Ghulam Abbas and 9 others vs Ghulam Rasool (deceased) through his, L.Rs. and others
This matter originated from cross-suits concerning the ownership of land, where the respondent sought a declaration of ownership and possession, while the petitioners claimed ownership through adverse possession. The trial court dismissed both suits, but the petitioners failed to challenge the dismissal of their own suit, allowing that decree to attain finality. The respondent successfully appealed the dismissal of his suit, and the Lahore High Court subsequently dismissed the petitioners' revision petition. Before the Supreme Court, the petitioners argued that the respondent's suit was time-barred, despite having failed to raise this plea in their written statement. The Supreme Court held that the plea of limitation could not be entertained in the absence of being raised in the pleadings. Furthermore, the Court observed that accepting the petitioners' argument would create an anomalous result, allowing the petitioners to retain possession in perpetuity despite having been judicially determined not to be the owners. Consequently, the Court refused leave to appeal, emphasizing that equitable justice required rejecting the contention to prevent such an anomaly.
- Can a party raise the plea of limitation for the first time in revision or appeal if it was not raised in the written statement?
- Does the dismissal of a suit claiming adverse possession, which has attained finality, preclude the defendant from later challenging the plaintiff's ownership on the grounds of limitation?
- Should a court reject a legal argument if accepting it would lead to an anomalous result where a non-owner retains possession in perpetuity?
KARAMAT NAZIR BHANDARI, J.-- Ghulam Rasool respondent filed a suit for declaration of ownership of suit land and subsequently added the prayer for possession. Petitioners in turn filed a suit claiming ownership on the basis of adverse possession. After trial, both the suits were dismissed on 14.4.1993 by the Civil Judge, Mandi Bahauddin. Petitioners did not challenge the decree of dismissal of their suit. Ghulam Rasool did challenge the dismissal of his suit by filing an appeal before the Additional District Judge, Mandi Bahauddin which was allowed on 4.3.2000. The appellate decree was challenged by the petitioners in the Lahore High Court, Lahore in Civil Revision No. 652 of 2000 which was dismissed on 13.4.2000. It is against this judgment of the High Court that the petitioners seek leave to appeal.
2. It is contended by learned counsel for the petitioners that notwithstanding the dismissal of petitioners' suit, the Courts ought to have held that the suit brought by Ghulam Rasool, respondent was barred by time. In support of the submission, learned counsel has relied on Mst. Shah Sultana and others v. Abdul Khaliq and another (1987 SCMR 1791), Afzal Khan and 2 others v. Abdul Fahim and 4 others (PLD 1994 Quetta 26) and Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 SC 403).
3. As a matter of fact, in the written statement, the petitioners have not taken the objection that suit of Ghulam Rasool-respondent was barred by time. The suit was defended on the ground that the petitioners have became owners by adverse possession. The suit brought by the petitioners was dismissed and the decree of the Trial Court attained finality. In other words, Ghulam Rasool- respondent has to be and has been declared owner of the suit land and also entitled to possess the same. In our view, in the absence of the plea, the suit of the respondent cannot held to be barred by time. The judgments relied upon by learned counsel do not help him. In fact, the 'Quetta Judgment' goes against the contention of the learned counsel.
4. Apart from above, we are also of the view that in the facts and circumstances of this case, up holding the contention of the learned counsel would lead to anamoulous results. Petitioners will remain In possession in perpetuity although they have been held not to be owners of the land while the respondents will not possess and enjoy the land although they have been held to be owners.
The contention therefore, has to be rejected in order to avoid the above anomaly and to do equitable justice.
5. This Petition therefore, is dismissed and leave is refused. .