IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

 

Civil Revision S - 78 of 2010

 

 

Bakhshal Khan and Others

         vs.

Pehlwan and Others

 

 

For the Applicants:                          Mr. Ahmed Hussain Shahani

Advocate.

 

For the Private Respondents:       Mr. Nisar Ahmed Abro, Advocate.

 

For the State:                                   Mr. Ameer Ahmed Narejo

State Counsel.

 

Date of Hearing:                              01.10.2018

 

Date of Announcement:                 01.10.2018

 

JUDGMENT

 

Agha Faisal, J.     Through these proceedings, the applicants have assailed the judgment dated 16.11.2010 delivered by the Court of the learned Additional District Judge, Dadu in Civil Appeal No. 21 of 2010 (“Impugned Judgment”).

 

2.            Briefly stated, the case of the applicants, as set-forth by Mr. Ahmed Hussain Shahani, Advocate, is as follows:

 

                     i.        The dispute pertains to land bearing Survey Nos. 502, 505 and 517 situated in deh Langhano Taluka Mehar district Dadu (“Subject Property”). The Subject Property was the subject of the litigation before the Board of Revenue, which proceedings culminated in the order of the Member, Board of Revenue dated 30.5.2006 (“BOR Order”). The operative part of the BOR Order is reproduced herein below:

 

“Keeping the above in view the directions contained in the order dated 12-6-1989 of the Honourable High Court, the order dated: 14-11-1968 of Board of Revenue West Pakistan, on administrative side de-confirming auction in favour of Petitioner Pandhi Khan (excluding three S.Nos: 502, 505 and 517) and subsequent auction re-confirmed by the Board of Revenue Sindh in favour of Mohammad Siddique vide letter dated 27-01-1976 are hereby setaside. Accordingly Ghulam Hyder and Muhammad Siddique each shall get 50 paisas in three S.Nos: whereas Pandhi Khan S/o Darya Khan Khoso shall get S.Nos:475 & 468/2.”

 

                    ii.        The present applicants filed 1st Civil Suit 104 of 2007 before the Court of learned Senior Civil Judge, Mehar and asserted ownership rights upon the Subject Property by way of adverse possession and in addition thereto the present applicants also challenged the BOR Order. The said proceedings concluded vide the judgment dated 11.02.2010 (“Trial Court Judgment”), which held in favour of the present applicants and the said suit was thus decreed.

 

                   iii.        The present respondents filed Civil Appeal 21 of 2010 before the learned Additional District Judge, Dadu and the said proceedings set aside the Trial Court Judgment, vide the Impugned Judgment, and hence the present civil revision application.

 

                  iv.        The learned counsel for the applicants submitted that the learned appellate Court had erred in rendering the Impugned Judgment as the evidence of the present applicants demonstrating their possession of the Subject Property had not been considered it its proper perspective. It was further argued that since the present respondents had not controverted the applicants’ possession of the Subject Property hence the learned appellate Court had perhaps committed a material irregularity in denying the present applicants their ownership rights by virtue of adverse possession.

 

                    v.        It was further submitted that the issue of limitation could not have been sustained by the learned appellate Court since it was trite law that no limitation would run against the void order. It was hence prayed that this Court may be pleased to exercise its revisional jurisdiction and set aside the Impugned Judgment and restore the Trial Court Judgment forthwith.

 

3.            Mr. Nisar Ahmed G. Abro, learned counsel for the private respondents supported the Impugned Judgment and stated that the same was delivered within the confines of the law. The learned counsel stated that the suit was prima facie time barred and the transgression of the limitation period could not be condoned on mere assertions that the BOR Order was void. Per learned counsel, the concept of adverse possession was not tenable within the law as the same had been struck down by the honourable Supreme Court. It was thus argued that no grounds have been made out to warrant the exercise of revisional jurisdiction by this Court hence the present revision application may be dismissed.

 

4.            Mr. Ameer Ahmed Narejo, appearing on behalf of the official respondents, adopted the arguments of Mr. Nisar Ahmed Abro, and reiterated his support for the Impugned Judgment.

 

5.            This Court has considered the arguments of the respective learned counsel and has also reviewed the record presented. The controversy has been narrowed down to two issues; being whether the appellate Court’s finding with respect to adverse possession was within the ambit of the law and secondly whether the issue of limitation had been correctly addressed by the learned appellate Court.

 

6.            The case of the applicants is that the applicants had inherited 50% share in the Subject Property whereas the remaining 50% was owned / acquired by them. If this argument is to be sustained then the possession by the applicants of the Subject Property could not have been deemed to be adverse as the title would also vest with those in possession of the land. Notwithstanding the said observation, it is appropriate to advert to the findings of the learned appellate Judge in such regard wherein it has been recorded as follows:

 

“The question of adverse possession has been declared by Honourable Shariat Appellate Bench to be repugnant to the injunction of Islam and S.28 of Limitation Act has been struck off. In this regard I rely upon case of Maqbool Ahmed Vs Government of Pakistan 1991 SCMR 2063. As such the long possession of respondent No.1 to 23/plaintiff over the remaining 50 paisa share of S.No.502, 505 and 507 of deh Langhano Taluka Mehar is not of any help to acquire the right and title.”

 

 

7.            Insofar as the issue of adverse possession is concerned, there is no irregularity in the manner in which the learned appellate Court has applied the law settled by the honorable Supreme Court in such regard. The next issue to consider is that of limitation. The BOR Order was delivered on 30.05.2006 whereas F.C Suit No.104 of 2007 was filed on 17.12.2007.It is thus apparent that the suit was filed almost a year and a half subsequent to the rendering of the BOR Order. The Court’s attention was drawn to section 14 of the First Schedule to the Limitation Act 1908, which states that the limitation period to set aside any act or order of an officer of government in his official capacity, not herein otherwise expressly provided for, is one year from the date of the act or order. The learned counsel for the applicants has not controverted the applicability of the said provision of the Limitation Act however has stated that since no limitation runs against a void order, therefore, none could have been ascribed in the manner undertaken by the learned appellate Court in the Impugned Judgment.

 

8.            The Trial Court Judgment was rendered in favour of the present applicants and the Impugned Judgment has also been challenged, with the prayer for the same to be set aside and consequently the Trial Court Judgment to be restored. The period of limitation is required to run from the date of the BOR Order and while the applicants may claim to be aggrieved by the findings rendered therein, nothing has been pleaded or argued to demonstrate that the said order was void in law. In such regard the findings of the learned appellate Court with regard to the applicability of the Limitation Act 1908 appear to be in consonance with the law.

 

9.            In view of the reasoning and rationale delineated herein above, this Court is of the considered opinion that the Impugned Judgment is in due conformity with the law hence the same is hereby upheld and maintained. The present revision application, along with listed application, is hereby dismissed with no order as to costs.

 

Judge

 

Abid H. Qazi/**