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Regular First Appeal No. 8 of 1971, decided on 20th April 1977.

-----Arts. 142 & 144-Adverse possession-Applicability of Ss. 142 & 144.-[Adverse possession].

Article 142 of Limitation Act, 1908 applies where the plaintiff was origi nally in possession of the disputed immovable property and was disposses sed or discontinued to be in possession. In order that he may succeed the plaintiff has to show that he was in possession, before such dispossession, or discontinuance of possession. within twelve years of the institution of suit. On the other hand Article 144 applies when the possession of the other party is adverse to the title of the owner and in that case the limitation would start running from the date such possession becomes adverse. In this Article, unlike Article 142, it is not necessary that the owner may have been in possession at any stage, though such possession does not ipso facto, result in non-application of this article. The starting point for this Article is the time when the possession of the -other party becomes adverse. Thus there can be cases where initially the possession of the other party may be legal and with due acknowledgment of the title of the true owner, but subsequently it may become adverse.

In order to attract Article 142 it is to be shown that dispossession or discontinuance of possession has taken place. Does dispossession mean mere transfer of possession from one to another The answer would be an emphatic no. To constitute dispossession, there must in every case be positive acts which can be referred only to the intention of obtaining exclusive control.

Sher Muhammad v. Mst. Amoo P L D 1960 Ku. 428 ref.

----Art. 142 - Adverse possession-Limitation - Defendant himself claiming to have jointly lived with plaintiff in disputed house for many years---Parties very closely related-Permissive possession whether express or implied-Does not constitute adverse possession--Induc tion of defendant, hence, no dispossession in terms of Art. 142. [Adverse possession].

Noorali Pir Muhammad v. Patricia Dinshaw P L D 1974 Kar. 435 and Ghulam Illahi v. Muhammad Waris Khan P L D 1955 F C 31 ref.

--Art. 142-Adverse possession-Limitation, running of-Possession, in order to bar recovery, must he peaceful, physical, continuous as well as open, hostile and exclusive-Any one of such elements missing, plea of adverse possession not available-Defendant not showing by affirmative evidence to have asserted his open and hostile title from time of coming into possession-Defendant's possession though actual and physical and uninterrupted, yet hostility of his possession as against title of plaintiff not visible and defendant failing to discharge such burden, hostile title, held, became open and visible when defendant claimed ownership of property in response to ejectment application, possession to be counted adverse from such date, and limitation started running from such point of time.

I. H. B. Hanfi for Appellant.

Malik Karam Ellahi for Respondent.

Date of hearing : 18th March 1977.

The facts giving rise to this regular first appeal are as follows ;--

Appellant Qazi Muhammad Qahir Khan, contended in the suit brought by him that the disputed property, which consists of House No. 2-24/1 and Shop No. 2-24/12, situated on Yousaf Ali Lane of Gaisfor Road, Quetta was his property having been constructed by him in the year 1940 on a plot purchased by him from his own resources In 1959 he inducted the respondent into the disputed property as tenant at a monthly rent of Rs. 150. The respondent allegedly continued to pay rent up to 1966, when he abruptly stopped doing so. The appellant was thereupon forced to file an ejectment application in the Court of Rent Controller. Quetta, in June, 1969. The respondent in his pleading before the Rout Controller claimed ownership of the disputed property, and denied the title of the appellant. The learned Rent Controller came to' the conclusion that the relationship of landlord and tenant between the parties was not proved and therefore dismissed the ejectment application. The appellant therefore filed the suit for possession together with an amount of Rs. 5,4C0 towards the user of the property by the respondent.

The respondent in his written statement took various legal pleas, including a plea of limitation. On merits it has contended that the disputed property, alongwith four other shops, was jointly owned property of the parties to the suit, both having contributed, in equal share towards the total cost of their construction, that in early 1958 the joint property was partitioned and as a result the disputed property fell to the share of the respondent while the other four shops went to the share of the appellant.

On these pleadings of the parties following issues were framed by the learned District Judge, Quetta, who tried the suit ;

(1) Whether the suit is time-barred

(2) Whether the plaintiff is entitled to claim compensation or rent

(3) Whether the property in suit was joint property and fell to the lot of the defendant

(4) Whether the plaintiff is entitled to possession of this property and Rs. 5,400 as compensation for use and occupation

(5) Relief

The learned trial Judge came to the conclusion that property belonged to the appellant, having been constructed by him from his exclusive funds on a plot of land exclusively owned by him, that respondent had failed to prove joint ownership of the property and therefore the question of partition of the same did not arise. Even otherwise the evidence as to the partition, of the same was not found by the learned trial Judge to be worthy of credit. However, it was held, that respondent has come into possession of the disputed property on 14-5-1958, and the suit having been brought on 17-6-1970, was barred by limitation in view of the provisions of Article 142 of the Limitation Act, 1908. On this ground the suit was dismissed, but at the same time the appellant was found entitled to a decree of Rs. 5.400 for use and occupation of the property by the defendant-respondent. Plaintiff appeals against such a finding. There is, however, no cross-objection against the findings of the Court below on Issues 2, 3 and 4. Thus the only question for determination to this appeal is that of limitation.

The main question would be if Article 142 or Article 144 of the Limitation Act would apply to the facts of the present case. For facility sake the two Articles are reproduced below;----

"142. For possession of immovable

Twelve The date of the dis

property when the plaintiff, while

years. possession or dis

in possession of the property has

continuance.

been dispossessed or discontinued

the possession.

"144. For possession of immovable

Twelve When the possession

property or any interest therein

years. of the defendant

not hereby otherwise specially becomes adverse to

provided for.

the plaintiff."

Article 142 applies where the plaintiff was originally in possession of the disputed immovable property and was dispossessed or discontinued to be in possession. In order that be may succeed the plaintiff has to show that he was in possession, before such dispossession or discontinuance of possession, within twelve years of the institution of the suit. On the other band Article 144 applies when the possession of the other party is adverse to the title of the owner and in that case the limitation would start running from the date such possession becomes adverse. In this Article, unlike Article 142, it is not necessary that the owner may have been in possession at any stage though such possession does Lot ipso facto, result in non application: of this Article. The starting point for this Article is the time when the possession of the other party becomes adverse. Thus there can be cases where initially the possession of the other party may be legal and with due acknowledgement of the title of the true owner, but subsequently it may become adverse.

In order to attract Article 142 it is to be shown that dispossession or discontinuance of possession has taken pace. Does dispossession mean more transfer of possession from one to another The answer would be an emphatic no. To constitute dispossession, there must in every case be positive acts which can be referred only to the intention of obtaining exclusive control. In Sher Muhammad v. Mst. Amoo (P L D 1960 Kar. 428) it was held that dispossession involves collision and expulsion. As to discontinuance the same ruling holds that it is not abandonment, simpliciter, which does not disentitle the owner from constructive possession. On the other hand on such abandon ment there must be intrusion by another.

The question would be if there is an element of dispossession or dis continuance of possession in the present case. The case of the appellant is that the respondent was inducted as a tenant into the disputed property, while the respondent claimed to be in possession by virtue of the property having fallen to his share as a result of a partition. Both these stands have not found favour with the learned trial Judge. Nothing is shown to me as to why these findings of facts be disturbed. But one factor is clear that at the time the respondent was inducted into the property he was so inducted with the permission and consent of the owner. Such transfer of possession cannot be termed as dispossession. An additional fact to support this conclusion, is that the respondent himself claims in his cross-examination that he jointly lived with the plaintiff in the disputed house from 1940 to 1958, when the plaintiff shifted to his newly constructed bungalow in the cantonment. It may also be mentioned that the parties are very closely related ; the sister of the respondent was married to the brother of the appellant. His induction therefore, all the more, cannot be termed as dis possession in terms of Article 142 of the Limitation Act. This Article is therefore not attracted to the facts of this case.

Permissive possession does not constitute adverse possession whether such permission is express or implied. This principle was laid down to Noorali Pir Muhammad v. Patricia Dinshaw (P L D 1974 Kar. 435). In Ghulam Wahl v. Muhammad Waris Khan (PLD1955FC31), their Lordships of the Federal Court held that a possession is not to be considered adverse if its origin can be referred to a lawful title. In these circumstances the possession of the disputed property as delivered to the respondent on 14-5-1958 was not of an adverse nature. Even otherwise: the possession, in order that it may bar the recovery, must be actual, physical, continuous and as well as open, hostile, and exclusive. If any of these elements is missing the plea of adverse possession is not available. The respondent bas not shown, by affirmative evidence that he asserted his open and hostile title from the time of coming into Possession. His possession no doubt was act at and physical, and the attempts of tie plaintiff to show, that it was interrupted proved fruitless. But hostility of his possession as against the title of the owner was not visible. The onus of asserting such title lay entirely upon him. The first time when such hostile title became open and visible was when he claimed ownership of the property in response to the ejectment application brought by the appellant in 1969. It is from that stage that the possession would be counted adverse to the title of the true owner. The limitation would therefore start running from that point of time. As such the suit is very such within time.

In view of the above discussion I would reverse the finding of the learned trial Judge on the question of limitation. The appeal is accepted and the appellant is granted the decree for possession of the property. Appellant would be entitled to the costs.

S A. H. Appeal accepted.

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