2004 PLP 807 (SCMR)

RANA BHAGWANDAS, J. ‑‑‑Petitioners are aggrieved by Lahore High Court judgment dated 26‑2‑1999 passed in Civil Revision No. 1155 of 1998 whereby learned Judge in Chambers set aside concurrent finding of fact in a suit for possession and permanent injunction brought by the petitioners against the respondent.

2. Petitioner‑Abdul Majeed (since dead) filed a suit for possession and permanent injunction against the respondent in respect of a piece of land measuring 17 Kanals, 8 Marlas situated in village Thakarkey, District Gujranwala as a co‑owner. According to the averments in the plaint, respondent was non‑occupancy tenant over the suit‑land, who had repudiated his status as tenant. It was also pleaded that in the year 1982, respondent had filed a suit for declaration of ownership on the basis of entries "Sharah malkan bila malkana" in the Revenue Record. Apprehending his forcible ejectment, he claimed relief of permanent injunction against the petitioners. His suit was, however, dismissed vide judgment dated 3‑5‑1998 with the observation that a perusal of the entries made in these documents showed that Sardar Shah predecessor‑in‑interest of the plaintiff had been in possession of the suit‑land as "Ghair Mauroosi" tenant. Possession of the respondent in the said suit was held to be permissive. His appeal against the judgment and decree proved fruitless.

3. The suit filed by the petitioner was resisted on variety of legal as well as factual grounds, which were reflected in the following issues:‑‑ "(1) Whether the plaintiff is entitled to get a decree of possession against the defendant as prayed for in the plaint? OPP (2) Whether the plaintiff has no cause of action? OPD (3) Whether the suit is false, baseless and liable to be dismissed? OPD (4) Whether the suit is time‑barred? OPD (5) Whether by words and conduct of the plaintiff he is barred to file the instant suit? OPD (6) Relief."

4. On assessment of evidence, trial Court decreed the suit vide judgment dated 24‑6‑1993. Respondent preferred an appeal from the judgment and decree, which was dismissed. He, however, succeeded in the civil revision before the High Court, leading to the instant petition for leave to appeal.

5. We have heard learned counsel for the parties at quite some length and gone through the record. Learned counsel for the petitioners strongly urged that petitioners, admittedly being owners of the suit‑land to the extent of 1/12th share, their suit for ejectment of the respondent, was fully competent and maintainable at law as he had forfeited his right to tenancy. While conceding that major share in the property i.e. 11/12th share vested in the Central Government, who‑ had not been impleaded in as party to the suit, learned counsel laid much emphasis on the submission that the status of the respondent was no better than a trespasser over the land, thus, the petitioners were entitled to seek his ejectment therefrom. We do not find any merit and substance in the contention for, the petitioners being co‑owners to the extent of 1/12th share in the property may be entitled to protect their right and interest in the property but lack locus standi to ask for ejectment of the respondent, whose possession over the land has been held to be permissive by a competent Court of law. In our view, it is only the Central Government, who may lawfully ask for eviction of the respondent from the land. Even a transferee from the' Central Government, acquiring right and interest in the land, might be able to evict the respondent but not the petitioners. The submission that respondent had forfeited his right of tenancy by filing prior suit for declaration and permanent injunction against the petitioners, in our view, is wholly misconceived and untenable at law. Obviously, no finding to this effect was recorded in the suit field by the respondent way back in 1982 and the permission, under which he had been holding the possession has not been revoked by the Central Government. Learned Judge in the High Court was perfectly justified in observing that, in the circumstances of the case, Central Government, was a necessary party to the suit, without whose presence no effectual adjudication of the lis between the parties was possible but the petitioners, for the reasons best known to them, did not array the Central Government being co‑owner to the extent of 11/12th share as party to the suit.

6. Learned counsel referred to Rasab Khan v. Abdul Ghani PLD 1985 SC (AJ&K)

69. We have gone through the reported case, which is wholly distinguishable on fact and is of no avail to the petitioner.

7. For the aforesaid facts and reasons, no ground is made out for interference with the exercise of jurisdiction. There is hardly any substance in the petition, which does not raise any substantial question of law of general public importance with the result that the same is dismissed and leave to appeal refused. S.A.K./A‑287/S Leave refused: