ABDUL HALEEM KHAN vs MESSRS SIND OBSERVER & MERCANTILE STEAM PRESS
This case concerns a property dispute over premises on Bunder Road, Karachi. The respondents purchased the property in 1946. Following the Hindu owners' migration, the petitioner occupied the premises in 1948 without authorization. The property was declared evacuee property in 1953, and the petitioner applied for its transfer, receiving a P.T.O. in 1960 and a P.T.D. in 1963, having paid rent to the Settlement Authorities. Subsequently, the Custodian declared the property non-evacuee in 1967, leading to the cancellation of the petitioner's P.T.D. The respondents then filed an eviction suit, where the petitioner raised a claim of adverse possession. The core legal question was whether the petitioner had perfected title by adverse possession. The Supreme Court upheld the lower courts' decision that the adverse possession claim failed. The court held that the period during which the property was treated as evacuee property and the petitioner occupied it permissively as a licensee of the Custodian, having applied for its transfer and paid rent, interrupted the continuity required for adverse possession. Consequently, the 12-year period for perfecting title was not completed.
- Does the treatment of a property as evacuee property interrupt a claim of adverse possession?
- Can a person claim adverse possession if they have applied for the transfer of the property as evacuee property and paid rent to the Custodian Authorities?
- Is occupation of a property declared evacuee property considered permissive when the occupant applies for its transfer?
- Does the period during which property is in the lawful possession of the Custodian count towards perfecting title by adverse possession?
1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to a property situated on Bunder Road, Karachi, bearing No. R. B. 12/3/2.
2. This property was admittedly purchased by the respondents herein under a registered deed of sale from its Hindu owners sometime in 19-16. On Partition, however, the Hindu owners migrated to India, and the petitioner claims that he entered into occupation of the premises on the 1st of February 1948. The occupation was unauthorised, as there was no allotment order of any kind in his favour, either by a Rent Controller or by a Custodian Authority.
3. Thereafter, when Settlement Laws were extended to Karachi, the property was treated as evacuee property on the 17th of September 1953, and the petitioner applied for its transfer, on the basis of his unauthorised occupation, on the 6th of March 1960. The property was transferred to him and a P. T.
4. O. Was issued on the 9th of August 1960.
5. The petitioner paid the rents for the entire period commencing from February 1948 to the 9th of August 1960, in respect of his occupation of the said premises to the Settlement Authorities. After such payment, a P. T. D. Was also issued to him in due course in 1963.
6. The respondents in the meantime, coming to know that this property had been treated as evacuee property, moved the Settle--ment Authorities for a declaration that the property was not an evacuee property and the consequent cancellation of the P. T. O. And the P. T. D. Issued in favour of the petitioner. The Custodian declared the property to be non-evacuee by his order of the 27th of May 1907, and thereafter the P. T. D. Issued in favour of the petitioner was also cancelled. In these proceedings the petitioner for the first time set up a claim of title by adverse possession.
7. The respondent then filed a suit on the 15th June 1968, for the eviction of the petitioner. In this suit the plea of adverse possession was again raised along with other pleas and six issues were framed by consent but subsequently the petitioner's counsel admitted that the property had been purchased by the respondent under a registered deed of sale and, therefore, the only issue which was agitated before the original Court and the Letters Patent Bench was the question of adverse possession.
8. Both the Courts held that the plea of adverse possession must fail, because, the possession of the petitioner became interrupted when the property was treated as evacuee property. The petitioner was also held to have acquiesced in this by applying for the transfer of the premises as an evacuee property and paying the rent due in respect of it from February 1948, the date of his alleged occupation, up to 1960. Therefore, the period between the 17th of September 1953, and the 27th of May 1967, when the P. T. D. Was cancelled, had to be excluded from the period during which the petitioner claimed to be in adverse possession, and if this period was excluded, the period of 12 years was not completed to perfect title by adverse possession.
9. We are in agreement with the High Court that the petitioner could not take advantage of the period during which the property was in the lawful possession of the Custodian. His occupation during this period must be deemed to be permissive as a licensee of the Custodian and-not adverse or hostile in any sense.
10. The learned counsel also tried to argue, by reference to a letter said to have been written by the Custodian Authorities in answer to a query as to an adjoining premises, bearing No. 12/3/ 1, that the property which was treated as evacuee property was pre--mises No. 12/3/1 and not 12/3/2. This contention is wholly untenable, because, on his own admission, the petitioner applied for the transfer of premises No 12/3/2 and a P. T. O. Was issued to him for 12/3/2. This could not have been done if it had not been treated as evacuee property. It does not, therefore, lie in his mouth now to say that the P. T. O. Was with regard to some other property.
11. We see no substance in any of the points urged in support of this petition which is, accordingly, dismissed.