SHAFAULLAH Versus SAIFUR REHMAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, C.J. ‑‑‑Leave to appeal has been sought against the dismissal by the High Court of petitioners' Civil Revision in a land dispute.

2. The petitioners bad filed a suit seeking declaration of title in evacuee land, on the basis of adverse possession. The suit which was filed in late 1978 was dismissed in 1987. Their appeal and revision have been dismissed on the finding that the claim of the petitioners on the basis of adverse possession is baseless and without any force.

3. The land in dispute having been treated as evacuee stood settled on one Hussain Bai. It was alienated to Abdur Rehman in 1973. In the suit filed by the petitioners in 1978 it was claimed that they were in adverse possession since 1931 and the same had matured in 1943. The basis of this claim was that in Column of ( 0 14 ) their possession was

4. It may be noted that prior to the filing of this suit the petitioners' predecessor had filed a similar suit on the same basis in 1957. The question was then referred to the Custodian Authorities under section 41 of the Administration of Evacuee Property Act, 1957. The reference was answered against the petitioners' predecessor. Accordingly, the suit was dismissed.

5. In the present suit all the Courts have found concurrently against the petitioners on merits of the question of adverse possession.

6. In the High Court the petitioners when confronted with the finality of the judgment rendered against the petitioners' predecessor in the earlier suit contended that the said decision of the Civil Court having been based on the decision of the "Deputy Custodian," it had not achieved finality. However, the learned Judge in the High Court repelled this as follows:‑‑

7. 'This contention ignores the definition of the expression "Custodian" in section 2 of the Act. The expression "Custodian" was defined there to mean a Custodian of an Evacuee Property and included an Additional, A Deputy or Assistant Custodian. Reference was then made to the rules made under an Act of 1948 for the contention that the decision of the Deputy Custodian was subject to confirmation by the Custodian. In view of the definition of "Custodian" in the 1957 Act, this contention must also fail."

8. In addition to the reasoning of the High Court it may be observed that the Custodian's verdict had become a part of the decree passed by the Civil Court. Accordingly, so long as it remained intact, it would also operate as res - judicata against the petitioners in so far as the second suit is concerned. The learned Judge in the High Court further held that the land in question had remained vested in the Central Government till its transfer to Hussain Bai and further that no question of maturity of title adverse to the Central Government, would arise throughout this period.

9. Learned counsel while admitting the effect of all these elements in the case, as going against the petitioners insisted that the initial adverse possession in 1931 should be deemed to have matured into perfect title in 1943.

10. It is not that easy a matter as the learned counsel thought. The entry in the columm of Lagan relied upon by the learned counsel is of no help to the petitioners; as admittedly the entry in the column of ownership contradicted the entry in the column of Lagan. There is no additional evidence to show that the presumption thus found in favour of the owners on account of the entry, had to be ignored. Additionally there are no circumstances in this case to show that for the said period of 12 years in fact and in reality the possession of the petitioners D was as hostile, as open and as dishonest as is required in cases like the present one. See Mirza Ghularn Hussain v. Ch. lqbal Ahmad PLD 1991 SC 290. So long as the evacuees remained in Pakistan and till 1947 there in no indication that the petitioners dared to raise any claim of ownership in their face and presence. If this alone was the basis of the petitioners' second suit which, as already held, was not at all competent, it was incumbent upon them to implead the evacuees as a party. If a suit would have been filed before 1947‑‑undoubtedly the petitioners would have lost it. And after the partition the combined reading of all the laws relating to evacuees and evacuee property, had the effect of almost repealing law relating to adverse possession; if not otherwise, at least by intendment. This proposition was approved in Jalal Shah v. The Custodian PLD 1981 SC 262. There are many other cases to the same effect also which a counsel like the one appearing before us could have cited, if he desires to do so. Thus neither there was any question of the petitioners having matured title before partition against the evacuees nor after partition against the Custodian and/or the Central Government. The High Court's approach in this behalf being unexceptionable, leave to appeal, accordingly, is refused.

11. M.BA./S‑642/S Leave refused.