ADVERSE
POSSESSION
By:
CHAUDHARY MUHAMMAD BASHIR
Advocate High Court,
(1) Concept of Adverse Possession:
(i) The possession of immoveable property
taken by the wrongdoer must be of such a nature that it shall be so hostile,
notorious and overt that it may be observed and noticed that the occupant is
holding it adversely to the owner of the property.
PLJ 2007 SC 892; 1984 CLC 2351; PLD 1974 Kar.
235.
(ii) The
adverse possessor holds the [property on his own behalf or on the behalf of
such person other than the true owner. As against such a holder limitation
begins to run from the date of his possession, provided the true owner is not
under disability and is capable if suing.
PLD 1961
(2) Adverse possession does not exist in the
following circumstances:
(i) When the properly is jointly owned, by
descent through inheritance, or joint acquisition thorough
other means, and one of the co-owners is in possession thereof, even if he does
not share usufruct with other co-owners, as possession of one co-owner in law
is the possession of all co-owners.
2002 SCMR 1000; 2000 SCMR 1845; 1998 SCMR 996; PLJ 1998
(ii) The
entry of a tenant as “Qabiz Ba
Shara Malikana Bawaja Nauture” in respect of
immoveable property belonging to another person does not constitute adverse
possession.
PLJ 2002
(iii) Entry
of “(ghair Dakhilkar)” does
not constitute adverse possession
PLJ 2000
(iv) Adverse possession is not in case of permissive
possession
1993 CLC 454.
(v) Adverse
possession is not available against auction purchaser.
PLJ 1996
(vi) A person inducted into possession of a property as a tenant remains
a tenant, even after afflux of period if tenancy as the principle of once a
tenant always a tenant operates.
PLJ 2009
(vii) The
position of a lessee under Section 116 of Transfer of Property Act, 1882, is
not that of a trespasser but of tenant holding over under the said section and
the possession by the provisions of the said section.
PLD 1973
(3) No
adverse possession is claimable in case a person inducted into possession of a
property as a tenant and the principle of estopple
contained in Section 115 of Qanun-e-Shahadat Order 1984, is applicable. It reads as under:
"No tenant of immoveable property or
person claiming through such tenant, shall during the continuance if tenancy be
permitted to deny that the landlord of such tenant had at the beginning of the
tenancy a title to such immoveable property even after the expiry of period of
tenancy, as it continues even thereafter, as held in PLJ 2000 Lahore 896.
(4) No adverse possession is claimable by a
licensee, as held in Article 115 of Qanun-e-Shahadat Order, 1984. It reads as under:
"No person who came upon an
immoveable property by the license of the person in possession thereof shall be
permitted to deny that such person had a title to such possession at the time
when such license was given."
(5) Effect of deletion of Section 28 of
Limitation Act, 1908, as being against injunctions of Islam, as per judgment of
Shariat Appellate Bench of Supreme Court of Pakistan
dated
The Shariat Appellate Bench while striking down Section 28 as unislamic, did not feek the
necessity of declaring Article 144 to be also unislamic,
on the ground that after declaring the acquisition of ownership of property
through adverse possession being against injunctions of Islam, it did not need
to hold that the said article is also unislamic. It
means that the said Article, by implication, has become dead and non-existent,
as being not capable of extinguishing ownership of true owner of the property.
However,
by Act, II of 1995, Article 144 has also been deleted to leave no manner of
doubt about its effectiveness.
Going
by the parity of reason adopted by Shariat Appellate
Bench by which, adverse possession, being unislamic
has been struck down so as not to be capable of extinguishing ownwership, then how sumo sort of adverse possession in the
case if dispossession covered by Article 142, can be upheld to fall beyond the
pale of injunctions of Islam. It ought have also met
the same fate as Article 144 did.
(6) Period of limitation applicable to cases,
which erstwhile were covered by Article 144, is Article 120.
Article
120 as a residual Article, provides that suit for which no period of limitation
has been provided, the period of limitation for such suits shall be 6 years.
However,
Supreme Court of AJ&K in PLJ 2012 SC (AJ&K) has held "After
deletion of Article 144 no other Article of Limitation Act governs the
limitation for filing the suit for possession of immoveable property on the
basis of title."
If
the ratio of the said precedent be correct, then Article 120 needs to be
suitably amended so as to provide exception for suits for possession based on
title. In the absence of such an amendment, such suits, with due respect to the
said precedent, will be governed by Article 120. It will create an anomalous
situation where adverse possession cannot extinguish ownership of owner but at the
same time he cannot recover possession from trespasser after efflux of 6 years.
The ownership of immoveable property without a right to retrieve its possession
after period of 6 years, is nothing but a mockery of
justice.
(7) Remedies available to recover possession
immovable property from trespasser, apart from filing of suit.
(a) Illegal
Dispossession Act, 2005:
Section 3 of the said Act provides
that
"No
one shall enter into or upon property to dispossess, grab, control or occupy it
without having any lawful authority to do so, with the intention to dispossess,
grab, control or occupy the property from owner or occupier of such
property."
Sub-section
provides punishment
Section
7 provides:
"if during trial the Court is
satisfied that a person is found prima facie to be not in lawful possession,
the Court shall as an interim relief direct him to put the owner or occupier as
the case may be, in possession."
Section
8 provides for delivery of possession of property to owner or occupier, on
conviction of the accused, if not already restored to him under Section 7.
(8) Filing
of suit for possession under Section 9 of Specific Relief Act, 1887:
If a
person has been dispossessed from immoveable property then he may file suit
under Section 9 of the said Act, within 6 months of dispossession.
(9) Remedy
under Criminal Law:
Section
522 of Criminal Procedure Code, 1898 empowers the Criminal Court to order the
restoration of possession to complainant on conviction of accused of offence
relating to property.
The Section
is reproduced hereunder:
522. Power to restore
possession of immovable property.--(1) When ever a person is convicted of
an offence of cheating or forgery or of an offence] attended by criminal force
or show of force or by criminal intimidation and it appears to the Court that
by such cheating forgery, force of Show of force of criminal intimidation any
person has been dispossessed of any immovable, property the Court may, if it
thinks fit when convicting such person or at any time within one month from the
date of the conviction order the person dispossessed] to be restored to the
possession of the same, whether such property is in the possession or under the
control of the person convicted or of any other person to Whom it may have been
transferred for any consideration or Otherwise.
(2) No
such order shall prejudice any right or interest to or in such immovable
property which any person may be able to establish in a civil suit.
(3) An
order under this section may be made by any Court of appeal, confirmation,
reference or revision.
(10) Interim
relief at pretrial stage:
I
have contributed the above cited article, published in PLD 1997 Jour. 4 and
PLJ 1997 Mag. 53, to suggest some measure which can discourage or inhibit
the grabbing of property.