1987 PLP 477 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑ This is an appeal by Mst. Mubarak Bibi against the judgment of a learned Single Judge of the Peshawar High Court, dated 20‑5‑1974, whereby the appeal filed by Abdus Sattar was accepted and order for the ejectment of the appellant and respondents 2 to 6 from House No.17 situate in village Kundi Ilaqa Sri Kot, Tehsil Haripur, District Abbottabad, was passed.

2. The facts are that House No.17 of village Kundi, Tehsil Haripur, District Abbottabad, was owned and occupied by one Said Ali Shah, which was constructed in 1872, according to the entries in EXh.P.W.l/1, by him at his own expense. A contiguous house bearing No.18 is owned and occupied by respondent No.1, namely, Abdus Sattar. According to the plaint, after the death of Said Ali Shah, House No.17 was occupied by his legal heirs who about 38/40 years back abandoned their residence and also took away the Malba of the suit property along with them; that it was only 10/11 months prior to the institution of the present suit that the appellant and respondents 2 to 6 without any right constructed a house over the site in dispute without the permission of respondent No.1, therefore, the present suit was brought for their ejectment. The suit was contested and the stand taken by the appellant and respondents 2 to 6 was that the suit site belonged to their ancestors and they have raised the construction over the same at their own expense and thus their ejectment from the house was illegal. The pleadings resulted in the framing of as many as six issues but the contest was confined to issues 1, 4 and 5, which are: "(1) Whether the plaintiff (now respondent No. l) has got a cause of action? (4) Whether the defendants (now the appellant and respondents 2 to 6) have made improvement over .the suit land? If so to what extent and with what effect? (5) Whether the plaintiff is entitled to the possession of the suit property by removal of the superstructure? The learned trial Court after recording the evidence of the parties decided issues 1 and 5 in favour of respondent No. 1 and granted him a decree for possession of the suit property through the removal of the superstructure vide its judgment, dated 9‑1‑1968. On appeal by Mst. Mubarak Bibi, the appellant the learned Additional District Judge, vide his judgment, dated 16‑4‑1968, reversed the findings of the learned trial Court on issues 1 and 5 and set aside the judgment and decree of the learned trial Court. This judgment was made a subject‑matter of second appeal by respondent No. 1 in the High Court. It was during the hearing of the appeal when the learned Single Judge opined that the evidence of the Patwari had been recorded imperfectly at the trial, therefore, he on 13‑2‑1974 summoned the Patwari as a Court witness and examined him as such on 11‑3‑1974 and then after hearing the parties accepted the second appeal of respondent No. 1 and ordered the ejectment of the appellant and respondents 2 to 6 from the suit house vide his judgment, dated 20‑5‑1974.

3. Leave was granted in this case to examine the question whether the decision of the High Court proceeds on a correct view of the relevant law leading to the inference that a member of the village proprietary body and owner of the contiguous house would be entitled to the possession of a house in occupation of a non‑proprietor merely because he is a shareholder in the undivided Shamilat Deh.

4. The learned counsel for the parties heard in detail. The admitted position of the parties in the case is that the appellant and respondents 2 to 6 have become owners of land measuring 6 Kanals 9 Marlas bearing Khasra No. 2385 situate in village Kundi, Tehsil Haripur, by conversion of their tenancy vide Mutation No. 362, dated 19‑3‑1952 by virtue of the N.‑W.F.P. Tenancy Act, 1950. This conversion notwithstanding, the appellant and respondents 2 to 6 are not the owners in the Shamilat Deh whereas respondent No. 1 is the owner in Shamilat Deh. Under para. 224, relating to the rights in Shamilat Deh, of the Customary Law by Sir, W. H. Rattigan, K. C. , LL. D. , at page 978 of the book titled 'A Digest of Civil Law for the Punjab', thirteenth Edition, respondent No.1 is entitled to the share in Shamilat. The learned Single Judge, through his impugned judgment, mainly relying on para. 236 at page 998 of the said book, has ordered the ejectment of the appellant and respondents 2 to

6. Para. 236 is reproduced below:‑ "In the absence of a well‑established custom a non‑proprietary resident in a village cannot dispose of the site on which his house is built, or a right or residence in the house, without the consent of the proprietors of the village, but he is ordinarily entitled to sell the materials, and the purchaser must remove the same with a reasonable period."

5. The case of respondent No. 1 at the trial was that he is the owner in Shamilat Deh and is in Hissadari possession of the land underneath the house in dispute; that it was in 1872 that one Kotha and Kothri existed over the site and was occupied by Said Ali Shah who died long ago and his descendants after selling the superstructure have abandoned the village from a considerable long time and that the opposite party has illegally started constructing a Kotha over the site 10/11 months prior to the institution of the present suit. The plaintiff (now respondent No.1) also produced Sayed Rehman Shah, Record Keeper, Hassan Afroze and Zaman Khan as his witnesses. As against this, the case of the appellant is that Said Ali Shah was her maternal grandfather who had a son by the name of Shah Gada; Shah Gada had a son, namely, Araf Shah, and the suit house was gifted to her by the said Araf Shah through a gift deed executed on 18‑1‑1962 which is Exh.D.W.2/1 and that she is in possession of the same since then. Pir Shah, respondent No.2, at the trial deposed that he is the son of Fazal Shah and Said Ali Shah was his great grandfather and that he had purchased the suit house from Said Qasim, father of his wife Mst. Mubarak Bibi. Pir Shah admitted at the trial that Shah Gada has died and his sons, namely, Gul Shah, Araf Shah, Zarghan Shah and Samundar Shah, have left village Kundi for village Qaziabad 40/50 years ago. The appellant also produced one Sooba Khan and Qazi Abdul Jalil, S.O.K., as her witnesses. Besides the above evidence of the parties, the learned Single Judge also recorded the statement of Muhammad Nawaz Patwari Halqa Kundi who deposed that Pir Shah and Mst. Mubarak Bibi along with others acquired ownership rights by termination of tenancy in Khasra No. 2385 measuring 6 Kanals 9 Marlas after the coming into force of the N.‑W.F.P. Tenancy Act, 1950. According to Fehrist 'A' Malikan (Exh.C.2), Pir Shah son of Fazal Shah is entered as owner in village Kundi at Serial No. 52 while Abdus Sattar son of Azim Dad is shown at Serial No.

213. Pir Shah has been shown as an owner in the current Jamabandi on account of conversion of his tenancy rights into ownership under the provisions of sections 4 and 4‑A of the N.‑W.F.P, Tenancy Act.

6. The above is the evidence of the parties in brief .From this evidence it is quite clear that there exists no dispute between the parties that the suit house is the same which had once been occupied by Said Ali Shah. Abdus Sattar plaintiff (now respondent No.1) has, however, denied that the defendants (the appellant and respondents 2 to 6) are related to Said Ali Shah. From the side of the appellant, there is sufficient evidence to show that the appellant and respondents 2 to 6 are the direct descendants of Said Ali Shah. For instance, the perusal of Shajra Nasab Exh.D.W.4/1, which has gone unchallenged, reveals that Pir Shah, respondent No.2, is the great grandson of Shah Gada who was the son of Said Ali Shah. Then there is a sale/gift deed Exh.D.W.2/1 executed on 18‑1‑1962, through which Araf Shah son of Shah Gada who is the son of Said Ali Shah had given this very property to Mst. Mubarak Bibi, the wife of Pir Shah Though this deed has not been admitted in evidence by the Courts, but it at least shows that the possession of the house in dispute has passed on to Mst. Mubarak Bibi from Araf Shah, the grandson of Said Ali Shah. The statement of Muhammad Nawaz Patwari also shows that Mst. Mubarak Bibi and Pir Shah have acquired ownership rights in village Kundi in respect of a certain Khasra number. From this evidence it can safely be inferred that the suit house which was owned and occupied by Said Ali Shah has remained in possession of the direct descendants of Said Ali Shah till today and it is not at all hit by the mischief of para. No.

236. The appellant and respondents 2 to 6 are neither new‑comers nor outsiders and they, therefore, cannot be ejected from the suit house.

7. The result is that the appeal is accepted, the judgment of the High Court, dated 20‑5‑1974 and that of the Civil Judge, Haripur, dated 9‑1‑1968 are set aside and the suit is dismissed. The parties are, however, to bear their own costs. S.Q./4431/S Appeal accepted.