1. The controversy in this suit relates to a plot of land bearing No. G. R. W. 302 Garden West, Lawrence Road, Karachi. The plot was an evacuee property and it is said that late Dr. Mohamed Ishaque purchased it from the evacuee owner by registered sale-deed dated 23-11-1950. The transaction appears to have been subsequently confirmed by the Custodian, Karachi by order dated 7-9-1953.
2. The said Dr. Muhammad Ishaque died intestate at Karachi on 8-9-19511 leaving the above plot of land as a part of his estate which devolved upon his legal heirs Yousuf and Usman brothers and Mst. Zubaida Isheque widow.
3. Yousuf one of the heirs of the deceased filed Suit No. 168/62 in the late High Court of West Pakistan, Karachi Bench against the remaining two heirs, for partition of the properties, left by the deceased including the abovesaid plot of land. On 27-5-1P64 the High Court ordered the appoint--ment of the Official Assignee as the receiver of the properties in suit. The suit is still pending decision in this Court. The O. A. In pursuance of his powers as the Receiver then issued notices to the occupants of the plot fn order to ascertain the facts relating to their occupation.
4. They appeared before him and denied the title of the parties to Suit No. 168/62, whereupon the O. A.
5. Sought the sanction of the Court for filing suits against all the occupants for recovery of possession and mesne profits. The requisite permission was granted by the Court on 20-9-1965.
6. The O. A. Then brought the present suit on 19-1-1968 against the present 29 defendants for a decree for possession and mesne profits.
7. Thirteen out of 29 defendants did not contest the suit and the suit has proceeded ex paste against them, namely, defendants Nos. 3, 8, 11, 12, 18, 21, 22, 23, 25, 26, 27 and 28. The remaining 16 defendants appeared and defended the suit. Out of them written statement was filed by defendants Nos. 1, 4, 5, 6, 7, 14, 15, 16 and 29.
8. Defendant No. 1 Muhammad Hussain raised the plea that the alleged transaction of purchase by deceased Dr. Muhammad Ishaque was a fraudulent transaction by the "plaintiffs" as the Hindu evacuee had left the country. In the alternative the said defendant pleaded adverse possession against the "plaintiffs". It was his case that he was in continuous and uninterrupted possession since a date prior to the alleged sale transaction. It was also contended that the "plaintiff" did not take possession of the plot at any time nor was acknowledged as owner.
9. Defendant No. 4 in his written statement also challenged the validity --of the sale transaction and contended that the Hindu owners were minors and, therefore, could not transfer the property as alleged. He also maintained that the evacuee owners left Pakistan in 1947. This defendant also challenged the validity of the confirmation order by the Custodian. According to this defendant he came in occupation of the plot since 1948 after constructing a permanent residential building. Pie denied the title of Dr. Muhammad Ishaque. The plea of mis joinder of patties was also raised. It was further contended that this defendant was transferred the portion of the plot in his occupation by the Settlement Authorities by issuing a P. T. O. This defendant also raised the plea of bar of limitation and adverse possession.
10. Defendants Nos. 5 and 6 claimed to be in possession since 1948 and the rest of the pleas raised by them are substantially the same as that of defendant No. 4.
11. Defendant No. 7 claimed to be the tenant of defendant No. 1 in respect of a shop on the plot in question since 2y-12-1964 on monthly rent of Ra.
30. Later on, the defendant went on to plead, the ownership of the shop was transferred to defendant No. 6 to whom he regularly paid rent.
12. Similarly defendants Nos. 14 and 15 claimed to be the tenants of defendant No. 1 in respect of portions of the plot in their occupation sine 1958 and 1963, on which they claim to have raised constructions. According to them also the ownership of the area in their occupation was transferred to defendant No. 6 and they started paying rent to her. They sought protection against their eviction under the West Pakistan Urban Rent Restriction Ordinance.
13. Defendant No. 29 Abdul Zaman was impleaded at his own request by order dated 17-3-1975 and filed written statement. In his written statement this defendant for the first time pleaded the fraud through which the sale of the plot was obtained, with particulars. It was alleged that the "plaintiffs" through attorney C. C. Pinto committed fraud because the vendor Khemandas Shewakram was not alive on 11-12-1947 the date on which special power of attorney for the sale of the suit property was "executed in favour of C. C'.. Pinto". It was further contended that the vendor had already died at Lodhran in District Multan on 16-12-1946 for which entry was kept in the records of the Town Committee, Lodhran. This defendant further claimed that he has been in continuous and unbroken possession of 180 sq. Yards out of the suit plot from a date prior to the alleged sale, to the knowledge of the plaintiffs. It was further stated that defendants 1, 2 and 4 were recorded tenants of the disputed property and were issued P. T. O. Jointly by the Settlement Authority for the entire plot.
14. On the pleadings of the parties following issues were framed : "(1) Whether the suit is bad for misjoinder of parties ?
(2) Whether the defendants are lawful tenants of the plaintiffs in respect of the plot in question and the above suit is barred by Rent Laws ?
(3) Whether the defendants are entitled to claim adverse possession in respect of the plot in question ?
(4) Whether the above suit is barred by limitation?
(5) Whether the above suit is undervalued ? If so, whit is its effect ?
(6) Whether the plaintiff is entitled to a decree for possession and mesne profits against the defendants as per claim in the plaint ?
(7) What should the decree be ?
15. Additional Issue "(1) Whether the plaintiff is legal owner of the suit property ?
(2) Whether the suit is barred by time and acquiescence ?
(3) Whether the defendant has raised valuable constructions over the plot uninterrupted/unopposed by the plaintiff and, therefore, the legal rights and title of the defendants ?
(4) Whether the suit is maintainable in its present form ?
(5) Whether the suit Is undervalued ?
(6) Whether the court-fee paid is sufficient ?
(7) Whether the plaintiff is entitled to relief claimed ?
(8) Whether the plaintiff is entitled to special costs ?"
16. The evidence led by the parties may be briefly stated. Defendants No. 1 (Mohamed Hussain) 5 (Shahzada) and 29 (Abdul Zaman) entered the witnesses: as witnesses in support of their case on the side of the defence. For plaintiff only witness Mr. Zahoor Khan, Assistant of the Official Assignee was examined who has produced the order granting permission to the O. A. To file this suit (Exh.
17. 14/1) the extract of the property register from the office of the City Deputy Collector (Exh. 14/2), the certified copy of the confirmation order by the Deputy Custodian in favour of Dr. Muhammad Ishaque (Exh. 14/3) and order in appeal by the Additional Settlement Commissioner, Karachi (Eah.
18. 11/1) cancelling the transfer of the plot in favour of defendants 1, 2, 4 and 29.
19. My reasons and findings to the issues are as follows : Issue No. 1-This issue was not seriously pressed by the defendants. It was rightly contended on behalf of the plaintiff that defendants Nos. 7, 14 and 15 are claiming as the tenants through defendant No. 5, who in turn claims as a transferee from defendant No. 1. Similarly defendant No. 16 is also claiming as a tenant through defendant No. A. The remaining defendants Nos. 3, 4, 6 and 29 are not claiming any specified portion of the plot but lay their claim to the entire plot and in any case based their title upon the order of the Settlement Authority under which they claim to have received P. T. O. The plaintiff has shown a joint cause of action against the defendants in the plaint.
20. Order 1, rule 9, C. P. C. Provides that no suit shall be defeated by reason of the misjoinder of the parties and the Court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. The suit cannot therefore be defeated on account of mlsjoinder of parties. The finding to this issue is accordingly in the negative.
21. Issue No. 2. -It was contended on behalf of the defendants Nos. 7, 14 and 15 by their learned counsel Mr. A. Fateh Memon that these defendants have established that they have been paying rent initially to defendant No. 1 and after the transfer of the properties in their occupation to defendant No. 5, to the latter. It therefore follows, counsel went on to argue, that these defendants are tenants within the meaning of section 2(1) of West Pakistan Urban Rent Restriction Ordinance. On these promises counsel urged that the said defendants enjoy the protection against eviction attended under section 13 of the same Ordinance and they can be ejected only by the order of Rent Controller but a suit for eviction against them would be barred. To say the least, the argument is very novel and extraordinary. If the plaintiff succeeds in establishing the title of deceased Dr. Mohamed Ishaque which devolved upon his heirs on his death, in whose behalf the present suit was filed, even if the said defendants establish the tact of their tenancy, they shall have to show that they are tenants of the deceased or his heirs before pleading tire bar of jurisdiction as stated above. If the defendant No. 1 or defendant No. 5 are themselves proved to be trespassers, it is obvious that no protection can be claimed by their tenants who would likewise be ipso facto trespassers themselves. It is well-established that a person cannot confer better title than he himself has in property. The plaintiff has brought the suit on an allegation that defendants are trespassers and therefore, unless the defendants plead tenancy from the plaintiff, the question of the bar contained in section 13 of the Urban Rent Restriction Ordinance is totally irrelevant. The issue is accordingly answered in the negative.
22. Issues Nos. 3 and 4.-The questions of adverse possession and limitation are interdependent and may therefore be considered together. On behalf of the plaintiff it was submitted that the suit is within time under Article 144, Limitation Act which proscribes a period of 12 years for a suit for possession and the time commences with effect from the date when the possession of defendants became adverse to the plaintiff. On the other hand it was contended on behalf of the defendants that the limitation applicable in this suit is under Article 136 which provides a period of 12 years for a suit by a purchaser at a private sale for possession of immovable property sold when the vendor was out of possession at the date of the sale. The limitation runs in such a case from the date when the vendor was first entitled to the possession. It was argued that in 1950 when deceased Dr. Muhammad Ishaque allegedly purchased the property the vendor himself was not in possession and in any case no evidence has been produced to establish that the vendor delivered the possession of the property to the deceased. In the alternative it was contended that under Article 142, of the Limitation Act the suit ought to have been filed within 12 years of the late of dispossession.
23. Defendant No. 1 in his evidence has stated that he occupied half of the plot but has not disclosed the date when he took possession of it. He, however, admitted that he paid the rent to tae Custodian and subsequently obtained P. T. O. He further states that he was allotted this plot as tenant by the Rehabilitation Department and claims to be still an allottee. Defendant No. 5 in his evidence, however, asserted that he has been in occupation of the plot for tile last V years. He has further admitted that he used to pay rent to the custodian at the rate of Rs. 1,800 per year which he is .Paying regularly up-to-date. He further admits that he occupied this open plot thinking it to be evacuee property. In the cross---examination he was contradicted by his own affidavit filed in Suit No. 168/1962 wherein he had stated that he was in occupation of 600 sq. Yards of the plot which he bad purchased in 1963 from defendant No. 1. In that affidavit (Exh. 12/1) he had categorically stated that he has been in possession of the plot from 16-9-1963. He admits that the defen--dant No. 6 Doulat Bibi is his wife and resides with him in same house on the plot having come into occupation from the same time. He admits that defendants 7, la, 15 and 16 are his tenants. Defendant No. 29 states in his evidence that he occupied the portion of the disputed plot consisting of 180 sq. Yards in the year 1947-48. He was also contradicted, in his cross-examination, with his own affidavit filed in this suit (Exh. 13/5) in which he has admitted that he first came to occupy the plot in the year 1947-48 but in the year 1968 he had shifted from Karachi along with, his family from the property and settled at Thatta. He has further stated that he returned to Karachi in the year 1971 and immediately went away to his village in District Hazara. Subsequently after performing Hajj be returned again to Karachi in 1973 and since then has been residing in tile house situated on the disputed plot. Nowhere in his evidence this defendant claimed to be in adverse possession against the plaintiffs and on the other hand he categorically stated that he had informed Dr. Ishaque that the property was evacuee. It was on this basis that he had obtained a P. T. O which was subsequently cancelled.
24. It being admitted that the property in the suit was evacuee property, it is obvious that under section 6 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, it vested in the Custodian of Evacuee Property with effect from 1-3-1947. Further the jurisdiction of ordinary Courts was barred under section 34 in respect of any matter which the Custodian was empowered by or under the Ordinance to determine. It was provided by section 7(1) of the Ordinance that every person in possession of evacuee property was to hold it on behalf of the Custodian and under subsection (2) thereof was liable to surrender such property to the Custodian if called upon to do so. In view of these provisions it is clear that the evacuee owners of the property were not entitled to institute any proceedings for recovery of the possession until the property ceased to be evacuee property do confirmation of the sale in favour of the deceased purchaser on 7-9-1953, by which date the vendor's title stood transferred with retrospective operation from the date of the transfer to the purchaser. It is therefore, difficult to hold that via-a-via the present defendants the vendor could be said to have acquired a right to possession.
25. Possession in order to qualify as adverse in the jurisdiction, constitutes the physical act of user coupled with the animus to hold it as owners; where however, there is already title in one party, It cannot be readily inferred' that the physical acts of user were done with the intention of defeating that title or of laying claim to land already vested in another. As Ion as the property vested in the Custodian the occupation of the property in suit by the defendants cannot therefore be held to be adverse possession. The position that emerges therefore, from the consideration of the facts established on record, is that the vendors of the plaintiffs were not entitled to possession at the time of transfer and even thereafter until Ole confirmation of sale. The claim of the defendants to adverse possession would therefore relate to the period when the purchaser had already acquired title. In any case since under Article 136 tae possession relevant for the purposes of the commencement of the period ill limitation has been held to be adverse possession, the question that next falls to be determined is when the defendants' possession became adverse.
26. This brings me also to the question whether Article 142 or 144 of the Limitation Act would govern this case. Article 142 enacts that the limitation for a suit for possession of an immovable property when the plaintiff while in possession of the property, has been dispossessed or discontinued, the possession shall be 12 years from the date of dispossession or discontinuance. Article 144, on the other hand provides that in case of a suit for possession of immovable property or any interest therein not otherwise specially provided for in the Schedule to the Limitation Act, the limitation would be 12 years from the date when the possession of the defendants becomes adverse to the plaintiffs. The application of the two rules of the limitation contained in these Articles has given rise to considerable difference of opinion. However, the consensus of judicial opinion favours the view that Article 142 is restricted to suits which are in terms and substance based on plaintiff's prior possession which has been lost by dispossession or discontinuance. This Article is attracted in cases where the relief of possession is sought on the basis of possessory title. Whereas Article 144 in application to suits in which the plaintiff sue for possession on the basis of his title and if in such a suit the plaintiff proves his title, he is entitled to a decree, unless the defendant succeeds in L establishing his adverse possession for a period of more than 12 years. In Noon All Pir Muhammad v.
27. Patricia Dinshaw (PLD 1974 Kar. 235) it was held that the practical and convenient distinction between the two Articles is this-Article 142 is applied to suits where the cause of action is dispossession from, or discontinu--ance of possession of, immovable property, whereas Article 144 would apply where the cause of action for the suit is based on the plaintiff's title to immovable property.
28. Applying this test to the facts of this case I have come to the conclusion that the plaintiff's suit is based upon title and therefore, Article 144 is the appropriate Article applicable to this case. Article 142 would be attracted in a case where the plaintiff does not claim the relief of possession on D the basis of title but sues for recovery of possession by the right of prior possession. It is well recognized that a person may be entitled to possession of immovable property even when the title does not vest in him. But in a case like the present one when the plaintiff claims title, the suit is in substance and in form a suit based on title.
29. There can hardly be any controversy that the plaintiff has established the title of deceased Dr. Mohamad Ishaq and his heirs. The order of the Custodian confirming the sale in favour of the deceased has been produced in evidence Exh. 14/3. It was strenuously contended on behalf of the defendants that in absence of the Sale Deed, it cannot be hold that the title has been established.
30. This contention is without substance. The order of the Custodian referred to above coupled with the extracts from the property register (Exh. 14/2) showing the name of Dr. Mohamad Ishak as the owner of the plot in question through purchase duly confirmed by the Custodian is ample proof of the title. The original Sale Deed dated 18-11-19!0 executed on behalf of the Hindu owner by his attorney in favour of Dr. Muhammad Ishak which was confirmed by the Custodian is on the record of Suit No. 168/ 1962 which has been perused by me. It was next contended on behalf of the defendants that the sale was ab initio void as the vendor had already died before the date of the sale and therefore. His attorney had no right to execute the Sale Deed. This plea has been raised for the first time by defendant No. 29 who joined the proceedings subsequently. However, the other defendants had in their written statements challenged the validity of the Sale Deed without pleading .Specific particulars that the sale was fraudulent. However, this plea was raised by the four defendants who were issued P. T. O. At the time of hearing of appeal by the Additional Settlement Commissioner. It was .Contended there that the transaction was fraudulent and the confirmation had been obtained from the Custodian by misrepresentation. The contention was repelled on the ground that no authority can sit in judgment over the finding of the Custodian and as long as the order of the Custodian is in the field, a challenge to the sale cannot be entertained.
31. Under section 34 of the Pakistan (Administration of Evacuee Property) Ordi--nance, 1949 there was a total bar to the jurisdiction of the Courts from questioning the legality of anything done under the Ordinance by or at the instance of the Custodian. Similar bar is contained in section 41 of the 8 Pakistan (Administration of Evacuee Property) Act, 1957 which had replaced the Ordinance. The defendants are therefore not entitled to collaterally challenge the validity of the transaction which was confirmed by the Custodian in view of the bar contained in the aforesaid provisions. Addi-- tionally the defendants being strangers to the transaction are not entitled in law to challenge its validity. If at all any right accrued to them to avoid the transaction on a plea of fraud, it was the Custodian upon whom the fraud is alleged to have been practised. But the Custodian has allowed the transaction of sale to take effect by his own confirmation order which has continued to operate without challenge. In view of this the title of the plaintiff is not liable to be questioned and has been established by substantial evidence. In order to succeed in their plea of limitation, therefore, the onus lay upon the defendants to prove that they have remained in adverse possession of the property for more than 12 years before the date of suit.
32. No other issue was pressed at the hearing by the parties. Learned counsel for the plaintiff did not argue the question of mesne profits. Even otherwise no evidence has been led to prove the extent or quantum of mesne profits.