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Petitioner: SIDDIK through Legal Heirs VS Respondent: Mst. FATIMA BAI through Legal Heirs
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan Title: SIDDIK through Legal Heirs vs Mst. FATIMA BAI through Legal Heirs Case No.: Civil Revision Applications Nos.12 and 13 of 1996 Date of Judgment:2013-09-09 Reported As: 2014 CLC 134 Result: Case remanded
JUDGMENT
JUDGMENT ' IRFAN SAADAT KHAN, J.--- These revision applications have been filed against the judgment dated 19-10-1995 passed by First Additional District Judge, Karachi South in Appeals Nos.180 and 181 of 1992. Since facts in both these revision applications are common, these are disposed of by this consolidated judgment. 2. Briefly stated the facts of the case, as averred in the revision applications, are that the grand- father of the applicants, namely, Jaffer occupied a piece of land in New Kumharwara, Karachi and constructed two rooms with varandah and other amenities on the said land and started living there along with his family. The said Jaffer also made some improvements in the said property. After the death of the said Jaffer one room came into the possession of the predecessors of the applicant whereas the other room was occupied by the other son of Jaffer, namely, Adam. That in mid-sixties the predecessors-in-interest of the respondents demanded rent from the said Jaffer by claiming themselves to be the owner of the said property, which however was denied. When all efforts of the respondent went in vain, the said respondent filed rent cases bearing Nos.5205/79 and 5206/79 against the present applicants claiming ejectment of the applicants on the ground of default in payment of rent as well as on personal bona fide need. The matter thereafter proceeded before the Rent Controller who, after hearing the parties, dismissed the said rent cases by holding that no relationship of landlord and tenant has been established between the parties. The respondent thereafter filed appeals before the High Court of Sindh bearing F.R.As. Nos.948 of 1987 and 949 of 1987. The said appeals, too, were dismissed by the High Court. However, during the pendency of the appeals Siddik the respondent died and his legal heirs were brought on record as respondents. That these respondents thereafter filed Suits Nos.587 and 588 of 1990 for possession
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of the said property against the applicants by claiming themselves to be owner of the property and the applicants to be trespassers. The suits proceeded before the Civil Judge who allowed them vide judgment dated 30-4-1992 and issued decree on 26-5-1992. Being aggrieved with the said judgment Civil Appeals bearing Nos.180 and 181 of 1992 were filed, which too were decided against the present applicants vide the impugned judgment dated 19-10-1995, against which the instant revision applications have been filed. 3. Mr. Shabbir Ahmed Shaikh, advocate appeared on behalf of the applicants and stated that the civil suits filed by the respondents were mala fide. He stated that the previous litigation initiated by the respondents against the applicants upto the level of the High Court were decided in favour of the present applicants. He states that it is not clear whether the respondents have filed any appeal against the said orders before the Hon'ble Supreme Court. He states that the observations of the Court below that the applicants are not owners of the property rather they are trespassers or licensees is an illegal observation. He states that the two Courts below have failed to consider that even if it is assumed that the applicants are trespassers or licensees how a case could be filed in the year 1990 when the applicants are enjoying the possession since more than 70 years. He further states that how the cause of action arose in 1990 has not been properly explained. He states that in view of the facts following points require consideration of this Hon'ble Court: (i) When the plaint is incomplete and vague, what is the effect? (ii) When the respondent failed to prove that the applicants were her tenants, what is the effect? (iii) Whether learned appellate Court erred in applying Article 144 of the Limitation Act? (iv) What is the effect of observations made by this Hon'ble Court in judgment of rent appeal between the parties? (v) Whether the judgment of learned Appellate Court is in violation of mandatory provisions of law i.e. Order XI, Rule 31, C.P. C. What is the effect? 4. Learned counsel submits that the suits filed by the respondents clearly reflect that these were incomplete and vague. Learned counsel submits that if a plaint is incomplete and vague the same is liable to be dismissed. In support of his above contention the learned counsel relied upon the following decisions:- (1) Adusumilli Gopalakrishnayya Garu v. Province of Madras (AIR (34) 1947 PC 132), (2) Mir Ghaus Bakhsh Bizanjo v. Chief Election Commissioner of Pakistan and others (PLD 1969 Kar. 662), and (3) Allah Baksh and 4 others v. Dr. Abdul Waheed and another (PLD 1996 Kar. 458). 5. The next point agitated by the learned counsel is that the respondent has failed to prove that the applicants were their tenants. He submitted that no tenancy agreement in this regard was produced. He further states that such suits were not filed within 12 years, even if it is assumed that the applicants are illegally occupying the property. In support of this contention the learned counsel relied on the following cases: (1) Alam Khan Sahib v. A.L.M. Karuppannaswani Nadan and others (AIR 1938 Madras 415), (2) Sangam Lal v. Ganga Din and others (AIR (33) 1946 All. 389), (3) Official Receiver of East Godavari at Rajahmundry v. Chava Govindaraju and another (AIR 1940 Madras 798), (4) Pt. Jai Mangal Teevari and others v. Bindeshuri Singh and others (AIR 1940 Oudh 134), (5) Lingamma v. Putte Gowda and another (AIR 1963 Maysore 1) (6) Abdul Hamid Khan and others v. Lnayat Khan and others (PLD 1958 (WP) Lahore 99), and (7) Syed Moin Ahmed v. Khondkar Mohiuddin (PLD 1969 Dacca 132). 6. The next point agitated by the learned counsel is that the learned two Courts below have erred in relying upon Article 144 of the Limitation Act. He states that it has always been claimed by the applicants that their grandfather occupied the said piece of land and raised construction
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thereupon and no objection in this regard was ever raised by the respondents and after some time when substantial amounts were spent by the applicants in raising the construction, respondents became greedy and started claiming ownership rights and demanded rent from the applicants and upon such refusal started legal proceedings against them. He states that by the efflux of time the applicants have become the owners of the said property by prescription and title of the respondents had extinguished as the applicants are claiming ownership by way of possession. He states that the applicants have never claimed themselves to be the owners of the said property on the basis of some legal document but only claim themselves to be the owners of the said property by way of the possession. He states that the two Courts below have simply decided the matter in favour of the respondents on the ground that no title documents have been produced by the applicants whereas, according to the learned counsel, the applicants never claimed themselves to be the owners by way of possessing any legal document. He states that the two Courts below have incorrectly placed reliance on some decisions which, according to him, have no relevancy with the instant case. In support of this contention, the learned counsel relied on the following cases:- (I) Mst. Shah Sultana and others v. Abdul Khaliq and another (1987 SCMR 1791), (2) Syed Hazrat Said v. Capt. Abdur Rasheed (1990 SCMR 114), (3) Afzal Khan and others v. Abdul Fahim and others (PLD 1994 Quetta 26), and (4) Wazir Khan and others v. Qutab Din and others (PLD 2009 SC 95). 7. The next point agitated by the learned counsel is that since due to possession of the applicants for more than 70 years a vested right has been created in their favour hence the applicants are not liable to be dispossessed. In support of his contention, the learned counsel placed reliance on the following decisions:--- (1) Kazim Imam Jan v. Muhammad Jawaid and others (2003 CLC 200), and (2) Allah Bakhsh and others v. Dr. Abdul Waheed and others (supra). 8. He further stated that since the order passed by the appellate Court is in violation of Order XLI, rule 3, C.P.C. The same is liable to be set aside as the Court has not based its findings on material available on record. In support of this contention the learned counsel relied on the following cases:--- (1) Syed Iftikharuddin Haider Gardezi v. Central Bank of India and others (1996 SCMR 669), (2) Nasir Abbas and others v. Manzoor Haider Shah (PLD 1989 SC 568), (3) Hyderabad Development Authority v. Abdul Majeed and others (PLD 2002 SC 84), (4) Juma Khan v. Mst. Shamim and others (1992 CLC 1022), (5) Province of the Punjab and others v. Ch. Mehraj Din & Company (2003 CLC 504), (6) Imam Dino and others v. Nawaz Ali Shah (2003 CLC 1889), and (7) Government of N.-W.F.P. v. Zain Khan (PLD 1993 Pesh. 131). 9. Mr. Muhammad Zahid Khan, Advocate appeared on behalf of the respondents and submits that a number of issues raised by the learned counsel for the applicants in the present revision applications are not available to him since vide order dated 14-4-1997 this Court has categorically observed that the only issue involved in this case is as under:--- "The point for consideration in this Revision is whether this Court in Rent jurisdiction can give a finding with regard to the ownership of a party. Further contention which needs consideration is as to which was the Article of Limitation Act which was applied to the case of the parties and what is the effect of Articles 142 and 144 of the Limitation Act." 10. He submits that the matter proceeded at length before the two Courts below wherein the respondents, on the basis of documents, proved their ownership whereas the applicants have miserably failed to do so. He states that the applicants and their predecessors in-interest were in illegal possession of the suit property and one liable to be ejected from the same. He states that all the points now raised by the counsel for the applicants were also raised before the two Courts
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below which, after going through the material and the law, decided the same in favour of the respondents. He states that so far as the issue of limitation is concerned the issue of Articles 142 and 144 was dealt with by the lower Courts in an exhaustive manner and thereafter the matter was decided in favour of the respondents. He states that the previous litigation between the parties were allowed in favour of the applicants on the sole ground that the respondent failed to prove the relationship of landlord and tenant between the parties. He states that the previous litigation initiated between the parties were disposed of with the observation that the respondents should approach the civil court for seeking possession of the demised premises. He states that cause of action arose when rent cases were filed by the then respondents hence the claim was very much within the time frame provided by the law. He states that since the averments made in the previous litigation and the present matters are different hence the applicants could not take any advantage of the previous litigation nor can say that the plaint was incomplete, vague or that Articles 142 and 144 in any manner are not applicable and that the judgment given in the rent appeals have any bearing whatsoever on the present suits or can say that those proceedings applied as res judicata on the present cases. He further stated that at this point the possession would not come in way of the respondents as all these issues were elaborately discussed, threshed out and thereafter decided in their favour. He further stated that since the counsel for the applicants has failed to point out any illegality or irregularity, misreading or non-reading of evidence, the instant application are liable to be dismissed. In support of his contention, he relied on the following cases:--- (1) Maqbool Ahmed v. Pakistan (1991 SCMR 2063) (2) Messrs Kashnzirian (Pvt.) Ltd. v. Ghulam Nabi Gujjar (2006 CLC 482) (3) Muhammad Rafiq v. Muhammad Siddique (2006 MLD 892), (4) Ghulam Sarwar v. Allah Yar Khan (2004 SCMR 1836), (5) Moulvi Noor Ahmed v. Shaikh Abdul Qadeem (1995 SCMR 522),. (6) Azizur Rehman v. Ali Haider Shah (1993 CLC (AJ&K) 454), (7) Raja Muhammad Shareef Khan v. Custodian of Evacuee Property (2012 MLD 1311), (8) Mirza Ghulam Hussain v. Ch. Lqbal Ahmed (PLD 1991 SC 290), (9) Nazar Khan v. Hassan Begum (2013 MLD 913), (10) Muhammad Siddiq v. Abdul Rehman (2013 CLC 1164), and (11) Irshad Ahmed v. Sabiran Bibi and others (1989 SCMR 1672). 11. Mr. Shabbir Ahmed Shaikh, learned counsel for the applicants, in his rebuttal, stated that there are a plethora of judgments given by the Superior Courts that if concurrent findings are defective then the Court has the jurisdiction to set that at naught. In support of his submission the learned counsel relied upon the case of Malik Muhammad Khaqan v. Trustees of the Port of Karachi (2008 SCMR 428). He further states that by simply paying the property tax nobody would become owner of the property as he has to prove with cogent material that he is the owner of the said property, He states that the decisions relied upon by the learned counsel for the respondents are distinguishable and that these decisions were prior to the decision given by the Shariat Bench in the case of Maqbool Ahmed v. Pakistan (1991 SCMR 2063). In support of his contention the learned counsel has further placed reliance on the cases of:--- (1) Maqbool Ahmed v. Pakistan (1991 SCMR 2063), (2) Messrs Kashmiran (Pvt.) Ltd. v. Ghulam Nabi Gujjar (2006 CLC 482), (3) Muhammad Rafiq v. Muhammad Siddique (2006 MLD 892), (4) Ghulam Sarwar v. Allah Yar and others (2004 SCMR 1836), (5) Moulvi Noor Muhammad v. Sheikh Abdul Qadeem (1995 SCMR 522), (6) Azizur Rehman v. All Haider Shah (1993 CLC 454), (7) Raja Muhammad Sharif Khan v. Custodian of Evacuee Property AJK (2012 MLD 1311),
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(8) Mirza Ghulam Hussain v. Ch. Lqbal Ahmad (PLD 1991 SC 290), (9) Nazar Khan v. Mst. Hassan Begum (2013 MLD 913), (10) Muhammad Siddique v. Abdul Rehman (2013 CLC 1146), .(11) Irshad Ahmad v. Sabiran Bibi (1989 SCMR 1672). 12. Mr. Muhammad Zahid Khan, learned counsel for the respondent, in his rebuttal, invited my attention to page 81 of the file and stated that its perusal would reveal that the applicants themselves have admitted in the cross-examination that they are not the owners of the said property which stated, according to him, is applicable as an estopple against them. In the end, he prayed that these revision applications may be dismissed. 13. I have heard the learned counsel for the parties at considerable length and on different dates and have perused the record, the law and have gone through the case-laws cited before me. 14. It is an admitted position that the said property was under the possession of the father of the applicants since pre-partition days but the prime question is as to at which point of time the applicants had claimed adverse possession over the said property. If the applicants (including their predecessors-in-interest were not paying any rent to the respondent then what would be the effect of such act of the applicants. 15. Articles 142 and 144 of the Act deal with the adverse possession. It would not be out of place to mention that section 28 and Article 144 of the Act have been omitted by the Limitation (Amendment) Act 1995, dated 18 October, 1995. Since the matter pertains to the period prior to the repeal hence, these provisions would apply to the present case. The Articles 142, and 144 state as under:--- {{TABLE}} Description of suit Period of Limitation Time from which period begins to run 1 2 3 142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. Twelve years The date of the dispossession of discontinuance 144. For possession of immovable property Twelve years When the possession of the defendant or any interest therein becomes adverse to not hereby otherwise the plaintiff specifically provided for. {{TABLE}} 16. What is adverse possession has been defined by different Courts of law in the following manner:--- ' There is no statutory definition of adverse possession. ' It is the possession of a man holding a land on his own behalf or on behalf of some other than the true owner having an immediate right to the possession. ' It implies that the true owner is out of possession whereas some third person is having the possession (adverse). ' As per Lord Cairns adverse possession must be complete possession exclusive of the possession of any other person. ' The basic requirement of the adverse possession is that it should be real, hostile, peaceful, physical, continuous as well as exclusive. 17. If the above mentioned parameters are missing it could not be said that the possession falls under the definition of "adverse possession". The possession must be known to the public and should not be concealed one. A person claiming adverse possession would prove the same as the onus lies upon him that the said possession is hostile and is known to other persons and that
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should be expressed or implied. Mere possession for a long period without a claim of right is not sufficient to create an adverse possession. No yardstick or parameters with regard to adverse possession could be laid down, as the adverse possession of a property is decided upon the facts obtaining in each case. 18. In Peria Swami v. Peria Thami (1995 SCC 523) the Supreme Court of India observed as under:--- "Wherever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property". 19. From the perusal of the above definitions formulated by the different authorities, the following principles with regard to adverse possession would emerge:--- (1) Adverse possession should be open, hostile, which is expressly or impliedly denial of the title of the true owner. (2) Mere possession of land howsoever long would not give a party adverse possession. (3) Adverse possession should be known to the public. 20. Adverse possession must specify the above mentioned fundamental tests to prove adverse possession as in absence of these fundamental principles a person holding possession for any given period of time is not entitled to claim the possession as adverse and onus in this regard squarely lies upon the person possessing the land to prove his adverse possession and the period of limitation in that behalf is 12 years. The starting point with regard to adverse possession is the period when first time it is declared by the person, holding the possession, openly, widely and in a hostile manner that the possession is adverse and is a categorical denial of the title of the real owner about the said property and it should be for an uninterrupted period of more than 12 years. The possession must be "nec vi nec clam nec precario" i.e. Peaceful, open and continuous. 21. The most important point which is to be determined is the starting point as to when for the first time the person having possession has asserted that he is in adverse possession of the said property and from what point adverse possession would start running. Difference between the Articles 142 and 144 is that Article 142 is applicable where plaintiff being originally in possession of the property is dispossessed or discontinued to be in possession, whereas for the purpose of Articles 144, 12 years are to be reckoned from the date when possession of the defendant became adverse to the plaintiff. If the facts of the present case are seen it would be observed that in the instant case the relevant Article is Article 144 of the Act and not Article 142, though the period of limitation in both these Articles is exactly the same i.e. 12 years. 22. Now coming to the facts of the case. It is an undeniable position that the ejectment application was filed by the then respondent in November, 1979. This application was dismissed by the trial Court holding that there is no relation of landlord and tenant between the parties. The respondent filed an F.R.A. Which was also dismissed by a learned single Judge of this Court again holding that there is no relationship of landlord and tenant between the parties. Thereafter, a suit for possession was filed by the present respondents in May, 1990 bearing Suit No.587 of 1990. This suit was allowed vide judgment dated 30-4-1992. The applicant assailed the said judgment dated 30-4-1992 by filing Civil Appeal No.180 of 1992, which was also dismissed vide judgment dated 19-10-1995. 23. For the sake of brevity relevant portions of the depositions of the applicants and the respondent as well as observations of the trial Court and Appellate Court are reproduced hereinbelow:--- "The appellant has not challenged the genuineness and existence of the documents produced by the respondent either in Rent Proceedings or in the suit for possession. In these circumstances, I am clear in my mind that the respondent is owner of the disputed property. The learned counsel for the appellant during the course arguments also not seriously challenged the ownership of the respondent. His contention is that the appellant is in possession of the disputed property since last 40 years as such he claimed ownership through adverse possession and that the suit under Article 142 of Limitation Act is barred by time".
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"In the present case, the Appellant right from the beginning of rent proceedings which started in the year 1979 claimed lawful title in himself". "From above reply it is clear that the appellant claimed adverse possession as an alternate plea otherwise he claimed title in himself. The appellant has miserably failed to prove his ownership. He has not produced a single document in support of his contention. The parties are in litigation since 1979 and presently are in the second round of litigation. Prior to this no plea of adverse possession was urged. The plea of adverse possession for the first time has been taken by the appellant in the present matter and it is for the appellant to prove his adverse possession". "They never paid the rent of the room occupied by them to Mst. Fatima Bai, Adam or any other person. They are the owners of the house in dispute". "They have not obtained permission for addition and construction raised in this house from any person. They have not admitted any person owner of this house. They are not accepting any person owner of this house except them". "Defendant Siddiq now, represented by his legal heirs had claimed that he had been living on a part of the above plot in his own right from the time of his ancestors. However, he did not file any document with his written statement in support of this claim. Siddiq was not an ignorant person even though he may not have been well-educated. As per admission of defendant Mohammad Akbar, he was estate broker. An Estate Broker knows the value of title documents and he would have filed them along with his written statement if he had any, his failure to do so speaks volumes for the hollownerss of his claim. Mohd Akber, his son also did not file any document in support of his and his late father's claim. Nor is there any other evidence. In support of the claim of the defendants. The contentions raised by Mohammad Akbar in his evidence are, thus, not supported by any evidence whatsoever, either oral or documentary, and therefore, carry little weigh. On the other hand, the plaintiff has sufficiently established her little over the above noted plot on a portion of which the defendants are living." "The defendants have not produced any evidence to show that they are in possession of the suit premises before independence or more than 20 years without any disturbance. The evidence of the defendants are insufficient on this point." "My paternal grandfather Jaffer had occupied this land about 70 years ago. Mr. Jaffer constructed two rooms, well and Bhatti therein. Jafer's two sons used to live in the disputed place along with him namely Siddik and Adam. I am the son of Siddique who has expired. The rooms constructed by Jaffer came in possession of Adam and Siddique separately. Deceased Jaffer had expired in 1984. Siddique constructed one room and veranda in form of room constructed by deceased Jaffer. Deceased Siddique never paid the rent of the room occupied by him to Mst. Fatima Bai, Adam or any person. I am the owner of the house in dispute. I and my mother are the owner of this house being the legal heirs of deceased Siddique. Mst. Fatima Bai is…
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