::Dispossession from Immovable Property by Co-Owner ..Law and Remedy

PLJ 2009 SC 509

Specific Relief Act, 1877 (I of 1877)–

—-S. 9–Constitution of Pakistan 1973 Art. 185(3)–Leave to appeal–Limitation–Dispossession by co-owner–Suit for recovery of possession–Appreciation of evidence–Petitioners were in possession and then dispossessed–Possession was not taken with consent–Suit was filed only after 10 days–All the ingredients of S. 9 were established–J & D of H.C. was not open to legitimate exception–Moreover, a owner in exclusive possession, if dispossessed by other co-owner, within 6 months can sue under S. 9 of Specific Relief Act–Petition dismissed.     [P. 513] A & B

Condonation of Delay–

—-No plausible ground for condonation of delay in filing the petition has been shown–Held: Petitioner due to lack of proper instructions by the counsel regarding limitation for filing the petition, failed to file petition in time by itself not constitute a valid ground for condonation of delay.   [P. 513] C

NLR 1980 AC 243; PLD 1955 Pesh. 26; PLD 1956 W.P. (Pesh.) 96 and PLD 1961 Dacca 259 ref.

Judgment

Ijaz-ul-Hassan, J.–This petition, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal, has been filed by petitioners, against judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 28.4.2008, whereby Writ Petition No. 1542 of 2000 preferred by the respondents was allowed, judgment of Additional District Judge, Jehlum, dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996 was restored.

2.  The petition was dismissed for want of prosecution by this Court vide order dated 10.10.2008. C.M.A. No. 2889 of 2008 has been moved on behalf of the petitioners on 11.10.2008, for restoration of the petition. The C.M.A. is accepted for the reasons mentioned therein and the petition is restored.

3.  The facts of the case necessary for adjudication of this petition are, that respondents instituted suit on 14.5.1989 in the Court of Senior Civil Judge, Jhelum, against the petitioners, under Section 9 of the Specific Relief Act, (1 of 1877), seeking possession of suit land, detailed in the plaint, alleging that respondents were continuing in possession of suit land since 1995. The predecessor-in-interest of Petitioner Nos. 1-A to 1-H has taken forcible possession of suit land on 4.5.1989 and constructed a boundary wall and `khothari’, thereon, claiming to be a purchaser from Petitioner No. 2, who has never been in possession of it.

4.  The suit was resisted on all grounds legal as well as factual. The contesting respondents denied the claim of the petitioners and asserted their own. In view of the divergent pleadings of the parties, following issues were adopted for trial:–

(i)   Whether the suit has been filed with malafide intention, if so, its effect? OPD.

(ii)  Whether the plaintiffs are estopped by their words and conduct to institute the present suit based on Preliminary Objection No. 2? OPD.

(iii) Whether the suit is bad for non-joinder of necessary parties? OPD

(iv)  Whether the suit is barred by time? OPD

(v)   Whether the Plaintiff No. 3 is not in a position to file this suit based on Preliminary Objection No. 6, if so, its effect? OPD

(vi)  Whether the plaintiffs being the owner of the suit property are entitled to the decree claimed for in the main suit? OPP

(vii) Relief.

5.  At the conclusion of trial, upon consideration of the material available on record and hearing arguments of learned counsel for the parties, learned Trial Judge, vide judgment dated 7.1.1996, decreed the suit. The petitioners, feeling aggrieved thereby, filed a revision petition in the Court of District Judge, Jhelum, which was assigned to Additional District Judge, Jhelum, for adjudication. The revision petition was accepted, vide judgment dated 19.6.2000. Judgment and decree of the trial Court was set aside and suit was dismissed. A Writ Petition was filed by respondents in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was accepted vide judgment dated 28.4.2008, judgment of the Additional District Judge, Jhelum dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996, decreeing the suit was restored. Hence instant petition for leave to appeal.

6.  We have given patient hearing to the arguments of Mr. Tariq Mehmood, Advocate for the petitioners and Mr. Abdul Rashid Awan, Advocate for the respondents. We have also gone through the material on record with their assistance.

7.  Learned counsel for the petitioners, attempted to argue that evidence adduced at the trial from the petitioners side, has not been appreciated in its true perspective; that impugned judgment is contrary to the weight of evidence on record and that it is in conflict with the rule laid down by this Court in the matter of admissibility, entertainment and acceptance of the evidence and interpretation thereof. The learned counsel invited our attention to `Khasra Girdawari’ and contended that suit land remained vacant on the spot for a long period in the past and the same was not under cultivation of respondents/plaintiffs. The learned counsel also submitted that according to the registered sale-deed (Ex.P9), suit land was sold in favour of the petitioners by Habib-ur-Rehman and Muhammad Alam vendee attained status of co-owner therefore, he can retain the possession of the suit land till it is partitioned amongst the co-sharer by meets and bound. This aspect of the case, learned counsel added has escaped notice of the learned Judge in the High Court, resulting in complete failure of justice.

8.  Learned counsel for the respondents, on the other side, controverted the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly, maintaining that only suit for participation was competent.

9.  We have considered the matter from all angles in the light of the material on file. We find that learned Judge in the High Court has recorded a detailed and well reasoned judgment based on proper appreciation of evidence, before arriving at the conclusion and rightly placing reliance on the case of Muhammad Shafi, etc. v. Collector, etc. (NLR 1980 AC 243). The learned counsel for the petitioners despite his best efforts, failed to persue us to hold that impugned judgment is tainted with infirmity, legal or factual or suffers from the vice of misreading and non-reading of evidence. It is borne out from the record that suit land comprises in Khasra No. 262 min and 262, measuring 1 kanal 4 marlas. Ex. P.4 is register `haqdaran zamin’ for the year 1986-87. According to this document, Shaukat Sultan is recorded in possession alongwith Mst. Balqees in Khasra No. 262 min measuring 12 marlas while Kalsoom Begum is recorded to be in possession of 262 min measuring 12 marlas. Habib-ur-Rehman and Muhammad Alam are not recorded in possession of any portion of the land Ex.P2 is the `khasra Girdawri’ from Kharif 1987 to Rabi 1989, Nazar Muhammad and Kalsoom Begum are recorded in possession and later Shaukat Sultan, Balqees Begum and Kalsoom Begum are recorded in possession. The said Nazar Muhammad had transferred the land to Respondent Nos. 1 and 2 vide registered sale-deed dated 2.12.1985 Ex.P1. It is well settled proposition  that  where   co-sharer   in   possession   is   dispossessed  by  another co-sharer, then he has two remedies to avail. He can either file suit for partition or a suit under Section 9 of the Specific Relief Act, (1 of 1877). Record reveals that petitioners were in possession when they were dispossessed on 4.5.1989. It is not even the case of the respondents that the possession was taken over with consent of the petitioners. The suit was filed after 10 days i.e. 14.5.1989. All the ingredients of Section 9 of the Act (ibid) having been established, the learned trial Court had lawfully decreed the suit for reasons, not open to legitimate exception.

11.  Section 9 of the Specific Relief Act, (1 of 1877), has four ingredients:

(i)   person suing must have been dispossessed, (ii) such dispossession must be from immovable property, (iii) dispossession should be without consent and (iv) dispossession should be otherwise than in due course of law. Under this provision the Court is not competent to decide the title of the property. It only relates to possession of immovable property, if the plaintiff had been illegally disposed then Section 9 could be invoked. The plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent. The plaintiff must allege and prove actual physical possession either personal or constructive. If a co-sharer has been in excusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed there-from by another co-sharer except by bringing a suit for partition of the joint property. A co-owner in exclusive possession, if dispossessed by other co-owners within 6 months, can sue under the Section. A person in joint possession of immovable property is as much in possession of that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, he can sue to be restored to that possession which he enjoyed before he was dispossessed. Sayed Jamal Shah versus Abdul Qadir Shah and others, (PLD 1955 Peshawar 26), Haji Khan Muhammad and others versus Yaqub Khan and others, (PLD 1956 (W.P.) Peshawar 96 Ahmed Mian and others versus Eakub Ali Munshi and others, (PLD 1961 Dacca 259), and Muhammad Muzaffar Khan versus Muhammad Yusuf Khan, (PLD 1959 S.C. (Pak).

12.  Office has reported that this petition is barred by 50 days. No plausible ground for condonation of delay in filing the petition has been shown. The mere fact that petitioners due to lack of proper instructions by their counsel regarding the limitation for filing the petition, failed to file petition in time, by itself, does not constitute a valid ground for condonation of delay. The conduct of the petitioners reflects gross negligence in prosecuting the remedy before this Court. No indulgence can be shown to them.

13.  In view of the above, finding no substance in this petition, we dismiss the same, being barred by time as well as bereft of merit and decline to grant leave. We make no order as to costs.

Petition dismissed.