PLJ 2012 SC (AJ&K) 46
[Appellate Jurisdiction]
Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J.
FEROZ DIN KHAN--Appellant
versus
MUHAMMAD LATIF KHAN & 5 others--Respondents
C.A. No. 19 of 2009, decided on 16.1.2012.
(On appeal from the judgment and decree of the High Court dated 16.10.2008 in Civil Appeal No. 43 of 2005)
Limitation Act, 1908 (IX of 1908)--
----Arts. 142 & 144--Concurrent findings--Deletion of Art. 144 of Limitation Act--Effect of omission of Art. 144--Question of--Whether Art. 142 of Limitation Act, 1908 was applicable in case or not--Concurrent findings of facts could not be disturbed in second appeal--Validity--Under Art. 142 of Limitation Act, period of limitation for filing a suit for possession of an immovable property, when plaintiff while in possession of property had been dispossessed from or had discontinued possession, was 12 years from date of dispossession or discontinues of possession--Determining factor was date of dispossession or discontinuance of possession--When suit was filed, not on basis of dispossession or discontinuance of possession, but on basis of title, Art. 142 was not attracted in such case--Art. 142 of Limitation Act, was applicable only if a suit for possession of immovable property was filed on ground that party was in possession of land and had been dispossessed or its possession was discontinued, but when a suit for possession of immoveable property was filed on basis of title, then Art. 142 was not applicable and Art. 144 governs the period of limitation--After deletion of Art. 144, no other article of Limitation Act governs the limitation for filing a suit on basis of title or interest in the property--No period of limitation for filing a suit for possession of immovable property on basis of title--A true owner can file a suit for possession of immovable property anytime on basis of title--Although High Court was heared second appeal in spite of that he had perused all evidence and reached conclusion that no portion of evidence was kept out of sight or misread by Courts below--There were concurrent findings of facts recorded by Courts below and were affirmed by High Court--Appeal was dismissed. [Pp. 50, 52 & 53] A, B, C & E
PLD 1953 BJ 10, 1995 SCR 116, PLD 1989 SC (AJK) 45, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 79, O. XXVI, R. 9--Application for spot inspection which was not disposed of by trial Court--Judgment was nullity in eyes of law--Spot inspection or sending commission for spot inspection was not necessary in case because defendants admitted ownership of plaintiffs and land was admittedly entered in possession in new settlement--Validity--If trial Court felt difficulty in deciding a case that judgment cannot be delivered without spot inspection then Court had jurisdiction to make spot inspection but in instant case when defendants categorically admitted ownership of plaintiff and in new settlement record, disputed land was entered appellant herein, then it was necessary to make spot inspection. [P. 53] D
Sardar Atta Ellahi Abbasi, Advocate for Appellant.
Raja Sajjad Ahmed Khan, Advocate for Respondent Nos. 1 & 2.
Date of hearing: 19.12.2011.
Judgment
Muhammad Azam Khan, C.J.--This appeal with the leave of the Court arises out of the judgment and decree of the High Court dated 16th October, 2008, whereby second appeal filed by the appellant herein has been dismissed.
2. Necessary facts for the disposal of instant appeal are that the respondents filed a suit for possession in the Court of Sub-Judge Dhirkot on 15.10.1997 in respect of land bearing Survey No. 1204 (old), 55 (new), measuring 3 kanals, 10 marlas and Survey No. 1204 (old), 54 (new), measuring 2 kanals, total measuring 5 kanals, 10 marlas, situate in village Bhoora Rangla, Tehsil Dhirkot, to the effect that the land is in the ownership of the plaintiffs and they are entered as such in the revenue record. The defendants have encroached upon the land from the boundaries as their land is adjacent to the disputed land. The fact came in their knowledge when they obtained the copy of record-of-rights (misle-e-haqiat) on 19th September, 1997. The defendants in the written statement admitted that the land is entered in the name of plaintiffs as owners. In fact it was entered in the name of Fateh Khan and others in Jamabandi pertaining to year 2000 Bk. The plaintiffs filed a suit on the basis of adverse possession. Their suit was decreed and they are owners of the land on the basis of said decree. It was further alleged by the defendants that they are in possession of their own land as owners. They have not encroached upon the land belonging to plaintiffs. The portion of their land has illegally been entered in the name of plaintiffs. Defendant No. 2, Sultan Muhammad Khan, filed a suit for declaration and perpetual injunction on 8th October, 1998 against the rival plaintiffs to the effect that the land bearing Survey No. 54, measuring 2 kanals is in the ownership of the plaintiffs. He sought a decree for declaration to the effect that he be declared owner and also sought a perpetual injunction against the defendants, respondents herein. The trial Court consolidated both the suits and after framing the issues provided opportunity to the parties for producing evidence and at the conclusion of trial the suit filed by the plaintiffs, respondents herein, was decreed, while the suit filed by Sultan Muhammad Khan was dismissed on 6th February, 2004. Feeling aggrieved Feroz Din and Sultan Muhammad Khan filed an appeal in the Court of Additional District Judge Dhirkot. The same was dismissed on 23rd November, 2009. Dissatisfied from the judgment and decree of Additional District Judge, second appeal was filed in the High Court. A learned single Judge in the High Court dismissed the appeal vide impugned judgment on 16th October, 2008.
3. Sardar Atta Ellahi Abbasi, the learned counsel for the appellant, argued that the defendant, appellant herein, has taken an objection that the suit filed by the plaintiffs, respondents herein, is time barred. Under Article 142 of the Limitation Act a suit for possession of immovable property has to be filed within 12 years of dispossession. The plaintiffs filed the suit beyond the period of limitation as defendants, appellants herein, are in possession of land since the time of their forefathers. The trial Court committed an error while decreeing the suit and the two appellate Courts illegally dismissed the appeals. He cited two cases reported as Walayat Khan and 2 others vs. Muhammad Yusuf and 15 others [PLD 1995 SC(AJK) 41] and Noor Hussain Shah and another vs. Muhammad Hussain Shah and 2 others [PLD 1988 AJK 1].
In Walayat Khan's case, referred to above, the proposition before the Court was that when a party files a suit on the ground that the land was in possession of the plaintiff and he was dispossessed, which of the Articles out of 142 and 144 of the Limitation Act will govern the limitation. After detailed survey of case law the Court reached the conclusion that if a party files a suit for possession of immovable property on the ground that the party was in possession of land and was dispossessed by the defendants, then Article 142 shall govern and if the suit is filed on the ground of title, then Article 142 is not applicable and Article 144 shall govern the period of limitation.
In Noor Hussain's case, referred to above, it was observed by the High Court of Azad Jammu and Kashmir that if a party files a suit for possession on the ground that the party was in possession of the land and it was dispossessed, the party has to file suit for possession within 12 years and Article 142 governs the limitation. If a suit is filed beyond the period of 12 years, under Article 142, it has to be dismissed.
4. It was next contended by the learned counsel that the appellant has moved an application before the trial Court for spot inspection. The trial Court decided the case without spot inspection. He argued that under Order XXVI, Rule 9 and Section 79 of C.P.C. it was enjoined upon the trial Court to make a spot inspection before the delivery of the judgment. The trial Court delivered the judgment without spot inspection therefore it was not maintainable. He further argued that the judgment of the High Court is telegraphic in nature. Under Order XLI, Rule 31 of C.P.C. it was enjoined upon the High Court to deliver a speaking judgment. He referred to the cases reported as Muhammad Rashid vs. Ch. Munshi Khan and 7 others [2007 SCR 86], Ghulam Akram and 5 others vs. Syed Shabir Hussain Shah and 10 others [PLD 1986 SC (AJK) 56] and Abdul Razaq vs. Sabar Khan [2004 CLC 950].
5. While controverting the arguments Raja Sajjad Ahmed Khan, the learned counsel for Respondents No. 1 and 2, argued that the appeal merits dismissal. The judgment of the High Court is perfectly legal. There are concurrent findings of facts of two Courts which have been affirmed by the High Court. It is settled law that concurrent findings of facts cannot be disturbed in second appeal and while applying the law, the High Court rightly dismissed the second appeal. The learned counsel contended that spot inspection or sending a Commission for spot inspection was not necessary in the case because the defendants admitted the ownership of plaintiffs and the land was admittedly entered in possession of defendants in new settlement. He requested for dismissal of appeal.
6. We have heard the learned counsel for the parties and perused the record. The question which needs determination is whether Article 142 of the Limitation Act, 1908 is applicable in the case or not. Under Article 142, the period of limitation for filing a suit for possession of an immovable property, when the plaintiff while in possession of property has been dispossessed from or has discontinued possession, is 12 years from the date of dispossession or discontinuance of possession. The determining factor is date of dispossession or discontinuance of possession. The expression "dispossession" refers to actual physical dispossession and involves collision and expulsion. Constructive possession in spite of mere abandonment or non-use remains with the owner. To establish "discontinuance of possession" it must be shown that the owner has withdrawn with the intention of abandoning the property and the gap has been filled in by another person, who has come to occupy in consequence of such withdrawal. When a suit is filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title Article 142 is not attracted in such case. The proposition came under consideration of this Court in a case titled Maqsood Hussain Shah vs. Noor Hussain Shah and 3 others [PLD 1989 SC (AJK) 45] wherein it was observed as under:
"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'."
It was further observed as under:
"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 and 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 same view was reiterated in another case titled Dewan Ali Khan vs. Jehandad Khan and others [1995 SCR 116] wherein after detailed survey of case law on the subject it was observed as under:
"As is evident from the case law, referred to above, it is now settled law that Article 142 of the Limitation Act is not applicable to a case where the plaintiff himself does not allege in the plaint that he was `dispossessed' or 'discontinued the possession' of the disputed land from a certain date. Thus, we approve the view taken by this Court in Maqsood Hussain Shah vs. Noor Hussain Shah [PLD 1989 SC (AJ&K) 45] and are constrained to dissent from the one taken in Abdul Rehman's case."
In another case titled Haji Muhammad Hussain vs. Malik Fateh Muhammad [PLD 1953 B.J. 10] it was observed as under:
"The main question on which the present suit hinges is whether Article 142 or Article 144 applies to such a case. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary article and applies only to suit for possession of immovable property to which no other article is applicable. The very wording of Article 142 clearly shows that this article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 12 years of the date of dispossession. Therefore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaintiff, who in order to succeed, must show that the dispossession was not prior to 12 years before the suit was filed. Article 144 of the Limitation Act would only apply to suits for possession where no other Article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and he brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession, the onus lies on him to prove that the date of his dispossession was within 12 years of the suit, while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other Article of the Act then on proof of title the plaintiffs suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years."
(Underlining is ours)
7. In the instant case, after the deletion of Article 144 of the Limitation Act, omitted vide Act No. IV of 1997 dated 25th April, 1997, a new situation has emerged that what is the effect of deletion/omission of said Article. For proper appreciation, it will be useful to reproduce Articles 142 and 144 of the Limitation Act which are as under:--
Art. Description of suit Period Time from
of which period
Limitation begins to run
142. For possession of immovable Twelve The date of the
property when the plaintiff, while in years dispossession
possession of the property, has been or discontinuance.
dispossessed or has discontinued
the possession.
143. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
144. For possession of immovable Twelve When the
property or any interest therein not years possession of the
hereby otherwise specially provided defendant becomes
for. adverse to the
plaintiff
The above Articles have been perused and considered by the Courts and the rule of law, laid down in the above referred authorities, is that Article 142 of the Limitation Act is applicable only if a suit for possession of immovable property is filed on the ground that the party was in possession of land and has been dispossessed or its possession is discontinued, but when a suit for possession of immovable property is filed on the basis of title, then Article 142 is not applicable and Article 144 governs the period of limitation. After the deletion/omission of Article 144, no other Article of the Limitation Act governs the limitation for filing a suit on the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title.
8. For determining whether Article 142 of the Limitation Act is applicable on the suit or not, we have to see the contents of the suit. In the present case the suit was filed by the respondents herein for possession of immovable property bearing Survey No. 1204 (old), 55 (new), on the ground that they are owners of the land. The land of defendants is adjacent to their land, who have encroached upon the same. The defence of the defendants is that the defendants have not encroached upon the land but are in possession of their own land. From the perusal of suit, it is evident that the case of plaintiffs, respondents herein, in the trial Court was not one of dispossession or discontinuance of possession. They have filed a suit for possession on the basis of title. The suit is not hit by the mischief of Article 142 of the Limitation Act.
9. We have considered the other argument of the learned counsel for the appellant that the defendant/appellant moved an application for spot inspection which was not disposed of by the trial Court, therefore, the judgment is a nullity in the eye of law. Under Section 79 and Order XXVI, Rule 9 of C.P.C. if the trial Court feels difficulty in deciding a case and reaches the conclusion that the judgment cannot be delivered without spot inspection then the Court has jurisdiction to make spot inspection, but in the instant case when the defendants categorically admitted the ownership of the plaintiffs and in the new settlement record, the disputed land was entered in the name of defendants, appellant herein, then it was not necessary to make spot inspection.
10. We have also considered the last argument of the learned counsel for the appellant that the judgment of the High Court is telegraphic one. The argument is baseless. The learned Judge in the High Court deliberated on all the points raised by the counsel for the parties and resolved the same. Although the learned Judge in the High Court was hearing the second appeal, in spite of that he has perused all the evidence and reached the conclusion that no portion of the evidence was kept out of sight or misread by the Courts below. There are concurrent findings of facts recorded by two Courts and the same were affirmed by the High Court.
11. The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs.
(R.A.) Appeal dismissed
[Appellate Jurisdiction]
Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J.
FEROZ DIN KHAN--Appellant
versus
MUHAMMAD LATIF KHAN & 5 others--Respondents
C.A. No. 19 of 2009, decided on 16.1.2012.
(On appeal from the judgment and decree of the High Court dated 16.10.2008 in Civil Appeal No. 43 of 2005)
Limitation Act, 1908 (IX of 1908)--
----Arts. 142 & 144--Concurrent findings--Deletion of Art. 144 of Limitation Act--Effect of omission of Art. 144--Question of--Whether Art. 142 of Limitation Act, 1908 was applicable in case or not--Concurrent findings of facts could not be disturbed in second appeal--Validity--Under Art. 142 of Limitation Act, period of limitation for filing a suit for possession of an immovable property, when plaintiff while in possession of property had been dispossessed from or had discontinued possession, was 12 years from date of dispossession or discontinues of possession--Determining factor was date of dispossession or discontinuance of possession--When suit was filed, not on basis of dispossession or discontinuance of possession, but on basis of title, Art. 142 was not attracted in such case--Art. 142 of Limitation Act, was applicable only if a suit for possession of immovable property was filed on ground that party was in possession of land and had been dispossessed or its possession was discontinued, but when a suit for possession of immoveable property was filed on basis of title, then Art. 142 was not applicable and Art. 144 governs the period of limitation--After deletion of Art. 144, no other article of Limitation Act governs the limitation for filing a suit on basis of title or interest in the property--No period of limitation for filing a suit for possession of immovable property on basis of title--A true owner can file a suit for possession of immovable property anytime on basis of title--Although High Court was heared second appeal in spite of that he had perused all evidence and reached conclusion that no portion of evidence was kept out of sight or misread by Courts below--There were concurrent findings of facts recorded by Courts below and were affirmed by High Court--Appeal was dismissed. [Pp. 50, 52 & 53] A, B, C & E
PLD 1953 BJ 10, 1995 SCR 116, PLD 1989 SC (AJK) 45, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 79, O. XXVI, R. 9--Application for spot inspection which was not disposed of by trial Court--Judgment was nullity in eyes of law--Spot inspection or sending commission for spot inspection was not necessary in case because defendants admitted ownership of plaintiffs and land was admittedly entered in possession in new settlement--Validity--If trial Court felt difficulty in deciding a case that judgment cannot be delivered without spot inspection then Court had jurisdiction to make spot inspection but in instant case when defendants categorically admitted ownership of plaintiff and in new settlement record, disputed land was entered appellant herein, then it was necessary to make spot inspection. [P. 53] D
Sardar Atta Ellahi Abbasi, Advocate for Appellant.
Raja Sajjad Ahmed Khan, Advocate for Respondent Nos. 1 & 2.
Date of hearing: 19.12.2011.
Judgment
Muhammad Azam Khan, C.J.--This appeal with the leave of the Court arises out of the judgment and decree of the High Court dated 16th October, 2008, whereby second appeal filed by the appellant herein has been dismissed.
2. Necessary facts for the disposal of instant appeal are that the respondents filed a suit for possession in the Court of Sub-Judge Dhirkot on 15.10.1997 in respect of land bearing Survey No. 1204 (old), 55 (new), measuring 3 kanals, 10 marlas and Survey No. 1204 (old), 54 (new), measuring 2 kanals, total measuring 5 kanals, 10 marlas, situate in village Bhoora Rangla, Tehsil Dhirkot, to the effect that the land is in the ownership of the plaintiffs and they are entered as such in the revenue record. The defendants have encroached upon the land from the boundaries as their land is adjacent to the disputed land. The fact came in their knowledge when they obtained the copy of record-of-rights (misle-e-haqiat) on 19th September, 1997. The defendants in the written statement admitted that the land is entered in the name of plaintiffs as owners. In fact it was entered in the name of Fateh Khan and others in Jamabandi pertaining to year 2000 Bk. The plaintiffs filed a suit on the basis of adverse possession. Their suit was decreed and they are owners of the land on the basis of said decree. It was further alleged by the defendants that they are in possession of their own land as owners. They have not encroached upon the land belonging to plaintiffs. The portion of their land has illegally been entered in the name of plaintiffs. Defendant No. 2, Sultan Muhammad Khan, filed a suit for declaration and perpetual injunction on 8th October, 1998 against the rival plaintiffs to the effect that the land bearing Survey No. 54, measuring 2 kanals is in the ownership of the plaintiffs. He sought a decree for declaration to the effect that he be declared owner and also sought a perpetual injunction against the defendants, respondents herein. The trial Court consolidated both the suits and after framing the issues provided opportunity to the parties for producing evidence and at the conclusion of trial the suit filed by the plaintiffs, respondents herein, was decreed, while the suit filed by Sultan Muhammad Khan was dismissed on 6th February, 2004. Feeling aggrieved Feroz Din and Sultan Muhammad Khan filed an appeal in the Court of Additional District Judge Dhirkot. The same was dismissed on 23rd November, 2009. Dissatisfied from the judgment and decree of Additional District Judge, second appeal was filed in the High Court. A learned single Judge in the High Court dismissed the appeal vide impugned judgment on 16th October, 2008.
3. Sardar Atta Ellahi Abbasi, the learned counsel for the appellant, argued that the defendant, appellant herein, has taken an objection that the suit filed by the plaintiffs, respondents herein, is time barred. Under Article 142 of the Limitation Act a suit for possession of immovable property has to be filed within 12 years of dispossession. The plaintiffs filed the suit beyond the period of limitation as defendants, appellants herein, are in possession of land since the time of their forefathers. The trial Court committed an error while decreeing the suit and the two appellate Courts illegally dismissed the appeals. He cited two cases reported as Walayat Khan and 2 others vs. Muhammad Yusuf and 15 others [PLD 1995 SC(AJK) 41] and Noor Hussain Shah and another vs. Muhammad Hussain Shah and 2 others [PLD 1988 AJK 1].
In Walayat Khan's case, referred to above, the proposition before the Court was that when a party files a suit on the ground that the land was in possession of the plaintiff and he was dispossessed, which of the Articles out of 142 and 144 of the Limitation Act will govern the limitation. After detailed survey of case law the Court reached the conclusion that if a party files a suit for possession of immovable property on the ground that the party was in possession of land and was dispossessed by the defendants, then Article 142 shall govern and if the suit is filed on the ground of title, then Article 142 is not applicable and Article 144 shall govern the period of limitation.
In Noor Hussain's case, referred to above, it was observed by the High Court of Azad Jammu and Kashmir that if a party files a suit for possession on the ground that the party was in possession of the land and it was dispossessed, the party has to file suit for possession within 12 years and Article 142 governs the limitation. If a suit is filed beyond the period of 12 years, under Article 142, it has to be dismissed.
4. It was next contended by the learned counsel that the appellant has moved an application before the trial Court for spot inspection. The trial Court decided the case without spot inspection. He argued that under Order XXVI, Rule 9 and Section 79 of C.P.C. it was enjoined upon the trial Court to make a spot inspection before the delivery of the judgment. The trial Court delivered the judgment without spot inspection therefore it was not maintainable. He further argued that the judgment of the High Court is telegraphic in nature. Under Order XLI, Rule 31 of C.P.C. it was enjoined upon the High Court to deliver a speaking judgment. He referred to the cases reported as Muhammad Rashid vs. Ch. Munshi Khan and 7 others [2007 SCR 86], Ghulam Akram and 5 others vs. Syed Shabir Hussain Shah and 10 others [PLD 1986 SC (AJK) 56] and Abdul Razaq vs. Sabar Khan [2004 CLC 950].
5. While controverting the arguments Raja Sajjad Ahmed Khan, the learned counsel for Respondents No. 1 and 2, argued that the appeal merits dismissal. The judgment of the High Court is perfectly legal. There are concurrent findings of facts of two Courts which have been affirmed by the High Court. It is settled law that concurrent findings of facts cannot be disturbed in second appeal and while applying the law, the High Court rightly dismissed the second appeal. The learned counsel contended that spot inspection or sending a Commission for spot inspection was not necessary in the case because the defendants admitted the ownership of plaintiffs and the land was admittedly entered in possession of defendants in new settlement. He requested for dismissal of appeal.
6. We have heard the learned counsel for the parties and perused the record. The question which needs determination is whether Article 142 of the Limitation Act, 1908 is applicable in the case or not. Under Article 142, the period of limitation for filing a suit for possession of an immovable property, when the plaintiff while in possession of property has been dispossessed from or has discontinued possession, is 12 years from the date of dispossession or discontinuance of possession. The determining factor is date of dispossession or discontinuance of possession. The expression "dispossession" refers to actual physical dispossession and involves collision and expulsion. Constructive possession in spite of mere abandonment or non-use remains with the owner. To establish "discontinuance of possession" it must be shown that the owner has withdrawn with the intention of abandoning the property and the gap has been filled in by another person, who has come to occupy in consequence of such withdrawal. When a suit is filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title Article 142 is not attracted in such case. The proposition came under consideration of this Court in a case titled Maqsood Hussain Shah vs. Noor Hussain Shah and 3 others [PLD 1989 SC (AJK) 45] wherein it was observed as under:
"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'."
It was further observed as under:
"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 and 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 same view was reiterated in another case titled Dewan Ali Khan vs. Jehandad Khan and others [1995 SCR 116] wherein after detailed survey of case law on the subject it was observed as under:
"As is evident from the case law, referred to above, it is now settled law that Article 142 of the Limitation Act is not applicable to a case where the plaintiff himself does not allege in the plaint that he was `dispossessed' or 'discontinued the possession' of the disputed land from a certain date. Thus, we approve the view taken by this Court in Maqsood Hussain Shah vs. Noor Hussain Shah [PLD 1989 SC (AJ&K) 45] and are constrained to dissent from the one taken in Abdul Rehman's case."
In another case titled Haji Muhammad Hussain vs. Malik Fateh Muhammad [PLD 1953 B.J. 10] it was observed as under:
"The main question on which the present suit hinges is whether Article 142 or Article 144 applies to such a case. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary article and applies only to suit for possession of immovable property to which no other article is applicable. The very wording of Article 142 clearly shows that this article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 12 years of the date of dispossession. Therefore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaintiff, who in order to succeed, must show that the dispossession was not prior to 12 years before the suit was filed. Article 144 of the Limitation Act would only apply to suits for possession where no other Article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and he brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession, the onus lies on him to prove that the date of his dispossession was within 12 years of the suit, while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other Article of the Act then on proof of title the plaintiffs suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years."
(Underlining is ours)
7. In the instant case, after the deletion of Article 144 of the Limitation Act, omitted vide Act No. IV of 1997 dated 25th April, 1997, a new situation has emerged that what is the effect of deletion/omission of said Article. For proper appreciation, it will be useful to reproduce Articles 142 and 144 of the Limitation Act which are as under:--
Art. Description of suit Period Time from
of which period
Limitation begins to run
142. For possession of immovable Twelve The date of the
property when the plaintiff, while in years dispossession
possession of the property, has been or discontinuance.
dispossessed or has discontinued
the possession.
143. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
144. For possession of immovable Twelve When the
property or any interest therein not years possession of the
hereby otherwise specially provided defendant becomes
for. adverse to the
plaintiff
The above Articles have been perused and considered by the Courts and the rule of law, laid down in the above referred authorities, is that Article 142 of the Limitation Act is applicable only if a suit for possession of immovable property is filed on the ground that the party was in possession of land and has been dispossessed or its possession is discontinued, but when a suit for possession of immovable property is filed on the basis of title, then Article 142 is not applicable and Article 144 governs the period of limitation. After the deletion/omission of Article 144, no other Article of the Limitation Act governs the limitation for filing a suit on the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title.
8. For determining whether Article 142 of the Limitation Act is applicable on the suit or not, we have to see the contents of the suit. In the present case the suit was filed by the respondents herein for possession of immovable property bearing Survey No. 1204 (old), 55 (new), on the ground that they are owners of the land. The land of defendants is adjacent to their land, who have encroached upon the same. The defence of the defendants is that the defendants have not encroached upon the land but are in possession of their own land. From the perusal of suit, it is evident that the case of plaintiffs, respondents herein, in the trial Court was not one of dispossession or discontinuance of possession. They have filed a suit for possession on the basis of title. The suit is not hit by the mischief of Article 142 of the Limitation Act.
9. We have considered the other argument of the learned counsel for the appellant that the defendant/appellant moved an application for spot inspection which was not disposed of by the trial Court, therefore, the judgment is a nullity in the eye of law. Under Section 79 and Order XXVI, Rule 9 of C.P.C. if the trial Court feels difficulty in deciding a case and reaches the conclusion that the judgment cannot be delivered without spot inspection then the Court has jurisdiction to make spot inspection, but in the instant case when the defendants categorically admitted the ownership of the plaintiffs and in the new settlement record, the disputed land was entered in the name of defendants, appellant herein, then it was not necessary to make spot inspection.
10. We have also considered the last argument of the learned counsel for the appellant that the judgment of the High Court is telegraphic one. The argument is baseless. The learned Judge in the High Court deliberated on all the points raised by the counsel for the parties and resolved the same. Although the learned Judge in the High Court was hearing the second appeal, in spite of that he has perused all the evidence and reached the conclusion that no portion of the evidence was kept out of sight or misread by the Courts below. There are concurrent findings of facts recorded by two Courts and the same were affirmed by the High Court.
11. The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs.
(R.A.) Appeal dismissed
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