Supreme Court of Pakistani Mst. AKHTAR BEGUM and others vs Nawabzada

ORDER

1. ' MAMOON KAZI, J.---The petitioners are legal heirs of late Nawabzada Wilayat Ali Khan son of Nawabzada Liaqat Ali Khan, the first Prime Minister of Pakistan. Their revision petition filed before the Lahore High Court (Rawalpindi Bench) has been dismissed, vide judgment, dated 25-2-1997 and aggrieved by the said judgment, the petitioners have filed this petition, for leave to appeal.

2. ' The facts of the case are that, Property No,S-51-R-62 (49-B, Lawrence Road, Lahore) being an evacuee property was transferred to Nawabzada Mumtaz Ali Khan, predecessor-in-interest of the respondents. Nawabzada Wilayat Ali Khan, who was closely related to Nawabzada Mumtaz Ali Khan, had to vacate the rented house which he had occupied alongwith his family members.

3. Therefore, he was accommodated by the respondents in a portion of the; disputed premises on the former's request.

4. ' In March 1975, the respondents sought the petitioners' ejectment on the grounds of (a) default, (b) damage to the property, and (c) personal requirement. The petitioners resisted the said proceedings claiming to be owners by virtue of a gift allegedly made by Nawabzada Mumtaz Ali Khan in favour of Jehangira Begum, mother of Nawabzada Wilayat Ali Khan. However, the respondent's ejectment application was allowed by the Rent Controller, vide order, dated 7-11-1975.

5. The petitioners, however, partially succeeded in the appeal filed by them before the District Court, Rawalpindi, as it was held, vide judgment, dated 16-4-1979, that they were merely licensees of the said respondents and, therefore, the Rent Controller had no jurisdiction to order their ejectment.

6. The said order was challenged by the respondents in the second appeal before the High Court, but the order of the District Court was maintained, vide judgment, dated 28-6-1987.

7. ' In the second round of litigation, the respondents filed a suit for possession and recovery of mesne profits amounting to Rs,5,72,500. The suit was contested by the petitioners as being time-barred.

8. However, it was decreed in favour of the respondents, vide judgment passed by the Civil Court, dated 17-11-1990. The petitioners filed first appeal before the High Court, but the same was dismissed, vide judgment, dated 25-12-1997 passed by the Division Bench of the High Court. The plea of adverse possession raised by the petitioners in the said litigation did not find favour with the learned Judges who found the same to be inconsistent with the plea raised by them in the earlier litigation claiming the property in dispute in their own right by virtue of the alleged gift.

9. ' Ch. Mushtaq Ahmad Khan, learned counsel for the petitioners has mainly argued that in the second round of litigation, the suit had been resisted by the petitioners on the plea of adverse possession and as the suit had been filed beyond a period of twelve years, it was clearly barred by time, vide Article 144 of the Limitation Act.

10. ' We find no force in the said contention. There is no controversy on the point that in the earlier round of litigation, while allowing the appeal filed on the petitioners' behalf, the Appellate Court had held the petitioner to be licensees of the' respondents. This judgment was challenged by the respondents before the High Court, but the findings of the Appellate Court were confirmed.

11. Admittedly, the petitioners did not challenge such findings and the judgment of the High Court achieved finality. It was only in the second round of litigation that the plea of adverse possession was raised for the first time in the written statement filed on behalf of the petitioners. However, the said plea being inconsistent with the said findings of the High Court, which had achieved finality, the belated plea raised by the petitioners was not accepted.

12. ' The learned counsel for the petitioners has argued that since the findings arrived at by the Appellate Court in the appeal filed by the petitioners against the said order of the Rent Controller were favourable to the petitioners, the latter did not challenge the same before the High Court.

13. The'learned counsel has further argued that for the same reasons, the doctrine of res judicata would also no apply to the said findings.

14. ' Mr. Gul Zarin Kiani, learned counsel for the respondents, on the other hand, has sought support from the case of Ali Akbar v. Malook (1991 SCM R 829). In this case, the respondents had filed a suit against the appellants claiming to be owners in possession. In the alternative, they claimed ownership through adverse possession. It was held in this case by this Court that the sources of lawful title and adverse possession being inconsistent, the same could not stand together. In Adam Khan v. Mumtaz Khan (1991 SCM R 832), plea of adverse possession was taken by co-sharers in a property which had been redeemed by them and possession had been taken to the exclusion of the other co-sharers. When the matter came before this Court, it was held that unless there was complete ouster of the other co-sharers in an open and hostile manner, the claim of such co- sharers could not be adverse to the other co-sharers. In Mirza Ghulam Hussain v. Ch. Iqbal Ahmad (PLD 1991 SC 290), which is the third case relied upon by Mr. Gul Zarin Kiani, it was held by this Court that possession could not be claimed as adverse in case it could be referred to a lawful title.

15. Therefore, if the origin of possession is claimed to be lawful; no subsequent claim of adverse possession could be entertained. It was further held that no adverse possession would begin until the denial is to the knowledge of the owner. Although, the judgments, relied upon by Mr. Gul Zarin Kiani do not support his case fully as contention of Ch. Mushtaq Ahmad is that possession of the petitioners would be deemed to be adverse from the time written statement was filed by them in the Court of the Rent Controller in the initial round of litigation, but what the learned counsel appears to have clearly overlooked is the fact that the findings arrived at first by the District Court and then the High Court that the petitioners were the respondents' licensees, had attained finality.

16. The plea of adverse possession raised on behalf of the petitioners was clearly inconsistent with the said findings and it was not possible for the High Court to accept the petitioners claim of adverse possession having already accepted the findings that possession of the petitioners was permissive.

17. ' Lastly, it was argued by the learned counsel that even if the respondents' suit for possession was decreed by the learned trial Court, no claim for mesne profits could be accepted when the finding was that the petitioners were licensees of the respondents. Even this last contention of the learned counsel appears to be devoid of force because when the petitioners declined to vacate the disputed property and started asserting their own right and title, they became liable for payment of mesne profit on account of wrongful possession. Although, the said plea was not raised on behalf of the petitioners before the High Court, nevertheless in any case, the same appears to be devoid of force and hence, it is repelled.

18. ' In the result, we find no force in this petition which is dismissed and leave is refused.