed, from that point of time onward the adverse possession, if other conditions are satisfied, could start. In the present case, the appellants had tried to fight on the assumption of a fair fight till the announcement of the Supreme Court judgment. The basis of their claim on lawful title now 'goes off'. It was only from now onward that if the conditions for adverse possession came into existence and were carried on for the prescribed period; and the law which stood now remained intact till then, notwithstanding the thrust of Islamic Law jurisprudence and principles, the question of adverse possession without claim of valid might arise after the termination of the new period."
' Reference can also usefully be made in this regard to the cases of Adam Khan v. Mumtaz Khan (1991 SCM R 832) and Ali Akbar v. Malook (1991 SCM R 829).
' In the present case, the stand of the respondents from 1969, when the appellants filed the earlier suit, has been that Wahid Bakhsh (predecessor-in-interest of the appellants) was only a benamidar for the respondents in respect of 66 Kanals of land which land was owned by the respondents but their alternate plea was that they had become owners by way of adverse possession. These contradictory pleas were again taken by the respondents when they filed their suit in 1985. In the circumstances, in view of the settled law, respondents had not perfected their title by way of adverse possession which plea was not available to them as an alternative plea alongwith the plea that they had purchased the suit land, Wahid Bukhsh being their benamidar.
4. On the other hand we find that the right of the appellants to possession of the suit land from the respondents stood extinguished under section 28 of the Limitation Act, 1908 (which section was on the statute book at the relevant time but from 31-8-1991 it ceased to have legal effect being against the injunction of Islam - Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063). It has been held by this Court in Abdul Rehman v. Muhammad Akram (1999 SCM R 100) that the decision in 1991 SCM R 2063 would operate prospective w.e.f, 31-8-1991).
According to the appellants themselves, they had been dispossessed from the suit land by the respondents 5/6 years prior to the institution of the suit by the appellants in 1969. The suit was dismissed in 1972 on a legal/technical ground and, as observed, their appeal was also dismissal in 1975, whereafter no further action was taken by the appellants for claiming possession of the suit property and the judgments of the Civil Court and the appellate Court against them attained finality. Their right to possession of the suit land, that for ejectment of the respondents, therefore, stood extinguished under section 28 of the Limitation Act as the period of 12 years provided in Article 142 of the First Schedule of the Limitation Act, 1908, had long passed. It has been observed that, after the dismissal of their appeal in 1975 (earlier suit), appellants took no action to pursue further their case for possession nor did they file any counterclaim for possession in the suit filed in 1985 by the respondents.
' It may be observed here that appellants' own witnesses, D.W.2 Khawand Bakhsh, D.W.3 Nehal and D.W.4 Gadai, stated in their deposition that respondents have been in possession for the last 30 to 45 years and that they had constructed houses on the suit land in which they were residing and had also constructed their imambargah on the suit land.
5. In the circumstances this appeal partly succeeds inasmuch as the judgments of the High Court and the subordinate Courts are set aside to the extent of relief of declaration prayed for by the respondents but the appeal fails as regards the relief of .Permanent injunction; as a result the suit of the respondents/plaintiff for declaration stands dismissed but the decree for permanent injunction as prayed for by the respondents/plaintiff is confirmed.
' There shall be no order as to costs.