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Second Appeal No. 268 of 1975, decided on 5th February, 1983.

--------S. 100, O. 1, r. 9‑Sind Co‑operative Societies Act (VII of 1925), S. 23‑Arbitration Act (X of 1940), S. 23‑Second Appeal‑Objection as to non‑joinder of Government of Pakistan as party to arbitration proceeding against appellant not raised by appellant ever before --Objection, held, could not be allowed to be raised in Second appeal.

Azizaddin Ahmed v. Aziz Ahmed and others P L D 1959 Kar. 497 ref.

‑‑‑ S. 100‑Sind Co‑operative Societies Act (VII of 1925), S. 23‑ -Arbitration Act (X of 1940), 3. 23‑‑Allotment of plot in favour of appellant without cancellation of previous allotment‑Order of cancel lation of plot in name of appellant made with condition that appellant would be paid a certain sum as compensation by Society who was at fault in making allotment to appellant without cancelling previous allotment‑Order passed by Government in revision, held, can in no manner be construed as a conditional order.

‑‑. ‑ S. 100 and Sind Co‑operative Societies Act (VII of 1925), S. 23 Appellant himself allowing order of cancellation of plot in his name to attain finality‑‑Appellant, held, could not contend that order which was subject to incidents of statutory remedies arbitration, appeal or revision under ‑Sind Co‑operative Societies Act, 1925 was irrevocable or would have been cancelled in said legal proceedings.

------Art. 144‑Adverse possession‑Case of appellant throughout pro ceeding being that he was a lawful allottee of plot in question‑Plea of adverse possession, held, could not be taken by bim.‑[Adverse posses sion].

Moniruddin Ahmed for Appellant.

Akhtar Mahmood for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Dates of hearing : 2nd and 7th November, 1982.

This appeal has been preferred by the appellant abovenamed against the judgment and decree passed on 3rd September, 1975 by the learned Vth Additional District Judge, Karachi in Civil Appeal No. 1198 of 1974 whereby the learned 1st Appellate Court, with the observation that a declaration to the effect that the respondent No. 1/plaintiff is the lawful allottee of the entire plot No. 2/173‑J situated in P. E. C. H S. Block No. 2, Karachi measur ing 600 sq. yds. had already been granted in the award made in the arbitration proceedings under the Bombay Co‑operative Societies Act which the Civil Court could not reopen, upheld the decree passed in Suit No. 636 of 1970 against the appellant/defendant No. 1 for delivery of possession of the portion measuring 260 sq.yds. of the aforementioned plot and also upheld the direction given that enquiry be made regarding mesne profits at the rate of Rs. 30 p. m. to be paid by the appellant to the respondent No. 1 from the filing of the suit till handing over of the possession of the said portion of the plot to the plaintiff/respondent No. 1.

The brief facts of the case are that the Plot No. 173‑J, Block No. 2 referred to above and hereinafter referred to as the said plot' was allotted to the plaintiff on or about. 17‑ 12‑1954 (Exh. 77) by the respondent No. 2/Society, for the purposes of the construction of a building thereon. On 1st March, 1955 sub‑licence (Exh. 8) was also executed and registered in favour of the plaintiff by the respondent No. 2, in respect of the said plot for the purposes of construction of a building thereon, before the Sub‑Registrar, Karachi.

It however appears that a portion of the said plot measuring about 260 sq.yds. in the absence of the plaintiff, without notice to him and/or cancelling his allotment, on or about 15th October, 1955 was again allotted to the appellant/defendant No. 1. Some unauthorised outhouses appear to have been constructed by the defendant No. 1/appellant and a nursery has also been set up by him.

The other portion of the plot in question was allotted to one Mr. Inam Ali, which portion however is not subject‑matter of the present litigation.

2. The attorney of the plaintiff made representations against the allot ments made in favour of the said Inam Ali as well as the appellant, consequent to which these subsequent allotments were cancelled.

This led of arbitration proceedings under the Co‑operative Societies Act. One case was filed by the appellant/Aslam Shaiq and the other by the respon dent No. 1 (Dr. Hassan Askari).

In the case filed by Aslam Shaiq (the present appellant) the arbitrator by award made on 31‑12‑1960 rejected the prayer for grant of a declaration that he is the real allottee of the disputed portion, but his claim for Rs. 5,000 as damages, was decreed.

In the other case filed by Dr. Hassan Askari (the respondent No. 1) by a separate award made on the same date (31‑12‑1961) it was ordered :‑----

"Now I having summoned the parties and duly considered the matter referred to me, do hereby order, for reasons separately recorded, that the claim for recovery of possession over the plot No. 2/173‑J, be decreed, on payment of the dues of the Society, if payable. The defendant Mr. Aslam Shaiq to remove the construction trees etc within 6 months."

Both the awards referred to above have been produced and exhibited as Exhs. 10 and 11.

3. An appeal was referred against the above‑mentioned award by Aslam Shaiq, the appellant which appeal however was rejected by the Registrar Co‑operative Society, Karachi by order passed on 20th August, 1964 (Exh. 12).

Thereafter the appellant/Aslam Shaiq filed Revision Application before the Government which was also rejected by order (Exh. 13) passed on 18‑11‑1965, wherein it was held :‑-

"Mr. M.Aslam Shaiq has already got a residential plot measuring 600 sq.yds. while Dr. Hassan Askari Rizvi does not hold any plot nor has the Society made any alternative arrangement for him. As the Society is primarily at fault in making the allotment and re‑allotment of the same plot without cancellation of the previous allotment, I hereby order that the P. E. C. H. S. Ltd., Karachi should pay Rs. 5,000 as compensation to Mr. M. Aslam Shaiq. The plot under dispute will remain allotted to Dr. Hassan Askari Rizvi."

4. Subsequently, Execution Application No. F. C. D. No. 1 of 1968 was filed by the respondent No. 1 (Dr. Hassan Askari Rizvi) wherein he prayed for the ejectment of appellant from the disputed portion and delivery of its possession. The said application came up before the learned VIth Civil Judge First Class, Karachi who however, after nearing the parties by order dated 6th October, 1969 (Exh. 15) rejected the said application on the ground that the said Award/decree was not capable of execution as there was no specific direction in the decree as to demolition of the construction raised by the appellant.

5. In the circumstances, the plaintiff served legal notice, dated 24‑9‑1969 calling upon the appellant to vacate the portion in his possession and also gave statutory notice, dated 29‑12‑r969 to the Registrar Co‑operative Societies of his intention to file the suit. The plaintiff' (respondent No. 1) ultimately filed the suit on 31‑3‑1970 in the Court of VIth Civil Judge First Class, Karachi for declaration, possession and mesne profit against the present appellant (defendant No. 1) and also joined the Society and the Registrar of Co operative Societies as parties to the suit. The suit was contested by the appellant (defendant No. 1). Upon the pleadings the following issues were framed by the Court :‑‑

(1) Whether the plaintiff is an allottee of the Plot No. 2/173‑J if so its effect

(2) Whether the plaintiff is entitled to the possession of the portion of the Plot No. 2/173‑J admeasuring about 260 sq.yds. in occupation of the defendant No. 1

(3) Whether the plaintiff is entitled to mesne profits if so, at what rate

(4) Whether Mr. Tufail Ahmad Rizvi, is a legal attorney of the plaintiff, if so, its effect

(5) Whether the suit is barred by limitation

(6) Whether the defendant No. 1, is the owner of the said portion of the plot in question by adverse possession

(7) Whether the suit is not maintainable

(8) To what relief the plaintiff is entitled

(9) What should the decree be

6. After recording the evidence of the parties, the learned Civil Judge by judgment and decree passed on 2nd September, 1974 answered the Issues Nos. l to 5 in favour of the plaintiff. The Issue No. 6 was decided against the defendant No. 1 and it was held that he had failed to prove that the portion in dispute measuring 260 sq. yds. was lawfully allotted by the defendant No. 2 (Society) to the defendant No. 1/appellant. Under Issue No. 7 it was held that the suit was maintainable. In view of the findings under Issues Nos. 1 to 7, under Issue No. 8 the plaintiff was held to be entitled to grant of the reliefs claimed in the suit. Accordingly under Issue No. 9, it was declared that the plaintiff (respondent No. 1) is the allottee of the entire plot measuring 600 sq. yds. Delivery of vacant possession of 260 sq. yds. of the said plot to the plaintiff was also ordered, as it was held to be in illegal and unauthorised occupation of the appellant. The plaintiff/respondent No. 1 was also granted mesne profits at the rate of Re. 30 per month from the date of filing of the suit till the defendant No. 1/appellant handed over possession of the said portion to the plaintiff.

7. Against the above judgment the appellant filed Civil Appeal No. 198/74 which was heard by the learned Vth Additional District Judge who by judgment and decree passed on 3rd September, 1975 dismissed the same with the observation that the trial Court had rightly awarded reliefs of posses sion and mesne profits.

8. In the above circumstances, the appellant has preferred the IInd Appeal in this Court under section 100, C. P. C.

9. The learned counsel for the appellant has raised the following conten tions in support of this appeal :‑----

(1) That the respondent No. 1/Society had executed a sub‑licence, dated 1st March, 1955 which was registered on 8th March, 1955 Exh. 8 and, therefore, the Central Government was a necessary party to the proceed ings. It was accordingly contended that the arbitration proceedings against the appellant were illegal inasmuch as the Central Govern ment was not a party to the said proceedings and that it was no longer a dispute between the appellant and the respondent No. 1 alone. It was further contended that the disputes which were subject‑matter of the award were not disputes touching the business of the society.

(2) That the order passed by the Revisional Authority was a conditional order, according to the appellant, with a direction that the society shall pay Rs. 5,000 as compensation to the appellant and that the amount so far has not been paid to the appellant and thus the award was not enforcible.

(3) That after the allotment of the disputed portion has been made in his favour, the appellant raised pucca' construction over it and there fore, the said allotment became irrevocable, and that his title."

10. As regards the first contention, I find that the sub‑licence (Pxh. 8) was granted by the respondent No. 2 society to Dr. Hassan Askari Rizvi (the respondent No. 1) and that the Government of Pakistan is not a party to the said grant/sub‑licence. To a dispute arising out of the said sub‑licence between the appellant and the respondent No. 1, the Government of Pakistan therefore, was neither a necessary nor a proper party. Moreover a perusal of the proceedings, before the arbitrator and even those in the appeal and the revision (filed by the petitioner himself) under the Bombay Co‑operative Societies Act, would show that no objection as to the non‑joinder of Govern ment of Pakistan was ever raised by the appellant. This objection is accordingly rejected as it has neither any force nor it can be allowed to be raised in these proceedings at this late stage.

It may be mentioned here that the learned counsel referred to the case reported as Azizuddin Ahmed v. Aziz Ahmed and others (P L D 1959 Kar. 497) in support of his contention. Perusal of the said case however, shows that the same has no application to the facts of the present case. In the said case the facts were that disputes had arisen between two members of the Society, to one of whom certain plots of land were allotted by the Society and the allotments under the rules had merged in a lease for 99 years granted by the Government of Pakistan, the lease‑deed having been duly signed on behalf of the Govern ment as well as the Society. The Society in the meantime had allotted a part of the same land to the appellant, in the circumstances it was held by the High Court that as the dispute was not confined to the question of allot ment and really affected the lease‑deed, the Government of Pakistan was a necessary party to the dispute and as such the dispute was not covered by section 54 of Bombay Co‑operative Societies Act and so could not be referred by the Registrar to arbitration.

In the present case admittedly neither any lease‑deed was ever executed by the Government of Pakistan nor the Government is a party to the sub- licence granted to the respondent No. 1 by the respondent No. 2.

Thus, the first contention of the learned counsel for the appellant cannot be sustained.

11. As regard the second contention raised that under the final decision given in the arbitration during revisional proceedings; delivery of vacant possession of the disputed portion was conditional on payment of Rs. 5,000 by the respondent No. 2 to the appellant, it would be observed from a bare reading of the said order (the relevant portion of which has already been reproduced above) that the order passed in revision on 18‑11‑1965 was neither a conditional order nor the delivery of vacant possession of the portion to respondent No. 1 was dependant upon payment of Rs. 5,000 by the Society to the appellant.

It would further be observed that the cancellation of the allotment mad in favour of the appellant, was held to be legal as the said plot was not then, available for allotment. The direction given in the said order to the effect that the Society shall pay Rs. 5,000 to the appellant was for the reason that the Society was at fault in making the allotment in favour of the appellant C without cancellation of the previous allotment. The order passed in revision, therefore, can in no manner, be construed as a constitutional order.

The second objection raised by the learned counsel for the appellant, therefore, also fails.

12. It was then contended that the allotment made in favour of the appellant amounted to grant of a licence coupled with interest and was thus irrevocable.

The above argument of learned counsel cannot succeed for more than one reason. Firstly the appellant himself had invoked arbitration proceedings where in it was held that the allotment made in his favour without cancellation of the earlier subsisting allotment made in favour of the respondent, was illegal. Secondly the award given (and upheld upto the revisional stage) against the appellant cancelling his allotment, vas not challenged by him by taking any further appropriate legal proceedings. The orders/award resulting in cancel lation of the allotment of the appellant, were thus allowed to attain finality. In the circumstances, it is not open to the appellant to contend that the order of allotment, which was subject to the incidents of statutory remedies of arbitration, appeal and revision under the Bombay Co‑operative Societies Act, was irrevocable or could not have been cancelled in the said legal proceedings.

13. Before concluding I may also mention that the learned counsel for the appellant had also argued that the possession of the appellant became adverse as he continued to be the owner in exclusive possession hostile posses sion to everyone else since 15th October, 1965 when the allotment was made in his favour. It was accordingly contended that the suit filed against the appellant on 13th March, 1970 was barred by time and thus the appellant's title to the portion of plot in dispute matured by adverse possession.

The above plea of the learned counsel raised on behalf of the appellants also cannot succeed for the simple reason that according to the appellant own case before the learned trial Court as well throughout proceedings, ha been that he was the lawful allottee of the plot in question, allotted to him by the respondent No. 2/Society. This admission on the part of the appellant totally destroys the plea of adverse possession. The appellant being a licensee having entered into possession of the disputed portion of plot pursuant to the permission granted vide allotment made in his favour by the respondent' No. 2. Society could not in law, be permitted to claim title on a plea of adverse possession for the reason that at no time whatsoever he ever denied the title of the owner. It is settled principle that where the possession of the defendant is at the inception merely permission it is not possible for him to put an end to that permission by any secret intention in his mind. There must be an ouster or something equivalent to an ouster.

Apart from the legal position stated above, a perusal of the evidence of the defendant/appellant would show that he neither asserted nor ever claimed any title on the basis of adverse possession.

For the reason discussed above the last contention raised also fails.

14. The upshot of the above discussion is that this appeal is without any merits and is dismissed.

The above are the reasons for the short order passed on 7‑1.1‑1.982.

M. Y. H. Appeal dismissed.

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