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Petitioner: NOORALI PIRMOHAMMAD PARSALA VS Respondent: MRS: PATRICIA DINSHAW
Court Name: Sindh High Court Judge(s): Noorul Arfin, Z. A. Channa Title: NOORALI PIRMOHAMMAD PARSALA vs MRS: PATRICIA DINSHAW Case No.: Letters Patent Appeal No. 245 of 1965 Date of Judgment:1973-10-23 Reported As: PLD 1974 Karachi 235 Result: N/A
JUDGMENT
JUDGMENT NOORUL ARFIN, J.-The question in this letters patent appeal is whether the appellant has acquired title by adverse possession to certain agricultural land, that is, survey Nos. 668, 719 and 720, situated in Deh Thano, Tappu Malir, Taluka Karachi. The land belonged to the late Mr. Dinshaw N.E., Dinshaw, who died in 1957, leaving the respondent as his widow and sole heir. According to the evidence led by the respondent, who was the plaintiff in the suit, one Pir Muhammad, father of the appellant, approached Mr. Dinshaw in 1947 or 1948 for the lease of this land. The terms of the lease were not settled, but according to P.W, Vania, Mr. Dinshaw allowed Pir Muhammad to cultivate the land on the condition that Pir Muhammad paid the land revenue assessed on the land and gave a portion of the produce of the land to Mr. Dinshaw every year. The respondent averred that, though land revenue was paid for some years by Pir Muhammad as well as his son, the appellant, they both failed to give share in the produce of the land to the respondent or her late husband in terms of the agreement, though P.W. Vania stated that Pir Muhammad brought to Mr. Dinshaw vegetables and papayas, but at rather infrequent intervals. Pir Muhammad died on 11-11-1956. On 6th April 1960, a notice was given by the respondent to the appellant to comply with the terms of the agreement between his father and the late Mr. Dinshaw and settle the future terms of the lease, or vacate the land. The appellant, in his reply dated 20th April 1960, denied that the respondent had any right or interest in the land in dispute and set up his own adverse title thereto. Consequently, the respondent brought Suit No. 178 of 1960 on the original side of the former High Court of West Pakistan, Karachi Bench, for ejectment of the appellant from the land in dispute and for payment of Rs. 19,410.00 on account of rent of mesne profits for three years immediately preceding the date of the suit and for further mesne profits at the rate of Rs. 400.00 per acre per annum until the
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appellant vacated the land. In his written statement, the appellant, on the lines of his reply to the respondent's notice, denied the respondent's title to the land and set up his own adverse title thereto, and further contended that the respondent's suit was barred by limitation. On the pleadings between the parties, the Court settled several issues. The main issues were whether the suit was barred by limitation, or whether the appellant had acquired title to the disputed land by adverse possession, and whether he was liable to pay any sums of money to the respondent by way of rent or mesne profits for use and occupation of the disputed land. At the trial, besides tendering documentary evidence, one M. P. Vania was examined on behalf of the respondent/plaintiff, and in defence, the appellant gave his own evidence and examined D. W. Fakiro and D. W. Hajo Hashim. By judgment dated 15-11-1965, a learned Single Judge of the High Court, sitting on the original side, ordered ejectment of the appellant from the disputed land and further gave a decree of Rs. 900.00 in favour of the respondent by way of mesne profits and directed that mesne profits from the date of the decree should be determined in execution pro-- ceedings. Against this judgment, the appellant brought the present Letters Patent Appeal. 2. At the hearing of the appeal, the title of the respondent to the dis--puted land was admitted by the appellant. The respondent, on her part, raised no objection to the award of Rs. 900.00 only as mesne profits up to the date of the decree for the disputed land under the impugned judgment. The only issues on which arguments were addressed at the bar before us were whether the appellant had acquired title to the disputed land by adverse possession, and whether the respondent's suit was barred by limitation. Both these issues are, in a way, inter-connected, for the suit would be barred by limitation if the appellant is held to have acquired title by adverse possession to the disputed land, or the respondent or her late husband are found to have been dispossessed from the land more than twelve years immediately before the date of the suit. The two articles of the Limitation Act, which could have application in the present case, are Articles 142 and 144. Under Article 142, the period of limitation for possession of immovable property when the plain-1 tiff, while in possession of the property, has been dispossessed from, or has discontinued possession of, is twelve years from the date of the dispossession or discontinuance of possession. Under Article 144, the period of limitation for possession of immovable property or any interest therein, not provided for under any other Article of the Limitation Act, is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. The applicability of the two articles to suits for recovery of possession of immov--able property has often presented difficulties to the Courts. But 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 discon--tinuance 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. For authority for this distinction, reference may be made to the judgment of Sajjad Ahmad Jan, J., in a Division Bench decision of the former High Court of West Pakistan in Khisro Nawaa v. Khanimullah and others (PLD 1962 Pesh. 124). Under Article 142, the plaintiff must prove dispossession from, or discontinuance of possession of, immovable property within twelve years preceding the date of the suit. But under Article 144, the plaintiff must bring his suit within twelve years from the date when the possession of the defen-- dant becomes adverse to the plaintiff. The respondent has principally rested her case both on her title to the disputed land as the sole heir of the late Mr. Dinshaw, as well as on her dispossession from the disputed land, the act of dispossession being the act of the appellant in setting up his own title to the land in his reply dated 20th April 1960 to the respondent's notice of 6th April 1960. The original title of the respondent's late husband to the disputed land was admitted before us, the appellant's contention being that this title became extinguished by his own adverse possession for the duration of the statutory period prescribed for this purpose in the Limitation Act.
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3. The principal controversy between the parties before us centred on the question whether or not the appellant had acquired title to the disputed land by adverse possession. According to the appellant, he and Pir Muhammad. His late father, together with other members of his father's family, migrated to Pakistan in 1947 on the partition of India, and that, in the same year, his father took possession of the disputed land and began cultivation, and even constructed some cattle sheds on the land, and that, on his father's death on 11-I1-1956, the appellant came into possession of the disputed land, apparen--tly to the exclusion of the other heirs of his father, these other heirs bein,--,, the respondent's mother, his two brothers, Sultan -A.I and Sadruddin, and his two sisters, Maryam Bai and Choti Maryam. The appellant contends that the respondent's suit having been filed in August, 1960 he, the appellant, had acquired title by adverse possession, and the suit was barred by limitation. 4. The way the contest between the parties proceeded before us has made it necessary for us to discuss some aspects of the law of adverse possession. The rule is now well established that possession follows title, that is, where the question arises as to who is in possession of land, the presumption is in favour of the true owner. Rarnsay v. Margrett ((1894) L R 2 Q B 18). This presumption' is all the greater in case of open, uncultivated or jungle land, or land which does not admit of enjoyment of acts of ownership. This is what the Judicial Committee of the Privy Council held in Maharaja Jagadindra Nath Roy Bahadur and others v. Rani Hemanta Ku mari Debi and others (11 I C 572), Basanta Kumar Roy v. The Secretary of State for India (I L R 44 Cal. 858) and Jahandad Khan v. Abdul Ghafar Khan (AIR 1930 P C 281) and by the Federal Court of Pakistan in Brojundra Kishore Roy Choudry v. Mohan Choudhry (1969 SCMR 547). We have stated above that the title of the respondent/plaintiff to the land in dispute was admitted at the bar before us. The legal consequence of this admission is that the title of the respondent must be deemed to carry with it the legal possession, and must be deemed to subsist, unless and until there is an open and hostile assertion by another of title, accompanied by proof of exclusive possession of an effective nature. In this connection, as noted above, the nature, the situation and user --!' the property must be kept in consideration. The appellant's contention is that his late father Pir Muhammad, and after his death, the appellant him--self asserted a hostile claim to the disputed land and this claim was accom--panied by exclusive possession. The appellant, in effect, claims that by adverse possession of the disputed land on the part of his father and on the hart of the appellant himself, the appellant acquired title to the land in dispute, and the title of the real owner, that is, the late husband of the respondent, and after him of the respondent, thus became extinguished. We have, therefore, now to consider whether the appellant's father, the late Pir Muhammad, and the appellant, or either of them, have established adverse possession of the disputed land for the period prescribed by the Limitation Act, so as to lead to the extinction of the real owner's title thereto. l he law is that a person who claims title to immovable property by adverse possession must show that his possession was open, and adequate in continui--ty, in publicity and in extent, and that his entry upon, or occupation of, the p immovable property was with the intention to assert hostile title thereto. Thus, regard must, in the first instance, be had to the intention with which the wrong-doer entered upon and continued to be in possession of the property to which the dispute relates. If the entry upon and possession of the land lacks the intention on the part of the wrong-doer to acquire title by prescription, then no question of adverse possession would arise. This requirement is implicit in the following observation of the Judicial Committee of the Privy Council in Ejas A.I Qidwai and others v. The Special Manager, Court of Wards, Ralrampur Estate and others (AIR 1935 P C 53) in the following words:- "The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amount--ed to a denial of his title to the property claimed."
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'The Oudh Chief Court stated this rule in Suraj Bali v. Lala Mahadeo Prasad(AIR 1932 Oudh 46) in this way: "The claim of the person in possession of the disputed land must he irreconcilable with the plaintiff's ownership of the land". In Jassa Ran? v. Puran Bhagat (AIR 1938 Lah. 440), the Lahore High Court held that a person may be in possession of land, but if he does not assert any hostile title thereto and if r his acts with regard to the disputed land do not evidence an intention to claim hostile title, then such a person cannot be said to be in adverse possession of the land in dispute. From this follows the rule that permissive possess--ion of land cannot constitute adverse possession, whether the permission is express, or may be implied from the circumstances of the case; .See Padarath Tevari v. Baz Singh and others (AIR 1915 All. 312), Puttu Mal and another v. Bharat India and others (AIR 1917 All. 182) and Bhoj Raj v. Hardeva and others (AIR 1923 All. 140). 5. The possession, to constitute adverse possession, must not only be open with intention to assert hostile title to property in denial of the real owner's title to property in denial of the real owner's title but must be open, and adequate in continuity, in publicity and in extent. For authority in support of this proposition, reference may be made to Radhamoni Debi v. The Collector of Khulua and others (27 I A 136), A. R. R. M. V. Arunacha'lan Chetty and others v. Venkatachalapathi Guruswamigal (AIR 1919 P C 62), The Secretary of State v. Debendra Lal Khan (AIR 1934 P C 23) and Meharaja Srichandra Mandy and others v. Baij Nath Jugal Kishore (Firm) (AIR 1935 P C 36). As regards the continuity of possession, the rule is that if there is a break in the adverse possession of the wrong- doer, limitation ceases to run against the lawful owner of the property. Thus, in The Trustees, Executors, and Agency Company, Limited v. Short (13 A C 793), the Judicial Committee of the Privy Council had to say this on this point: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant." This rule was reiterated by the Judicial Committee in The Secretary of State for India in Council v. Krishnamoni (29 I A 104) and Basant Kumar Roy and others v. The Secretary of State for India. 6. One material question which has arisen in this case, and which generally arises in cases of adverse possession, is with regard to onus of proof. The determination of this question is dependant on whether a case comes under article 142, or article 144 of the Limitation Act, though in this case arguments have been addressed with reference to both these articles. The, distinction between these two articles was very aptly brought out by Sajjad Ahmad, J., in Khisro Nawaz v, Khadimullah and others. The Judicial Com--mittee of the Pi ivy Council also took the same view in Chowdhury and another v. Gabar A.I Khan and others (18 I C 17), that is, if a suit comes under Article 142, the plaintiff has to prove that he had been dispossessed from, or had discontinued possession of, the disputed land within twelve years immediately preceding the commencement of the suit. On the other hand, if a suit comes under Article 144 of the Limitation Act, that is, if it is based on the title of the plain-1 tiff to the land, then the plaintiff must prove that he is the real owner of the disputed property, and, on such proof being given, the burden shifts to the defendant, who is then required to prove that his possession became adverse to that of the plaintiff more than twelve years before the date of the suit. In this connection, we would reproduce the following observation
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of the Judicial Committee of the Privy Council in The Secretary oj' State for India v. Chelli--kani Rama Rao and others (AIR 1916 P C 21): "Nothing it better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say, "I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfill all the legal conditions. ---------.It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession. In an ordinary suit for a declaration it cannot be doubted that the onus of establishing possession for the requisite period would rest upon the plaintiff---------Nothing further as needed than the acknowledgement of the undisputed fact that these islands formed in the sea belonged to the crown. That fact is funda-- mental: until adverse possession against the crown is complete, that is to say, is for the period of sixty years, that fundamental fact remains, and that fact forms subsisting title." "Standing a title in A, the alleged adverse possession of B must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. The onus of establishing these things is upon the adverse possessor. Accordingly when the holder of title proves that he too has been exercising, during the currency of his title, various acts of possession, then the quality of these acts, even though they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds." The same view was taken by the Privy Council in Basant Kumar Roy and others v. The Secretary of State for India and others; Mst Allah Bakhi and others v. Shah Muhammad Abdur Rahim and others (AIR 1934 P C 77) and Raja Rajgan Maharaia Jagatjit Singh v. Raja Partab Bahadur Singh (AIR 1942 P C 47). Thu"' under Article 142 of the Limitation Act, the plaintiff has to prove dispossession from or discontinuance of possession of the disputed land within twelve years immediately before the institution of the suit. But, under Article 144 of this Act, it is enough if the plaintiff proves his title as real owner of the land, and then the onus is on the defendant to prove that this title became extinguished more than twelve years before the date of the suit. 7. This leads us to the question of the nature of evidence sufficient to prove or disprove adverse possession. It has been stated above that open, uncultivated and jungle land does not ordinarily admit of acts of enjoyment, of ownership, and, with regard to such lands, there is a strong presumption of possession in favour of the real owner. In this connection, reference has been made above to the Privy Council decision in Sunder Singh and others v. The Collector of Shahjahanpur (11 I C 514) and Basanta Kumar Roy v. The Secretary of State for India; Jahandad Khan v. Abdul Ghoffar Khan and the Federal Court decision in Brojendra Kishore Roy Choudhry v. Mohini Mohan Choudhry. In Basant Kumar v. The Secretary of State, it was held that temporary "Utbani" cultivation was not sufficient to exclude the plaintiff from the land. In Jahandad Khan v. Abdul Ghafjar Khan, Privy Council observed that where land is uncultivated jungle land which produces nothing beyond self- grown trees and a seasonal crop of wild grass, there is special difficulty in establish--ing that possession was adequate in continuity, in publicity and in extent, so as to become adverse to the competitor. In Brojendra Kishore Choudhry v. Mohini Mohan Choudhry, Abdur Rashid, C. J., speaking for the Federal Court, made the following observation: "I would like to emphasize one other factor before examining the docu--mentary evidence in this case. In order to defeat a titleholder under Article 142 of the Limitation Act by dispossessing him, acts must be done by the trespassers which prevent the owner from enjoying proper--ty for the
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purposes for which he intended to use it. It is necessary to look at the position at which the former owner stands towards the property, as well as the acts done by the alleged disposses--sor. What acts of the defendant are sufficient to establish the termina--petition of the former owner's possession must be judged from the circums--tances of the case and from the nature of the property in question. It is clear that in order to apply the provisions of Articles 142 and 144 of the Limitation Act we must attach a great deal of importance to the nature of the property which forms the subject-matter of the litigation. If the property consists of wastelands, or large areas of jungle, or big sheets of water, the onus on the plaintiffs would be a light one. If, on the other hand, the property consists, of houses, shops, or cultivated land-, different considerations would be applicable." Thus, a very onerous burden is placed on the person who claims title by adverse possession to open and waste land. Such person must give clear, full and definite evidence relating to different points of time for the whole of the statutory period requisite for completing title by adverse possession. The evidence must be of acts which must establish that such person was, in fact, in adverse possession of the land. Further, acts which are sufficient to constitute possession in the real owner may not be sufficient to constitute posses--sion in the trespasser. Mere user of the land cannot be taken as definite assertion of proprietary rights and does not constitute adverse possession. There must be some definite quality in the possession before it can be called adverse. Mere user of land in a village as a "convenient adjunct" does not amount to assertion of hostile title; See Mst. Gulab Devi v. Monji Ram (AIR 1919 Lah. 156). Likewise, mere tethering of cattle and storing of logs on waste land does not amount to denial of the real owner's title; See Lala Asa Ram v. Lala Ram Chander (AIR 1939 All. 161). No importance can be attached to the evidence of witnesses who come and swear that the land was in possession of some body or otter; See Gajadhar Prasad and others v. Mst. Dulhin Gulab Kuer and others AIR 1921 Pat. 234). Possession of receipts for Government revenue, or payment of Government revenue is not evidence of such acts as would constitute adverse possession; See Lallee Singh v. Mussamat Amrit Kooer ((1872) 17 S W R 490) and Baghuraj v. D. B. Yallabha--das (AIR 1923 Nag. 95). Nor is the entry in village records of the name of the person who claims adverse possession as; bila faisla" tenant, without reliable evidence to prove that such person dispossessed the true owner or ever asserted hostile title to the disputed land, proof of adverse possession of the disputed land; See Ram Kishan Lai v. Mohammad Baqar Khan (AIR 1931 Oudh 144), and Mathura Prasad v. Uma Datt (AIR 1939 Oudh 106). Reference may here be made to two more cases, one of Sind and the other of Bombay. In the Sind case, Jamiatrai Manjimal v. Goumal (AIR 1931 Sind 1), the person claiming adverse possession had been using the roof belonging to another as a courtyard and had been sleeping there by night and sitting there by day and also used it on occasions for family festivals. Such mere user was not held by the Court as definite assertion of proprietary rights so as to constitute adverse possession. In the Bombay case, Framji Cursetjf v. Goculdas Madhowjf ((1892) 16 Bom. 338), the person who claimed adverse possession of a piece of land built a privy on the land and also erected sheds there for goats, cows and other animals and even a but for a "ghariwallah", all being tem-- porary structures. It was held that these acts did not constitute adverse possession. 8. We will now examine the evidence led by the parties at the trial of the suit. In this connection, reference may first be made to the letter dated 20th April 1960 of the appellant in reply to the respondent's letter dated 6th April 1960. In this letter, the appellant set up a claim that he and his late father, Pir Muhammad, had been in continuous, uninterrupted and undisturb--ed possession of the disputed land since 1947, and that this possession was still with the appellant. The appellant denied that his late father approached Mr. Dinshaw N.E. Dinshaw for the lease of the land or that the appellant or his late father ever recognized any right whatsoever either of Mr. Dinshaw or any other person in the land in dispute. In this letter, the appellant's claim is that of joint possession with
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