2015 PLP 636 (CLC)

IKRAMULLAH KHAN, J.

Through the instant constitutional petition, the petitioner has questioned the legality and validity of the impugned judgment dated 25-6-1995, passed by the learned Civil Judge, Takht Bhai, and judgment dated 20-5-2002, passed by the learned District Judge, Takht Bhai.

2. The facts giving rise to the filing of instant writ petition are that the respondents Nos.1 to 17 filed a civil suit for recovery of possession against the petitioner and rest of the respondents, thereunder the provisions contained in section 9 of the Specific Relief Act, 1877, in regard to the suit property, duly mentioned in the heading of the plaint, in the Court of Senior Civil Judge, Takht Bhai.

3. The said suit was contested by the petitioner who filed his written statement, raised thereof numerous objections to the maintainability of the suit.

4. The learned trial Court, framed the respective issues, from the divergent pleadings of the parties.

5. Both the contesting parties produced their respective evidence, in support of their respective contentions, taken by them in their pleadings.

6. The learned trial Court, on conclusion of trial, and the required arguments, delivered by the learned counsel for the parties, passed a decree in favour of the present contesting respondents against the petitioner.

7. The petitioner, preferred a revision petition against the impugned judgment of the learned trial Court dated 25-6-1995, before the learned Additional District Judge, Takht Bhai, but it was dismissed too vide the impugned judgment dated 20-5-2002.

8. Hence the petitioner has invoked the jurisdiction of this Court, in pursuance of the provisions contained there under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

9. The learned counsel who made his appearance good on behalf of the petitioner, contended that the impugned judgment is illegal, perverse and against the facts on record. It was submitted that the impugned judgment is the result of misreading and non-reading of evidence, wrong assumption of jurisdiction, based on incorrect construction of law and facts therefore, without jurisdiction. The learned counsel argued that the prerequisite necessary for assumption of jurisdiction thereunder the provisions contained in section 9 of the Specific Relief Act, 1877, was not attractive to the prevailing circumstances of the case, while the respondents have miserably failed to prove their dispossession or possession over the suit land, but the learned Court below without adverting to the merit of the case, have passed erroneous orders, which has caused great prejudice to the petitioner, prayed for setting aside the impugned judgments.

10. On the other hand, the learned counsel for the contesting respondents argued and put his respectful submission before the Court, that respondents were owners and in possession of the suit land, who were dispossessed by the petitioner illegally while the petitioner was neither occupier of the suit land nor has any proprietary right over the suit land. He supported the impugned judgments and contended that the impugned judgments were passed by competent Courts of law thereafter proper appraisal of evidence on record and correct appreciation of law on the subject.

11. We have heard the learned counsel for the parties and carefully gone through the record.

12. The record reveals that the suit property was joint one, a number of co-owners were recorded therein the column of ownership in the revenue papers, brought on records pertaining to the year 1969.

13. But the fresh revenue papers pertaining to the years 1991/1992 has not been placed on record, while for the determination of the factum of dispossession of a person, therefrom a land having or holding possession over a particular piece of land, the Khasra Girdawari, play a pivotal role and without, bringing on record, such important, piece of evidence the controversial issue, between the parties could not be safely decided.

14. The provisions contained in section 9 of the Specific Relief Act, 1877, which reads as:

Section 9. Suit by person dispossessed of immovable property.-- If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section, shall bar any person from suing to establish his title to such property and recover possession thereof. No suit, under this section shall be brought against the Federal Government, or any Provincial Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. 15. In order to bring a suit in the ambit of section 9 of the Specific Relief Act, 1877, the plaintiffs shall prove that:

(i) They were in possession of the suit-land. (ii) They had been dispossessed by the defendants, otherwise than in due course of law. (iii) The dispossession had taken place within six months of the suit, as Article 3 of the schedule I of Limitation Act, 1908, provides a period of 6 months for a suit under section 9 which shall be reckoned from the date of dispossession.

16. No relief thereunder the provisions contained in section 9 of the Specific Relief Act, 1877, shall be granted to any person, claiming to be dispossessed therefrom any land, without fulfilling the compulsory ingredient as mentioned hereinabove.

17. In any suit instituted thereunder the provisions contained in section 9 of the Specific Relief Act, 1877, no question of title either of the plaintiffs or that of the defendant could be raised or shall be given any consideration. Only possession over the land prior to institution of the case, would be counted as determinable factor for granting such kind of relief, which can also be granted even against true owner of property himself. The question of ownership has no any germane for invoking provisions of this section as object and purpose of it is to provide summarily relief even with no right of appeal. Reliance can be placed on the case of "Messrs Pakistan Cables Limited v. Messrs Mandviwala Estate (Pvt.) Limited" (2005 YLR 53).

18. In the present circumstances, and facts of the case, though respondents are recorded as co-owners in the joint corpus of the suit property but to invoke the jurisdiction of a civil Court, thereunder the provisions contained in section 9 of the Specific Relief Act, 1877, the possession over the suit land, shall be established within six months prior to institution of the suit which has not been proved by the respondents, through any reliable, authentic documentary proof, instead of the fact that the suit property is agriculture one and Revenue Record of the area has been prepared since 1926/1927.

19. It shall be the paramount consideration, while deciding a lis, that all the copies of available official revenue record, pertaining to the suit land shall be brought on record strictly in accordance with the provisions of Qanun-e-Shahadat Order, 1984, for the safe administration of civil justice, in order to avoid all kinds of apprehension which may lead to any inference of injustice. As no authentic reliable and fresh copies of Khasra Girdawari and Fard Jamabandi have been exhibited on record, the impugned judgment passed by the learned Courts below are result of abuse of jurisdiction and passed with jurisdiction not vested in them, void and not sustainable therefore, we accept the instant writ petition and set aside the impugned judgments with direction to the trial Court to place on record all the available revenue papers, pertaining to the suit property for the year 1991/1992 and thereafter decide the lis in view of the available record but strictly in accordance with the prevailing law.

20. With the above observation the instant writ petition is allowed and the case is remanded back to the trial Court for recording of evidence as observed hereinabove. AG/103/P Case remanded.