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P L D 1989 Federal Shariat Court 89

 

Before Gul Muhammad Khan, C. J., Syed Shujaat Ali Qadri, Ibadat Yar Khan and

Fida Muhammad Khan, JJ

 

MAQBOOL AHMAD QURESHI‑‑Petitioner

 

Versus

 

THE GOVERNMENT OF PAKISTAN‑‑Respondent

 

Shariat Petition No.11/I of 1987, decided on 2nd July, 1989.

 

 

Petitioner in person.

 

Ghulam Mustafa Awan, Standing Counsel for the Federal Government.

 

Nazir Ahmad Ghazi, Asstt. A.‑G. Punjab for the Punjab Government.

 

Hafiz Salahuddin Yousaf, Maulana Riazul Hassan Noori and Dr. Muhammad Yousaf Farooqi Jurisconsults.

 

Date of decision: 20th July, 1989.

 

 

JUDGMENT

 

GUL MUHAMMAD KHAN, C.J.‑‑The petitioner Maqbool Ahmad Qureshi, Advocate from Gujranwala, has assailed through this petition the section 2.8 of the Limitation Act, 1908, on the ground that it is repugnant to Quran and Sunnah of the Holy Prophet (p.b.u.h.) and therefore, ineffective and inoperative. Section 28 of the Limitation Act provides that if a person has adverse possession on an immovable property to the knowledge of owner for more than twelve years he shall become its owner and the ownership of the other ceases to exist. It reads as under:‑‑

 

“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.”

 

2. The petitioner has relied on various verses of the Holy Quran and also Sunnah of the Holy Prophet (Peace be upon him) to argue that the ownership rights of a person cannot be taken away and there is a clear prohibition in respect of usurpation or taking away the property of others. Reference was made to 4:29‑30, 2:188 Al‑Jassas: Ahkamul Quran Vol. II, page 788; Al‑Sarakhsi: Al‑Mabsoot Vol. II, pages 48, 49 and 67; Ibn Rushd:‑ Bidayatul Mujtahid, Vol. II, page 244‑245; Ibn‑Nujaim: Al‑ Ashbahu Wan Nazair, page 33; Al‑Hidaya by Al‑Marghinani Vol. II, page 87, Badai‑al‑Sanii, Vol. VI, page 193. Most of these references may be found in the case of Said Kamal PLD 1986 SC 360(418).

 

3. Mr. Riazul Hassan Noori, a Jurisconsult of this Court also assailed the provisions and referred to the practice of Hazrat Umar Bin Abdul Aziz who after taking over the reins of the Government as a ‘Khalifa’ returned all the property in his possession and those of his family and relations to owners. (Ibe‑Abil Hadeed. Sharah Nahjul Balagha, Vol. XVII, pp.99‑101 and Ibe‑Salad: Tabaquat Vol. V, pp.341 and 342). He also referred to Kitabul Khiraj page 97 of Yahya Bin Adam wherein a Tradition of the Holy Prophet (p. b. u. h.) is mentioned to say that where a person had planted dates trees in the land of another, it was ordered that the trees may be cut and thrown out.

4. The point being made and pressed through the references given above is well established and may not be gone into further for the reasons that it does not pertain to the precise point in hand. The references given above establish sanctity of ownership and possession. Also they abhor’ usurpation of property, the violation of trust etc. Even the references were to the effect that it is the duty of the Courts to restore a property to the claimant if the same had been taken away forcibly or unlawfully. No question of limitation in any of those references arose.

 

5. The present case challenges section 28 of the Limitation Act read with Article 144 of the Schedule which deprive a person of his right in a property which remained in adverse possession of another, to the knowledge of the owner and he did not take any step to get the possession back. This question of limitation of time and its effect has been considered ‑by this Court in Shariat Petition No.12/1 of 1988. There the question was whether a law providing a period of 3 years for recovery of deductions made from the wages of a worker was un‑Islamic and this Court held that it was not.

 

6. The law of limitation of time wherever applied does not always mean to usurp or help usurp a right. It rather operates on the principle that if a claimant does not press his claim in. the time specified by law, through an authority appointed for the purpose by law, it will be presumed that either the claimant waived his right or was not serious and rather indolent so as to have acquiesced. The concept of law is only this that the authority created or appointed for helping a claimant in such a situation will not help if the claimant knowing the position of law did not ask for it within the prescribed period.

 

7. The arguments raised before us by Dr. Muhammad Tufail and Dr. Muhammad Tufail Hashmi, the Jurisconsults, on the basis of general wisdom, were that Islam does not permit any person and more particularly a State to deny a worker or labourer his wages or make any illegal or undue deduction there from and then rely on lapse of time to avoid payment. They also relied op the general principle that a right will not be allowed to be extinguished. (Muhammad Abdul Jawad: Al‑Hayazatee wat Taqadum p.50, 1977). Consequently, it was stated that as no claim of a person can be denied or defeated the present provisions which spell out such a result are against the Holy Quran and Sunnah of the Holy Prophet (p.b.u.h.).

 

8. The above learned Jurisconsults also referred to certain “Ahadith” which go to show that limitation had been placed by the Holy Prophet (p. b. u. h.) in respect of certain matters. One is cited as follows: ‑

“A thing which remained in the possession of a person for ten years shall become the property o(‘ that person, “(Al‑Mudawannah lit Imam Malik, Vol. V, page 192, Print A1‑Saadah, 1323 Hijra).

 

An explanation of this Tradition has been given by another jurist of Maliki school and quoted by Rabia in the same book to say that if a person holds immovable property of another, adversely to his knowledge and the true owner does not lodge his claim for ten years, the possessor will become the owner. The only exception appears to be of an absentee owner which also confirms that loss is due to the conduct of the claimant himself. The same view has the support of Imam Malik himself. More discussion is available at pages 173, 186, 187, 191 and 192 of the above book.

 

9. The same Tradition has been reported in Kanzul Ummal as follows:

 

“A thing which remained in possession of a person claiming adversely to the claimant for ten years, the right of the possessor shall be superior to that of his claimant opponent.” (Kanzul Ummal, Vol. III, page 898, Hadith No.9088, Print Beirut).

 

10. Imam Abu Yusuf, the learned jurist of Hanafi Fiqh, has narrated the following hadith:‑

 

“Old and barren land is a property of the State and then of yours. Anyone who cultivates a piece of barren land he will become its owner. But a person who takes in possession a piece of barren land’ by putting corner stones and did not cultivate the land for three years shall cease his right.” (Abu Yusuf, Kitabul Kharaj, page 65).

 

11. It is quite clear from all that is said above that in cases of adverse possession of land even ownership could ‘be extinguished and the adverse possessor can be given the same rights and also I preferences over the previous owner. Similarly, if a person takes possession of certain ‘Mawat’ land but does not developed it within three years he loses his right of possession.

 

12. It has been narrated by Abu Musa Asha’ri that Mu’aviyya bin Abu Sufian told that do you know that the Holy Prophet (p. b. u. h.) fixed the date for hearing when the parties came before him with their litigation arid one of them came on the fixed date and the other did not come the Holy Prophet (p.b.u.h.) decided the case in favour of the person who came and against the Person who did not come’

 

(Mahmood Ahmad Ghazi Adabul Qazi, page 258, Print Islamic University, Islamabad).

 

13. The dicta given above was also followed by the Companions after the Holy Prophet. Hazrat Umar had directed Abu Musa Asha’ri in the time of his Cliphate that he should fix a date for hearing of the case. The Qadhi should also allow an opportunity to the party who wants to produce evidence in support of his plea but if he does not produce the same within the specified period, the case should be decided against him. (Adab‑ul‑Qadhi Urdu Islamic Research Institute, pp.128. 248, 258, 352). Similar is the view given in A1‑Ahkamus Sultaniyya, Urdu Translation, page 128, Print Lahore. Even Majallah contains a Chapter on limitation sections 1660 to 1675 supporting the principle of limitation in various cases.

 

14. Ibne Hajar Asqalani, in his book “Al‑Diraya‑Fi‑Takhreeje Ahadith‑il‑Hidaya”, Vol. 11, p.244 quotes Hazrat Umar as saying that if a grantee of a land does not cultivate it for three years and another enters upon thereafter to do so; the latter gets a better title to it than the earlier grantee. The same view is by Yahya Ibne Adam in his book (Kitabul Khiraj, page 103).

 

15. The precedents given above clearly establish the principle that a time limit can be placed both in respect of extinguishment of right and for the purpose of proving a claim. In fact it will be seen that Islam does not permit usurpation of one’s right and rather protects and preserve. However, Islam also recognises that an owner or a holder of a right has the authority and discretion either to transfer the same by sale, gift etc. or acquiesce and ignore if someone takes that away without his express authority or consent. Thus if the facts of a case show that the owner or the holder having knowledge of the fact of time limit did not claim or challenge, it will be presumed that he waived his right.

 

16. Thus emphasis in respect of such a matter is on the conduct of the person who seeks to press his claim. If the facts, show that he knew the situation and he neglected or chose not to press it within the prescribed period, the machinery of law will refuse to help him. In fact he had already been forewarned by law that if he does not press his claim within the prescribed time he has to blame himself as the machinery of State is prohibited from helping him. The Islamic jurisprudence also embodies the principle known as “Tamadi” .

 

17. The provision challenged before us also contains no more than what is permissible. We, therefore, are of the view that fixing a time limit in presentation or proving a particular claim is not repugnant to the Injunctions of Islam. No exception, therefore, can be taken against it. This is the view taken also in Muhammad Amin v. Islamic Republic of Pakistan (P L D 1981 F S C 23(75).

 

We find no merit in the petition and so it is dismissed.

 

 

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