2000 PLP 1267 (CLC)

(a) without due course of law (b) without his consent. In the present case Ghulam Farid predecessor‑in‑interest of the petitioners was dispossessed without due course of law and also without his consent. (2) The right to sue did survive in favour of the legal representatives. The word "legal representative" has been defined in section 2 clause 11 of the C.P.C. which reads as under:‑‑ "' Legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. " It has been argued by the learned counsel that the right to sue survive in the present case, therefore, legal heirs were the legal representatives under the law and were rightly impleaded party by the learned trial Court and the learned Additional District Judge had committed illegality by allowing the revision petition. (3) Learned counsel has made a reference on Malik Nasim Atiimad v. Malik Rasool Bakhsh and another PLD 1973 Lah. 655 to maintain that suit for possession under section 9 of the Specific Relief Act includes the actual possession as well as constructive possession. The tenant dispossessed by trespasser, suit by landlord for restoration of possession is competent. It provides that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover the possession thereof notwithstanding any title that may be set up in such suits. Learned counsel has further placed reliance on Karamat Ali Fakar v. Safiruddin SK. and others 1969 DLC 545 which provides that section 9 of the Specific Relief Act not confined to deprivation of actual physical possession, but also covers cases of constructive possession. Suit can be brought by a person displaced or any person claiming through him. The landlord if entitled to possession of the property can bring a suit for possession. Reliance has also been made to Jamnabi wife of Hoondraj v. Jetha Mal and others (Sindh. Judicial Commissioner's Court) (Reference No.133 of 1935) wherein it was held that a Hindu legatee can institute a suit even prior to obtaining a letter of administration. (5) Learned counsel for the petitioner has finally argued that the petitioners being legal heirs were to be considered as legal representative of deceased Ghultm Farid and they were entitled to be impleaded as a party and could seek restoration of the possession of the property in dispute and prayed for setting aside the impugned order. Ghulam Farid should have been served with a notice under section 30 of the Displaced Persons (Land Settlement) Act, 1959 before his ejectment. Learned counsel for the petitioners has made a reference to Riaz and others v. Razi Muhammad 1982 SCMR 741 wherein it has been laid down that under section 9 of the Specific Relief Act, following points are to be seen:‑‑ (1) Person suing must have been dispossessed. (2) Such dispossession must be of immovable property. (3) Dispossession should be without his consent. (4) Dispossession should be otherwise than in due course of law. In the present case dispossession is without consent of Ghulam Farid predecessor‑in‑interest of the petitioners and so also without due course of law.

5. On the other hand learned counsel for the respondent No.1 has argued that the suit under section 9 of the Specific Relief Act was of a summary nature. It was a personal right of Ghulam Farid deceased, if any. The legal heirs had no estate to inherit and they cannot claim the possession as their predecessor‑in‑interest had lost his claim over the property in dispute to the level of Honourable Supreme Court of Pakistan. The petitioners had also failed to prove their case for cancellation of Iqrarnama executed by Ghulam Farid in which he had received an. amount of Rs.8,000 for delivery of the possession. Through said Iqrarnama Ghulam Fareed had voluntarily surrendered the possession of the property in dispute. He had filed a false case and since it was a personal right, the present petitioners have no interest left in the property in dispute. He has made reference to PLD 1975 Lah. 1205 to argue that the legal repregentative is a person who in law represents the estate of the deceased person. He may not be natural heir of the deceased. He has further referred Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 which is a case under section 13 of West Pakistan Rent Restriction Ordinance for the ejectment of the tenant on the ground of personal need and on the death of landlord it was personal right to sue was held does not survive.

6. I have considered the contentions raised by the learned counsel for the parties and have gone through the record of the file and the case‑law referred to at the Bar.

7. The consensus of the case‑law referred to at the Bar is that the legal representative who can be impleaded as party after the death of the plaintiff is a person who has some interest in the estate of the deceased. He may be legal heir or some one else interested to maintain his claim. The case A proposition is the application under section 9 of the Specific Relief Act. The word "used" the person (sic) through his means" the person who has some interest in the property can be substituted after his death. Applying this principle to the circumstances of the present case, .it is clear that deceased Ghulam Farid had lost his claim over the property in dispute upto the level of Honourable Supreme Court of Pakistan. Thereafter, it is claimed by him in the plaint that he was forced to sign/put his thumb‑impression on certain documents under coercion to prove that he had not delivered the possession with his free consent. The suit was filed by Ghulam Farid admittedly on the basis of some right over the property but only to get cured the wrong done by the respondents. If Ghulam Farid had no claim or interest in the property then of course his legal heirs/present petitioners had nothing to inherit in the 8 disputed property. In, absence of their any legal right in the property, they, cannot be allowed to proceed with the suit merely on the ground that their Ghulam Farid was dispossessed without his consent. Particularly when the suit filed for cancellation of documents was dismissed for non‑production of evidence by the present petitioners. Resultantly I can safely conclude that even under section 9 of the Specific Relief Act, the legal representative is a person who, has some interest in the property of which the restoration of possession is claimed_ by the deceased. They cannot claim for restoration of possession merely on the basis of some wrong done by the respondent; as in the present case the learned Additional District Judge has also dismissed the application of the present petitioners finding that the petitioners had no interest in the property in dispute. Had the petitioners any interest in the estate of deceased Ghulam Farid, they had a right to be impleaded as legal representatives to continue that suit. Since it is a civil matter and the parties are in litigation for a period of more than 40 years, therefore, I do not find any ground to interfere in the impugned order in exercise of writ jurisdiction. Dismissed having no force. The parties shall bear their own costs. H.B.T./M‑127/L Petition dismissed