The instant petition as also C.R. No.1574, of 1996, are being disposed of together, as both involve common question of law and facts.
2. The dispute between the parties relates to 5/6th share of the land measuring 3 Kanals and 12 Marlas, bearing Square No.18, Killas Nos. 1--6 and 7/2, situated in Chak No.203 R.B., Tehsil and District Faisalabad. Two separate suits filed by respondents Nos. 1 to 7 and 8 and 9, claiming the possession through partition of the aforementioned share of the suit-land, were allowed in their favour vide judgment and decree, dated 13-12-1989. Appeal filed by the petitioner have also failed.
Hence these revision petitions.
3. Briefly stated that facts of the case are that the aforesaid land was owned by respondents Nos. 1 to 9, and Sh. Muhammad Yahya their uncle, who had 1/6th share. It is the case of the respondents that they had never authorized Mr. Yahya, for the purpose of sale of their share in the land, but he allegedly through an agreement to sell, dated 8-8-1960, un-authorizedly and illegally agreed to transfer the aforesaid land in favour of one Mr. Hanif Maggo. Further facts of the case are that according to the petitioner, Mr. Maggo on the basis of the aforesaid agreement further transferred the land in favour of United Industries/United Ghee Mills Ltd. (the company) and also had handed over the possession of the company. This land was also mortgaged by the company with the bank and necessary change of ownership was brought in the Revenue Record as well. At all material times, the suit land according to the petitioner, remained as integral part of the company. In 1973, on account of enforcement of Hydrogenated Vegetable Oil Industry (Control and Development)
Act (LXV of 1973, the United Ghee Mills (the company) was nationalized; its asset, including the suit land; the control and management of the company, was taken over by the Government; compensation was also paid to those entitled under the law. Anyhow the company remained in possession of the aforesaid land throughout, when on 20-3-1982, respondents/plaintiff, filed four separate suits, seeking partition and possession of their share, claiming that they are the owners and the property is jointly owned by them having 5/6th share, as also the company to the extent of 1/6th share of Mr. Yayha, which he had in the land and maw, have transferred to the company.
These sues were subsequently withdrawn on 5-3-1985 but before this was done, respondents Nos. 1 to 7, instituted a suit on 13-2-1905, claiming declaration of their ownership anal partition of the property to the extent of 4/6th shares, whereas respondents Nos.8 and 9 filed a separate suit for their 1/6th share. The company contested the matter, by filing --written statements; number of issues were framed. Parties were put to trial and the suits of the respondents Nos.1 to 9 were allowed by the learned trial Court vide judgment and decree, dated 13-12-1989, holding that respondents/plaintiffs are the joint owners of the suit property to the extent of 5/6th share and the so-called alienation of their share made by Mr. Yahya in favour of Mr. Magoo. Or/and any further transfer of the proprietary rights by the latter to the company are absolutely illegal and unauthorized; as there was no valid transaction of sale, therefore, respondents/plaintiffs continues to be the co owners of the property. Against the above the company preferred two appeals and while the same were pending, the company under the privatization process, was taken over by the Ghee Corporation of Pakistan, (GCP), the; petitioner, through a resolution, data 20-5-1992, thus GCP moved an application before the learned Court of appeal to be substituted in place of the company, which request was allowed. However, after hearing, of the appeals, the same have been dismissed vide judgment and decree, dated 8-10-1995. There is another development in the matter that during the pendency of the present petitions, the company has been denationalized and the management has been handed over to the original owners.
4. Learned counsel for the petitioner by relying upon Exh.D.W.5/2, copy of the Register Haqdaran Zamin, for the year 1965-66, states that the company has been shown to be the owner of the property and thus on account of above, property stood validly acquired and vested in the company since then; the respondents/plaintiffs never challenged or applied for correction of this Revenue Record; the suits of the respondents/plaintiffs were time-barred; the findings of the Courts below on the issue of limitation are unfounded and suffer from misapplication of law; the company has been in possession of the suit property, since 1960 onward and therefore, suits for partition and possession brought in the year 1985, were hopelessly beyond the time. It is also stated that respondents Nos.8 and 9 attained majority in the year 1968, but as the cause of action had accrued to them in the year 1960, when the agreement, dated 8-8-1960, was executed, therefore, they could only avail the benefit of section 7 of the Limitation Act uptill three years from their majority. It is argued that the Courts below though have taken into account the agreement Exh.D.W.2/2 but have ignored Exh.D.W. 5/2; this amount to non-reading of the evidence. Moreover, the company being in possession of the suit property for about 25 years as owner had matured its title in the land, on the basis of section 28 of the Limitation Act. It is further stated that respondents are estopped by their own conduct to challenge the ownership of the petitioner, became they had received the compensation from the Government. Lastly it is submitted that jurisdiction of Civil Court was barred under section 27 of the Hydrogenated, Vegetable Oil Industry (Control and Development) Act No.1XV of 1973.
5. I have heard learned counsel for the parties. The foundation of the petitioner's defence in the suits is rested on the agreement, dated 8-8-1960, allegedly executed by Mr. Yahya in favour of Muhammad Hanif Maggo. It is an unregistered document and has never been given effect in the Revenue Record, by virtue of any mutation. Counsel for the petitioner has failed to show to this Court any entry in the entire Revenue Record, which has its genesis in the aforementioned agreement. Even otherwise, this is an un--witnessed/unattested instrument and does not bear the signature of the respondents/plaintiffs, who admittedly were the co-owners of the land having 5/6 share alongwith Mr. Yahya. It has neither been explained nor substantiated by the learned counsel for the petitioner, as to how and under what authority. Mr. Yahya, could agree or alienate the sharer of the respondents/plaintiffs (some of them being minors) in the suit property in favour of Mr. Maggo. It is also not established that Mr. Maggo as to how, subsequently, had transferred the suit- land in favour of United Industries/United Ghee Mills. There is again no sale/transfer mutation.
Petitioner's counsel has heavily relied upon Exh. D.W.5/2 Jamabandi for 1965-66; in which in the column of ownership, though the name of respondents appears, but his emphasis is on the entry at the bottom of the document, which reads According to the counsel, this proves the sale in favour of the company. I am afraid, his contention has no force. Because this seems to be some kind of report of the Patwari and is not shown to be based upon the sanctioning of sale mutation by the Revenue Officer in favour of the company.
Moreover, subsequent to this, there is no Jamabandi in which the name of the petitioner has been incorporated as the owner. Though presumption of correctness is attached to a Jamabandi but it is only when the change in ownership has been shown and to have been legally and competently made according to the law. It was therefore, incumbent upon the company to have brought on the record the supporting material to testify, that the ownership of the property stood transferred in its favour on the basis of some order of the competent Revenue Officer. This is conspicuously missing in the present case. It may also be pertinent to state here that the plaintiffs have neither been proved to have ever received any consideration from Mr. Maggo on account of the alleged sale in his favour nor got the compensation of the suit land on account of nationalization of the company; even this is not the case of the petitioner, thus if some compensation has been received by shareholder of the company on account of that, the plaintiffs/respondents cannot' be deprived of their right of ownership.
6. The argument that possession of the suit-land had been taken over by the company, in the year 1960, and thus its title on account of adverse possession had matured in the year 1972 i.e. After lapse of 12 years. The record has been examined, from the Khasra Girdawari available on the record, as Exh.P.W.1/1. Exh.P.W.1/8, till Kharif 1973; the plaintiffs are shown to be the owners and the possession is with Mr. Hanif Maggo. However, since Rabi 1974, till Kharif 1981, the possession remains with the same gentleman, though in Column No.3, the name of the company finds mentioned. In the year 1982 the first four suits were brought by the respondents/plaintiffs. Therefore, neither the company has been able to prove its continuous possession over the land for 12 years, nor it has been shown, proved or established through any documentary or oral evidence, such possession for the requisite period was hostile and adverse to the rights of the actual owners. Even otherwise, the company claims to have taken over the possession, under the agreement to sell, dated 8-8-1960; although this document has not been proved to have been executed by respondents/plaintiffs or under their valid authority in favour of the company, yet the fact remains that the alleged possession of the company in any form remains to be permissive. It is settled law that permissive possession can never be converted to adverse possession, until the possession is surrendered and illegal re-entry is made, this is not the case of the petitioner. It may also be mentioned here that the petitioner has also not set up the defence of section 53-A of the Transfer of Property Act, to claim the possession of the suit-land in part performance of the agreement to sell. Moreover respondents/plaintiffs having established themselves to be the co-owners of the property company-petitioner and thus the possession of one of the co-owners would be deemed to be the possession of the others; in such circumstances, a co-owner cannot never set up a plea of adverse possession.
7. Attending to the question about the bar of limitation, suffice it to say that the suits of the respondents are not simplicities for possession of the property, rather, primarily for the partition as co-sharer and for the separate possession thereof. The key question for determination before the Courts is, about therefore, once it has been held by the two forums below and affirmed by this Court, that they are the co-owners, thus for a co-owner, to seek a decree for partition, there is no period of limitation, resultantly, argument that suit having been brought after 12 years i.e. After 1960 or three years on attaining the majority by respondents Nos. 8 and 9, are barred, is misconceived and has no force.
8. The contention of the learned counsel for the petitioner that Exh.D.W.5/2 has been ignored by the Courts below. This is not the correct position, the judgment do refers this document. Anyhow, even considering the document independently, as has been earlier mentioned, same does not improve the case of the petitioner, because on the basis of above, it is not conclusively proved that respondents/plaintiffs has sold their share in favour of the company.
9. As regards the submission that the suit is barred under section 27 it may be held that such provisions have no relevance to the issues in hand. According to section 27, the Court cannot call in question the provisions of the Act or rules or orders or the actions taken thereunder. The present dispute in no way has any nexus to the above, rather it is dispute of ownership between the individual owners and the company, therefore, this submission has no force.