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Civil Appeal No.20/MR of 1988, decided on 22nd January,1989.

(On appeal from the judgment and decree of the High Court dated. 12 12 1987 (announced on 23 12 1987) in Civil Appeal No.38 of 1987)

O.XIII, R.4 Evidence Act (I of 1872), S.80 Procedure for tendering documents in evidence Attested copies of judgment and decree of previous suit filed with plaint to be read in evidence where genuineness of same was beyond any doubt, in spite of same having not been exhibited in evidence.

Where a party intends to rely on a piece of evidence which forms part of judicial record, the proper course for such party is either to tender the certified copy of the relevant document in evidence or tender the original if for one reason or the other it is necessary to tender the original document in evidence. The relevant document forming part of the file should be tendered in evidence and not the whole of the file. The procedure for tendering documents in evidence is laid down under Order XIII, rule 4, C.P.C. The said procedure is intended to safeguard against the replacement, addition and multiplication of documents produced by parties in judicial proceedings. Primarily, it is the duty of the Court to follow the relevant procedure while admitting the documents in evidence; it is also the duty of the parties or their counsel to be vigilant that the relevant documents are properly exhibited and proved; adherence to the prescribed procedure is always insisted upon, otherwise the very object of the statute is defeated. However, such procedure and rules are not inflexible. In proper cases if the Court feels that it is essential to admit a document in evidence for resolving the matter in controversy, the Court can either remand the case to the trial Court for compliance of the relevant procedure or if the genuineness of the document is not denied or is admitted by the opposite party., the appellate Court may itself read the same in evidence for deciding the relevant point at issue. Where the defendants respondents did not deny the genuineness of the attested copies of the judgment and decree of the previous suit and factum of the previous declaratory suit at any stage of the proceedings the attested copies of the judgment and decree of that suit filed with the plaint can be read in evidence because their genuineness is beyond any doubt.

Art. 144 Civil Procedure Code (V of 1908), S.11 Res judicata, principle of Plaintiff"s suit for possession on basis of title wherein defendant took plea of adverse possession Such defendant"s suit relating to same property on basis of adverse possession against plaintiff already dismissed Question of adverse possession would be res judicata between parties and could not be made basis for resisting suit for possession filed by plaintiff.

Arts. 142 & 144 Terms "dispossession", "discontinuance in possession" and "adverse possession" Application, scope and points of difference between Arts 142 & 144, Limitation Act, 1908 Provisions of Art. 142 would be attracted only if there was averment in pleading that party seeking possession was dispossessed or was discontinued in possession Where suit for possession was based on title and defendants resisted the same on ground of adverse possession and not on ground of dispossession or discontinuance of possession, such suit would be governed by provisions of Art. 144 and not Art.142 of Limitation Act, 1908.

Meherban Lalli Pinjara v. Yusuf Khan Kallu Pinjara AIR 1939 Nag.7; Nawab dyed Muhammad Hashim Ali Khan v. Iffat Ara Hamidi Begum AIR 1942 Cal.180; Mt. Maluk Zadi v. Mt. Anwar Sultan and others AIR 1950 Pesh. 31; Abdul Latif and others v. Nawab Khajeh Habibulla and others AIR 1939 Ca1.354 and Arab Jhanglu v. Panjalshah Yakubalishah and another AIR 1938 Sind 198 ref.

Ss. 25(2) & 32 Limitation Act (IX of 1908), Art. 144 Occupancy tenant"s entitlement to get possession of land from occupier setting up hostile title Forum for adjudication Jurisdiction Civil Court"s jurisdiction was barred only in respect of matters which Land Commission or any officer acting under authority of the Commission was empowered to determine Occupancy tenant entitled to obtain rights of ownership after getting possession of land from occupier who sets up hostile title thereon, could have resort to Civil Court Defendants having themselves sought relief from Civil Court for establishing their adverse possession could not be permitted to take stand afterwards that Civil Court had "no jurisdiction to try suit for possession filed by plaintiff In civil proceedings no party could be permitted to follow policy of hide and seek and blow hot and cold at the same time.

Sarwar and another v. Malik Hakim Khan and others PLD 1958 (W.P.) Lah. 568; Muhammad Mumtaz Ali Khan v. Mohan Singh AIR 1923 PC 118; Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205; Nainapillai Marakayar v. Ramanathan Chettiar AIR 1924 PC 65; Bhailal Nathabhai v. Kalangsang Gulabsang AIR 1927 Bom. 667; Sohawa Singh v. Kesar Singh AIR 1932 Lah.586 and Dalip Singh v. Rannia 25 PR 1915 and Muhammad Akram Khan v. Qaim Din PLD 1963 (W.P.) Pesh. 49 ref.

Art. 144 Civil Procedure Code (V of 1908), S. 11 Suit for possession on basis of title Defendants" previous suit on basis of adverse possession having been dismissed same had attained finality Principle of res judicata was applicable and plaintiffs suit for possession was decreed Findings of Trial Court and First Appellate Court decreeing plaintiff"s suit were restored and that of High Court whereby plaintiff"s suit was dismissed as time barred was set aside.

Agha Ashiq Hussain for Appellant.

Raja Muhammad Siddique for Respondents Nos.1 and 2.

This appeal has been directed against the judgment and decree of the High Court dated 12 12 1987, whereby accepting the appeal .filed by the respondents the findings of the Courts below were reversed and the suit for possession filed by the appellant, herein, was dismissed.

2. The facts giving rise to the present appeal are that the appellant, his brother Mahboob Hussain Shah and his mother Mst. Dil Jan, pro forma respondents Nos.3 and 4 herein, instituted a suit for possession of the suit land measuring 8 kanals 8 marlas comprising survey Nos.136 and 270 (which according to, old scale of previous settlement measured 13 kanals and 7 marlas and was recorded under survey Nos.721 and 510), situate in village Mohri, Tehsil Sehnsa on the basis of title. Respondents Nos.1 and 2 resisted the suit on the ground that their adverse possession over the suit land had ripened into ownership. It .may be stated here that plaintiffs Maqbool Hussain Shah and others averred in para. 2 of the plaint that defendants respondents Nos.1 and 2 were in possession of the suit land as tenants at will but subsequently they had filed a declaratory suit in the Court of Sub Judge Sehnsa, which was dismissed and the appeal filed by them was also dismissed. The defendants respondents pleaded that the suit filed by the plaintiffs was time barred: the civil Court had no jurisdiction to try the same and their" adverse possession over the suit land had ripened into ownership. The trial Court decreed the suit for possession holding that the possession of the respondents defendants was permissive; and that the civil Court had jurisdiction to try the same. The appeal filed by the respondents to the District Judge was also dismissed. On appeal to the High Court, the findings of the Courts below were reversed holding the suit for possession as time-barred under Article 142 of the Limitation Act:

3. We have heard the arguments and gone through the record. It may be stated at the very outset that prior to the present round of litigation, .the respondents had instituted a declaratory suit in the civil Court, on 22 2 1976, alleging that the appellants (defendants in that suit) had abandoned occupancy rights and that in any case the occupancy rights of the defendant"s had come to an end as a result of adverse possession of the respondents herein. The trial Court dismissed the said declaratory suit holding that possession of the respondents was permissive and not adverse. Their appeal was also dismissed by the District Judge on 9 8 1979. The suit for possession was filed by the appellants on 21 10 1979, i.e., two and a half months after the dismissal of the appeal by the District Judge. There is no dispute between the parties that subject matter of the previous litigation and the present one is the same and the parties are also identical. However, the trial Court did not frame any specific issue on the point as to what would be the effect of the previous judgments on the suit for possession filed by the appellants. It appears that the parties were alive to the point of previous litigation. The plaintiffs appellants got the file of the previous suit summoned and exhibited the same as P.A, subject to the objection of the respondents defendants. The trial Court as well as the District Judge read into evidence the contents of the judgments delivered in the previous case and came to the conclusion that in view of the findings in previous suit, the suit filed by the appellants must succeed.

4. The first point, which needs to be resolved, is as to whether the judgment and decree passed in the declaratory suit filed by the respondents can be legally read into evidence. It has been contended by Raja Muhammad Siddique, Advocate, that the plaintiffs appellants should have tendered into evidence the judgments and decrees of the Courts, passed in the previous suit, instead of summoning the whole file of the case and exhibiting the same. He has argued that although the file of the previous suit was summoned by the Court on the application made by the plaintiffs appellants yet the same was exhibited subject to objection by the respondents. In reply it has been argued by Agha Ashiq Hussain, Advocate, that the plaintiffs had filed attested copies of the judgment and decree of District Judge passed in the previous suit and the same had also been referred to in para 2 of the plaint. The respondents did not deny either the existence or genuineness of the same in their written statements. Therefore, the existence and genuineness of the same stands admitted by the respondents. The learned counsel has submitted that even if the said documents have not been exhibited their genuineness being beyond doubt, the same could be read in evidence without summoning the original file of the case. He has further maintained that the respondents did not object during the course of arguments in the trial Court and before the first appellate Court that the file of the previous suit or for that matter the relevant documents forming part of the same could not be considered by them. He has argued that if a party fails to object to the admissibility of a document into evidence at the proper stage, such party cannot be allowed to raise the objection at a subsequent stage. He has cited a case reported as "Mst. Manzoor Fatima and 15 others v. Mazhar Hussain Shah and 2 others (PLD 1988 SC (AJ&K) 35), wherein it has been held that when the Court is satisfied that document admitted in evidence in derogation of the procedure is genuine or "is admitted by the opposite party, it is permissible to read the same in evidence.

5. We have given our due consideration arguments raised at the Bar. There is no doubt that where a party intends to rely on a piece of evidence which forms part of judicial record, the proper course for such party .is either to tender the certified copy of the relevant document in evidence or tender the original if for one reason or the other it is necessary to tender the original document in evidence. The relevant document forming part of the file should be tendered in evidence and not the whole of the file. The procedure for tendering documents in evidence is laid down under Order XIII, rule 4, C.P. C. The said procedure is intended to safeguard against the replacement, addition and multiplication of documents produced by parties in judicial proceedings. Primarily, it is the duty of the Court to follow the relevant procedure while admitting the documents in evidence; it is also the duty of the parties or their counsel to be vigilant that the relevant documents are properly exhibited and proved; adherence to the prescribed procedure is always insisted upon, otherwise the very object of the statute is defeated. However, such procedure and rules are not inflexible. In proper cases if the Court feels that it is essential to admit a document in evidence for resolving the matter in controversy, the Court can either remand the case to the trial Court for compliance of the relevant procedure or if the genuineness of the document is not denied or is admitted by the opposite party, the appellate Court may itself read the same in evidence for deciding the relevant point at issue. In the instant case the defendants respondents did not deny the genuineness of the attested copies of the judgment and decree of the District Judge which have been referred to in para. 2 of the plaint nor they questioned the factum of the previous declaratory suit at any stage of the proceedings: Thus, we are of the view that the attested copies of the judgment and decree of the District Judge filed with the plaint can be read in evidence because their genuineness is beyond any doubt. Thus, the question as to whether the judgment and decree passed in previous suit could be referred to from the original file of the previous suit becomes immaterial.

6. Now, the next point, which needs determination, is as to whether in view of the findings of the Court in declaratory suit previously filed by the respondents, they can legally raise the plea of adverse possession again in the present suit. The perusal of the copy of the judgment and decree of the District Judge clearly shows that in the declaratory suit the District Judge gave the findings that the possession of the defendants respondents was permissive and that they had failed to prove that the appellants or their predecessor in interest had abandoned their occupancy rights in the suit land. This being the position, the question of adverse possession and that of abandonment of occupancy rights is res judicata between the parties and cannot be made the basis for resisting the suit for possession filed by the appellants.

7. Next, it is to be seen as to whether the suit would be governed by Article 142 or Article 144 of Limitation Act. The plain reading of Article 142 of the Limitation Act shows that the Article will be attracted only if there is an averment in the pleading that the party seeking possession was "dispossessed or discontinued the possession". No such averment has been made by either of the parties in their pleadings. The plaintiffs appellants averred in the plaint that the respondents were holding the possession of suit land as tenants at will, as they were related to them. The respondents defendants have taken the pleas that the suit filed by the plaintiffs was time barred and their possession over the suit land had ripened into ownership through prescription.

8. The difference between the application of Articles 142 and 144 of the Limitation Act has been subject of judicial consideration in various cases.

9.In Meherban Lalli Pinjara v. Yousuf Khan Kallu Pinjara (AIR 1939 Nag.7), it was held that Article 142 would be applicable only if either the plaintiff was dispossessed, or he discontinued the possession. This can be established either by the facts admitted in the plaint or pleadings or if not admitted there, then by the facts actually found. But unless that is done the case cannot fall under Article 142 and so the residuary Article 144 would apply. It was further observed:

"The term "dispossession" applies when a person comes in and drives out others from the possession. It imports ouster, a driving out of possession against the will of the person in actual possession This driving out cannot be said to have occurred when according to the case of both sides the transfer of possession was voluntary, not against the will of the person in possession but" in accordance with his wishes and active consent. The term "discontinuance" however implies a voluntary act, an abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by any one choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession. But this cannot be assumed. It must be either admitted or proved. So strong in fact is the position of the rightful owner that even when" he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily" or by vis major, for however short a time, before he has actually perfected his title by 12 years" adverse possession, the possession of the true owner is deemed to revive and he gets a fresh starting point for limitation. Wrongful possession cannot be assumed against the true owner when the facts disclose that he himself voluntarily handed over possession and was not deprived of it by the other side."

10. In "Nawab, Syed Muhammad Hashim Ali Khan v. Iffat Ara Hamidi Begum" (A.I.R.1942 Cal.180) it was observed that phrase "discontinuance of possession" in Article 142 connotes abandonment of possession by one person followed by the possession of another.

11. In "Mt. Maluk Zadi v. Mt. Anwar Sultan and others" (A.I.R.1950 Pesh.31), it was observed that where the plaintiff in a "suit for possession alleges that he was in possession of the property but let the property to the defendant and the latter refused to vacate. the same, Article 142 has no application as there is no abandonment of possession by the plaintiff followed by possession of the defendant. In such cases Article 144 of the Limitation Act would govern the case.

12. In "Abdul Latif and others v. Nawab Khajeh Habibulla and others" (AIR 1939 Ca1.354), it was held that Article 142 of the Limitation Act would be applicable only if the plaintiff has sued on the footing that while he was in possession he was dispossessed by the defendant or if the facts be established that while in possession he was dispossessed by the defendant. It was further observed that the term "discontinuation of possession" in section 142 connotes three elements: two physical and one mental: there must be (i) actual withdrawal, (2) with intention to abandon, and (3) that another should step in and possess the property in dispute.

13. In "Arab, Jhanglu v. Panjalshah Yakubalishah and another" (A.I.R.1938 Sind 198) it was observed that dispossession referred to in Article 142 of the Limitation Act is a forcible "dispossession" or ouster and the "discontinuance" referred to in Article means something of the nature of an abandonment. Thus, where a suit is based on title and permissive occupancy is alleged, Article 144 of Limitation Act would apply and not the Article 142.

14. It follows from the above survey of the case law that before Article 142 of the Limitation Act could be held applicable to a case it is to be shown that either the party seeking possession was forcibly dispossessed or it voluntarily abandoned the possession and the other party entered into possession. No such eventuality exists in the case in hand and as such Article 144 of the Limitation Act would govern the case and Article 142 has no application. Evidently, the suit filed by the plaintiffs is based on their title anal the defendants respondents resisted the same on the ground of adverse possession and not on the ground of "dispossession" or "discontinuance" of possession. Therefore, the proper Article of Limitation Act applicable in the instant case would be Article 144 and not Article 142 of the Limitation Act. The learned Single Judge in the High Court has observed that once the limitation starts running against a party it would not stop. But the question in the instant case is as to how the limitation can be said to have started running against the plaintiffs appellants when their suit for possession is based on title and the same was instituted about two and a half months after the dismissal of the appeal filed by the defendants respondents in previous suit. In case reported as "Sarwar and another v. Malik Hakim Khan and others" (PLD. 1958 (W.P.) Lah.568, it was held that an unsuccessful claim to the ownership in judicial proceedings would not change the character of the possession. If the possession at the time of the institution of the suit was permissive, it would remain permissive, even after the negation of unsuccessful claim of the ownership, unless after the decision of the suit the tenant does some overt acts which may have the effect of denying the title of the landlord. In the aforesaid case the reliance was placed on "Muhammad Mumtaz All Khan v. Mohan Singh" AIR (1923 PC 118), "Mahdavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande" (AIR 1923 PC 205), "Nainapillai Marakayar v. Ramanathan Chettiar" (AIR 1924 PC 65), "Bhailal Nathabhai v. Kalangsang Gulabsang" (AIR 1927 Bom. 667), "Sohawa Singh v. Kesar Singh" (AIR 1932 Lah. 586) and "Dalip Singh v. Rannia" (25 P.R.1915) It follows from this that after the dismissal of the appeal of the respondents defendants in the previous suit, their possession would remain permissive, unless defendants respondents do some other overt acts rendering the nature of their possession hostile and notorious and continue to be in possession for more than 12 years. As stated earlier, the suit for possession was instituted 21 months after the claim of the adverse possession made by the respondents was finally negatived.

15. The learned counsel for the respondents, Raja Muhammad Siddique, has argued that. the civil Court had no jurisdiction to try the suit. He has contended that under subsection (2) of Section 25 read with Section 32 of the Azad Jammu and Kashmir Land Reforms Act, 1960, only Commission or any other authority constituted under the said Act has the jurisdiction to determine as to whether the plaintiffs had occupancy rights in the suit land at the relevant date. For the sake of convenience subsection (2) of Section 25 and Section 32 of the said Act are reproduced as under:

"25.(1) ..................................................

(2) An occupancy tenant, who at the time of the coming into force of this Act, occupies any land as such shall become owner as under:

(a) ..................................................

(b) ..................................................

(c) ..................................................

(d) ..................................................

(1) No provision of this Act or of any rules or orders made thereunder shall be called in question in any Court including the High Court or before any authority other than an authority appointed under this Act, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting .under the authority of the Commission is empowered, to determine.

(2) ..................................................

16. It is evident from the statutory provisions reproduced above that the jurisdiction has been barred only in respect of matters, which the Commission or any Officer acting under the authority of the Commission is empowered to determine. The question arises as to whether an occupancy tenant who is not in possession of a piece of land of which he enjoys the occupancy rights is entitled to obtain the rights of ownership after getting the possession of land from an" occupier who puts up a hositle title, by resorting to civil Court. In our view the answer to the aforesaid question is in a affirmative. The legislature never intended that if at the relevant time a trespasser deprives an occupancy tenant of the possession of his tenancy, he would be debarred from obtaining the rights of ownership under the aforesaid Act. If at the relevant time an occupancy tenant is not in possession of the land in which he has occupancy rights, he may approach to a civil Court and if he succeeds in obtaining the possession, he is definitely entitled to obtain the rights of ownership under the provisions of the Land Reforms Act of 1960, if there is no predicament in his way. An identical provision was introduced in Punjab Tenancy Act by an amendment in 1952; the expression "occupies land as such" also finds place in the said provision, as in subsection (2) of Section 25 of Land Reforms Act, 1960. The scope of said expression and the intention of the legislature was considered in a case reported as "Muhammad Akram Khan v. Qaim Din" (PLD 1963 (W.P.) Pesh. 49) and it was held that words "occupies land as such" do not necessarily mean physical occupation but also include constructive possession through a tenant at will. If an occupancy tenant is deprived of the possession by some illegal process he may have recourse to civil Court for the restoration of the possession, whether actual or constructive, and then pursue his remedy to obtain the rights of ownership, if the period of limitation has not run out and there is no other predicament in his way.

17. We are in respectful agreement with the view expressed in the aforesaid case and hold that as the defendants respondents had put up a hostile title to the suit land and they had also instituted a declaratory suit in the civil Court to establish their adverse possession, the plaintiffs appellants were not legally debarred from seeking restoration of their possession by resorting to the civil Court and after obtaining the possession ,to pursue their remedy for obtaining the rights of ownership in an appropriate forum. As has been already pointed out, the defendants respondents did not accept the position that they were tenants at will under the plaintiffs appellants, they themselves sought the relief from the civil Court for establishing their adverse possession. Now they cannot be permitted to take the stand that the civil Court has no jurisdiction to try the suit for possession filed by the appellants. In civil proceedings a party cannot be permitted to follow the policy of hide and seek and blow both hot and cold at the same time.

In the light of what has been stated above we accept the appeal, set aside the judgment and decree of the High Court and restore the judgment and decree of the trial Court.

A.A./249/SC.A

Appeal allowed.

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