JAWWAD S. KHAWAJA, J.---This first appeal impugns the judgment and decree dated 1-4-1992 passed by the learned. Civil Judge 1st Class, Ferozewala. The dispute between the parties relates to land measuring 2 Kanals, 8 Marlas comprised in Mouza Baddo, Tehsii Ferozewala. Ilyas Hussain plaintiff/respondent filed a suit for possession of the aforesaid land. It was asserted by the plaintiff that he was owner of the suit, land, which had been illegally occupied by AlGhazi Tractors Ltd. defendant/appellant. According to the contents of the plaint the plaintiff had obtained a demarcation through the Revenue Staff on 7-10-1986, which reconfirmed his assertion that the defendant/appellant was in illegal occupation of the suit land.
2. The suit was resisted by the defendant/appellant. The stance of the defendant as reflected in the written statement was that the plaintiff was neither owner of the suit-land nor was he in possession of the same. It was also asserted by the defendant that since l%8 the suit land had been enclosed by a boundary wall and had remained in the possession of the, defendant and its predecessors- in-interest for an uninterrupted period. The defendant, therefore, damned that the title of the plaintiff Ilyas Hussain stood extinguished as a result of the adverse possession of the defendant over the suit land.
3. Based on the pleadings, the learned trial Court framed ten issues, out of which arguments before us were confined to Issues Nos,1, 7 and 8 only. the said issues are reproduced as, under:--
(1) Whether the suit is barred by time? OPD
(7) Whether the defendant has become owner of the suit land through adverse possession? OPD (8)Whether the plaintiff is owner of the suit land and is entitled to its possession? OPD
4. Issue No,8 was taken up first by the learned trial Court. We also propose to decide the same first.
The plaintiff has produced on record Exh.P2, which is a copy of the Jamabandi for the year 1981=82.
This document shows Ilya Hussain plaintiff as the own of the suit land. One Hamid Azam is shown as a tenant in occupation of the said land and the land itself is described as Ghair Mumkin Karkhana. The plaintiff. as his own witness, has also asserted title to' the suit land. On the other hand, he defendant; appellant has not brought on record any evidence to show that Ilys Hussain plaintiff was not the owner of the suit land. Learned counsel for the appellant was also unable to show from the record any reason as to why the plaintiff' should not be treated as owner of the suit land considering the evidence on record. We, therefore, confirm the findings of the learned trial Court that the plaintiff has succeeded in establishing his title to the suit land.
5. The entitlement of 'the plaintiff to possession of the suit land, which is the second part of Issue No,8, is dependent upon the decision of Issues Nos,1 and 7, which are discussed' below.
6. The onus of proving Issues Nos,1 and 7 was on the defendant. The learned trial Court has held that Issues Nos, I and 7 were not pressed by learned counsel for the defendant during arguments before the said Court. In respect of Issue No,7 it was also observed by the learned trial Court that the defendant had not produced any evidence on this issue,
7. At the outset therefore learned counsel for the plaintiff/respondent argued that the said issues could not be pressed by the defendant in appeal. Learned counsel for the defendant/appellant, however, contended that the main thrust of the written statement filed by the defendant/appellant as well as extensive documentary evidence produced on its behalf was to establish that the defendant had become entitled to the suit land through adverse possession. He, therefore, stated that the observation of the learned trial Court in respect of Issues Nos, 1 and 7 was factually incorrect. In response learned counsel for the plaintiff/respondent argued that a presumption of correctness is attached to the observation made by the learned trial Court, particularly when there was nothing on the record to prove the contrary and there was not even an affidavit submitted by learned counsel who had represented the defendant before the learned trial Court to depose that the aforesaid issues had been pressed before the learned trial Court. He also referred to the case titled Zaman Mahndi and another v. Salehun 1987 CLC 2494 to contend that the defendant/appellant should not be allowed to address arguments on the aforesaid issues. It was suggested by learned counsel for the plaintiff/respondent that Issues Nos,1 and 7 were conceded by the defendant/appellant as a result of the judgment of the Honourable Supreme Court in the titled Maqbool Ahmed v. Government of Pakistan (1991 SCM R 2063), wherein it was held that extinguishment of title as a result of adverse possession as envisaged under section 28 of the Limitation Act was un-Islamic.
8. We have considered the above submissions of learned counsel. Although there is weight in the submissions made by learned counsel for the plaintiff, we have allowed learned counsel for the defendant/appellant to argue the said Issues Nos,1 and 7 because, as noted above, the case of the appellant is almost entirely based on adverse possession. It, therefore, does not appeal to reason that the appellant would intentionally and consciously concede Issues Nos,1 and 7. Furthermore, the failure of the defendant's counsel to press Issues Nos,1 and and 7 before the learned trial Court appears to have been based on a misconstruction of the decision of the Honourable Supreme Court in the case titled Maqbool Ahmed v. Government of Pakistan, referred to above. The said precedent was to have prospective effect and did not in any manner effect the rights of parties which had matured prior to 31-8-1991, which was the date from which the law enunciated by the Honourable Supreme Court in the aforesaid precedent was to take effect.
9. Before discussing Issues Nos,1 and 7, we find it useful to reproduce section 28 and Item 144 of the First Schedule to the Limitation Act as under:--- "28. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
"144. For possession of immovable property or any interest therein not hereby otherwise specifically provided for.(Twelve years) When the possession of the defendant becomes adverse to the plaintiff."
10. From the above noted statutory provisions it is clear that the plaintiff's suit would only be time- barred, and as a consequence, his title in the land extinguished if it is proved on record that the defendant/appellant had been in adverse possession of the suit land for a period of twelve years.
11.The case of the defendant/appellant, at best, is that the suit land has been in continuous possession of the defendant and its predecessors-in-interest for a continuous . 'period of more than twenty years starting from 1968.
12.Learned counsel for the appellant drew our attention to Exh.D-2 to Exh.D-10. These documents are sale-deeds starting from Exh.D-10, which is a sale-deed, dated 10-1-1967 in favour of one Ch. Arshad Saeed. The land comprised in the sale-deed Exh.D-10 was conveyed by means of subsequent sale-deeds, in favour of various persons and finally vide Exh. D-2 dated 21-2-1984 orie Haji Suleman, who was at that time vested with title, conveyed the same to the defendant/appellant. From the contents of the aforesaid documents Exh. D-2 to Exh.D-10, learned counsel for the appellant pointed out that the land comprised in the said sale-deeds was initially purchased for the construction of a factory and was enclosed within a boundary wall, which finds mention in the sale-deeds Exh.D-8 and Exh.D-9 respectively dated 27-8-1968 and 26-8-1968.
13.It is to be noted that the suit land was not comprised in any of the aforesaid sale-deeds. This fact is not disputed and has in fact been admitted by D.W.2 namely, Muhammad Latif, Assistant Manager of the defendant, who appeared as a witness in the case.
14.Learned counsel for the appellant argued that even though the suit land was not conveyed to the defendant or to its predecessors-in-interest, it was nevertheless enclosed within the boundary wall referred to above and was in the possession of the defendant and its predecessors-in-interest at least since, 1968. According to learned counsel this fact by itself was sufficient to establish that the defendant and its predecessors-in-interest had been in adverse possession of the suit land since 1968. Therefore, according to him the-present suit filed by the plaintiff on 4-11-1986 was time- barred.
15.The plaintiff/respondent has deified the fact that the suit land was enclosed within the boundary wall referred to in Exh.D-8 and Exh.D-9. It is his contention, as set out in the plaint, that the appellant illegally occupied the suit land and built a boundary wall in April 1984. For reasons discussed bellow we do not consider it necessary to decide if the boundary wall was constructed in 1968 or in 1984.
16.Even if it is accepted, as asserted by the defendant/appellant, that the suit land was in the continuous possession of the defendant and its predecessors-in-interest since 1968, this fact by itself is not sufficient to establish that the defendant/appellant was in adverse possession of the same. It is by now well-settled that in order to establish adverse possession the person claiming such possession has to specify the date of possession, the nature in which such possession was acquired and the overt act committed by him to show open and hostile possession as of right, against the legal owner of the land. In the present case, proceeding on the assumption that the facts asserted by the defendant/appellant are correct, we find that no overt act of the aforesaid nature has been pleaded in the written statement or brought on record through testimony of witnesses. What is clear from the record is that prior to 1968 the area in which the suit land is located was agricultural and unconstructed. This much has been acknowledged by the defendant itself in para. 8(iii) of the written statement, wherein it is averred that since before 1968 a vast area including the disputed land ceased to be agricultural land, The plaintiff has deposed in his testimony that he had purchased 100 Kanals of land through three separate transactions, one of which included the suit land. From these facts, it is clear that even if the defendant and its predecessors-in-interest have been in occupation of the suit land since 1968 and even if the suit land was enclosed within a boundary wall constructed by the predecessors-in-interest of the defendant, such possession and the construction of such boundary wall was a result of a mutual mistake resulting trom a lack Of proper demarcation. Such possession cannot by any stretch of reasoning be treated as adverse possession. As noted above, there is no evidence on record of any open and hostile act on the part of the defendant which would show that the defendant was conscious that the suit land was owned by the. plaintiff. The defendant and its predecessors-in- interest clearly occupied the suit land in the mistaken belief that it was part and pacer of the land comprised in the sale-deeds through, which they acquired title in the adjoining land.
17. In the case title Muhammad Din v. Nazir Ahmed and 2 others (1994 SCM R 109) the Honourable Supreme Court has held that where demarcation has not taken place to define boundaries of the respective areas owned by adjoining landowners, a right to claim adverse possession cannot be established or asserted. The ratio of the aforesaid precedent is squarely applicable to the circumstances of this case. The first and only demarcation of the boundary between the land respectively owned by the parties, available on record is reflected in Exh.P1 which is an extract from the Roznmacha Waqiati dated 7-10-1986. The appellant/defendant did not adduce any evidence to show a prior demarcation which could have constituted the basis of its claim that it was in adverse possession of the suit land, as opposed to mere mistaken possession.
18.In these circumstances we find that the defendant has not succeeded in discharging the placed on it in respect of Issues Nos,1 and 7. The said two issues are, therefore, decided in the negative against the defendant.
19. In view of the foregoing discussion this appeal is dismissed. The plaintiff/respondent shah also be entitled to its costs throughout.