ABDUL RASHID Versus GHULAM NABI KHAN

ORDER

MUHAMMAD MUNIR KHAN, J.-- -This petition directed against the judgment of Peshawar High Court, Circuit Bench, Abbottabad, dated 1-10-1995 arises from the facts that on 14-3-1988 Ghulam Nabi Khan respondent No. l filed a suit for possession of a house situate in Mohallah Kangar Masjid, Mansehra on the basis of title and for the recovery of Rs.16,400 as mesne profits against Abdul Rashid petitioner and Abdul Qayyum respondent No.2, in the Court of Senior Civil Judge, Mansehra. It was averred in the plaint that the plaintiff was the owner of the house in dispute; Abdul Qayyum respondent No.2 was his Karinda in the year 1981 when with his connivance, Abdul Rashid occupied the house as a tenant on monthly rent of Rs.200. The petitioner did not pay the rent at all. On the he filed ejectment application before the Rent Controller, Mansehra. The petitioner denied the relationship of landlord and tenant between the parties. His plea was accepted by the Rent Controller and the ejectment application was dismissed on 23-12-1987. In this view of "matter he was forced to file suit for possession in the Civil Court. The suit was resisted. The averments in the plaint were denied by the petitioner He also raised Preliminary Objections about maintainability of the suit. Raising plea of limitation, in paragraph 4 of the Written Statement he stated:-----

The Trial Court framed as many as nine issues including Issue No.5 of limitation which reads as under:-------

"Whether the suit is time-barred?"

2. The parties led evidence before the Civil Judge. Ghulam Nabi Khan appeared as P. W.5. He produced Muhammad Aslam son of Amirullah P'. W.1, Aslam son of Maqbool P.W.2, Abdul Aziz P.W.3, Dilawar Hussain Muharrir Registry P.W.4 and also documentary evidence Exhs. P.W.1/1, P.W.2/1, P.W.3/1 and P.W.4/1 proved by Muhammad Aslam P.W.1, Aslam P.W.2, Abdul Aziz P.W.3 and Dilawar Hussain P.W.4 respectively. In rebuttal, Abdul Rashid appeared as D. W.1. No other witness was produced nor any document was tendered by him. The Civil Judge found that the possession of the disputed house by Abdul Rashid was adverse, continuous, hostile and dismissed the suit on 14-11-1989. He, however, decided the Issue of limitation against Abdul Rashid petitioner/defendant.

3. Feeling aggrieved thereby Ghulam Nabi Khan filed appeal before the District Judge, Mansehra who dismissed the same mainly on the ground that the plaintiff had failed to prove that he had rented out the disputed house to Abdul Rashid defendant and that the defendant had failed to pay the rent. Feeling still not satisfied, Ghulam Nabi Khan plaintiff filed Revision before the Peshawar High Court, Circuit Bench, Abbottabad which was allowed. The judgments and decrees of the Courts below were set aside and the suit of the plaintiff to the extent of his prayer for possession was decreed vide impugned judgment.

4. Learned counsel for the petitioner has argued that the High Court has set aside the judgments and decrees of the Courts below in exercise of its revisional jurisdiction without any legal and factual justification; that as rightly found by the Civil Judge, the possession of the petitioner was adverse for more than 12 years and as such he had become the owner of the house; and that in any case the suit filed by the petitioner was barred by time. Reliance has been placed on Haji Muhammad Din v Malik Abdullah (PLD 1994 SC 291).

5. We have considered the submissions made by the learned counsel with care. We do not agree with him. We find that in his statement as D.W.1, Abdul Rashid admitted the title of Ghulam Nabi Khan respondent No. 1. In examination-in-chief he stated that the suit house was handed over to him by Haji Abdul Qayyum (respondent No.2) on receipt of Rs.15,000 as mortgage money. Except his statement, there is nothing on record to support his plea. He had not taken this plea even in the Written Statement. In cross-examination, he stated that after his occupation of the house in the year 1973, Ghulam Nabi Khan came to him and asked him to vacate the house whereupon he told him that the house had been mortgaged with him, so he will not pay any rent for the same. He further stated that despite his refusal to vacate the house or pay the rent, the plaintiff had been asking him since then to pay the rent. The plaintiff had also filed an ejectment application against the defendant before the Rent Controller. It is thus clear that the petitioner-defendant not only admitted the title of the plaintiff but also admitted that he derived possession from the Karinda of the plaintiff as a mortgagee and that the plaintiff-owner had continuously been demanding rent from him and also wanted possession of the disputed property. After considering the facts and circumstances admitted and proved in this case, we find that the possession of the petitioner-defendant was permissive in origin and character and at no stage possession of the petitioner was acquiesced in by the respondent plaintiff. So, the possession of the plaintiff was consistent with continuance of his title in spite of the possession of the petitioner, whatever may be its duration. It is a case by a person entitled to possession as owner against a person in possession without title. In such a case, unless the petitioner succeeds in establishing that his possession had matured into title by reason of his adverse possession for over 12 years, he cannot prevent the plaintiff from obtaining the possession of the property by means of a suit. It is well settled that a mere trespass over 12 years will not extinguish We title of the true owner nor trespasser will acquire title by prescription. The petitioner has failed to prove the starting time from which his possession became adverse to that of the plaintiff. The onus to prove that the suit was barred by lime was rightly placed on him which he failed to discharge issue was decide(; against him b5- the Trial Court.

The defendant/respondent filed appeal against the judgment and decree of the Trial Court but the petitioner did not file any cross-objection to question the correctness of the finding of the Trial Court on issue of limitation. In this view of the matter it is not possible to hold that the suit of the plaintiff was barred by time or that Abdul Rashid petitioner had acquired title through adverse possession for over 12 years. The admission made by Ghulam Nabi Khan in his statement before the Trial Court that----- will hardly prove the adverse possession of petitioner for over 12 years. His statement is to be read as a whole. He has nowhere stated in his statement that the possession of the defendant was adverse for a period of more than 12 years. Learned High Court was quite competent to interfere in exercise of its revisional powers under section 115, C.P.C. and to set aside the judgments and decrees of Courts below for which it has given sound and cogent reasons. We do not see any infirmity in the impugned judgment which does not suffer from misreading or non-reading of material evidence.

6. For all these reasons, leave to appeal is refused and the petition is dismissed.

M.B.A./A-1375/S Leave refused.