Civil Revision No.89 of 1988.

 

Date of hearing               27.5.2009.

 

Applicant.                       Muhammad Alam in person.

 

Respondents.                 Respondent Nos. 1 to 5 through Mr. Ghulam  Shabbir

                                      Dayo advocate.

                                      Respondent Nos. 6 and 7 through Mr. Agha Athar

                                      Hussain Pathan AAG.

 

 

                                                JUDGMENT.

 

ARSHAD NOOR KHAN,-J,   By this revision application, the applicant has challenged the legality and validity of judgment dated 31st May, 1988 passed by the learned Ist. Additional District Judge Khairpur in civil appeal No.33/1986 Ali Sher and others vs. Province of Sindh and others, whereby the appeal was allowed and the judgment and decree passed by the learned Senior Civil Judge Gambat in civil suit No.69/1984 Jamaluddin vs. Ali Sher and others were decreed, have been set aside and the suit filed by the predecessor-in-interest of the applicant was dismissed.

                        The facts leading to present revision application in brief are that Jamaluddin the father of applicant who has expired, filed suit for declaration and permanent injunction against the respondents claiming therein that S.No.212 to the extent of 0-31 guntas, which is government land in revenue record, situated at village Tagra, deh Ripri was in his possession since the days of his fore-fathers,  but the government started claiming the said land and served a notice on them, thereafter the predecessor-in-interest of the applicant filed a suit for declaration and permanent injunction on the basis of adverse possession of the property in question. The respondents were served with notice of suit, who appeared and filed their written statement denied, inter alia, therein the claim of the applicant being their ancestral property. The respondents in their written statement filed before the trial court stated that land being 31 guntas of S.No.212 deh Ripri taluka Gambat, district Khairpur belongs to government and the father of applicant was served with notice to hand over the property in question but he did not hand over the said property being government land. The private respondents also disputed the claim of the applicant.

                        On pleadings of the parties learned trial court framed as many as 10 issues which are reproduced herein below for the sake of convenience:-

                         “1. Whether the suit is not maintainable according to law?

               2. Whether the court has no jurisdiction to try the suit in view 

                   of the proceedings initiated and finally decided under

                   M.L.O 202?

3.      Whether the suit is bad for mis-joinder and non-joinder of 

       proper and necessary parties?

4.      Whether the suit land belongs to the plaintiff and the

       same is his ancestral property and is the owner of the 

       same?

5.      Whether the plaintiff has acquired the right of ownership

       over the suit land by way of adverse possession? If so, its

       effect?

6.      Whether the suit land viz. S.No.212 situated in Deh Ripri 

       Taluka Gambat has remained in peaceful possession and

       enjoyment of the plaintiff since his ancestors for more

       than 100 years.?

7.      Whether the plaintiff has his house in the suit land?

8.      Whether the S.No.212 is in use of the villagers of the village Tagra Taluka Gambat ?

9.      Whether the plaintiff is entitled to injunction as prayed?

10.  What should the decree be?

 

After framing the issues the father of applicant examined

himself vide Ex.38, evidence of p.w Shahdad was recorded vide Ex.40, evidence of p.w. Muhammad Saleh was recorded vide Ex.41, however the applicant was not examined himself. Respondents examined D.W Ali Sher vide Ex.44,  Abdul Karim vide Ex.45 and another Abdul Karim vide Ex.46. After evaluation of evidence available on record, the learned Senior Civil Judge Gambat decreed the suit in favour of the applicant vide judgment dated 25th March 1986 and decree dated 31st March 1986. The respondents being highly aggrieved and dis-satisfied with the judgment and decree passed by the learned Senior Civil Judge Gambat preferred civil appeal No.33 of 1986 which was entrusted to learned Ist. Additional District Judge, Khairpur who after hearing the learned counsel for the parties, allowed the appeal and set aside the judgment and decree of the lower court vide judgment dated 31st May, 1988 and decree dated 4th June, 1988. Hence the present revision filed by the applicant.

                        I have heard the applicant in person as this revision application is of 21 years old and inspite of repeated calls his advocate Mr. Rana Asif Kamal called absent. Also I have heard Mr. Ghulam Shabbir Dayo learned counsel for the respondent Nos. 1 to 5 and Mr. Agha Athar Athar Hussain Pathan AAG for respondent Nos. 6 and 7.

                        The applicant contended that 31 ghuntas of land is situated adjacent to their 25 jareb land and they are in possession of the land in question since from the days of their fore-father as such their possession is adverse and legally protected under the law and they are entitled for the said land of the government. He further pointed out that suit was rightly decreed by the Senior Civil Judge and has been wrongly reversed by the appellate court, as such the claim of the applicant is good and better in comparison to claim of respondents, as such revision application may be allowed.

                        Mr. Ghulam Shabbir Dayo learned counsel for the respondent Nos. 1 to 5 vehemently controverted the arguments advanced by the applicant and has contended that the applicant is claiming the possession over the government land as per their plea of adverse possession which is no more available to the applicant and that the land cannot be granted to the applicant which is reserved for ashaish purposes and the applicant wrongfully encroached upon the land in question and the applicant is in possession of the land in question without any sufficient documentary evidence and there is no merit in the revision application  as such this revision application cannot be entertained.

                        Mr. Agha Athar Hussain Pathan learned AAG for respondent Nos. 6 and 7 also contended that the land in question belongs to government and the applicant has encroached upon the said land which cannot be allotted to them as the said land is reserved for ashaish purpose.

                       I have considered the arguments advanced by the parties and have gone through the record,  available before me.

                              Admittedly the applicant is claiming the possession over the property in disputes to be hostile and adverse possession and for the said purpose they have made prayer in the suit which is usefully quoted herein below for the sake of convenience:-

“a) This Hon’ble Court may kindly be pleased to declare that the plaintiff is the owner of S.No.212/0-31 ghuntas deh Ripri  Taluka Gambat, district Khairpur by adverse possession.”

 

                        The perusal of prayer made by the applicant  shows that they are claiming the land in question on the basis of adverse possession. The land in question is used for ashaish purpose. The applicant had not lead any evidence to show that the said land is in their possession from the days of their fore-fathers, further more the illegal possession of applicant does not entitled him to claim the land in question on the basis of adverse possession. Jamaluddin, who was the father of the applicant in his deposition recorded before the learned trial court has admitted in examination-in-chief that mukhtiarkar has served a notice on him to vacate the land in question being government land and such fact was also reiterated by him in cross-examination. There is no sufficient proof available in favour of the applicant to show that he is in lawful possession of land in question. The adverse possession has not been defined any where in law except u/s 28 of Limitation Act, but said section 28 of Limitation Act has been omitted from the statue on the recommendation of Federal Shariat Court and the government has made such amendment in the Limitation Act, thereby omitting the section of 28 of Limitation Act, therefore plea of adverse possession is no more available to the illegal occupation of the land and since after the amendment in the Limitation Act, the plea of adverse possession is no more available to the encroacher to protect their possession on the plea of adverse possession. The said plea as also come for consideration before the bench of this court in a case of Ghulam Muhammad vs. Province of Sindh through Secretary, Revenue and 6 others reported in 2008 CLC 960, wherein after examination of relevant law this court was pleased to observe that such plea of adverse possession is always considered to be a term of Might is Right  and is no more available after amendment in the Limitation Act by omitting section 28 ibid. The relevant observation made in the case of Ghulam Muhammad is usefully quoted herein below for the sake of convenience:-

“The rule of adverse possession is based on the principle of “Might is Right”. The use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of justice, equity and good conscience. It, therefore, shows that the plea of adverse possession, is a plea which is raised to deprive of a legitimate owner of the property from his lawful right over his property. The term “adverse possession” is nowhere defined in any other law for the time being enforced, except under section 28 and Article 144 of the Limitation Act.”  

 

                        The claim of the adverse possession by the applicant in the suit, after amendment in the Limitation Act and omission of section 28 of Limitation Act is no more available to them to protect it by raising such plea which neither was recognized under the law nor available to them. It therefore appears that the learned appellate court after appraisal of whole evidence available on record rightly reversed the judgment and decree passed by the learned Senior Civil Judge Gambat and I do not find any jurisdictional defect or illegality or infirmity in the judgment and decree passed by the learned appellate court. The revision application having no merit is therefore dismissed.

 

                                                                                                      JUDGE.

M.F.                 

Approved for Reporting.