2015 PLP 864 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is filed from the judgment of the High Court dated 13-2-2013, whereby the appeal filed by respondent No.1, has been accepted while setting aside the judgment and decree dated 24-11-2010 passed by District Judge Bhimber. Consequently, the judgment and decree of Senior Civil Judge, Bhimber dated 16-3-2010 has been restored.

2. The summary of facts necessary for disposal of this appeal as narrated is that respondent No.1 instituted a suit for perpetual injunction against the appellant and pro forma-respondents in the Court of Senior Civil Judge, Bhimber on 16-5-2008. It was averred by respondent No.1 that he has purchased the land bearing survey No. 70, measuring 93 kanals, 4 marlas, situated at village Kangra, Tehsil and District Bhimber on 9-11-1964 and since then he is in possession of the suit land. It was averred that the defendant-appellant and others had threatened the possession of plaintiff-respondent, therefore, the decree for perpetual injunction was claimed. After completion of the necessary proceedings, the trial Court decreed the suit in favour of plaintiff-respondent vide judgment and decree dated 16-3-2010. The defendant-appellant feeling dissatisfied from the judgment and decree of the trial Court, filed an appeal before the District Judge, Bhimber which was accepted and the case was remanded to the trial Court for decision afresh. Respondent No.1 challenged the judgment of the District Judge through an appeal before the High Court which was accepted through the impugned judgment. The High Court vide impugned judgment and decree while setting aside the judgment and decree of the District Judge, Bhimber dated 24-11-2010, restored the judgment and decree of the trial Court dated 16-3-2010, hence, this appeal.

3. Mr. Muhammad Zubair Raja, Advocate, the learned counsel for the appellant, after narration of necessary facts submitted that the impugned judgment of the High Court as well as trial Court are patently violative of the statutory provisions as well as the principles of law enunciated by this Court. He submitted that admittedly, the nature of the disputed land is shamilat deh. The trial Court has granted the decree of title of this land, whereas, according to the principle of law laid down by this Court in a number of cases, the decree of title of undivided shamilat deh land cannot be granted. He submitted that no legal partition of shamilat deh land of the village has been effected. It is further submitted that according to the evidence brought on record, the defendant-appellant and pro forma-respondents are also in possession of some portion of the disputed land. This aspect has totally been ignored by the trial Court as well as the High Court, whereas, the application for appointment of commission for spot inspection and ascertainment of the on spot position has rightly been entertained by the first appellate Court. In view of the peculiar facts of this case, neither the decree of title nor perpetual injunction can be granted against the other co-owners of the village, thus, the impugned judgment is not maintainable. In support of his arguments, he has placed reliance upon the cases reported as Abdul Aziz v. Abdul Hameed and 10 others 2004 YLR 2301 and Barkat Ali and another v. Sultan Mehmood and 18 others (2009 CLC 899).

4. Conversely, Mr. Bostan Chaudhry, Advocate, the learned counsel for respondent No.1 opposed the appeal and forcefully defended the impugned judgment. He submitted that the plaintiff-respondent has proved his suit while producing admissible oral and documentary evidence. The land has been purchased by him as back as in the year 1964 almost 50 years ago. He further submitted that the impugned judgment is quite in conformity with the principle of law and justice which do not call for any interference. He has relied upon the case reported as Fojdar Khan and another v. Azad Government and 4 others 2001 CLC 920.

5. We have heard the learned counsel for the parties and also perused all the relevant material brought before us. According to the pleadings of the parties and revenue record, the suit property is shamilat deh land. The trial Court has granted the decree of title regarding undivided shamilat deh land in favour of respondent No.1. According to the statutory provisions as well as the principle of law enunciated by this Court, no right of title in the shamilat deh land can be conferred unless same is legally partitioned according to the entitlement of proportionate shares of the owners of village.

6. In this case the plaintiff-respondent claims that he is owner of the land on the basis of sale-deed registered in the year 1964. According to law, vendor can only transfer the rights which vest in him, therefore, the vendee who steps into the shoes of vendor cannot claim the rights more than that of vendor. As the land is shammilat deh possessed by all the owners of the village according to their ownership share " ", therefore, if any transaction of such land is made out that only transfers the possessory rights and not the title of the land. Thus, the sale-deed in favour of respondent will only confer upon him the possessory rights vested in the vendor and not the title of the sold property. This Court has in a number of cases has clarified this position. Reference can be made to a case reported as Barkat Ali and another v. Sultan Mehmood and 18 others (2009 CLC 899). It will be useful to reproduce here the relevant portion of the judgment which reads as under:-- "

9. Again the available record reveals that the controversy between the parties throughout has been about their alleged rights and possession of Shamilat Deh land and the suit filed by the appellants herein, has been dismissed by the trial Court and stands concluded on account of failure of the appellants to challenge the correctness of the judgment so recorded. Similarly it also floats upon the very surface of the judgment that the appellants were claiming certain rights on the basis of some agreement-deed creating some rights in their favour and as against it, it was contended by the respondents that they have possession of the Shamilat Deh land without partition which brings us to the conclusion that the share of the deceased respondent No.13 Abdul Rehman is not separable, therefore, the suit is to abate as a whole.

10. From the pleadings of the parties as well as judgments recorded by the lower Courts it appears that the suit-land is admittedly Shamilat Deh, about which the Civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share holders who possess the land in the estate as well. Similarly, unless the Shamilat Deh land is partitioned by metes and bounds by the Revenue authorities no specific share can be declared to be in possession of any land owner. In this view of the matter we modify the judgment recoded by the trial Court in favour of the respondents by holding that the judgment recorded by the trial Court shall be inter-party and not enforceable against other share-holders in the Shamilat nor shall the same be binding on the Revenue authorities who have jurisdiction to work out the share in Shamlat according to the holding of land owners in the village or estate." This principle of law, has consistently been followed by this Court in a number of cases, the latest one of which is recent unreported judgment in the case titled Raja Asmatullah Khan v. Qudratullah and others (civil appeal No. 89 of 2013 decided on 22-5-2014), wherein it has been observed that:-- "

13. Although, the decree dated 26-7-1995 attained finality against the judgment debtor and the respondents herein but this finality is not absolute as the nature of the land, subject matter of the decree is Shamilat Deh land. The appellant, decree-holder has been proved to be land owner in the village. Thus, he is entitled to Shamilat land according to his proportionate share. This Court has already enunciated the principle of law in number of cases that the decree of ownership regarding the Shamilat land on the basis of the agreement of a private person on cognovits cannot be granted. In this regard an authoritative judgment is reported as Khalid Hussain and 3 others v. Haji Muhammad Rafique and another (2008 SCR 207), relevant portion of which reads as under:-- '

21. The proposition was again considered by a learned Judge of this Court who subsequently rose to the prestigious office of Chief Justice of Azad Jammu and Kashmir in PLA No.68 of 2006 decided on 23-6-2006 and reported as Walayat Khan v. Abdul Khaliq and others (2006 SCR 92). In Para 5 while holding that no declaration on title can be made on the basis of agreement-to-sell nor can a decree of title be granted in respect of Shamilat Deh without providing opportunity of hearing to other co-owners. It was held in para 5 of the judgment as below:- '

5. No doubt that the learned District Judge while deciding the appeal of petitioner has not recorded his findings on each issue as is postulated under Order XX, Rule 5 of the Code of Civil Procedure but in this case without seeking amendment in the first suit, two more suits were filed. The total acreage of shamilat-deh land is 316 kanal, out of which only 7 kanals of land is in dispute but its boundaries were not mentioned in any suit so that the same may become ascertainable as was the purpose of law. On imaginary grounds the declaration was sought. In these circumstances no error was committed by the learned Judge in the High Court while ignoring this objection raised by the learned counsel for the petitioner as that would not make any difference even if the case would have been remanded to the District Judge. This practice would have just dragged the parties to further litigation without any useful purpose. No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat-deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively or himself'. Thus, following the enunciated principle of law, we observe here that no title or ownership shall be conferred upon the appellant through the decree dated 26-7-1995. However, he is entitled to retain possession subject to the legal partition of the village Shamlat land according to law and the decree shall only be treated final against the judgment debtor and respondent herein in the light of hereinabove stated reasons and facts." In view of the statutory provisions as well as the enunciated principle of law consistently followed by this Court, the decree of trial Court as well as the impugned judgment of the High Court to the extent of granting the title to the plaintiff-respondent is vacated.

7. The next proposition involved is regarding the possession of Shamilat deh land by the co-owners in the village. As both the parties, admittedly are co-owners of the village and they are entitled to the proportionate share in the Shamilat deh land. According to the principle of statutory law an owner in the village who is in possession of a portion of the Shamilat deh land is entitled to retain the same unless the property is legally partitioned. In this regard counsel for the respondent has rightly relied upon the case reported as Fojdar Khan and another v. Azad Government and 4 others 2001 CLC 920 wherein it has been observed as under:-- "

6. We have given due consideration to the arguments raised at the Bar. It may be observed that in the application dated 14-6-1993 made by Ghulam-ul-Haq, respondent No.5, it is clearly stated that the land in dispute was 'shamilat deh'. Even the learned counsel for respondent No.5 has conceded that in fact the land in dispute was included in 'shamilat deh' much earlier than the ejectment order which was passed by the Assistant Collector in 1996. Thus, there is no dispute between the parties that the land which is in possession of the appellants is 'shamilat deh' land. There is hardly any quarrel with the proposition that all the owners in the estate are co-sharers in the 'shaimlat deh' land. Thus, a co-sharer in 'shamilat deh' land who is in possession of the same in excess of his fractional share cannot be ejected therefrom without the partition of the same by metes and bounds. A reference may be made to the cases reported as Ahmed Miaji v. Eakub Ali Munshi (PLD 1961 Dacca 259), Muhammad Muzaffar Khan v. Muhammad Yusaf Khan (PLD 1959 SC (Pak.) 9), Feroze v. Sher (PLD 1985 SC 254) and Muhammad Zubair v. Syed Zakir Hussain Shah (1996 CLC 275) in support of aforesaid view. Mr. Imdad Ali Malik, the learned counsel for respondent No.5 has lost sight of the fact that it has never been the case of the respondent that the land in dispute which was in possession of the appellants were served for common purpose of the village as stipulated under section 5(3) of the Shamilat Deh Act, 1966 which postulates that when rights of 'shamlat deh' land are granted, 20% area is to be reserved for common purpose of the villagers, which will be managed by the Union Council. Obviously, this is a new stand which the learned counsel has taken to justify the ejectment order passed against the appellants. It is well settled principle of law that a party cannot be permitted to take a different stand from one which such party has originally taken; there is no evidence either to the effect that 'shamilat deh' land which is in possession of the appellants was reserved for common purpose of villagers as stipulated under subsection (3) of section 5 of the said Act. Thus, the contention of the learned counsel for the respondent that the appellants were liable to be ejected under subsection (9) of section 5 is an afterthought which does not help the respondent especially so when the ejectment order was not made under the aforesaid provisions. As discussed above, the authorities cited by the learned counsel for the respondent referred to above are distinguishable and have no application to the present case. It may also be observed here that the learned counsel for the respondent has frankly conceded that there is no provision other than one referred to by him for the ejectment of the co-sharer from the `shamilat deh' land which is in his exclusive possession." Thus, the legal position is clear that till the partition of Shamilat deh land by the competent authority under law, possession of the land owner in the village upon the Shamilat deh land, cannot be disturbed.

8. Now we would like to resolve the respective claim of the parties regarding the Shamilat deh land in the light of the evidence brought on record. The plaintiff-respondent's claim is that he is owner in possession of the Shamilat deh land comprising survey No. 70, measuring 93 kanals, 4 marlas, whereas the defendant-appellant and others is that out of the suit land 20 kanals land is in their possession. The Courts below fell in error of law, misread and non-read the evidence. This assertion of the defendant-appellants is an admitted fact which is proved from the evidence of the parties. The plaintiff-respondent produced Javaid Iqbal, Allah Ditta, as witnesses. The plaintiff-respondent also got his own statement recorded. Javaid Iqbal, witness of the plaintiffs deposed regarding possession of the respondents in the following words:-- The plaintiff-respondent himself has admitted in his statement that: The other witness Allah Ditta also deposed as under:-- Javaid Iqbal, one of the plaintiff's witness further deposed that:-- The defendant-appellant's witness Mushtaq Ahmed, stated that the defendant-appellants are in possession of 15 kanals, 15 marlas out of the said land. Muhammad Iqbal, appellant himself has deposed in his statement that the defendants are in possession of 6 kanals land out of survey No.

70. Thus, the analysis of the evidence of the parties leads us to the conclusion that both the parties are in possession of the pieces of the suit land but the exact measurement of the land in their possession is not ascertainable. Thus, the factual proposition on the basis of available evidence on record cannot be resolved. Therefore, in our opinion, the learned first appellate Court has rightly accepted the application for appointment of commission to ascertain the on spot position of the parties. Thus, keeping in view the peculiar facts and circumstances of this case, while exercising the inherent powers, we set aside the impugned judgment and remand the case to the trial Court with the direction that a commission shall be appointed to ascertain the on-spot position of the parties and thereafter the decree for mandatory injunction will be granted to the extent of the land proved in the possession of the parties in terms that their possession will not be interfered with illegally till the legal partition of the Shamilat deh land by the competent authority. With these observations this appeal stands disposed off. AG/32/SC(AJ&K) Order accordingly.