Find a Lawyer

Civil Petition for Special Leave to Appeal No. 735 of 1974, decided on 11th March, 1980.

(Appeal against the judgment and order of the Lahore High Court, Lahore, dated 16th May, 1974 passed in R. S. A. No. 716 of 1962).

--- Arts. 120 & 142-Limitation-Plaintiff alleging to have been in possession of land but dispossessed within 12 years of filing of suit---Article of Limitation Act, 1908 applicable to case, held, 142 and not 120 such being a residuary article.

Sh. Abdur Rashid, Advocate and Sardar Ataullah, Advocate instructed by Sh. Abdul Karinr, Advocate-on-Record for Petitioner.

C. M. Latif Rawn, Advocate and A6id Nawaz Abid, Advocate-on Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 11th March, 1980.

--The dispute in this case relates to 1 kanal and 8 marlas of land, comprised in Khasra No. 795 min, situate in Village Dina Thakarian, Tehsil and District Jhelum. On 7th March, 1961, however, respondent No. 1 filed suit against the petitioner for possession of the said I kanal and 8 marlas of land on the ground that being a co-sharer, be had been in possession of the same but had been disposses sed by the said respondent.

In the written statement filed by the petitioner, he alleged that be too was a co-sharer in the shamilat land, and further that he had entered into possession of the land in dispute only after the same had been abandoned by the respondent.

Upon the pleadings of the parties, the trial Court framed in the suit the following issues :-

(1) Whether the plaintiff is a co-sharer in the Shamilat Deh,

(2) Whether the plaintiff has been in possession for 24/25 years as a co-sharer, if so what is its effect

(3) Whether the plaintiff is stopped by his conduct to bring the suit

After recording the evidence of the parties, which they wished to produce in support of their respective stand, all the said three issues were answered by the trial Court in favour of the respondent and con sequently his suit was decreed. The first and second appeal of the respondent having failed in the Court of the District Judge, as well as the High Court, he has come up to this Court seeking leave to appeal on the following grounds

(1) that the Courts below, as well as the High Court, were in error to hold that the suit filed by the respondent was governed by Article 142 of the Limitation Act-in fact the suit was covered by Article 120 and so the same should have been dismissed as barred by limitation ;

(2) that he and the respondent No. 1 both being co-sharers in the shamilat land, the Courts below, as well as the High Court should have only passed a joint decree in their favour in respect of the land in dispute; and

(3) that if the areas in possession of the parties were taken into consideration, respondent No. 1 would be found to be in possession of excess area, but this aspect of the case was not taken notice of even in the High Court.

After having heard the learned counsel for the petitioner, we find nor force in either of the said three contentions. In .the plaint filed by respondent .No. 1, he had clearly alleged that he was in possession of the land in dispute and had been dispossessed within twelve years of the filing of the suit. The fact that the contention urged by him has been accepted by the two Courts, as well as the High Court would clearly attract to the suit filed by him Article 142 of the Limitation Act and not Article 120 thereof, which is the residuary section.

In so far as the rest of the two contentions are concerned, on the very face of it they are misconceived. The Courts below, as well as the High Court have found that respondent No. I was indeed in possession of the land in dispute before he was dispossessed and so the decree of possession granted in his favour was the only proper relief which could be given to him.

Finally, as to the question that if the shamilat land is partitioned, respondent No. 1 would be found in possession of excess area, all that can be said is that this is not a question which can be decided by this Court. If the petitioner has any grievance in that behalf he should proceed to seek the partition of the share of his land.

This petition, therefore, fails and is dismissed.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.