JDUGMENT This revision petition impugns the concurrent findings rendered by the learned trial Court dated 22- 2-1995 and by the learned Additional District Judge, Chunian, in appeal on 8-10-1998.
2. The re respondents/plaintiffs claim to be the successors-in-interest and L.Rs, of Aziz Din full brother of one Jabar Din. Jabar Din admittedly was the original owner of the suit-land measuring 189 Kanals, 9 Marlas situated in Chunian on the basis of allotment made by the Settlement Department. It is the case of the respondents/ plaintiffs that Jabar Din died issueless and as a consequence, the suit-land devolved, in its entirety, on his brother Aziz, Din and thereafter on them through inheritance.
3. The petitioners, on the other hand, claim that Jabar Din did not die issueless. According to them he was survived by his widow Mst. Mani and two sons, namely, Abdul Hameed and Abdul Rashid.
The petitioner No,1 is Abdul Hameed while Mst. Mani and Abdul Rashid have died. Abdul Rashid died issueless but was survived by a widow Mst. Jameela Bibi. As consequence Abdul Hameed and the widow of Abdul Rashid who is respondent No,2 in the present petition are the only L.Rs, of Jabar Din.
4. The respondents/plaintiffs earlier litigated the matter before the Settlement Department and before the High Court on the basis that they were the L.Rs, of Jabar Din. This matter was contested by the petitioners right up to the Honourable Supreme Court. The Honourable Supreme Court vide its judgment dated 12-6-1979 in C.P. 557 of 1978 held that the respondents were not the owners of the suit-land and, in fact, the petitioners were the rightful owners thereof. The relevant part of the order of the Supreme Court is reproduced as under:-- "We also find that when the case was remanded by the Collector to the Assistant Collector by his order, dated the 31st January, 1968, the Assistant Collector recorded a finding of fact on the 20th of November, 1969, that the true heirs of Jabar Din were his widow Mst. Mani Bibi and his two sons Abdul Hameed and Abdul Rashid. This finding of fact has been upheld in the latest order of the learned Settlement Commissioner. The learned counsel for the petitioners draw our attention to certain pieces of evidence in support of the contrary proposition, but this evidence should have been produced before the relevant, officers, and we are not prepared to admit these documents at this stage and hold a factual inquiry into the matter."
5. The present suit was filed by the respondents/plaintiffs on 30-7-1979 after the above decision of the Honourable Supreme Court. In the suit, the respondent/plaintiffs once again asserted title to the suit-land. However, in addition, an alternate plea was raised to the effect that they in adverse possession thereof. The plaint was rejected by the learned trial Court under Order VII, rule 11, C.P.C. on the ground that it was barred by res judicata. An appeal filed by the respondents/plaintiffs was dismissed in first appeal. The respondents/plaintiffs filed a revision petition in the High Court to challenge the orders of the trial Court and the First Appellate Court. The revision petition was allowed on the ground that issues had been framed by the trial Court including Issue No,3 relating to adverse possession, which had not been raised and decided in the previous litigation. The petitioner took the matter up to the Honourable Supreme Court, which held that on the issue of title the matter had been concluded by the earlier litigation culminating with the order dated 12-6-1979 in C.P. 577 of 1978. However, it was observed by the Court that the alternate plea of adverse possession and the question as to whether such plea was hit by the principle of res judicata required to be probed. It was for this reason alone that the matter was remanded to the learned trial Court vide judgment dated 28-11-1992 passed by the Honourable Supreme Court in Civil Appeal No,1104 of 1990.
6. Learned counsel for the petitioners has pointed out, firstly, that the pleas of adverse possession and title taken by the plaintiffs in the same suit are mutually destructive. According to him, where a person asserts title as of right, he cannot, at the same time, claim adverse possession. In support of this contention, he has referred to the case title Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCM R 1245. The said precedent supports the arguments advanced by learned counsel for the petitioners. In this view of the matter, it is clear that the alternate plea of adverse possession raised by the respondents/plaintiffs could not have been allowed by the two Courts below in the circumstances of this case.
7. I have gone through the judgments of the learned trial Court and of the learned Lower Appellate Court, with the assistance of learned counsel for the parties. The said two Courts have allowed the suit filed by the respondents/plaintiffs on the ground that they have been able to establish adverse possession of the suit-land. Based on the above-cited precedent in the case titled Abdul Majeed, etc. v. Muhammad Subhan etc. it is clear that the judgments and decrees of the two Courts below are not consistent with the law pronounced' by the Honourable Supreme Court in the cited precedent.
8. In addition, learned counsel for the petitioners has stated that in Shariat Appeal No,10(S) of 1989 decided by the Shariat Appellate Bench of the Honourable Supreme Court and reported as 1991 SCM R 2063, the law of adverse possession has been held to be against the Injunctions of Islam. 31- 8-1991 has been specified therein as the cut off date, whereafter the said law shall cease to remain on the statute book. It was argued by learned counsel for the petitioners that in the present case the learned trial Court proceeded to pass a decree in favour of the respondents/ plaintiffs on the basis of adverse possession on 22-2-1995, which is a date subsequent to the above-noted cut-off date. According to learned counsel, on this ground also, the decrees of the two Courts below cannot be sustained. In support of this argument, he has referred to the cases titled Muhammad Sharif and others v. Bholu and others 1994 M LD 81, Muhammad Aslam and another v. Malik Muhammad Sarfraz Khan and others 1996 M LD 1216, Mst. Walayat Jan and 7 others v. Habib Ullah Khan and 4 others 1992 M LD 751 and Abdul Latif and 5 others v. Manzoor Ahmed and others 1993 M LD 177. These cited precedents do support the agreement of learned counsel for the petitioners that a decree passed after 31-8-1991 on the basis of a plea of adverse possession cannot be sustained.
9. Finally, learned counsel contended that even, according to the available record, the respondents/plaintiffs had not been able to establish adverse possession. He referred to various proceedings which were initiated by the petitioners/defendants to recover mesne profits from the respondents/plaintiffs. In this behalf, he referred to the decree passed by the Collector, Kasur dated 13-12-1983, another decree passed by the Assistant Collector, Kasur dated 29-6-1983, an appellate judgment dated 13-12-1985 passed by the Additional Commissioner (Revenue) and a decree passed by the Assistant Collector-I dated 20-5-1987. Before the Revenue Courts, it, was established that the respondents/plaintiffs were defaulting tenants of the petitioners and were liable to pay mesne profits to them.
10. Once matter also went up to the Honourable Supreme Court and was decided vide judgment dated 4-41990 in Civil Appeal No,129 of 1988. From paragraph 8 of the said judgment of the Honourable Supreme Court. it is clear that the respondents/ plaintiffs, who had preferred the appeal before the Honourable Supreme Court to assail the findings of the Revenue Forums had only contested the quantum of mesne profits payable by them. It has been noted by the Honourable Supreme Court that while the petitioners/defendants claimed that they were entitled to a sum of Rs,1,21,831, the respondents/plaintiffs had pleaded that the mesne profits properly worked out, would come to Rs,55,113 only. The further contention of the respondents/plaintiffs, noted by the Honourable Supreme Court, was that the petitioners/defendants were entitled to. mesne profits for a period of three years only. The Revenue Record also shows that the names of respondents/plaintiffs were appearing therein as tenants. Furthermore one of the witnesses, who appeared on behalf of the respondents/plaintiffs, namely Muhammad Ishaq P.W.1 has admitted in his cross-examination that the respondents/ plaintiffs had deposited a sum Rs,22,210 as mesne profits pursuant to an order passed by the Honourable Supreme Court. He also acknowledged that suits had been filed by the petitioners/defendants against the respondents/plaintiffs for recovery of their share in the produce and the same were decreed in favour of the petitioners/defendants.
10-A. Considering the aforesaid evidence available on record and the fact that the matter relating to title remained subject-matter of litigation between the parties, I cannot see how the two Courts below could have held that the respondents/plaintiffs had established adverse possession in respect of the suit-land. It may be noted that the petitioners/defendants fought for their rights before the Revenue Forums and also before the Civil Courts. Their title was upheld right up to the Honourable Supreme Court, while their entitlement to receive mesne profits and share of produce was also upheld by the Revenue Forums and by the Honourable Supreme Court. The aforesaid decision have attained finality. The mere fact that the respondents/plaintiffs are in possession of the suit-land, in the circumstances, cannot be sufficient to justify the finding that their possession wasuninterrupted or unchallenged.
11. For the foregoing reasons, I find that both Courts below have misapplied the law and have exercised their jurisdiction illegally and with material irregularity. The judgments and decrees of the two Courts below are, therefore, set aside. As a consequence, the suit filed by the respondents/plaintiffs is dismissed.