1. ' ABDUL SHAKOOR PARACHA, This is first appeal under section 96, C.P.C. Filed by the appellant impugning the judgment and decree dated 8-1-1995 passed by the learned Senior Civil Judge, Bhakkar.
2. The dispute relates to the land measuring 4 Kanals, 9 Marlas situated within the boundaries of Municipal Committee, Bhakkar, and has been shown in the attached plan with the plaint. Mian Tufail Ahmad and Mian Bashir Ahmad son of Mian Saeed Amir, plaintiffs-respondents filed a suit for possession of the aforesaid land. It was the case of the plaintiffs that they are legal heirs of Mst.
2. Soodan. The said Mst. Soodan purchased the above-stated land vide registered sale-deed dated 8-10-1952 from one Abdul Rehman son of Ghulam Mohayuddin Khan. Her sisters, namely, Mst. Anar Khatoon and Mst. Raushan Bano have died and the plaintiffs are legal heirs being the sons of real maternal-uncle of Mst. Soodan. It was asserted that the land has been in illegal occupation of the appellant-defendant.
3. ' The suit was resisted by the defendant-appellant by filing the written statement. It was asserted by the defendant-appellant that he is in possession of the suit-land for more than 50 years and is owner in possession of the land in dispute. Further it was claimed that he had become owner of the suit-land through adverse possession and that the suit is barred by limitation. Further it was stated that the plaintiffs have no cause of action to file the suit.
3. Following issues were framed from the divergent pleadings of the parties by the learned Civil Judge:-
(1) Whether the plaintiffs are owners of the suit property and are entitled to recover possession from the defendant? OPP
(2) Whether the suit is within time? OPD
(3) Whether the plaintiffs are estopped by their words and conduct from filing the suit? OPD
(4) Whether Mst. Soodan was competent to sell the suit property to the plaintiffs? OPP
(5) What is the effect of criminal proceedings in respect of the suit property initiated under section 145, Cr.P.C.? OPD
(6) Whether the plaintiffs have no cause of action? OPD
(7) Relief.
4. The learned Civil Judge decided Issue No,1 in favour of the plaintiff-respondents. It was observed that Abdul Rehman was owner of the suit-land on the basis of sale-deed dated 14-1-1952 (Exh.P.12) and the same was transferred in favour of Mst. Soodan vide sale-deed dated 8-10-1952 (Exh.P.5).
4. Further it was held that Mst. Soodan died issueless and on the basis of pedigree-table given in Mutation No,596 (Exh.P.1) and No,597 (Exh.P.2) the plaintiffs were lineal descendants of late Mst.
5. Soodan.
5. We have also examined the evidence and propose to decide this Issue No,1 first. The plaintiffs- respondents produced registered sale-deed dated 14-1-1952, Exh.P.12. One Ghulam Sarwar Khan son of Ahmad Khan sold 4 Kanals, 9 Marlas of land in favour of Abdul Rehman Khan son of Ghulam Mohayuddin with the following specific boundaries:-- North Malik Abdul Karim.
6. South House of Muhammad Nawaz Khalish, Petition- Writer East Land of Thai Development Authority.
7. West Owners.
8. ' The suit-land was measured and the possession was delivered to the vendee Abdul Rehman Khan. The father of the present appellant, Muhammad Nawaz Khan signed the document as marginal witness. This suit-land with specific boundaries was further sold to Mst. Soodan by Abdul Rehman vide sale-deed dated 8-10-1952 (Exh.P.5). The specific boundaries were given in the sale- deed as under:-- North Malik Abdul Karim.
9. South House of Muhammad Nawaz Khalish, Petition- Writer and others.
10. East Land of Thai Development Authority.
11. West Owners and the land has been mentioned to be situated within the boundaries of Municipal Committee, Bhakkar.
12. ' West Owners, and the land has been mentioned to be situated within the boundaries of Municipal Committee, Bhakkar.
13. ' The learned counsel for the appellant on the strength of cases reported as Mst. Asghari Bibi and 3 others v. Settlement Officer, Kotli PLD 1992 Azad J&K 29 and Abdul Latif v. Abdul Qayyum PLD 1992 Pesh. 103 argued that Ghulam Sarwar Khan, the alleged transferor of the suit-land was not competent to alienate 'specific land' in favour of Abdul Rehman vide registered sale-deed dated 14-1-1952 (Exh.P.12) as he was not the sole owner of the Khata nor he was in exclusive possession of the land. This argument of the learned counsel is devoid of any force for variety of reasons. The sale-deed dated 14-1-1952 (P.12) executed by Ghulam Sarwar in favour of Abdul Rehman shows that the land was in exclusive ownership and in possession of Ghulam Sarwar Khan and the same was sold to Abdul. Rehman with specific boundaries. Secondly, the land was purchased by Mst.
14. Soodan with specific boundaries; thirdly, the house of Muhammad Nawaz Khalish is mentioned in both the sale-deeds on the southern side. Fourthly, said Muhammad Nawaz Khalish signed the sale-deed Exh.P.12 dated 14-1-1952 as marginal witness. There is no cavil with the proposition that a co-sharer being in joint ownership can sell his share out of the same/but no share could be separated as a "Fatima' carved out of a common property without express permission of the plaintiff who is a co-sharer in the whole property. But, as stated above, the land was sold with specific boundaries to Abdul Rehman Khan who further sold it to Mst. Soodan and Muhammad Nawaz Khalish, father of the appellants was present at the time of execution of the sale-deed in favour of Abdul Rehman, therefore, it could not have been argued that the land was common between the co-sharers. In this view of the matter, the case of Abdul Latif PLD 1992 Pesh. 103 and Mst. Asghari Bibi PLD 1992 Azad J&K 29 referred to by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case.
15. ' The second objection of the learned counsel for the appellant that the appellant is not liable to be dispossessed from the suit-land as he is a co-sharer in the Khata of the property in dispute vide registered sale-deed dated 24-5-1951 (Exh.P.11) is equally liable to be repelled. The sale-deed dated 24-5-1951 Exh.P.11 would show that the appellant's father Muhammad Nawaz Khalish had purchased only 2 Kanals of land, which was different than the suit-land as the details and boundaries of the property owned by Mst. Soodan, purchased by her vide sale-deed dated 8-10- 1952 (Exh.P.5) are clearly mentioned in it. There is yet another document on the record, which is decree of the Civil Court dated 22-1-1978 (Exh.D.4) which shows that the defendant-appellant's father was dispossessed from the land measuring 147 and 20 ft. He filed a suit against Abdullah son of Inayat, whereas the suit property is 4 Kanals and 9 Marlas. The sale-deed dated 24-5-1951 Exh.P.11 and decree dated 22-2-1978 Exh.D.4 will show that father of the appellant purchased altogether a different property, which has no nexus with the suit-land owned by Mst. Soodan. We, therefore, confirm the findings of the learned trial Court that the plaintiffs-respondents have succeeded in establishing the title of Mst. Soodan to the suit property.
16. ' The entitlement of the plaintiffs to possession of the suit-land, which is second part of the issue, will be discussed later it depends on the decision of Issue No,2 of limitation and claim of the appellant that he had become owner of the land due to adverse possession which is being discussed first.
17. ' The onus of proving Issues Nos.2 and 3 was on the appellant-defendant. The learned Civil Judge held that the plea of adverse possession in respect of immovable property was declared as un- Islamic in terms of the judgment of the Honourable Shariat Appellate Bench announced on 22-5- 1991 reported as Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063, as such this plea for ownership on the basis of adverse possession is no more available. The above finding appears to have been recorded on wrong interpretation of the decision of the Honourable Shariat Appellate Bench of the Supreme Court titled Maqbool Ahmad v. Government of Pakistan (supra). The said precedent was to have prospective effect and not in any manner affect the rights of the 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. In case of Abdul Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCM R 100 it has been held by the Honourable Supreme Court:-- "Decision rendered by the Supreme Court in said case, had to take effect from 31st August, 1991 and on the date section 28, ' Limitation Act, 1908 had ceased to have effect while the suit was instituted on 27-4-1976 and decree was passed on 9-4-1986, therefore, law laid down in 1991 SCM R 2063, was not applicable to facts of case."
18. ' The ratio of the above said precedent is squarely applicable to this case because the present suit was filed on 16-11-1987.
19. ' Before discussing the Issue No,2 of limitation and adverse possession, we find that it would be useful to reproduce section 28 and Article 144 to the First Schedule of the Limitation Act, which are as under:-- "28. Extinguishment of right to property.--- 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."
20. "Article 144 '
21. For possession of immovable property or any interest therein not hereby otherwise specially provided for.Twelve years When the possession of the defendant becomes adverse to the plaintiff."
22. ' The case of the defendant-appellant is that Muhammad Nawaz Khalish purchased the suit-land vide sale-deed Exh.P.11. He was owner of the suit-land. Simultaneously, he has raised the plea of adverse possession. These two pleas are mutually contradictory and destructive. In case reported as Khuda Bakhsh and others v. Mureed and others 1999 SCMR 9915 while interpreting Article 144 of the Limitation Act (IX of 1908), it has been ruled by the Honourable Supreme Court that:-- "Plea of lawful title and adverse possession in the same case are contradictory pleas and cannot stand together."
23. ' In the present case also, in the first place it was claimed that the appellant-defendant had become owner of the suit property by adverse possession and that he is owner of the land on the basis of sale-deed. Even if it is accepted as asserted by the defendant-appellant that the suit-land was in continuous possession of the defendant since more than 12 years even then the mere possession is not enough to hold that the defendant-appellant was in adverse possession. It is by now well-settled law that in order to establish adverse possession the person claiming such possession has to specify the date of possession, the nature in which it C was acquired and the overt act committed by him to show open and hostile possession and right against the legal owners of the land. Firstly, the appellant is not admitting the respondents as owners of the suit- land; secondly no date of such a possession has been specified in the written statement or in evidence. The appellant himself lodged an F.I.R. Dated 21-8-1992 with Police Station Saddar, Bhakkar (Exh.P.4) againk Muhammad Mukhtar Ahmad, P.W.1, a step-son of Mst. Soodan and alleged his possession over the suit-land. The possession over the property had been interrupted on 30-7- 1982. In pursuance of the above said F.I.R. The property was sealed under sections 145, Cr.P.C. After inquiry the learned Magistrate, who was seized of the matter, vide his order, dated 22-6-1983 (Exh.P.3) ordered for desealing of the property. From the documents Exh.P.4 and Exh.P.6, the F.I.R.
24. And the order of the Magistrate an irresistible conclusion can be drawn that the defendant's possession was not uninterrupted for more than 12 years. From all the facts and circumstances, we find that no overt act of the aforesaid nature has been pleaded by the appellant.
25. ' In these circumstances, we find that the defendant had not succeeded in discharging the onus placed on him in respect of Issues Nos.2 to 4. The said two issues are, therefore, decided in the negative against the defendant-appellant and the findings of the Civil Judge are maintained.
26. ' Now, we advert to the second part of Issue No,1 that whether the plaintiffs-respondents are entitled to recover the possession from the defendant-appellant. Since Mst. Soodan was owner of the suit property as held under Issue No,1 and in Mutation No,596 (Exh.P.1) and 597 (Exh.P.2) a pedigree-table is given showing that the plaintiffs were lineal descedants of late Mst. Soodan and said Mst. Soodan had two other sisters who also died issueless leaving the plaintiffs only legal heirs.
27. Besides the above-stated documentary evidence, all the witnesses, i,e, P.W.1 to P.W.4 have stated in their statement that the plaintiffs are legal heirs of Mst. Soodan. In this view of the matter, we hold that the plaintiffs-respondents are entitled for the possession of the suit-land being the lineal descedants of Mst. Soodan.
28. ' In view of the foregoing discussion, we find that there is no merit in this appeal, which is dismissed with costs.