2016 PLP 1255 (CLC)

MALIK MANZOOR HUSSAIN, J.

Through this Constitution petition, the petitioners have challenged legality and propriety of judgment dated 15.12.2009, passed by learned Civil Judge-XI, Peshawar and the judgment dated 15.4.2010, passed by learned Addl. District Judge-VII Peshawar, whereby the suit filed by the respondents for possession was decreed and was affirmed by learned Revisional Court/Addl. District Judge.

2. Briefly stated, the facts giving rise to the instant Petition are that respondents filed a suit for restoration of possession u/s 9 of Specific Relief Act. The suit was contested by petitioners and after recording pro and contra evidence, the learned trial Court decreed the suit. Feeling dissatistsfied the petitioners preferred civil revision, which was dismissed through judgment dated 15.4.2010, hence the instant Writ Petition.

3. Learned counsel for petitioners contended that the respondents failed to prove the factum of forcible dispossession and also to file the suit within time prescribed under section 9 of the Act ibid therefore, the suit was liable to be dismissed. It was further contended that petitioners purchased the property vide mutation No.172 attested on 29.11.2001 and became owners therefore, no suit against co-owners for possession was maintainable.

4. Conversely, learned counsel appearing on behalf of respondents contended that the respondents were in peaceful possession of the suit property since 1953 and without any decree of the Court the respondents were dispossessed by petitioners, thus a suit under section 9 of the Act ibid was maintainable and had rightly been decreed by the Court below. It was further contended that the question raised by petitioners were question of facts and concurrent findings of facts arrived at by the Courts below, being based on sound reason could not be interfered with in exercise of Constitutional jurisdiction. Arguments heard, record perused.

5. Perusal of the record reveals that suit property was purchased by respondents through registered deed No.411 attested on 15.3.1953 and were recorded in Column of possession till 2001. The respondents purchased share from the suit Khata vide mutation No.172 attested on 19.11.2001 and on the basis of this mutation they got recorded entry in Khasra Girdawari. This change of entry was challenged by respondents before revenue hierarchy, which was set aside and the order was maintained till SMBR. Later on the petitioners challenged the final order of revenue hierarchy through Writ Petition No.447/2004, which was also dismissed by this Court.

6. It is well settled by now that a co-sharer in exclusive possession of joint portion of property for a long period cannot be dispossessed by another co-sharer except for bringing a suit for partition. The possession of respondents was supported by long standing entries and it has been noticed by this Court that the vendor of petitioners were not in possession of the property when they transferred the same in favour of petitioners rather they admitted this fact in their written statement as well in Court statements.

7. The petitioners stepped into shoes of their vendors who were not in possession of suit land at the spot when the property was sold out to the petitioners. Since their vendors were not in possession, the petitioners were not entitled to interfere in possession of the respondents without due course of law. They have got no right to take the law in their own hands and to take forcible possession under the garb of mutation. If the petitioners were interested in possession of the land, they were found to seek remedy before Court of competent jurisdiction on the basis of sale deed. No one else including the other co-owners had any right to dispossess the respondents by show of force. In a similar circumstance a learned Division Bench of Karachi jurisdiction in the case of "Abdul Wahid Mirza v. Vth Additional District Judge (South) Karachi and others (1989 CLC 957) not only maintained the order passed by the learned trial Court as well as appellate Court with regard to restoration of possession but also dismissed the Constitution petition. Reliance can also be placed on the judgments passed in the cases of "Muhammad Amin and others v. Karam Dad and other" (69 IC 671), Syed Jamal Shah v. Abdul Qadir Shah and others (PLD 1955 Pesh. 26) "Muhammad Muzaffar Khan v. Muhammad Yousaf Khan" PLD 1959 SC (Pak) 9, and "Kutijan Bibi v. Zulmat Khan and others" (PLD 1968 Dacca 172).

8. We are therefore, of the opinion that after their dispossession which was not in accordance with law, a suit under section 9 of the Specific Relief Act was rightly filed and decreed by learned Courts below. In this view of the matter, we are in respectful agreement with the observations made by both the learned Courts below and the impugned judgments of Courts below needs no interference by this Court as Constitutional jurisdiction cannot be converted to appellate jurisdiction. Even otherwise this Court could not constitute itself as a Court of appeal for the purpose of examining factual controversy which had already been adjudicated upon by two Competent Courts below. In view of what has been discussed above, this petition being devoid of any merit is dismissed along with Interim Relief and C.M. No.273-P/14. ZC/480/P Petition dismissed.