Vaqar Malik & Ors. v Iftikhar Ahmad Malik

Vaqar Malik & Ors. v Iftikhar Ahmad Malik

There was no clear and unequivocal representation by Vaqar in 2012 that he would not rely on adverse possession in future proceedings; thus, it was not an abuse of process for him to raise the defence. Payment of service charges by Iftikhar did not negate Vaqar’s intention to possess, as payment is an incident of ownership, not possession. The respondent’s notice points regarding occupation by licence or consent failed on the facts as found by the trial judge. The stay of the 1987 proceedings should be lifted, and judgment entered for Iftikhar, as there was no substantive defence remaining and the delay was not solely attributable to Iftikhar.

Parties
Appellant/part 20 Defendant: Vaqar Malik; Appellant/part 20 Defendant: Fahim Malik; Appellant/part 20 Defendant: Rahim Malik; Respondent/part 20 Claimant/claimant: Iftikhar Ahmad Malik; Defendant: Saira Vaqar Malik
Jurisdiction
England and Wales
Judgment Date
20 January 2023
Procedural Posture
Civil Appeal / Appeal From Trial Judgment and Application to Lift Stay of Earlier Proceedings
Outcome
Appeal allowed in part; respondent’s notice dismissed; stay of 1987 proceedings lifted; judgment for Iftikhar.
Legal Topics
Adverse Possession, Trusts, Abuse of Process, Stay of Proceedings, Mesne Profits
Property Law Civil Procedure Adverse Possession Trusts Abuse of Process Stay of Proceedings Mesne Profits

Case Brief

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Parties

Vaqar Malik

Appellant/part 20 Defendant

Fahim Malik

Appellant/part 20 Defendant

Rahim Malik

Appellant/part 20 Defendant

Iftikhar Ahmad Malik

Respondent/part 20 Claimant/claimant

Saira Vaqar Malik

Defendant

Procedural Posture

Civil Appeal / Appeal From Trial Judgment and Application to Lift Stay of Earlier Proceedings

Legal Issues

  1. 1 Whether it was an abuse of process for Vaqar to claim adverse possession in these proceedings
  2. 2 Whether Vaqar had the necessary intention to possess for adverse possession
  3. 3 Whether occupation was with consent or licence under the 1992 Agreement

Ratio Decidendi

There was no clear and unequivocal representation by Vaqar in 2012 that he would not rely on adverse possession in future proceedings; thus, it was not an abuse of process for him to raise the defence. Payment of service charges by Iftikhar did not negate Vaqar’s intention to possess, as payment is an incident of ownership, not possession. The respondent’s notice points regarding occupation by licence or consent failed on the facts as found by the trial judge. The stay of the 1987 proceedings should be lifted, and judgment entered for Iftikhar, as there was no substantive defence remaining and the delay was not solely attributable to Iftikhar.

Court Disposition

Appeal allowed in part; respondent’s notice dismissed; stay of 1987 proceedings lifted; judgment for Iftikhar.

Orders

  • Appeal on abuse of process and intention to possess allowed
  • Respondent’s notice points dismissed