GHULAM QADIR vs AHMAD YAR and others

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, CT-Leave to appeal has been sought by a defendant in a suit for possession; against the dismissal by the High Court, of his Civil Revision. The first respondent's suit was dismissed but his appeal having been allowed with a decree of possession in his favour as stated after removal of superstructure. The petitioner's Civil Revision failed, therefore, this leave to appeal petition.

2. ' The plea of adverse possession of the petitioner having been rejected learned counsel has vehemently argued that correct law in this behalf has not been followed. According to him even if the petitioner had failed to establish his title, as asserted in witness's statement, he was within his right to plead adverse possession. He also relied on case-law in this behalf - some judgments generally supporting the view that when the alternative plea is not contradictory inter se, mere inconsistency of the alternative pleas would not debar a party from pressing the same.

3. ' A judgment has also been cited from foreign jurisdiction that even in case of adverse possession reliance on a valid source of title would not debar the party concerned from pleading adverse possession-- it is Luvar Popat Kala, Appellant v. Luvar Bachu Rugnath and others, Respondents (AIR 1958 Bombay 152 (V 45 C 44). The facts of that case are distinguishable. The question regarding inconsistent pleas involving one of adverse possession had come up for examination in connection with the plea of res judicata. The earlier view taken by the same High Court that the pleas, as in the present case would be inconsistent and would not be permissible, was however not disapproved.

4. Moreover the question as to how in such circumstances if the pleas were not treated as inter se contradictory, the party relying on adverse possession would be able to satisfy the condition of possession being hostile and open against the owner, was not squarely answered. The said judgment, therefore, is of no help to the petitioner. In our view when a party pleads that it had a valid title, as in the present case, through purchase and subsequent inheritance as stated by learned counsel it would become impossible for such a party to succeed in the alternative on the plea that the possession being open and hostile, title had matured otherwise on account of influx of time through adverse possession. We, accordingly, do not find any force in the contention raised by the learned counsel. Other technical points also have been urged by the learned counsel but the equity is against the petitioner and we do not consider it a fit case for grant of leave to appeal on any technical consideration. The same, therefore, is refused.