Pakistan Case LawMalik MUHAMMAD KABIR And Others Versus Haji SHAH JEHAN And Another
The appellant challenged the judgments of the High Court holding his suits for declaration and possession to be time-barred. The appellant had obtained Permanent Transfer Deeds for evacuee property in 1962 and instituted suits in 1970 against occupants setting up adverse claims. The lower courts and the High Court dismissed the suits as barred by limitation under Article 142 of the Limitation Act, finding that the plaintiff was out of possession for more than 12 years. The Supreme Court granted leave to appeal to examine the issue of limitation. The Court held that the property in question was evacuee land transferred under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and section 30 thereof established a statutory relationship of landlord and tenant between the transferee and the occupant. Consequently, the ordinary rules regarding dispossession and limitation did not apply, and the burden was on the occupants to prove effective repudiation of the statutory tenancy, which they failed to do. The appeals were accordingly allowed and the suits decreed.
- Does the statutory relationship created under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 affect the application of the ordinary law of limitation regarding dispossession?
- Whether the burden lies on the transferee of evacuee property to prove continuous possession or on the occupant to show repudiation of title?
- Are suits filed by a transferee of evacuee property against occupants barred by time under Article 142 of the Limitation Act when a statutory tenancy exists?
SHAFIUR RAHMAN, J: --The appellant in both the appeals is the same person and leave to appeal was granted to him to examine whether the High Court had correctly by its impugned judgments held the suits of the appellant to be time-barred.
2.The appellant obtained the P.T.Ds. Of an extensive property which was in the form of open land with katcha/pacca construction. The dates of the P.T.Ds. Are 24-2-1962 and 2-4-1962. In 1970, he instituted separate suits against the occupants of portions of that land who were deny' in, his title and interest irk the property and setting up their own claims adverse now, The suit was contested and the ground which prevailed with all the Courts was that the suits having not been brought within 12 year of dispossession, they were barred by time.
3.In one case (Civil Appeal No.19-Q/90), the Courts took the view that the year of institution of the suit would be taken to be not 1970 but 1983 when the application was made or subsequently when the plaint was amended to include the relief of possession, earlier the suit being only declaratory in nature and for that reason defective. The reasoning which prevailed in recording this finding on the question of limitation appears in Civil Appeal No.38-Q/1989 in the judgment of the trial Court as hereunder:-
"On the other hand the hand the defendant has made it clear that he is in possession of the land in question for the last more than 40 years while the suit for declaration was filed in 1970 and amended for seeking relief possession in 1986. Thus it has been established from the evidence of the defendant that the original suit as well as amended suit is time barred. As such issue is settled in affirmative."
The view taken by the appellate Court is as hereunder:---- the claim of the appellant regarding declaration in respect of the ownership of their recovery of the face of it seems to be time-barred because from 1960 to 197o he had never been never the status of owner by the respondent and be should have approached the court within the 6years which he failed. The claim of the possession is based on the claim of ownership as the declaration regarding ownership cannot be granted therefore no declaration regarding possession can be given because the main relief is time-barred, therefore, the consequential relief i.e. The claim of possession also becomes time-barred."
The view taken by the High Court is in paragraphs 17 and 18, as hereunder:-
"From the pleadings of the parties the only conclusion which can legitimately be drawn is that the plaintiff contended that he came into possession in 1962 and that he was dispossessed in 1972 by the defendant. Therefore, apparently it is Article 142 of the Limitation Act, which is applicable. In such event the onus was on the plaintiff to have proved that he brought the suit within 12 years of dispossession. He, however, failed before the trial Court to prove that he was dispossessed in 1969 or 1972 as alleged. The Courts below, however, believed the evidence that the defendant was in possession of the property for last 30 to 40 years. It may further be mentioned that although Article 120 has been mentioned by the appellate Court for declaration but the appellate Court has also dilated upon Article 142 of the Limitation Act and has held that the suit was barred by time. 18. In the circumstances of the case and the fact that the two Courts below after evaluating the evidence on record held that the suit is barred by time I see no reason to interfere in the concurrent findings reached by the two Courts below."
4.In the other appeal (C.A.19-Q/90), the view taken by the trial Court was as hereunder:-
"Admittedly the defendant is in possession of property in question before filing of the present suit, while the plaintiff has full knowledge of the same, but he failed to seek possession of the same, within prescribed period. Furthermore, the plaintiff has also not shown a reasonable or legal cause due to the same he was prevented to file suit for possession. In view of above discussion it is proved that the suit in respect of possession is time-barred."
5.As the leave granting order shows, here was not a case of a private owner of land seeking possession of the land which belonged to him, of which he had been out of possession or from which he had been dispossessed. It was evacuee land which vested in the Custodian under the law, then it was acquired for the purposes of settlement by the Central Government and then its transfer took place under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was a statutory transfer. The same law by section 30 established a statutory relationship between the transferee and the occupant of the property so transferred. In the cases in hand, a statutory relationship of landlord and tenant had come into existence on the strength of section 30. It was, therefore, not for the appellant to prove possession or dispossession but for the occupants to show that they had effectively repudiated the title and interest of the appellant after he was invested with title in the property.
6.There being no such evidence independently of what the appellant stated in the plaints, the question of the suits being barred by limitation would not arise.The learned counsel for the respondents has, in view of the leave granting order conceded that the question of limitation operating against the appellant totally ignoring the statutes governing the relationship does not arise.
In the circumstances, the two appeals are allowed, the judgments of the High Court are set aside and the suits of the appellant are decreed against the respondents with costs throughout.
Judges on this bench
- Shafiur Rahman2,457 judgments
- Ali Hussain Qazilbash1,059 judgments