1988 PLP 409 (CLC)

(c) Specific Relief Act (I of 1877)‑‑ ‑‑‑S. 42‑‑Civil Procedure Code (V of 1908), Ss. 9 & 115‑‑Inheritance of deceased person‑‑Defendant heirs, suppressing existence of plaintiff heirs, securing for themselves entire inheritance of deceased and dishonestly sold same to other defendants‑‑Form of suit by plaintiffs to claim share of their inheritance‑‑Plaintiffs, being not a party to sale‑deed executed by defendant heirs in favour of other defendants, held, were under no obligation to get such a sale‑deed avoided, be‑cause their complete relief gets provided to them in their being held to be owners of suit land to the extent of one‑half share‑‑Such declaration was implied in the relief of possession claimed by plaintiffs‑‑Relief of mere declaration, however, would be within mischief of proviso to S.42, Specific Relief Act and as co‑sharers of suit land, plaintiffs could claim themselves to be in possession of land through defendants and such suit would not suffer either in limitation or in form‑‑Decrees of Courts below being unexceptionable on record, there was no case for the exercise of revisional jurisdiction by High Court. Tara Prasanna Singh and others v. Ranjit Mandal and others 85 1 C 553; Saadullah Khan and 6 others v. Mir Pisyo Khan and 14 others P L D 1970 Pesh. 150 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak.) 9 rel. Ejaz Ahmad Chaudhry for Petitioners As the collateral heirs of one Jaharru son of Hoshnaak, the plaintiff‑respondents filed a suit for possession of I share of 24 Kanals and 2 Marlas of agricultural land left by him in village Bhai Raoke, Teshil Okara on the allegation that, being the sons of their own father's brother, the first two defendants had not only wrongfully suppressed their existence with the object of securing to themselves his entire inheritance but have also dishonestly sold it away to the other two defendants. The suit was contested on the basis of two written‑statements separately filed by the two sets of defendants wherein apart from raising some technical objections, the relationship asserted by the plaintiffs with the deceased was also denied in addition to the plea of being the bona fide purchasers for value taken by the vendee‑defendants. The suit was consequently set down to be tried on a total of 6 issues, including that of the relief. Whereas the plaintiffs produced 7 documents in addition to the statement made by Abdul Ghani plaintiff as P.W.1., the defendnats remained contended with examining the witnesses in addition to Muhammad Siddique defendant who made his own statement as D.W.

3. Learned trial Judge considered the evidence led on the record and whereas, for cogent reasons, he was not impressed by the oral evidence led by the defendants, he accepted the alleged relationship of the plaintiffs with the deceased on the basis of the documentary evidence produced by them and holding them to be the co‑owners to the extent of I share in the suit land, decreed their suit by means of his judgment dated 16‑4‑1987.

2. The defendants preferred an appeal there against in the District Court at Okara which came up for hearing before the Additional District Judge who reconsidered the evidence and affirmed the conclusions of the trial Court into upholding it's decree upon dismissing the appeal by his judgment and decree dated 13‑7‑1987 for the reason that the plaintiffs and defendants Nos. 1 and 2 have been rightly held to be co‑sharers and no question of limitation would arise in such a situation because possession of one co‑sharer is regarded in law to be the possession of all of them.

3. The defendants have now come up to this Court on revision but neither a copy of the grounds taken in their appeal below has been separately filed by the petitioners on the record of this revision petition nor are those grounds incorporated even in the copy of the appellate decree in accordance with the provision .for this purpose made in the Form prescribed in the C.P.C. for use in the appellate decrees and, 'thus, on this record it is not possible to know what precise grounds were taken by the defendants in their appeal below and what were the grounds omitted by them to be taken there. It would not be over‑emphasising the matter to invite attention to the proviso to subsection (1) of section 115 of the C.P.C. which enjoins the civil revisions to be decided primarily on their own records, unless the High Court may, for reasons to be recorded, considers it necessary that the records below may be requisitioned. Since no such ground exists here, therefore, learned counsel has been heard on the present record, in spite of the said shortcoming.

4. Learned counsel has tried to contest the concurrent findings of fact recorded by the two Courts below, quite justifiably on the basis of the evidence led in the suit. There is no error of jurisdiction of the nature of misreading or non‑reading of evidence pointed out at all to have been committed in reaching those findings which have to be accepted as sacrosanct for the purposes of revisional jurisdiction and thereby this case really gets concluded.

5. In the end, learned counsel has also tried only half‑heartedly to argue that not a suit for possession but one for declaration may first have been filed by the plaintiffs to seek avoidance of the sale‑deed executed in favour of defendants Nos. 3 and

4. This contention is altogether misconceived because plaintiffs are not a party to the sale‑deed and it has been held that there is no evidence led by the vendee‑defendants to establish the requirements of being bona fide purchasers. The plaintiffs cannot be considered to be under any obligation to get such a sale‑deed avoided because their complete relief gets provided to them in their being held to be the owners of the suit land to the extent of half share and this declaration is implied in the relief of possession claimed by them. Actually, a_ relief of mere declaration would have come within the mischief of the proviso to Section 42 of the ‑Specific Relief Act and as co‑sharers of the suit‑land, as has been rightly held concurrently by the two Courts below, they can also claim themselves to have been in possession of the land through the defendants and hence their suit does not suffer, either in limitation or in form and has been rightly decreed. Reference in this context may, out of more than a score of precedent cases available on the point, be made only to Tara Prasanna Singh and others v . Ranjit Lal Mandal and others 85 I . C . 553; Saadullah Khan and 6 others v. Mir Pisyo Khan and 14 others P L D 1970 Pesh. 150 (D.B.) and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 S C (Pak.) 9.

6. Upshot of the foregoing is that the decrees of the two Courts below are unexceptionable on the record and there does not exist any case for exercise of revisional jurisdiction. Hence, dismissed in limine. A . A . /A‑225/L Revision dismissed