1994 PLP 2225 (MLD)

Muhammad Sabir and his brother Muhammad Anwar sons of Allah Jawaya were tried under section 382, P.P.C. by Magistrate Ist Class Naushera, District Khushab who vide judgment dated 28-12-1982 finding Muhammad Sabir guilty convicted and sentenced him for three years' R.I. with a fine of Rs.500 or in default of payment of fine to suffer three months' R.I. Muhammad Anwar co-accused was awarded sentence of two years' R.I. with a fine of Rs.300 or in default of payment of fine to undergo further R.I. for two months. The conviction and sentence of Muhammad Sabir petitioner was upheld in appeal by the learned Additional Sessions Judge, Khushab who vide judgment dated 20-3-1983 dismissed the appeal of the petitioner as time-barred.

2. Learned counsel for the petitioner contends that the learned trial Court announced the judgment on 28-12-1982 on which date the petitioner was not present in Court and thereafter he was arrested on 12-2-1983. He submits that the petitioner was not supplied with a copy of the judgment, therefore, the appeal could not be dismissed as time-barred.

3. I have considered the arguments of the learned counsel for the petitioner and perused the record carefully. The learned trial Court heard the arguments in the case on 21-12-1982 on which date the petitioner was present in Court and the case was adjourned to 28-12-1982 for announcement of the judgment but the petitioner did not turn up on this date. He in fact disappeared after conviction in another case on 26-12-1982 and, therefore, was arrested on 12-2-1983. The petitioner intentionally avoided to appear before the Court on 26-12-1982 and 28-12-1982 and ultimately absconded, he, therefore, being fugitive from law was not entitled to any concession or leniency.

4. Anyhow, while looking at the case on merits, there is no exception to the finding of the learned trial Court. The eye-witnesses are independent and confidence inspiring and there is nothing on the record to suggest that they deposed falsely against the petitioner. Further the ocular account also seeks enough corroboration from the evidence of recovery and the evidence available on record is more than sufficient to establish the charge against the petitioner. 5, Learned counsel without seriously challenging the conviction of the petitioner submits that the petitioner was convicted in 1982 and he is facing agony of the criminal case for the last about one decade. He prays- that the sentence already undergone be considered sufficient in the facts of the case. considering this aspect of the matter, I feel that there would be no useful purpose to send the petitioner to jail after such a long time, and, therefore, taking a lenient view reduce the sentence of the petitioner to the period already undergone by him. With this modification this revision is dismissed. N.H.Q./M-1739/L?????????????????????????????????????????????????????????????????????????????? Revision dismissed. 1994 M L D 2236 [Lahore] Before Ihsanul Haq Chaudhry, J SHER ALI and others

Petitioners Versus BASHIR AHMAD and others

Respondents Civil Revision No.2061 of 1993, decided on 5th March, 1994. Specific Relief Act (I of 1877)

S.9

Suit for restoration of possession

Plaintiffs who filed suit for restoration of possession of suit land had claimed that they were in possession of suit land in consequence of exchange of land with other owners and that defendants had illegally and forcibly dispossessed them

Plaintiff by producing oral as well as documentary evidence on record had fully proved that they were 1ay in possession of land in dispute in consequence of exchange of transaction, but defendants had illegally and forcibly dispossessed them from that land

Suit for restoration of possession was rightly decreed by Court below. Siraj Din v. Additional District Judge 1991 MLD 1046; Maqbool v. giasat All 1993 CLC 741 and Ballabh Das v. Gaur Das AIR 1940 All. 261 ref. Sh. Naveed Shaheryar for Petitioners. Aqil Mirza for Respondents. Date of hearing: 5th March, 1994. JUDGMENT This revision petition is directed against the judgment and decree of the Senior Civil Judge, Mandi Baha-ud-Din dated 20-11-1993.

2. The brief background is that respondents Nos.l and 2 exchanged their land with respondents Nos.3 and

4. The transaction was witnessed by the deed of exchange registered on 12-4-1988. It is alleged that the parties also exchanged possession but the petitioners illegally dispossessed them on 6-6-1988 and 14-6-1988. Respondents Nos.1 and 2, therefore, filed a suit under section 9 of the Specific Relief Act for restoration of the possession. The petitioners contested the suit. The trial Court framed the following issues:

(1) Whether the suit of the plaintiff is not maintainable in its present form? OPD (2) Whether the plaintiffs have no cause of action? OPD (3) Whether the plaintiffs were in possession of land and they were illegally, forcibly dispossessed by the defendants? OPP (4) Relief. Respondents Nos.l and 2 examined Ghulam Qadir as P.W.1 and Lal Khan as P.W.2 and produced copy of Register Haqdaran 1984-85 Exh.Pl, copy of Khasra Girdawari Exh.P2 and exchange deed Exh.P

3. The petitioners examined Sher All as D.W.1 and Feroze as D.W.2. The learned counsel for the defendants closed his side and produced copy of the judgment dated 5-3-1992 (E)d.D1), copy of decree-sheet (Exh.D2), copy of the order of M.I.C. dated 29404991 (Exh.D3) and a report marked `A'. The trial Court after hearing the arguments proceeded to partially decree the suit to the extent of 26 Kanal, 12 Marlas. Hence this revision petition, which was admitted to hearing and notices were issued to the respondents. Respondents Nos.1 and 2 have appeared and contested the petition while the others did not appear in spite of service. They were, therefore, proceeded ex parte. They were even otherwise formal parties and no relief was sought against them.

3. Learned counsel for the petitioners in support of the petition argued that there is nothing on the record to show that the plaintiffs were in possession. On the other hand, they tried to prove that Fateh Muhammad was in possession. The possession of Fateh Muhammad cannot be treated as that of the plaintiffs. It is added that the transfer of possession is mentioned in the exchange deed Exh.P3 but since the petitioners were not a party to the said deed, therefore, they are not bound by any such assertion. The arguments are concluded with the submission that the best evidence was the statement of Fateh Muhammad but he was not produced. Therefore, there is a strong presumption against the plaintiffs that had Fateh Muhammad been produced he would not have supported them. On the other hand, learned counsel for respondents Nos.1 and 2 argued that the possession was fully proved by Exhs.P1, P3 and the statement of D.W.1. It is added that the statements of P.W.1 and P.W.2 fully proved the contention of the plaintiffs. The learned counsel argued that the remedy of the petitioners is to file a regular suit if they feel aggrieved by the impugned judgment and decree. In this behalf the learned counsel has referred to Siraj Din v. Additional District Judge 1991 MLD 1046; Maqbool v. Riasat Ali 1993 CLC 741 and Ballabh Das v. Gaur Das AIR 1940 All. 261.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. The possession of Fateh Muhammad is fully proved from the Jamabandi Exh.Pl and this fact is also admitted by D.W.1. The same, in fact, was never seriously disputed by the petitioners. Their contention is that the trial Court had just presumed that since Fateh Muhammad was in possession of the suit land earlier, therefore, the possession was delivered to respondents Nos.1 and 2 at the time of exchange. It is relevant to mention here that respondents Nos.1 and 2 surrendered 34 Kanals, 4 Marlas and in exchange they got 30 Kanals and 12 Marlas. The learned trial Court has not presumed that since earlier Fateh Muhammad was in possession, therefore, on the fateful dates the plaintiffs were in possession. In fact, this is the direct consequence of the exchange between the respondents. Moreover, it is clearly written in Exh.P3 that the parties have exchanged possession. This is not all. This fact is supported by the statements of P.W.1 and P.W.2. Above all the learned counsel for the petitioners did not realise the fallacy in the plea of the petitioners. If it is an admitted position that at the time of the exchange Fateh Muhammad was in possession then the question would arise how the petitioners got the possession? It was for them to explain how they were in possession of the suit land in fact of the whole of the land and not according to their share? This goes to the very root of the whole defence of the petitioners. The trial Court has properly appreciated the evidence and decreed the suit only to the extent of the area, which was clearly in possession of the plaintiffs.

5. The revision petition was admitted to hearing in view of the argument of the learned counsel for the petitioners that a suit under section 9 of the specific Relief Act is not competent. Instead the plaintiffs should have filed a suit for partition of the joint Khata. In this behalf, reliance was placed on Fazil etc. v. Manzoor Hussain PLD 1979 Note 9 at p.6. Since it was only a note, therefore, the original file has been sent for. The headnote is misleading. In fact, that case was the outcome of the suit for possession. Therefore, it has no application to the facts of this case.

6. The upshot of the above discussion is that there is no merit in this revision petition. The same is dismissed with costs. H.B.T./S-509/L??????????? ??????????????????????????????????????????????????????????????????????? Revision dismissed.