Adverse possession
1. Proof of
2. Hostile title–Claim of adverse possession
3. Ghair Dakheel Karan
4. Against injunction of Islam
5. Life estate of widow
6. Right of inheritance
7. Appreciation of evidence
8. Suit for possession of property decreed
9. Plea of Adverse possession
10. Contradictory pleas
11. Alternative plea of
12. Claim of
13. Proof
14. Right of adverse possession
15. Mere entries in Jamabandis
16. Amendment of Plaint
Permissive possession would continue to be permissive and could not be treated as hostile merely by afflux of time to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
1. Proof of—To claim ownership on basis of adverse possession, one has to prove the point of time from which it had become adverse and as to how hostile title was claimed to the knowledge of the owner. 2002 Lawvision 219 = 2002 SCMR 300
2. Hostile title–Claim of adverse possession–Entry in Jamabandi by itself was not sufficient to constitute adverse possession–Mere entry in revenue record was not assertion of hostile title–Mere non-payment of rent or mere entry in Jamabandi was not such clear evidence for suggesting adverse possession–Evidence as produced by parties showed that suit land was in ownership of respondents and petitioners were shown as tenants–Mere entry ‘Basharah Malikan Bawaj Nautore’, did not prove status of petitioner—Reasons being that if land was held by tenant under paramount title of another person he shall continue to be tenant even if possession of land was required by him on account of Nautore—Held: Once tenant is always tenant and Bashara Malikan Bawajab Nautore does not amount to adverse possession—Petition without mentis accordingly dismissed. 2002 Lawvision 156 = PLJ 2002 Lahore 218
3. Ghair Dakheel Karan :- Entry in record of rights as “Ghair Dakheel Karan” not paying any lagan to anyone–Effect–Mere fact that defendant have been occupying land as “Ghair Dakheel Karan” and not paying any “lagan” to any one including original owner would not mean that they had acquired proprietary rights in respect of land in question–Entries in Record of Rights to effect that defendants/tenants had not been paying any “lagan” would not indicate that they had become owner on account of adverse possession–Mere non-payment of rent does not alter nature of tenancy–Tenant must show that be had done something more to deny landlord, title–Law assumes that tenancy of land once entered upon continue, until determined in one of the ways, provided for by statutory enactment–To claim adverse possession clear and unequivocal evidence of assertion of hostile title would be necessary–No such evidence having been produced by defendants their claim based on adverse possession was not warranted. PLJ 2000 Lahore 28
4. Against injunction of Islam —-Law of adverse possession has been declared to be against injunction of Islam with effect from 31-8-1991, in a case reported as 1991 SCMR 2063–Decree passed after 31.8-1991, on basis of plea of adverse possession thus, cannot be sustained. PLJ 2002 Lahore 1547 Plea of adverse possession is not tenable and against Islamic Injunction–Mere entries in revenue record would not support plea of adverse possession. PLJ 2000 Lahore 157
5. Life estate of widow–Termination of life estate after re-marriage- Possession of a widow after her remarriage for more than 12 years would not ipso facto convert her possession into adverse unless she had openly denounced title of rightful owner–Mere possession for any length of time, thus, would not mature into title–Respondent (widow) while appearing as hr own witness, did not even assert any hostile or overt act to the knowledge of rightful owner–Respondent’s life estate even if due to her denial of re-marriage had not terminated under S. 3 of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, she was entitled to 1/4 share of the estate and thus became co-sharer, therefore, her possession ensured to the benefit of all co-sharers and neither question of limitation nor adverse possession could arise–Two Courts below erred in holding that respondent was in exclusive and un-interrupted possession of land in question, was not sustainable–Fact that petitioner’s predecessor having filed suit relating to land in question, and thereafter withdrew the same with permission to bring fresh suit and did not file the same in his life time would not amount to estoppel—Impugned judgment and decree non-suiting petitioner was set aside and decree for joint possession to the extent of land in question, was passed in favour of petitioner–Respondent being childless widow was entitled to the extent of 7¼ share while petitioner were entitled to 3/4 share of land in question. PLJ 2002 Lahore 390
6. Right of inheritance : — On opening of inheritance of deceased, share of pre-deceased daughter, fell to lot of respondents, who became co-sharers, in property–There being no evidence of ouster, plea of adverse possession was not well founded and was rightly repelled by two courts below–It is a settled rule, that express repudiation and ouster must be proved and mere omission to pay profits does not in itself constitute ouster–Apart therefrom, male members of family, are ordinarily considered to be representative of females, in matter of administration of joint properties and male members cannot set up a claim of adverse possession against female to-sharers particularly, when there was no evidence of complete ouster. PLJ 1998 Lahore 928
7. Appreciation of evidence–Plea of Adverse possession is valid only when a continuous & uninterrupted adverse possession for period of 12 years is shown and mere entry in revenue record regarding tenant-atwill, not paying Logan or batai owing to assertion of ownership would not legally amount to open and overt act of adverse possession against the real owners. PLJ 2004 Lahore 1066
8. Suit for possession of property decreed– Whether claim of adverse possession of appellants made out–Appreciation of evidence–Defendants brought sufficient evidence on record, oral as well as documentary, which proved their possession as hostile continuously for more than 12 years–It may also be mentioned that nature of entry recorded in favor of defendants, certainly satisfied standard set by Superior Courts while resolving proposition–It was further supported by plaintiffs, claim in relation to land in dispute having been destroyed by canal water since 1955 and same rejected by trial court as well as first appellate court–Held: Defendants, possession was continuous, particularly when documentary evidence fully supported same–Appeal accepted. PLJ 1998 AJ&K 52
9. Plea of Adverse possession — It must be adequate in continuity, publicity and extent to establish title–Possession at different intervals over different portions of land in different years cannot amount to adverse possession–Held: Adverse possession must be actual exclusive, visible hostile and continuous for statutory period without any legal origin. PLJ 2004 SC 261–Donee of alleged gift had absolutely no lawful justification to take plea of adverse possession in view of assertion that land in question, was transferred by means of valid gift–Irresistible conclusion would be that no such gift-deed was ever executed–Had it been so there would have been no justification to press into service plea of adverse possession–Person who asserts ownership over certain property by purchase/gift would not be legally justified at the same time to say that his occupation of property was hostile or adverse as against real owner. PLJ 2003 SC 28
10. Contradictory pleas–It is settled law that pleas of permissive and hostile possession could not stand together being contradictory pleas and the clash between the two is irreconcilable-. Permissive possession cannot be converted into an adverse possession unless it is proved that person in possession asserted his adverse title to the true owners for a period of 12 years. PLJ 2004 Lahore 1066
11. Alternative plea of–Whether permissible:– When a party pleads that it had a valid title through purchase and subsequent inheritance, it would be impossible for such a party to succeed in alternative on plea that possession being open and hostile, title. matured otherwise on account of influx of time through adverse possession–Petition dismissed. PLJ 1990 SC 361
12. Claim of :–Possession of one co-sharer deemed to be possession of other co-sharer–Exception to rule–Both parties privately partitioned their respective lands situate since their forefathers and are in possession of their respective lands in their capacity as full owners–It is also amply proved from record that from suit land ouster of respondents and others is proved at least from 1970 when they objected to construction on suit land made by appellant and proforma-respondents but they abstained from raising construction–If co-sharer in possession can establish ouster of other co-sharer to his knowledge for more than statutory period then possession of co-sharer becomes adverse against other co-sharers who are not in possession–Held : Adverse possession of appellant and proforma-respondents having matured into ownership irrespective of validity of decree, appellant and proforma-respondents are in adverse possession of suit land–Appeal accepted. PLJ 2001 SC (AJK) 220 Mere entries in revenue record that plaintiffs or their predecessor-ininterest were tenant and not paying “lagan” or “Batae”, owing to assertions of ownership does not in law means to open, overt act and hostile to constitute adverse possession against owners. PLJ 2004 Lahore 1851
13. Proof–Person claiming adverse possession has to specify date of possession, nature in which the same was acquired and overt act committed by him to show open and hostile possession and right against legal owners of land. PLJ 2003 Lahore 361 Whether possession of petitioners was hostile and had matured–Question of–There are no circumstances in this case to show that for said period of 12 years (before partition), in fact and reality, possession of petitioners was hostile as open and as dishonest as is required in cases like present one–Petitioners did not dare to raise any claim of ownership through adverse possession so long as evacuees remained in Pakistan–If a suit would have been filed before 1947, undoubtedly petitioners would have lost it–Held: Neither there was any question of petitioners having matured title before partition against evacuees nor after partition against Custodian and/or Central Government–Leave refused. PLJ 1991 SC 466 PLD 1991 SC 290 and PLJ 1981 SC 662 rel.
14. Right of adverse possession–Defendant claimed that he was in adverse possession and that his right had matured into ownership–Land in question, was rightly held to be in possession of mortgagee and defendant having entered into possession wrongfully could be directed to deliver possession to plaintiffs who had right as mortgagee to get possession thereof–Impugned judgment was not open to interference. PLJ 2004 SC 185
15. Mere entries in Jamabandis :– Mere entries in Jamabandis do not prove possession as adverse—Possession has to be adverse to person entitled to possession as well as having knowledge of hostile possession—Person becoming entitled to possession on death of limited owner who was out of wits—Limited owner could not have knowledge—Period of twelve years would run from death of limited owner. PLJ 1980 Lahore 250
16. Amendment of Plaint –Amendment allowed in revision by District Judge–Challenge to–Contention that plea of adverse possession was un-Islamic and could not be allowed to be taken–Decision of Shariat Appellate Bench declaring Section 28 of Limitation Act in so far it extinguishes right in property, as repugnant to Injunctions of Islam, shall take effect from 31.8.1991–On date of impugned decision in this case, no bar for acquisition of ownership rights on basis of adverse possession existed in law–Held: No ground exists for interference with revisional order allowing amendment of plaint for pleading adverse possession. PLJ 1992 Lahore 158 1991 SCMR 2063 ref (ii) Civil
Possession of house–Suit for–Dismissal of suit and appeal on ground that petitioner’s possession was adverse–Acceptance of revision by High Court–Challenge to–Petitioner not only admitted title of plaintiff (Respondent No. 1) but also admitted that he derived possession from karinda of plaintiff as a mortgagee and that plaintiff-owner had continuously been demanding rent from him and also wanted possession of disputed property–Possession of petitioner was permissive in origin and character and at no stage possession of petitioner was acquiesced in by respondent-plaintiff–It is well settled that a mere trespass over 12 years will not extinguish title of true owner nor trespasser will acquire title by prescription–Held : Petitioner has failed to prove starting time from which his possession became adverse to that of plaintiff–Held further : There is no infirmity in impugned judgment which does not suffer from misreading or non-reading of material evidence–Leave refused. PLJ 1996 SC 852
Suit for possession by predecessors-in-interest of respondents–Suit decreed by trial court–Dismissal of suit in first appeal but dismissal order set aside by High Court in second appeal–Challenge to–Contention that appellant had been in adverse possession of land in dispute–It is established from record that donor had been living with his brother and donee in their house till his death–Possession of appellant against his father can never be regarded as hostile in eye of law–However, he had right to claim adverse possession against donee, predecessor-in-interest of respondents, but it would start from day when in first instance in December, 1978, gift was executed in his favour–Suit was filed by appellant in 1981–Held : There is nothing on record to show that appellant’s possession was adverse to defendant or his legal representatives. PLJ 1996 SC (AJK) 165
Possession of land–Suit for–Suit decreed but decree upset by appellate court–Challenge to–Whether a tenant can set up adverse title during continuance of tenancy–Question of–A tenant cannot set up title hostile to his landlord without first surrendering and then regaining possession in his own right hostile to landlord–Relationship of landlord and tenant would not cease to exist by mere non-payment of share of produce to landlord–Held: Appellate court has not taken correct view of relevant law applicable to factual aspect of case–Revision petition allowed and judgment/decree of trial court restored. PLJ 1994 Peshawar 42
Suit for ownership through prescription and counter suit for possession as owners — Suit of owners decreed but on appeal, suit for adverse possession decreed — Challenge to Plea of adverse possession is based on principle of “might is right” — A person setting up plea of adverse possession against true owner, must prove same through tangible evidence — Correctness of entries in record of rights has not been challenged in plaint or in written statement filed by respondents in cross suit — Held: In light of entries in record of rights, admitted position seems to he that respondents were holding possession of suit land with consent of true owners and District Judge has wrongly granted decree for adverse possession to respondents — Appeal accepted. PLJ 1993 AJ K 48
Possession of house–Suit for–Dismissal of suit and appeal on ground that petitioner’s possession was adverse–Acceptance of revision by High Court–Challenge to–Petitioner not only admitted title of plaintiff (Respondent No. 1) but also admitted that he derived possession from karinda of plaintiff as a mortgagee and that plaintiff-owner had continuously been demanding rent from him and also wanted possession of disputed property–Possession of petitioner was permissive in origin and character and at no stage possession of petitioner was acquiesced in by respondent-plaintiff–It is well settled that a mere trespass over 12 years will not extinguish title of true owner nor trespasser will acquire title by prescription–Held : Petitioner has failed to prove starting time from which his possession became adverse to that of plaintiff–Held further : There is no infirmity in impugned judgment which does not suffer from misreading or non-reading of material evidence–Leave refused. PLJ 1996 SC 852
Suit for possession by predecessors-in-interest of respondents–Suit decreed by trial court–Dismissal of suit in first appeal but dismissal order set aside by High Court in second appeal–Challenge to–Contention that appellant had been in adverse possession of land in dispute–It is established from record that donor had been living with his brother and donee in their house till his death–Possession of appellant against his father can never be regarded as hostile in eye of law–However, he had right to claim adverse possession against donee, predecessor-in-interest of respondents, but it would start from day when in first instance in December, 1978, gift was executed in his favour–Suit was filed by appellant in 1981–Held : There is nothing on record to show that appellant’s possession was adverse to defendant or his legal representatives. PLJ 1996 SC (AJK) 165
Suit for possession–Suit decreed and decree upheld in appeal–Challenge to–Whether petitioners were in adverse possession–Question of–Neither oral evidence adduced in case nor entries in revenue papers sustained adverse possession by petitioners on land in dispute–Petitioners’ predecessor-ininterest was in occupation of land as tenant of owner and his possession was clearly permissive–Oral evidence of petitioners could not convert their permissive possession into adverse possession for ripening it into ownership rights of land in dispute–Necessary elements of adverse possession were clearly wanting in this case–Held: Lower courts rightly adjudged case in favour of respondents–Petition dismissed. PLJ 1993 Lahore 445
Person continuing to be in procession of propriety rights in spite of contrary entry in revenue papers-Question of limitation would not arise, but such question hound to crop up where neither possession is claimed by plaintiffs our they appear to be in possession of land. P L J 1981 AK (HC) 113
Alleged cultivation of land not established nor tantamounts to adverse possession-Land owned by nonmuslims who turned evacuee in 1947 after filing suit in 1946-Property vested in Custodian,Evacuee.Property on Partition (1947)-Held : continuity of twelve years possession did not mature in instant case-Ss. 23, 22, Pakistan (Administration of Evacuee Property) Act (XII of 1957)-Art. 144, Limitation Act (1908). P L J 1981 Supreme Court 662
Institution of civil suit within requisite period of prescription breaks continuity of possession-Plea of adverse possession should have all qualities of adequacy, continuity and exclusiveness to displace owner’s title. P L J 1981 Supreme Court 662
Meanings and scope—Adverse possession means possession by a person bolding land on his own behalf or on behalf of some person other than true owner having right to immediate possession—Title of true owner extinguishes after twelve years and person in possession becomes true owner—Such possession must be adequate in continuity, in publicity and in extent of area—Mere occupation or enjoyment or management of joint property by one coherers does not constitute adverse possession against other coherers unless there is disclaimer by open assertion or manifest act of ousting latter—Occasional appropriation with intermittent break of possession does not make out adverse possession—Even leasing out of joint property to different persons continuously would not be deemed adverse in absence of ouster of coheirs—Question about adverse possession is a question of fact—Concurrent findings of Courts below not disturbed in second appeal—S. 100, Civil P, C. (1908)—Art. 144, Limitation Act (1908). P L J 1980 Lahore 79
Through Oral Sale- —-Suit for declaration on basis of private sale and adverse possession–Decreed to–Appeal against–Acceptance of–find Appeal–Acceptance of Appeal against–Plaintiff/respondent claimed that his ancestors purchased land through oral sale–Defendants/appellants did not take any specific plea except bare denial–During trial however, they tried to prove that land in dispute was on “ghalla batai” with plaintiff–A party cannot produce evidence to prove a fact which is not part of its pleading–Documentary as well as orau evidence establishes possession of respondent on basis of oral sale–Statements of PWs in favour of plaintiff were not challenged by appellants–A vendee who remains in possession after sale of land or property which goes off or is otherwise defective in law holds adversely to vendor–Appeal dismissed. PLJ 1999 SC (AJK) 78
Permissive possession would continue to be permissive and could not be treated as hostile merely by afflux of time to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
Proof of—To claim ownership on basis of adverse possession, one has to prove the point of time from which it had become adverse and as to how hostile title was claimed to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
Entry in Jamabandi and Basharah Malikan Bawajah Nautore—Tenants-Hostile title–Claim of adverse possession–Entry in Jamabandi by itself was not sufficient to constitute adverse possession–Mere entry in revenue record was not assertion of hostile title–Mere non-payment of rent or mere entry in Jamabandi was not such clear evidence for suggesting adverse possession–Evidence as produced by parties showed that suit land was in ownership of respondents and petitioners were shown as tenants–Mere entry ‘Basharah Malikan Bawaj Nautore’, did not prove status of petitioner—Reasons being that if land was held by tenant under paramount title of another person he shall continue to be tenant even if possession of land was required by him on account of Nautore—Held: Once tenant is always tenant and Bashara Malikan Bawajab Nautore does not amount to adverse possession—Petition without mentis accordingly dismissed. 2002 Lawvision 156 = PLJ 2002 Lahore 218