This second appeal has been preferred against the judgment and decree, dated 12-9-1985 passed by a learned Additional District Judge, Jhelum, in an appeal arising out of a suit for possession which was dismissed by a learned Civil Judge vide judgment, dated 1-11-1982. The suit was brought by the appellants for the possession of the land measuring 11 Kanals, 9 Marlas pertaining to Khasra No, 348/349/7, 350/1, 347/2 and 351 with the claim that the respondent through encroachment occupied their land which fact came to their notice as a result of demarcation of the land made on 29-3-1978. The suit was contested by the respondent denying the encroachment of the land of the appellants and pleaded that there was no evidence of demarcation of the land in question and that the suit was barred by time and res judicata. The learned trial Judge in the light of the pleadings of the parties and the evidence produced by them on record held that the suit being barred by time and the principle of res judicata was not maintainable. However, the learned trial Judge observed that the alleged encroachment of the land measuring 10 Kanals, 4 Marlas was established through evidence and the plaintiffs were entitled for the restoration of its possession.
The Appellate Court in appeal while affirming the findings of the trial Court on the question of limitation dismissed the appeal.
2. Learned counsel for the appellants contended that section 28 of the Limitation Act, 1908, having been declared repugnant to the Injunctions of Islam by the Federal Shariat Court, it was no more applicable and in the light of the findings given by the learned trial Judge on the issue relating to the encroachment of the land, the suit was bound to be decreed. The learned counsel has placed reliance on Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063) in support thereof.
3. Learned counsel for the respondent on the other hand, has contended that the suit was dismissed not only on the ground of limitation but it was also found hit by the principle of res judicata as an earlier suit for possession filed by the father of the respondent/plaintiff was dismissed under Order 17, rule 2, C.P.C. Learned counsel while placing reliance on Shahid Hussain v.
Lahore Municipal Corporation (PLD 1981 SC 474) argued that the Appellate Court wrongly reversed the findings of the trial Court on the said issue and submitted that in any case the concurrent findings of fact of the two Courts on the mixed question of law and fact would not be allowed to be re-opened in the second appeal.
4. I have heard the learned counsel for the parties and perused the record with their assistance.
The case of the appellants precisely was that the respondent through encroachment has usurped their property and that their right of ownership would not be extinguished by efflux of time, therefore, neither the suit was barred by time nor they could be non-suited under section 11, C.P.C. as the earlier suit was not decided on merits and was dismissed under Order 17, rule 2, C.P.C. therefore, the subsequent suit would not be barred by the principal of res judicata. The respondent, on the other hand, without claiming adverse possession or setting up adverse title/leaded that they were in possession in their own right and that neither any encroachment was made by them nor it was .proved on record.
5. There is no cavil to the proposition that under Islamic Law, no right of ownership in favour of a person is created on the basis of adverse possession but still if the owner of the property without any legal or genuine excuse allowed a person to remain in possession for a long time without claiming any right in the property or making any effort to oust such person from the property, the Court can refuse relief of possession to such a person in the suit notwithstanding the fact that the person in possession would not acquire the right of ownership in the property with the passage of time. The perusal of the record in the present case would show that earlier a suit was filed on 23- 10-1971 in which dispossession was pleaded by the appellants and the present suit was filed on 6- 12-1978. It is not denied that at the time of filing the first suit, the respondents were in possession of the suit property. However, the plea of the respondent in the subsequent suit was that he was in possession of the suit property for the last more than twenty years and undeniably the property subject-matter of the present suit was also the subject-matter of the earlier suit in which the dispossession was not pleaded by the appellants and the father of the appellants in the said suit admitted the continuous possession of the respondent for the last more than fifteen years. The appellants case was that they came to know about the encroachment for the first time in the light of the demarcation after 29-3-1978. This plea is contradicted by the contents of earlier suit which was filed in 1971 in which the encroachment was pleaded by the father of the appellant and thus he had knowledge of encroachment prior to the date of filing of the first suit. The analysis of the evidence would show that the respondent was in interrupted possession for a period beyond twelve years and the limitation for filing a suit for possession in such circumstances under Article 142 of the Limitation Act. 1908 is twelve years from the date of dispossession.
6. In nutshell, the result of the above discussion is that notwithstanding the ownership of the appellants in the property, the respondent remained in uninterrupted possession for a period beyond twelve years and the appellants having failed to establish that the suit for possession was within time would not be entitled to the decree being claimed by them. The two Courts have concurrently held that the suit was barred by time and the said findings being not suffering from any illegality were not interferable. Consequently, it is held that the suit of the appellants was rightly dismissed as barred by time.
7. For the foregoing reasons, this second appeal fails which is dismissed with no order as to costs.