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P L D 1998 Lahore 548

 

Before Mian Nazir Akhtar, J

 

Mst. HUSSAIN BIBI—Petitioner

 

versus

 

SIRAJ DIN—Respondent

 

Civil Revision No. 1120 of 1990, decided on 10th July, 1998

 

 

Ahmad Awais for Petitioner

 

Muhammad Sharif Chauhan for Respondent

 

Date of hearing: 23th December, 1997.

 

JUDGMENT

 

Briefly stated the facts giving rise to this petition are that Siraj Din, respondent filed a suit for possession through pre-emption to pre-empt the land measuring 10 Marlas purchased by Mst. Hussain Bibi, petitioner through a registered sale deed dated 23-1-1969 for a consideration of Rs.5,000. She obtained possession of the suit land and is still in possession of the same.

 

2. The petitioner resisted the suit and filed her written statement which gave rise to a number of issues. The trial Court recorded the plaintiff/respondent’s evidence and then fixed the case for recording the defendant/petitioner’s evidence. On 25-2-1974 the petitioner’s learned counsel appeared in the Court but her evidence was not available, whereupon it was closed under the provisions of Order XVII, Rule 3 of the C.P.C.. The respondent’s suit was decreed on the same day. The respondent was directed to deposit the remaining pre-emption amount who did the needful. The petitioner did not challenge the decree by way of an appeal before the learned District Judge which attained finality. On the basis of the decree Mutation No. 1591 was sanctioned in favour of the respondent.

 

3. On 21-6-1982 the respondent filed an application for execution of the decree but the same was dismissed on 26-3-1986 as being time-barred. The respondent’s appeal was also dismissed by the learned ,Additional District Judge on 9-2-1995. The respondent filed a suit against the petitioner for recovery of mesne profit amounting to Rs.10,000 for use of the land which was decreed in his favour by the trial Court on 23-6-1986 The petitioner’s appeal was dismissed by the learned Additional District Judge vide his judgment and decree dated 23-1-1990.

 

4. The petitioner’s learned counsel contends that a separate suit for recovery of mesne profits was barred by application of principle of constructive res judicata; that under the provisions of Order II, rule 4 read with Order XX, rule 12, C.P.C. no separate suit for recovery of mesne profits was competent; that the respondent did not get the decree executed within the period of limitation, therefore, his right/title qua the land was extinguished and he could no longer claim mesne profits. In support of his contentions, he places reliance on the following judgments:-

 

(1) Kumar Jagdish Chandra v. Bulaqi Das and another (AIR 1959 Allahabad 242).

 

(2) Chittoori Subbanna v. Kudappa Subbanna and others” (AIR 1965 SC? 1325):

 

(3) Alam Din alias Alam Sher and 3 others v. Alam Din (PLD 1990 SC? (AJ&K) 1.

 

He also referred to the meaning of the words mesne profits contained in Black’s Law Dictionary to urge that it include all the benefits accruing from the land. He further submitted that mesne profits exceeding three years could not be recovered. Lastly, he submitted that, at any rate, the petitioner had become an owner through adverse possession.

 

5. On the other hand, the respondent’s learned counsel urged that the bar contemplated under the provisions of Order Il, rule 4 and Order XX, rule 12 applies to ordinary suits for possession in which title is clear and not m dispute; that the said provisions have no application to pre-emption suits where the right or title to the property has yet to be established; that the Limitation Act bars the remedy but does not extinguish the right or title. In this connection, he relies on the following judgments:-

 

(1) Bala Kushaba v. Abai Amrita Vaghmode (1909 Bombay Law Reporter 1093)

 

(2) Ram Karan Singh and another v. Ram Das Singh and others (AIR 1931? Allahabad 635).

 

(3) Mst.Ghulam Ilahi v. Muhammad Waris Khan (PLD 1955 Federal Cour? 31).

 

(4) Muhammad Fazal v. Member, Board of Revenue, West Pakistan? Lahore and another (PLD 1974 Note 56 at p.95).

 

(5) Ideal Life Insurance Company Ltd. v. Haji Usman and 2 others (1982? CLC 2191).

 

(6) Maqbool Ahmad v. Government of Pakistan (1991 SCMR 3063)

 

He further submitted that the decree-holder can claim rents/profits notwithstanding the fact that the decree could not be executed due to bar of limitations as held in the case of “The District Board, Banaras, v. Churhu Rai and another” (AIR 1956 Allahabad 680). He also submitted that the respondent has been asserting his right and title in the property and the petitioner could not claim to have become an owner on the basis of adverse possession. In the end, he submitted that the respondent had claimed compensation/mesne profits for a period of 3 years from February, 1979 till February, 1982 at the rate of Rs.400 per month but the Court had awarded the same at the rate of Rs.300 per month.

 

6. There is considerable force in the arguments raised by the respondent’s learned counsel. The pre-emption decree was passed in favour of the respondent on 25-2-1974 in the presence of the petitioner’s learned counsel. On-that date the petitioner’s evidence was closed under Order XVII, rule 3, C.P.C. because she had failed to produce her evidence. She was aware of the decree but did not challenge it in the higher legal forum. Therefore, the decree attained finality and the respondent became lawful owner of the disputed land Thereafter, the respondent became entitled to claim physical possession of the land. The respondent approached the Court for execution of,the decree on 21-6-1982 which was rightly dismissed as being time-barred on 26-3-1986. Prior to that the respondent had also filed a suit for recovery of mesne profits on 17-12-1983. The proposition of law is well settled that the Limitation Act merely bars the remedy or assistance of Court for execution of the decree but does not extinguish the right or title based on the decree. In the Full Bench judgment of Allahabad High Court in the case of Ram Karan Singh and another, it was held that the Limitation Act did not necessarily extinguish the right, though it certainly placed a bar against the remedy by suit; that in certain cases it provided creation of rights by prescription and the corresponding extinction of rights (under section 28 of the Limitation Act). In the case of Bala Kushaba, it was held that where right to property had been established by a decree for possession the barring of the right of execution did not extinguish the right and only the remedy had become barred. In the case of Muhammad Fazal, it was held that where an application for execution of decree for possession had become barred by limitation, it did not ipso facto extinguish right and title of the applicant in respect of the property. In the case of Ideal Life Insurance Company Ltd., it was held:-

 

“Rights and remedies are two different aspects of a case and if the remedy is barred the right is not automatically extinguished.”

 

In the case of The District Board, Banaras it was held:-

 

“The case is different where immovable property is involved and a right to claim possession becomes time-.barred. In that event the title to the property itself is extinguished by virtue of section 28 of the Limitation Act. But in the case of movable property the right to sue itself is extinguished but the title does not cease to exist. In this view of the matter it is possible to decree the claim for compensation while holding that the claim for declaration is time-barred.”

 

7. The provisions of Order II, rule 4 and Order XX, rule 12 of the C.P.C. are applicable in suits for possession of immovable property in which the title of the plaintiff is clear and not sought to be established through the decree of the Court. In a pre-emption suit, the plaintiff has first to establish his superior preemptive right and once it is done simultaneously his title and claim for possession is established. In such a suit the claim for mesne profits or compensation for use of the property cannot be combined because earlier the defendant had remained in occupation of the land on the strength of his independent right or title and could not be held to be liable for mesne profits till the pre-emption decree was passed. Therefore, the argument raised by the petitioner’s learned counsel that the petitioner’s suit was barred on the application of the rule of constructive res judicata is repelled. The petitioner’s learned counsel has relied on the judgments in the cases of “Kumar Jagdish Chandra v. Bulaqi Das and another (AIR 1959 Allahabad 242), Chittoori Subbanna v. Kudappa Subbanna and others (AIR 1965 SC 1325) and “Alum Din alias Alam Sher and 3 others v. Alam Din” (PLD 1990 SC (AJ&K) 1, to urge that me;sne profits exceeding 3 years could not be recovered is correct but in the present case the respondent had claimed mesne profits for 3 years from February, 1979 to February, 1982. Therefore, no bar of limitation qua the claim made by the respondent was attracted in the present case. The meaning of the expression “mesne profits” contained in the Black’s Law Dictionary is of no help to the petitioner. The said meaning is reproduced below for ready reference:-

 

“Intermediate profits; that is, profits which have been accruing between two given periods. Thus, after a party has recovered the land itself in an, action of ejectment, he frequently brings another action for the purpose

 

of recovering the profits which have been accruing or arising out of the land between the time when his title to the possession accrued or was raised and the time of his recovery in the action of ejectment, and such an action is thence termed an ‘action for mesne profits’. “

 

As held above, the respondent’s right to possession accrued to him with the passing of the decree in his favour and prior to the said date the other party i.e. the petitioner/defendant remained in lawful possession of the property on the strength of his own title and could not be made. liable for mesne profits in respect of the period before passing of the pre-emption decree.

 

8. The Courts below had rightly appreciated the material on the record and granted relief to the respondent for recovery of mesne profits. I do not find any misreading or non-reading of evidence or commission of any material irregularity on the part of the Courts below to justify interference in exercise of the revisional jurisdiction under section 115 of the C.P.C.

 

9. For the foregoing discussion, I do not find any merit in this petition which is dismissed leaving the parties to bear their own costs.

 

M.B.A./H-53/L Petition dismissed

 

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