2007 MLD 756 LAHORE-HIGH-COURT-LAHORE

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PERVAIZ CLIVE VS ABDUL KARIM through Legal Representatives 1983 SCMR 13, 1991 SCMR 2063, PLD 1969 SC 617, PLD 1989 Lah. 333, Qanun-e-Shahadat Order 1984--15 , Specific Relief Act 1877--23 , Succession Act 1925--192 , Succession Act 1925--307 , ---Ss. 8---Qanun-e-Shahadat (10 of 1984), Preamble---Succession Act (XXXIX of 1925), Ss.307 & 192---Suit for recovery of immovable property---Ground of adverse possession-Scope-Previous _litigation between parties---Loss of original sale deeds not accounted for---Effect---Plaintiffs filed suit against defendants for possession and recovery of charges/compensation for use and occupation of suit property---Defendants contended that alleged sale-deeds on the basis of which plaintiffs claimed ownership were bogus, based on fraud, illegal and without consideration; that alleged transferor was not competent to sell suit property in favour of plaintiffs who had no locus standi to file suit---Trial Court dismissed the suit but Appellate Court accepted the appeal by setting aside finding of Trial Court---Validity---Possession of late father of defendants since year 1947 till 1983 remained completely uncontroverted from the record---Record of litigation between predecessor-in-interest of plaintiffs and defendants showed that possession of late father of defendants had been admitted and by the time written statement was filed on 8-1-1973 in suit filed by predecessor-in-¬interest of plaintiffs for perpetual injunction, the adverse possession of defendants' late father had already been completed---Possession of defendants' late father had become final and absolute when predecessor¬-in-interest of plaintiffs had approached Rent Controller by way of first ejectment petition on 7-7-1965---Predecessor-in-interest of plaintiffs had in fact lost her right to re-enter or re-possess the suit .property in possession of defendants' late father as early as the year 1959 and the former was not entitled to re-enter or convey property and during this time and even thereafter till alleged sale in favour of plaintiffs, predecessor-in-interest of plaintiff was never able to prove defendants' father as a tenant or a person who had entered in possession of property as a licensee---Defendants' predecessor-in-interest right from day one when he was sued either on civil or on rent side always pleaded to be in adverse possession-Claim of defendant that earlier his father and after his death he was paying all bills for use of utility and taxes was not challenged in cross-examination---Claim of adverse possession per se meant absence of ownership but first appellate Court confused idea of ownership and adverse possession which having matured on expiry of statutory period conferred a right on possessor not to be dispossessed---Adverse possession of late father of defendant in the suit having completed in late fifties was a past and closed transaction which could not be rejected or refused on ground of a subsequent judgment of court recorded more than 25 years after maturity of adverse possession---Claim of plaintiff that late father of defendant was dispossessed by bailiff under orders of Court on 27-6-1975 and he subsequently re-entered illegally in property was not supported from record---Predecessor-in-¬interest of plaintiffs had sought ejectment of defendant's father in the garb of a direction of Civil Court on .an application under S.192 read with S.307 of Succession Act, 1925, obtained against persons who were not found to be in possession as per report of Local Commissioner---Claim of plaintiffs that eviction of defendants' late father from property in question was completed on 27-6-1975 was not supported from record---Bailiff of Civil Court had admitted in his cross-examination that warrant of possession did not mention name of defendants' father---Claim of possession in petition under Succession Act, 1925, was mala fide as petitioner (predecessor-in-interest of plaintiffs) had already failed in four rent petitions---Civil court, however, obliged petitioner (predecessor-in-interest of plaintiffs) with warrant of possession without there being any 'proof of letters of administration in her favour---Predecessor-in-interest of plaintiffs had, in earlier litigation between the parties, claimed a right to administer property on the basis of alleged letters of administration of her late brother which were never brought on record---Plaintiff witness, in his cross-examination, failed to answer vital questions with regard to exact time and place of execution of alleged sale-deeds executed in favour of plaintiffs---Trial Court had rightly found that alleged sale deeds in favour of plaintiffs were never proved in accordance with provisions of Qanun-e-Shahadat, 1984---Copies of behi register placed on record did not contain actual signatures and thumb-impressions of parties to transaction---Nothing was brought on record as to the fate and whereabouts of original sale-deeds and in absence of proof of their loss, misplacement or being in possession of other party, the certified copies of aforesaid behi register mere reproducing recitals of alleged registered sale deeds were, therefore, rightly rejected by Trial Court as proof of ownership of plaintiffs---Site map produced by plaintiffs having. been rejected for cogent and relevant reasons by Trial Court, the decree passed by first Appellate Court was not executable in absence of reversal of these findings through plausible reasons---Petition was accepted.