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P L D 1993 Peshawar 81

 

Before Muhammad Bashir Khan Jehangiri, J

 

SARDAR MUHAMMAD and 2 others‑Petitioners

 

versus

 

HAIDER ZAMAN and 3 others‑‑Respondents

 

C. R. No.130 of 1989, decided on 9th January, 1993

 

 

Saleh Mehmood Awan for Petitioners.

 

Sheikh Jan‑e‑Alam for Respondents.

 

Date of hearing: 9th January, 1993.

 

JUDGMENT

 

This Civil Revision filed by the three contesting defendants is directed against the judgment and decree dated 21‑6‑1989 passed by the learned Additional District Judge‑I, Haripur reversing the judgment and decree dated 8‑12‑1988 of the learned First Civil Judge, First Class, Haripur, whereby the suit of the plaintiffs had been dismissed. The suit of the plaintiffs was for a declaration of their title to and confirmation of their possession over a vacant site fully described in the title of the plaint and situate in village Sarri., Tehsil Haripur and for perpetual injunction restraining defendants 1 to 3 from interfering in their possession. In the alternative a decree for possession of the said property was prayed for.

 

2. The plaintiffs’ case, in short, was that the disputed property was originally related to house No. 102 in which Khalil Khan was a co‑owner whose predecessor Said Khan was the original owner of the vacant site and then it devolved upon the plaintiffs and defendants 4 and 5 to which the defendants No. 1 to 3 have no concern whatsoever. It is further alleged that defendants 1 to 3 have started interfering in the disputed property about 15/20 days to their filing of the suit. Hence the suit for the reliefs noted above.

 

3. Defendants 1 to 3 contested the suit by filing a joint written statement wherein they denied the allegations made by the plaintiffs in the plaint. The defendants have not furnished any details as to how and from whom they derived title to the disputed house. A number of legal objections were also taken up including bar of limitation and their adverse possession having ripened into their ownership.

 

4. The learned Civil Judge, who tried the suit, having considered the documentary and oral evidence brought on the record by the parties, dismissed the suit of the plaintiffs on a finding that they have not been able to identify the disputed vacant site with House No. 102 as entered in Register Abadi of the village for the year 1872. The suit was also held to be barred by limitation. The plea of adverse possession raised by defendants was, however, not found to have been substantiated by any evidence of the required standard.

 

5. The plaintiffs appealed against the judgment and the decree of the learned trial Judge and the First Additional District Judge, Haripur, who heard the appeal reversed the decision of the learned lower Court holding that the defendants having not controverted the description of the suit property could not be non‑suited on that score. The learned appellate Court further held that as the defendants have not set up any valid title to the suit property nor they have disclosed the source as to how they became owners of the disputed property, therefore, the plaintiffs’ claim could not be thrown out. On the plea of limitation it was held that the defendants have not at all adverted to the plea of dispossession of the plaintiffs from the vacant site for more than 12 years and as their plea of adverse possession has been turned down, therefore, no period of limitation would run against the plaintiffs in the case.

 

6. The defendants have, therefore, preferred this Civil Revision to challenge the judgment and the decree of the learned Additional District Judge.

 

7. Mr. Saleh Mahmood, Advocate appearing on behalf of the defendants‑petitioners, canvassed before me three points for consideration in this petition. First contention of Mr. Saleh Mahmood was that the learned Additional District .fudge has misread and misrepresented the evidence on record particularly on the point of possession of the defendants over the site which has been admitted by Dilbar Khan P.W. 3; secondly, that as the plaintiffs were out of possession of the property for more than 12 years prior to the date of filing the suit he should have in view of the provisions of Article 142 of the Limitation Act, dismissed the suit of the plaintiffs and thirdly; he contended that the best evidence would have been of the plaintiffs themselves who failed to appear in the witness‑box to stand the test of cross‑examination and that, in any case, the weakness of the defendants’ case does not prove the case of the plaintiffs.

 

8. Sheikh Jan‑e‑Alam, learned counsel for the plaintiffs, on the other hand, raised a preliminary objection to the competency of this revision on the ground of non‑impleadment of defendants‑respondents 4 and 5 in this revision. In this context reliance was placed on the precedent case of “Mst. Maqbool Begum etc. v. Gullan and others” (PL D 1982 SC 46). The case of Mst.’ Maqbool Begum relied upon by the learned counsel for the plaintiffs respondents is relevant to the appeals, wherein non‑impleadment of necessary parties in ‘a decree, appealed from by some of the defendants is joint and indivisible against all the defendants. In the case of civil revisions such a defect would not be fatal if it has not prejudiced the rights of the parties concerned. It is settled law that the question of defect of procedure is always not the question of prejudice unless there is violation of some strict statutory provisions as a result whereof proceedings are vitiated. Again the proper place of procedure in any system of administration of justice is to hold and not to thwart the grant to the people of their rights. In “Nishat Mills Ltd. v. Central Excise Circle 11 and three others” (PLD 1989 SC 222) a salutary guideline was laid down that “all techicalities have to be avoided unless it be essential to comply with them on the grounds of public policy: that any system which being given effect to the form and not to the substance defeats substantive rights is defective to that extent; and finally that the ideal must always be a system that gives to every person what is his”. In the circumstances it is my considered view that non?impleadment of pro forma defendants in revision petition under section 115 of C.P.C. whose rights have been safeguarded by the plaintiffs‑respondents in their plaint would not render it incompetent or liable to dismissal on that score. This, however, may not be stretched to absolve the parties concerned to implead even the pro forma defendants. In proper cases even pro forma defendants should ordinarily be impleaded as a party to the civil revision.

 

9. It is, however, a fact that the defendants‑petitioners have neither asserted nor traced their title to the disputed vacant site in any manner whatsoever. Consequently, the law laid down in the case of “Muhammad Amin and others v. Muhammad Bakhsh and others” (PLD 1961 Karachi 173) and cited by the learned counsel for the defendants‑petitioners does not support the petitioners that it is for the plaintiff to prove his case and if he is able to prove it then it is the duty of the defendants to establish that the title set up by the plaintiff is not true. In this case the learned appellate Court has observed, and rightly so, that the defendants‑petitioners have not been able to trace their origin of the title by setting up a definite plea as to whether it was their ancestral property or it has been purchased or gifted to them or was the result of the bequest.

 

10. A perusal of the written statement and the evidence on record adduced on behalf of the defendants shows that they have not at all adverted to the origin of the title of the petitioners to the vacant site in dispute. In the written statement, it has not been stated that the defendants or their predecessors were the owners in possession of the disputed vacant site but it is merely denied that the plaintiffs‑respondents were the owners in possession of the vacant side. No doubt it is for the plaintiffs to initially prove that they are the owners in possession of the suit property since their forefathers but it does not absolve the defendants from their obligation to clearly specify the origin of their title to the disputed property. If a defendant neither asserts in the written statement nor is able to prove his origin of the title to any immovable property in the witness‑box then in so far as the question of title is concerned, the plaintiff’s word coupled with some evidence would be enough to dislodge the mere denial of plaintiffs title thereto.

 

Much capital was tried to be made by the learned counsel for the petitioners out of an admission made by Dilbar Khan (P.W.3). that the defendants, taking undue advantage of the plaintiff’s absence had occupied the disputed vacant .site and have cut the trees. This admission on behalf of the special attorney for the plaintiffs is not of much consequence firstly, because an erroneous admission would not be enough to deny the relief to which a party is otherwise entitled and secondly, the inference is out of context because if it appears that what Dilbar Khan special attorney (P. W. 3) intended to convey was that the possession of the plaintiffs had been interfered with by way of cutting the trees standing therein. Be that as it may, it is settled law that when a property is not capable of physical possession or is otherwise not in possession of any other, it is deemed to be not in possession of any one. In this context in “Mahboob Ali v. Amanullah Khan and three others” (1981 CLC 251) Shah Abdur Rashid, J. as his Lordship then was, held the view and to which I respectfully subscribe, that the possession of vacant site or vacant land naturally goes with the title of the rightful owner and that in case of doubt the presumption always is that possession follows title. The presumption qua the disputed vacant site, therefore, is that the rightful owner is in possession of such property and as I shall presently show that the plaintiffs‑respondents have been able to prove their title to the disputed vacant site, presumption whereof also is in their favour.

 

12. Survey No. 102 vide extract photo copy Exh.P.W.2/1 from Register Abadi 1872 has been undoubtedly recorded as a land. The objection of the learned counsel that it was not a house in 1872, as alleged, is not sustainable. Not only in the plaint but also in the witness‑box it has been asserted on behalf of the plaintiffs‑respondents that it was a vacant site measuring 6‑1/2 Marlas and not a house which formed a part of Survey No. 102. This entire Survey No.102 is duly recorded in the occupation of Said Khan son of Salabat Khan who is proved to be the predecessor‑in‑interest of the plaintiffs‑respondents. The learned trial Judge was not correct to hold that the plaintiffs have not been able to identify this property with Survey No. 102 aforesaid. Razaullah Khan Record‑Keeper (P.W.2) has deposed that the Survey No. 102 according to the Register Abadi has remained in occupation of Said Khan son of Salabat Khan who was also its owner. Survey No. 102 consists of three portions 102, 102‑Alif and 102‑Bay with definite measurement. Its boundaries as asserted by the Special Attorney of the plaintiffs and those furnished by Razaullah Record Keeper (P.W.2) prima face are inter se identifiable. The plaintiffs claimed that it forms part of the whole Survey No. 102 which assertion has not been displaced by the opposite‑party.

 

13. No doubt the defendants have not been able to assert in the witness? box their plea of adverse possession which they had taken up in their written statement and is duly reflected in issue No. 6. Both the Courts below have also on this score found against the defendants‑petitioners. In any case section 28 of the Limitation Act has since been struck down on the grounds of its being repugnant to the Injunctions of Islam. Reference may be made to the case of Maqbool Ahmad v. Hakoomat‑e‑Pakistan (1991 SCMR 2063).

 

14. I tend to agree, however, with the learned counsel for the petitioners that the learned appellate Court has erred to hold that since the plea of adverse possession has been turned down by the trial Judge, therefore, no period of limitation would run against the plaintiffs‑respondents. Every plea has to be brought before the forums competent to adjudicate upon the rights within the period prescribed by the Limitation Act. The plea of limitation has got nothing to do with the plea of adverse possession particularly when it has since been struck down. It is well‑settled law that all the reliefs which a party is held entitled to is subject to a law of limitation because every litigant is to be vigilant in claiming his rights within the limitation prescribed by law independent of whether there has or has not been a plea of adverse possession. It has, however, to be pointed out that the plaintiffs‑respondents have claimed three reliefs: (1) declaration, (2) perpetual injunction and, alternatively, (3) the possession. The learned trial Judge has also omitted to refer to any section or article of the Limitation Act (IX of 1908) under which one or more than one of the reliefs claimed by the petitioner were barred by time. It has been asserted in the plaint and later substantiated by the evidence that the defendants ?petitioners have interfered in the possession of the disputed vacant site by way of cutting the trees standing therein about 15/20 days prior to the institution of the suit. This plea of the plaintiffs has been ambiguously denied in the written statement but not at all adverted to in the evidence of the defendants? petitioners. The cause of action, therefore, for declaratory relief to which the plaintiffs‑respondents appear to have been held entitled accrued to them about 15/20 days prior to 15‑4‑1987 and, therefore, the declaratory relief granted to them as well as of the perpetual injunction is well within 6 years under Article 120 of the Limitation Act and the suit was rightly held to be within period of limitation prescribed therefor.

 

15. In the circumstances narrated above, the view taken by the learned appellate Court appears to me to be correct. In any case, it is supported by evidence, therefore, this petition has no merit and merits dismissal with costs which is ordered accordingly.

 

AA./1444/P          Revision dismissed.

 

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