1999 PLP 1406 (CLC)

Ch. Riaz Alam, Advocate for Appellants: Ch. Muhammad Yunus Arvi, Advocate for Respondents Date of hearing: 20th June, 1997. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ This appeal has been directed against the judgment of the High Court dated 20‑11‑1996, whereby confirming the findings of the Courts below, the appeal filed by the appellants, herein, was dismissed.

2. The brief facts giving rise to the present appeal are that the appellants alongwith the respondents Nos.13 to 18 the successors‑in‑interest of one Muhammad Hussain, deceased, brought a suit against Muhammad Malik and others in the Court of sub‑Judge, Mirpur, seeking a perpetual injunction to restrain the defendants‑respondents from the forcible dispossession of the Plaintiffs from the land measuring 3 Kanals, 9 Marlas, comprising Survey No.4060/2. However, subsequently, the respondents Nos.13 to 18 withdrew from the suit and only Badar Din, deceased, proceeded with the suit. He sought an amendment in the plaint to the effect that during the pendency of the suit Muhammad Malik and Muhammad Sadiq forcibly dispossessed him from the suit land measuring 2 Kanals 8 Marlas and 8 Marlas, respectively and, thus, he also sought a decree for possession to that extent. The suit was contested by Muhammad Malik and others alleging that the suit land comprising Survey No.4060/2 had been in their possession since ancient times; they also denied to have dispossessed Badar Din during the pendency of the suit. After framing the issues and recording evidence, the trial Court dismissed the suit of the plaintiffs holding that they had failed either to prove their ownership of the suit land or dispossession from the same during the pendency of the suit. The appeals filed by the plaintiffs before the District Judge and the High Court also failed.

3. We have heard the arguments and gone through the file. Mr. Riaz Alam, Advocate, the learned counsel for the appellants, has drawn our attention to Exh.P.C., a copy of Khasra Girdawari pertaining to years Rabi 1990 to Kharif 1991, wherein the land comprising Survey No.4060/2, measuring 3 Kanals, 9 Marlas, has been shown as 'Shamlat Deh' and in the ownership of Badar Din, deceased, the father of the appellants herein, and his brother Muhammad Hussain; however, the land has been shown exclusively in the possession of Muhammad Hussain since the year 1985. The learned counsel contended that according to the aforesaid document, the suit land was in the ownership of Badar Din and Muhammad Hussain in equal shares and the Courts below have committed an error in denying the relief to the appellants holding that Badar Din or his successors‑in‑interest could not prove their ownership. He has also drawn our attention to the statement of Muhammad Malik, respondent, who has stated in cross‑examination that he was in possession of the land measuring 2 Kanals, 8 Marlas and rest of the land was in the possession of the plaintiffs. Thus, the learned counsel contended that the finding of the trial Court that the plaintiffs were not co‑sharers in the suit land is not correct.

4. Mr. Muhammad Yunus Arvi, Advocate, the learned counsel for the respondents, controverted the arguments advanced by the learned counsel for the appellants. He has argued that the Courts below have concurrently found that Badar Din, the predecessor‑in‑interest of the appellants, has not been in possession of the suit land at any time and that the appellants also failed to prove that Badar Din, their predecessor‑in‑interest, was dispossessed from the land in dispute during the pendency of the suit. The learned counsel has further maintained that according to the case of the plaintiffs themselves they are in possession of 13 Marlas out of the suit land measuring 3 Kanals, 9 Marlas. Thus they being in possession of a part of the suit land cannot seek a decree even for joint possession muchless a decree for 'Khas' possession, especially so when they are pursuing the matter for the partition of, the suit land before the Revenue Authorities as has been held by the trial Court.

5. We have given our due consideration to the matter. In Exh.P.C., the copy of ' Khasra Girdawari' pertaining to ' Rabi' 1990 to ' Kharif' 1991 B.K., Badar Din, the predecessor‑in‑interest of the appellants, has been shown co?sharer along with his brother Muhammad Hussain. It is also evident from the statement of Muhammad Malik, respondent, that at least 13 Marlas out of land measuring 3 Kanals, 9 Marlas is in possession of the appellants, the successors of Badar Din. Thus, Badar Din is co‑sharer in the land comprising survey No.4060/2, measuring 3 Kanals, 9 Marlas. As has been pointed out that according to the averments made in the amended plaint, the plaintiffs are in possession of a part of the land in dispute. Thus, there is no question of passing a decree for possession in favour of the appellants. Their remedy lies in the partition of the land in dispute by the Revenue Authorities, which the appellants are already pursuing.

6. Therefore, the appeal is partly accepted in terms that the appellants are co‑sharers in the suit land but they are not entitled to decree for possession because they are already in joint possession with the respondents. If they are 'In, possession of the share lesser than to what they are entitled, their remedy lies with the Revenue Authorities by seeking the partition of the land. The appeal is partly accepted as indicated above. In the circumstances of the case, we make no order as to the costs. H.B.T./352/SC(AJK)?????????????????????????????????????????????????????????????? Order accordingly.