' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, has been directed against the judgment passed by the High Court on 12-10-2000, whereby the appeal filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that Plot No,119-E/1, measuring 40x100, situate in Sector C/2 Mirpur was jointly allotted to Khurshid Alam, respondent No,3, and one Ch. Muhammad bin Jangi in equal shares in the year 1968. On 11-12-1973 Muhammad Din Jangi sold the entire plot through an affidavit to Abdul Hamid in his personal capacity as well as attorney for Khurshid Alam, the coallottee; he also handed over the possession of plot to him. Abdul Hamid, vendee, again sold plot to Abdul Karim and Diwan Ali on 11-12-1973 from whom Ch. Muhammad Bashir, appellant herein, purchased the said plot on 26-8-1974. Thereafter, on 13-2-1989, Ch. Lal Din Arif, respondent No,1, executed an agreement-to-sell in favour of Mst. Farida Afzal, respondent No,2, and a power of attorney in favour of Ch. Muhammad Afzal, respondent No,4, who is husband of Mst.
Farida Afzal, respondent No,2. On 20-6-1989 Mst. Farida Afzal, respondent No, 2, filed a declaratory suit before Additional Sub-Judge, Mirpur alleging that she was owner of one half of share of plot on the basis of agreement-to-sell dated 13-2-1989, which was executed by Ch. Lal Din Arif, respondent No,1, as attorney for his brother Khurshid Alam, respondent No,3. She arrayed Khurshid Alam.
Respondent No,3, as defendant through Muhammad Afzal, his attorney, who was also the husband of plaintiff Mst. Farida Afzal. On the basis of admission made by Muhammad Afzal, the attorney for Khurshid Alam, a decree was passed in favour of Mst. Farida Afzal on 29-6-1989. The appellant herein filed a suit in the Court of District Judge, Mirpur challenging the aforesaid decree as being fraudulent and collusive. He alleged that Ch. Lal Din Arif, respondent No,1, in the first instance got the plot transferred by Muhammad Din Jangi in favour of Abdul Hamid and received half of the consideration amount but subsequently he joined hands with Khurshid Alam, his brother, Muhammad Afzal and Mst. Farida Afzal and manoeuvred the aforesaid decree for depriving the appellant herein of the plot which was in his ownership and possession. The appellant herein also filed an appeal before the District Judge against the aforesaid decree which was passed by the Additional Sub-Judge in the Civil suit instituted by Mst. Farida Afzal. The learned District Judge after conclusion of trial of the suit dismissed the same as well as the appeal filed by appellant observing that Khurshid Alam, respondent, did not execute any power of attorney in favour of Muhammad Din Jangi, the co-allottee, to transfer his share in the plot to Abdul Hamid or anybody else. Thus, the transfer of plot in favour of Abdul Hamid and thereafter, to Abdul Karim, Diwan Ali and lastly to Ch. Muhammad Bashir, appellant herein, was held to be without lawful authority. The plea of appellant that his possession over half of the plot had ripened into ownership was also repelled. The appeal filed by the appellant herein before the High Court was dismissed vide the impugned judgment of the High Court dated 12-10-2000. It is the aforesaid judgment of the High Court which is the subject of present appeal.
3. Arguing the case on behalf of appellant, Raja Muhammad Siddique, the learned counsel, has contended that the High Court has committed an error in holding that it was not proved that the disputed portion of plot was in possession of appellant. The learned counsel has argued that there is ample evidence on the record that the possession of plot was first delivered to Abdul Hamid and thereafter, to Abdul Karim and Diwan Ali and lastly to appellant herein by respective vendors. He has further contended that the appellant herein had levelled the plot by spending the huge amount which clearly established that the plot has been in possession of plaintiff-appellant over which his adverse possession has matured into ownership. The learned counsel has argued that the central figures in the case is .Ch. Lal Din Arif, respondent No,1, who in the first instance got the transfer of plot in favour of Abdul Hamid and received the part payment of consideration amount but subsequently he again acted as attorney for his brother Khurshid Alam and allegedly transferred the plot to Mst. Farida Afzal, the wife of Ch. Muhammad Afzal, respondent, and thereafter, manoeuvred a decree from the Additional Sub-Judge Mirpur in favour of Mst. Farida Afzal, the wife of Ch. Muhammad Afzal. The learned counsel has also contended that it is because of dubious conduct of Ch. Lal Din Arif, respondent No,1, which resulted into the prolonged litigation between the parties. The learned counsel has argued that the case of plaintiff-appellant Ch. Muhammad Bashir with regard to factum of adverse possession is clearly established in view of the fact that Muhammad Din Jangi, Abdul Karim and Diwan Ali all the vendors admitted his claim in their written statements; the appellant has not been cross-examined on the point that plot was in his possession and was got levelled by him by spending a huge amount. The learned counsel has submitted that the District Judge erroneously expressed the view that the appellant could not claim the adverse possession after his plea that he had purchased the plot but on the other hand the High Court has held that as the plot was not in possession of appellant, therefore, there was no question of maturing his possession into ownership by prescription. The learned counsel has contended that the views taken by the District Judge as well as the High Court are thus, contrary to law and need reversal by this Court.
4. Ch. Muhammad Azam Khan, the learned counsel for respondents, has controverted the arguments raised on behalf of appellant. He has argued that as Muhammad Din Jangi admittedly did not possess the power of attorney on behalf of Khurshid Alam, respondent, the transfer of his portion of plot in the first instance to Abdul Hamid and thereafter, to Abdul Karim, Diwan Ali and lastly to the appellant was of no legal effect. The learned counsel has further contended that half of the plot was in the ownership of Khurshid Alam and plaintiff-appellant became its co-sharer in the same after purchasing its one-half share. Thus, according to the learned counsel for respondents a co-sharer cannot claim adverse possession against another co-sharer unless a total ouster is established.
5. After giving our due consideration to the arguments advanced at the Bar and perusing the relevant record, it may be stated that plaintiff-appellant Muhammad Bashir filed a suit for declaration in the Court of District Judge claiming therein that he is owner in possession of Plot No,119-E/1 Sector C/2 Mirpur, measuring 40x100 and his possession over the plot in dispute for being more than 12 years has ripened into ownership. It was further craved by the plaintiff-appellant that decree passed by Additional Sub-Judge Mirpur in favour of Mst. Farida Afzal, being fraudulent and collusive, is ineffective as against the rights of plaintiff-appellant and is liable to be set aside. In the body of plaint as well the claim of appellant Ch. Muhammad Bashir had been that he is owner in possession of the whole of the plot in dispute but in the prayer clause it has specifically been prayed by Ch. Muhammad Bashir, plaintiff-appellant, that he may be declared to be the owners in possession of plot in dispute to the extent of one-half measuring 20x100 from the western side situate in Sector C/2 Mirpur and his possession over the same for being more than 12 years had ripened into ownership, as such defendants Ch. Lal Din Arif, Farida Afzal and Khurshid Alam had no concern with the said plot. It was further claimed by-him that decree dated 29-6-1989 passed in favour of Mst. Farida Afzal was of no consequence and be set aside. In the alternative it was prayed that plaintiff-appellant was entitled to receive the costs of improvements amounting to Rs,70,000.
The learned District Judge in view of the pleadings of the parties framed as many as five issues inclusive of the relief. Issues Nos.1 and 2 are relevant for the purpose of disposal of present appeal and the same are reproduced as under:-
(i) Whether the plaintiff has purchased the said plot and if the answer is in the positive, how would it affect the suit? OPP
(ii) In case issue No,1 is not proved whether the possession of plaintiff over the plot in dispute for being more than 12 years has ripened into ownership? OPP ' While discussing issue No,1 it was observed by the learned District Judge that plot in dispute was sold to Abdul Hamid by Muhammad Din Jangi in his own capacity as well as an attorney for Khurshid Alam vide affidavit Exh.P.A.1. It was also observed by the learned Judge that Muhammad Din Jangi appeared as witness for plaintiff and admitted that at the time of transferring plot on behalf of Khurshid Alam he was not in possession of any power of attorney on his behalf. On the other hand he deposed that Ch. Lal Din Arif had promised that he would arrange and provide the power of attorney later on behalf of Khurshid Alam. Thus, it was observed by the learned District Judge that the transfer of plot on behalf of Khurshid Alam in favour of Abdul Hamid was unlawful and unauthorised. When vendee Abdul Hamid appeared as a witness he admitted that he had seen the power of attorney on behalf of Khurshid Alam executed in favour of Muhammad Din Jangi but the said power of attorney was not produced at any stage. The vendee Abdul Hamid vide affidavit dated 11-4-1974 transferred the plot to Abdul Karim and Diwan Ali who further transferred the same vide affidavit Exh.P.C.1 in favour of Ch. Muhammad Bashir, plaintiff-appellant. Thus, it was observed that as the power of attorney on behalf of Khurshid Alam allegedly executed in favour of Muhammad Din Jangi has not been established, therefore, all the documents Exhs.P.A.1, P.B.1 and P.C.1 on the basis of which the transactions of sale took place have no legal sanctity. Therefore, it was observed that plaintiff Ch. Muhammad Bashir, appellant herein, has failed to prove issue No,1.
The aforesaid finding recorded by the learned District Judge distinctly relates to the half of the portion of plot which was allegedly transferred by Muhammad Din Jangi in favour of Abdul Hamid and thereafter, to the subsequent vendees. The findings of the District Judge to the extent of transfer of share of Khurshid Alam in absence of any power of attorney executed by him seems to be correct as no power of attorney was executed on his behalf in favour of Muhammad Din Jangi nor the same was produced at any stage, but the fact remains that the half portion of the plot measuring 20x100 was purchased by the appellant in 1974 from Abdul Karim and Diwan Ali.
However, strangely enough the learned District Judge as well as the High Court has recorded no finding to the extent of one-half of the plot purchased by appellant from Abdul Karim and Diwan Ali. All the vendors have admitted the claim of the plaintiff-appellant that plot in the first instance to the extent of one-half was transferred by Muhammad Din Jangi to Abdul Hamid and thereafter, to Abdul Karim and Diwan Ali who subsequently transferred it to plaintiff Ch. Muhammad Bashir.
Therefore, in our view, the findings recorded on Issue No,1 are perverse and against the facts. The plaintiff-appellant is owner in possession of one-half of share of plot which was originally sold by Muhammad Din Jangi which fell into his ownership and share.
6. On Issue No,2 the District Judge observed that with regard to adverse possession of appellant over the plot in dispute the appellant has relied upon the evidence of Aslam Badshah, Ghulam Nabi, Siraj Din as his witnesses and on his own statement. From the statement of the above witnesses and from the statement of plaintiff-appellant the learned District Judge has drawn the conclusion that the possession of plaintiff-appellant over the plot in dispute had not ripened into ownership. The reason advanced by the learned District Judge is that the claim of plaintiff that he had levelled the plot after taking its possession has not been substantiated by producing any receipt of payment made to the person who levelled the land. It was also observed by the learned District Judge that it is nowhere the case of plaintiff that he took the possession of plot in dispute or remained in its possession by force, therefore, the question of adverse possession did not arise. It was further observed by the learned District Judge that on the one hand the claim of plaintiff- appellant is that he purchased the plot in dispute but on the other hand he claims his adverse possession over the same. Thus, the plea of adverse possession being contradictory in nature could not have been taken by the plaintiff-appellant. In our considered view the finding recorded by the District Judge to the effect that after taking the plea that plot in dispute was purchased by plaintiff-appellant, he was debarred from taking the plea of adverse possession is totally fallacious and erroneous. A plaintiff is not debarred from taking the alternate plea of adverse possession in case he fails to prove the transaction of sale in his favour. The finding of the learned District Judge on the question of adverse possession is also fallacious on the ground that the evidence of Aslam Badshah, Ghulam Nabi, Siraj Din and the statement of plaintiff himself has been appreciated in the perspective of awarding the costs of improvements to the appellant. On the other hand the evidence should have been looked into in the perspective that when the plaintiff-appellant got levelled the plot in dispute in 1975 no one objected to him and he asserted his title over the plot in dispute. The plot in dispute in the first instance, as stated earlier, was transferred by Muhammad Din Jangi in February, 1973 in his own capacity as well as attorney for Khurshid Alam, the brother of Ch. Lal Din Arif, respondent No,1 herein, to Abdul Hamid and the possession of whole of the plot was handed over to him. On 11-12-1973 Abdul Hamid again sold the plot to Abdul Karim and Diwan Ali from whom Ch. Muhammad Bashir, plaintiff-appellant, purchased the said plot on 26-8-1974 vide an affidavit executed by them. Though the aforesaid document apparently has been styled as an affidavit but its contents show that the plot in dispute was sold by Abdul Karim and Diwan Ali to Ch. Muhammad Bashir, plaintiff-appellant, for a consideration of Rs,30,000 which was received in whole and it was alleged in the said document that the entire documents of plot had been handed over to the vendee Ch. Muhammad Bashir, plaintiff-appellant. It has also been stipulated in the said document that the possession of the plot had also been handed over to the plaintiff- appellant. Though this document has been shown as an affidavit but it has been couched like a sale-deed except that it was short of registration by the Sub-Registrar. When the evidence of the witnesses for the plaintiff, Aslam Badshah, Ghulam Nabi, Siraj Din and the statement of plaintiff is seen in the perspective of the aforesaid document which is showm as an affidavit, it becomes abundantly clear that after taking the possession of plot in dispute by Abdul Karim and Diwan Ali, the plaintiff-appellant had been making overt acts and asserting his title over the plot in dispute as an owner. Aslam Badshah, witness for the plaintiff, stated in his evidence before the Court that he had levelled the plot in dispute in 1975 and finished the levelling work by the end of 'the year and received an amount of sixty/seventy thousand rupees from the plaintiff-appellant. Ghulam Nabi, the other witness for the plaintiff-appellants, has also stated in his evidence that plaintiff-appellant had purchased the plot in dispute from someone and for its levelling he had engaged the labour.
He also stated that since 1974-75 the plot is in possession of plaintiff-appellant. Siraj Din, the other witness of plaintiff, has also deposed in the Court that the plot in dispute is in possession of plaintiff since 1974-75 and he got it levelled from labourers and is still in possession of plaintiff. Ch. Muhammad Bashir, plaintiff-appellant while appearing as his own witness stated that vide affidavit Exh.P.C. I he had purchased the plot in dispute from Abdul Karim and Diwan Ali on 26-8-1974 and the vendors had handed Over the allotment chit, the receipt for deposit of amount and chit for possession to the plaintiff-appellant. The plaintiff further stated that the plot was got levelled by him on which he spent about seventy thousand rupees. Siraj Din, the witness for the plaintiff, and the plaintiff-appellant were not cross-examined by the learned counsel for the defendant- respondents on the point of possession of plaintiff-appellant as an owner on the plot in dispute.
This shows beyond any manner of doubt that although, to the extent of one-half of the share of plot which was initially sold by Muhammad Din Jangi as attorney for Khurshid Alam, the plaintiff- appellant entered in its possession on the basis of defective title but all the same he entered in its possession as an owner and is still in possession of the same as such.
7. We are of the firm view that when plaintiff-appellant entered into the possession of the plot and the entire documents of the same were handed over to him, he had been considering himself the owner of the disputed plot and remained in its possession as such uptil today for a period of more than 12 years and as such his possession had ripened into ownership much before the time when the half of the portion of the plot in dispute was alienated by Ch. Lal Din Arif, as attorney for Khurshid Alam, in favour of Mst. Farida Afzal on 13-2-1989.
8. Another factor which lends support to our conclusion is that when the whole of the plot in dispute was sold by Muhammad Din Jangi on his behalf and as an attorney for Khurshid Alam, the brother of Ch. Lal Din Arif, to Abdul Hamid.In February, 1973 it was within the knowledge of Ch. Lal Din Arif, respondent No,1, that the entire plot has been sold including the share of Khurshid Alam. Thereafter, various transactions of sale took place and ultimately on 26-8-1974 the same was sold to appellant, Ch. Muhammad Bashir. Muhammad Din Jangi when appeared as a witness for that at the time of sale of plot by him, Ch. Lal Din Arif, the brother of Khurshid Alam, had promised to manage the power of attorney on behalf of Khurshid Alam and received the part of consideration amount of plot in dispute. Therefore, by no stretch of imagination it could be said that Ch. Lal Din Arif or his brother Khurshid Alam were not in the knowledge of the fact that the portion of plot belonging to Khurshid Alam had been sold to Abdul Hamid in the first instance and thereafter, to other different vendees. It is a settled principle of law that a defective document may not create a title in favour of a person in whose favour it has been executed but it is always relevant for the collateral purposes. The possession of the plot in dispute thus, having been delivered to Ch. Muhammad Bashir in pursuance of, although a defective document, his possession over the same remained as an owner and he openly and notoriously asserted his title by getting it levelled in 1975 and nobody objected to it and remained in its possession as an owner for .a period of more than 12 years. Therefore, his possession over that portion of plot which was originally belonging to Khurshid Alam, the brother of respondent No,1, had ripened into ownership by prescription.
9. In a case reported as Mir Walayat Ali v. Standard Vacuum Oil Company (PLD 1964 SC 220) it was observed as follows:-- "When there is an invalid transfer in favour of a person and he holds possession of property transferred as transferee, his possession is in his own right and adverse to the transferor. If he continues in possession of immovable property for more than 12 years he will acquire an indefeasible title. Of course it is open to the transferee if he finds the transaction in his favour to be invalid not to treat the property as his own but that will be whether he accepts the invalidity of transfer and henceforth proposes to hold property on behalf of transferor. If it be his claim that he holds it by virtue of a transfer which he regards as valid he is obviously holding in his own right and not on behalf of transferer or any trust for him."
' In a case reported as Secretary of State and another v. Mahant Harcharan Das and others (AIR 1926 Oudh 98) it was observed as follows:-- "Although the deed of gift was invalid, being unregistered, yet the defect was cured by plaintiff having been in its continuous possession for more than 12 years."
' In Jadgeo Singh v. Deputy Commissioner Partabgarh and others (AIR 1926 Oudh 431) it was observed that possession under an invalid gift is adverse if the same is for more than 12 years.
' In a case reported as Ahmad Khan v. Rasool Shah and others (PLD 1975 SC 311 it was observed that sale of land abortive or `otherwise defective law but vendee remaining in possession after sale of property, vendee in circumstances holds adversely to the vendor. It is well-established principle that a vendee who remains in possession after the sale of property which goes of or is otherwise defective in law holds adversely to vendor.
' In a case reported as Inayat Begum and another v. Muhammad Latif and another (1999 CLC 1160) it was observed that documentary as well as oral evidence established possession of respondent on the basis of oral sale. The statements of P.Ws. In favour of plaintiff were not challenged by the appellants. A vendee who remains in possession after sale of land or property which goes off or is otherwise defective in law holds adversely to the vendor.
10. The other contention raised by the learned counsel for respondents, Ch. Muhammad Azam Khan, is that after purchasing the half of plot which initially fell in the share of Muhammad Din Jangi, the appellant became co-sharer with Mst. Farida Afzal, to whom the other half of plot was transferred by Khurshid Alam, the coallottee, in February, 1989. The learned counsel for respondents relied upon cases titled Muhammad Akbar v. Muhammad Hussain and others (PLD 1984 SC (AJ&K)
120), Beero v. Mst. Said Bibi (1992 SCMR 286), Hasim Ali and others v. Abjal Khan and others (AIR 1924 Calcutta 1046). There is no cavil with the aforesaid proposition propounded by the learned counsel for respondents. In all the above referred authorities the principle which has been enunciated is that to prove an adverse possession against the co-sharer the total ouster of the other co-sharer must be proved. Suffice it to say that the half portion of plot which was allotted to Khurshid Alam, the brother of respondent No,1,was alienated by Ch. Lal Din Arif, as attorney for Khurshid Alam vide an agreement-to-sell in favour of Mst. Farida Afzal on 13-2-1989 who also executed a power of attorney in favour of Ch. Muhammad Afzal, respondent No,4, who is husband of Mst. Farida Afzal, respondent No,2. Even before the execution of agreement-to-sell the possession of plaintiff- appellant over the plot in dispute had become adverse to the exclusion of allottees starting from 1974 to 1986 when the whole of the plot was purchased by plaintiff-appellant from Abdul Karim and Diwan Ali. Thus, the authorities cited by the learned counsel for respondents have no application to the case in hand.
11. The possession of plaintiff-appellant over the half of the portion of plot which was originally allotted to Khurshid Alam had already become adverse at least in the knowledge of Ch. Lal Din Arif who executed a power of attorney in favour of Ch. Muhammad Afzal, respondent No,4, and an agreement-to-sell in favour of Mst. Farida Afzal, respondent No,2. The decree thus, obtained by Mst.
Farida Afzal on 29-6-1989 on the basis of admission made by respondent No,4, the husband of Mst.
Farida Afzal, in whose favour Ch. Lal Din Arif executed a power of attorney, on the face of it, seems to be collusive and fraudulent as Ch. Lal Din Arif was well-aware of the fact that the whole of plot in dispute was sold initially in February, 1973 and thereafter, to various other vendees and at the time of first sale he received the part of consideration amount as brother of Khurshid Alam. When the aforesaid decree was obtained the plot in dispute was admittedly in possession of appellant, Ch. Muhammad Bashir, considering himself to be a valid transferee, he was not impleaded as one of the defendants in the suit filed by Mst. Farida Afzal. This being the position, the decree being fraudulent and collusive in nature was ineffective and inoperative as against the rights of plaintiff of appellant.
12. In the light of what has been stated above, by accepting the appeal, we set aside the judgment and decree passed by the High Court and that of the District Judge and pass a decree in favour of plaintiff-appellant, Ch. Muhammad Bashir, in terms that he is owner in possession of half of Plot No,119-E/1 measuring 20 x 100 which was initially sold by Muhammad Din Jangi to Abdul Hamid and subsequently to Abdul Karim and Diwan Ali and lastly to plaintiff-appellant and also pass a decree of adverse possession of half of the portion of plot falling in the share of Khurshid Alam in terms that plaintiff's possession over the same for being more than 12 years had ripened into ownership.
Therefore, the plaintiff-appellant is the owner in possession of the whole of the plot in dispute. The decree passed by Additional Sub-Judge in favour of Mst. Farida Afzal on 29-6-1989 of the half of the plot in dispute is declared as ineffective and inoperative as against the rights of plaintiff (sic) against the defendant-respondents. In the circumstances of the case we pass no order as to costs. / order accordingly