2000 PLP 637 (YLR)

(4) That paras.Nos.7 and 8 of the plaint are denied. The defendant is the real owner of the suit land who is in legal possession of it. The defendant has got every right to enjoy the produce of the suit land. Muhammad Khokhar has never remained Hari of the suit land. It is denied that there were any legal orders passed by the Assistant Commissioner in favour of deceased Gianchand. The plaintiffs party through their influence have been getting the orders in their favour from the Revenue Authorities as the defendant in their opposition is a very poor man. The plaintiffs have not remained in possession of the suit land, they are put in strict proof of it. (5) That paras. Nos.9 and 10 of the plaint are denied. The defendant is the real owner of the suit land and not the plaintiffs. When the plaintiffs are not the owners of the suit land the question of their approach to defendant for getting possession and produce of the suit land does not arise. The possession and ownership of the plaintiffs is denied. They are put in strict proof of it. As a result of above pleadings the learned trial Court/Civil Judge, Mehar framed the following three issues: (1) Who is the owner of suit land? (2) Whether plaintiff is entitled to relief sought for? (3) What should the decree be? In support of the above issues plaintiffs/respondents examined Dharamdas as P.W.1; Abdul Karim as P.W.2, Muhammad Uris as P.W.3 and Muhammad Khokhar as P.W.4. The defendant/applicant produced himself as D. W .1, Muhammad Aachar as D.W.2, Muhammad Hayat as D.W.3 and Wahid Bux as D.W.4. Learned trial Court came to the conclusion that none of the parties were owner of the suit land and, thus, dismissed the suit vide judgment, dated 17‑9‑1975. Against that order the appeal filed by the plaintiffs/respondents was accepted vide impugned judgment and their suit was decreed. It is the order of the First Appellate Court which has been impugned by the defendant/applicant in this civil revision under section 115, C.P.C. I have heard Mr. Rahmat Ally Rajput, Advocate for applicant/defendant and Mr. Kanayalal P. Nagdev for the respondents/plaintiffs. With their assistance, I have also scrutinized the evidence filed before the trial Court. At the very outset, Mr. Kanayalal has raised a preliminary objection to the maintainability of this civil revision on the grounds firstly; that the applicant has no locus stand to call in question the order of the First Appellate Court as he failed to file any first appeal challenging the order of the trial Court and once such appeal was filed by the respondents/plaintiffs, the defendant/ applicant again failed to file cross‑objections as provided under Order 41, Rule 21, C.P.C. He has placed reliance on the following cases. (1) Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others (1999 CLC 312). (2) Government of N.‑W.F.P. through Chief Secretary and others v. Muhammad Zaman and others (1996 SCMR 1864), (3) Khairati and 4 others v. Aleem‑ud‑Din and another (PLD 1973 Supreme Court 295), (4) Hakam Ali v. Fazla and 1988 CLC 1183) (5) Muhammad Ibrahim and another v. Group Captain Salehuddin and others (1987 SCMR 218). In reply to the above preliminary objection, it was contended by Mr. Rahmat Ally that by virtue of Order 41, Ryle 22, C.P.C., the applicant/defendant was fully competent to support the judgment of the trial Court without filing any cross‑objection even on the grounds decided against him. He has also placed reliance on the case of Khairati (supra). Perusal of Rule 22 of Order 41, C.P.C., indicates that any respondent in the appeal is entitled to support the decree on any of the grounds decided against him by the trial Court. At the same time, he is also permitted to challenge the decree by way of cross‑objection which is to be filed within one month from the date of service to him or his pleader. In the case of Khairati (PLD 1973 Supreme Court 295) special petitions seeking special leave to appeal filed by the defendant of the suit was dismissed where after a review application was filed contending inter alia that under section 3 of the Limitation Act it was the duty of the Court to consider limitation whether it was raised or not by the party. In that suit, the trial Court had held that the suit for specific performance was not barred by time. The defendant of that suit did not file either any appeal or cross‑objection but attempted to raise that plea before the Honourable Supreme Court in the review petition which was repelled with the following observations: "...It is no doubt that a respondent can support a decree even on, points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross‑objection. " In the case of Ilam‑ud‑Din (supra) it was observed by a learned single Judge of this Court that if the findings of the trial Court are not challenged before the lower appellate forum, the same could not be agitated in the revisional forum. Reference was made to the case of Allahyar Khan v. Mst. Sardar Bibi (1986 SCMR 1957) and Liaquat Khan etc. v. Ghulam Muhammad (PLD 1987 Pesh.53). In the case of Muhammad Zaman (supra), it was held by a Division of Honourable Supreme Court that where finding on question of limitation was recorded against defendant, who did not file any cross‑objection in appeal, it cannot be agitated subsequently before any other higher forum as it had attained finally. In that case reference was made to the cases of Khairati (supra) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 Supreme Court 53). In the case of Allahyar Khan (supra), it was held, inter alia, by the Honourable Supreme Court that where a point which went against the party during the trial was not pressed before the lower appellate forum the next appellate forum would not be compelled to entertain the same on the plea raised by a party who gave it up before the lower appellate forum. In the case of Muhammad Ibrahim (supra) it was held by a Full Bench of Honourable Supreme Court that the right of appeal is a substantive right and when it was not availed by the appellants, he could not seek remedy by way of revision. This view was taken in respect of provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (now repealed). The judgment of the Trial Court went against both the parties. It was held by the learned Civil Judge that none of the party was able to prove their title. This finding of the Trial Court was not challenged by the applicant/defendant. The appeal was filed by the respondent/plaintiff. Again no cross -objection was filed by the present applicant/defendant for asserting his right of ownership in the suit land. He has filed the present revision application when the findings of the First Appellate Court went against him and. the suit was decreed in favour of the respondents/plaintiffs. In backdrop of this fact, I am of the considered view that the applicant/defendant cannot assert his right of ownership in the present proceedings as he has abandoned the same by neither filing any appeal nor by challenging the same by filing cross‑objections in the first appeal. When confronted with this situation, it was contended by Mr. Rahmat Ally Rajput that even without asserting his ownership the defendant applicant could resist his dispossession on the ground that the respondents/plaintiffs are not the lawful, bona fide owners of the suit land. Be that as it may, the above discussions lead me to say that the scope of the present revision has been narrowed down to the limited question of the entitlement of applicant/defendant to retain the possession of the suit land. In so far the second preliminary objection of Mr. Kanayalal is concerned, there is no cavil to the proposition that the scope of civil revision is limited to the question of jurisdictional errors. In the case of Kanwal Nain (supra) a Full Bench of Honourable Supreme Court while referring to the cases Venkatagiri v. H.R.E. Board Madras (PLD 1949 Privy Council 26) and Umar Daraz Khan v. Mulla Muhammad Khan (PLD 1970 Supreme Court 288), held that breach of some provision of law, or any material irregularity or any error of procedure in the Court, of trial which was so material that may have affected to ultimate decision would also attract the jurisdiction under section 115, C.P.C. I have already observed above that keeping in view the peculiar circumstances of the case, the scope of instant revision has been limited to the question whether the applicant/defendant is entitled in Law to resist his dispossession as a result of impugned decision of the First Appellate Court. On the point that applicant/defendant is entitled to resist his dispossession, Mr. Rahmat Ally Rajput has referred to the provisions of section 8 of the Specific Relief Act. It was contended by Mr. Rahmat Ally Rajput, which is not disputed by Mr. Kanayalal, that the suit was filed on the provisions of section 8 and not 9 of the Specific Relief Act. Section 9 of the Act, 1877 provides relief of reinstatement/ possession to a person who has been illegally and unauthorisedly dispossessed. For such purpose he is not required to prove his title. While section 8 provides remedy to a person who is entitled to possession of an immovable property. On this classification, Mr. Rahmat Ally has rightly referred to a decision of this Court by Wajihuddin Ahmed, J. (as his lordship then was) in the case Ghulam Rasool v. Muhammad Waris (1994 MLD 527). In that case it was held, inter alia, that a suit under section 8 of the Specific Relief Act for possession can be filed not only by a person who is holder of a title to property such as an owner, a mortgager, a mortgage or trustee or a beneficiary in trust but even by a person who is merely entitle to possession and in such class would obviously fall tenant or lessees, except those mentioned in the category excluded, as cognate to the concept of settled possession. Mr. Rahmat Ally Rajput has also placed reliance on the following cases in support of his submissions: (1) Govind Dutta, v. Jagnarain Dutta and others (AIR 1952 Patna 314), (2) Baba Kartar Singh Bedi v. Dayal Das and others (AIR 1939 Privy Council 201), (3) Rais Khair Muhammad and others v. Imdadullah Shah (1981 CLC 1411), (4) Muhammad Sher and others v. Mst. Tajmeena and others (PLD 1996 Peshawar 6) and (5) Muhammad Amin v. Mian Muhammad (PLD 1970 BJ 5). It was contended by Mr. Kanayalal P. Nagdev that the applicant/defendant by not choosing to challenge the order of the trial Court has become an encroacher and is not entitled for any discretionary and equitable relief. It was further contended by Mr. Kanayalal that the plaintiffs/respondents have successfully proved their title before the First Appellate Forum and there is neither any misreading nor non reading of evidence. He has placed reliance on Gulstan Textile Mills v. Member (Consolidation), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 13 others (1997 MLD page 449). Mr. Kanayalal has prayed for dismissal of this revision application with heavy cost. In the case of Govind Dutta (supra) it was held by a Division Bench of Patna High Court that the possession is a good title against all except against the true owner. In that a person in peaceful possession of land as an interest capable of being inherited, devised or conveyed against every one but the true owner. In the case of Baba Kartar Singh Bedi (supra) it was held by the Privy Council that in a suit for possession, the plaintiff could succeed only on the strength of his own title and not on the weakness of his opponents. In Rais Khair Muhammad (supra), it was held by a learned single Judge of this Court Zafar Hussain Mirza, J. (as his lordship then was) that "it is well‑established that a Court is not entitled to dispose of a suit on a plea or fact not raised by the parties". Once the appellant had established his title to the property and the defendants failed in proving right to possession thereof, the appellant was clearly entitled to a decree for possession. In Muhammad Bashir (supra), the civil petition filed by a plaintiff of a suit for possession was dismissed on the ground that he has failed to establish title of the suit. The case of Muhammad Amin (supra) deals with the Maxim Pari Delicto. It was held that where both the parties are equally at fault, law would help that party which is in physical possession. In the instant case the respondents/plaintiffs are claiming their title in the property on the basis of documents produced as Exhs.31, 33, 34, to 37, 38 to 43 and

55. The applicant/defendant was claiming his title on the basis of Exhs.60 and

71. It was held by the trial Court that the suit property was never in the name of predecessor‑in‑interest of the applicant/defendant which was endorsed by the First Appellate Court who also came to the conclusion that it is the respondents/plaintiffs who are the lawful owners by virtue of being legal heirs of Gianchand and Tulsidas. Rightly or wrongly, this view was attained finality. Now the applicant/defendant wants to resist delivery of possession on the ground that the respondents/plaintiffs are not the lawful owners. They are claiming possession under section 8 of the Specific Relief Act, 1877. In so far their legal character/status are concerned, it has been established before the Court below. It will be strange to say that a person who has established his legal character/status to an immovable property as provided under section 42 of the Specific Relief Act, will not be entitled to seek further relief under section 8 thereof against a person who has failed to establish his legal right and entitlement in the said immovable property. It was also contended by Mr. Kanayalal that as a result of concurrent findings of the question of title of applicant/defendant his status is that of a trespasser. At this stage, I would like to refer to a decision of a Division Bench of this Court authored by Ajmal Mian, J. (as his Lordship then was) in Supercon Limited v. Eastern Construction Limited and 2 others (1987 CLC 1566). In that case, an ad interim injunction was granted by a learned single Judge of this Court which was set aside by the Division Bench by observing, inter alia. "A trespasser prima facie is not entitled to an equitable relief, for an interlocutory injunction, for restraining the owner of the property, to put it use or use it with some restraint." The term trespasser was also defined by earlier Division Bench of this Court in Kasim Kambar and others v. Chanderbhan Wadhumal and another (PLD 1962 (W.P.) Karachi 253) as an act through which any person or party has obtained possession of any property unlawfully. Thus, in my considered view the present applicant/defendant could be termed to be an encroacher who has intruded usurpingly other's‑ territory's rights. (See Sardar Muhammad and 4 others v. Municipal Committee Jehlum City (PLD 1970 SC 497). It was not explained before the two Courts below as to how applicant/defendant came into possession of the suit property. He was held not be successor of Jam son of Dost and Piyaro. He was not able to rebut successfully Exh.33. Applicant/defendant's case is based on contradictions and does not inspire confidence. If the decision of the trial Court is to be implemented, then none of the parties could be termed to be owners of the suit property and, therefore, it becomes a case of ownerless property and then it vests in the province of Sindh. Unfortunately, plaintiffs/respondents have not impleaded Government of Sindh as one of the defendants. Although both the parties have relied upon certain documents issued by the Mukhtiarkar and the Board of Revenue, Sindh, but despite that not a single witness was examined from the department in order to ascertain as to which of the documents are genuine, forged or fabricated. Be that as it may, it would be advantageous, if Article 172(1) of the Constitution of Pakistan, 1973 is reproduced which reads as follows:‑‑ "

172. Ownerless property. (1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government. (2) ........................... The above fact leads me to discuss a latin principle "Bona Vacantia" which means things and goods or unclaimed property found without any apparent owner passes to the State as an incident of sovereignty. This term has been defined in Warton's Law Lexicon in the following manner:‑‑‑ "Bona vacantia, things found without any apparent owner which belong to the first occupant or finder, unless they be whale or sturgeon, wreck, treasure trove, waifs or estrays which belong to the Crown by virtue of its prerogative. So, personal property held in trust for a corporation which has been dissolved, belongs to the Crown as bona vacantia." Mr. Rehmat Ali Rajput has conceded that his client will have no objection if the suit property is reverted to the Provincial Government to whom his client is willing to hand over the physical possession but not to the respondents as they are not lawful owners. Keeping in view the finding of the First Appellate Court wherein all the ocular and documentary evidence was exhaustively discussed, I am inclined to hold that the applicant/defendant being a tres passer/encroacher is not entitled to resist his dispossession/eviction initiated by the respondents. With these observations, the instant civil revision application is disposed of with no order as to costs with the following directions:‑ (a) That the applicant/defendant shall hand over the physical possession of the suit property to the respondents/plaintiffs within a period of 60 days. (b) It will be open to the applicant/defendant to approach the Provincial Government or any other authority for the final determination of the question of ownership of the suit property, if he so chooses. The said authority will determine the question of title without being prejudice by the observations and comments of the Courts including the ones in this judgment. (c) In case it is found by a competent Authority; that the suit property is ownerless it shall be reverted to the Government of Sindh. (d) The order of the First Appellate Court for preliminary decree for appointment of Commissioner to ascertain the amount of mesne profit to be paid by the applicant/defendant is maintained and upheld. Q.M.H./M.A.K./M‑2/K Order accordingly.