2004 PLP 105 (YLR)

Abdul Jamil v. Haroon PLD 1969 Kar. 78 and Abdul Aziz v. Daulat Bibi PLD 1973 Lah. 125 ref. (c) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Factual controversy ‑‑‑Apprecia tion of evidence‑‑‑Constitutional petition‑‑ Recovery of possession under. S.9 of Specific Relief Act, 1877‑‑‑Petitioner failed to prove dispossession at the hands of defendants within six months‑‑‑Trial Court decreed the suit in favour of the petitioner but Appellate Court dismissed the same in exercise of revisional jurisdiction‑‑‑Plea raised by the petitioner was that the evidence had not been properly appreciated by the Appellate Court ‑‑‑Validity‑‑ Petitioner failed to demonstrate the existence of circumstances justifying the interference of High Court in its extraordinary Constitutional jurisdiction‑‑ Plea raised by‑ the petitioner was of no consequence‑‑‑Petition was dismissed in circumstances. Abdul Jamil v. Haroon PLD 1069 Kar. 78 and Abdul Aziz v. Daulat Bibi PLD 1973 Lah. 125 ref. Mian Muhammad Younas Shah for Petitioner. ORDER. IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Facts relevant for the disposal of instant writ petition are that Muhammad Khan, petitioner, filed a suit in the Court of Civil Judge, Lahor, District Swabi, against Abdullah and his brother Abdul Qayum, respondents Nos.1 and 2 herein, for possession of 21 Kanals and 9 Marlas of land bearing Khasra No.2229 situate in village Jalbai Maira, District Swabi alleging therein that respondents Nos.1 and 2 had illegally and without due course of law dispossessed him from the disputed land which obliged him to institute a suit under section 9 of the Specific Relief Act, 1877. The suit was resisted on all grounds and the allegations of the petitioner were repudiated. Necessary issues were formu lated and evidence of the parties was recorded. Resultantly vide judgment and decree dated 11‑7‑2002 learned Civil Judge, Lahor, decreed the suit holding that the petitioner was owner of suit‑property and he was forcefully and illegally dispossessed of the same by respondents Nos.1 and

2. Feeling aggrieved, a revision was filed against the aforesaid judgment and decree which was accepted by learned Additional District Judge, Lahor, District Swabi through judgment dated 3‑6‑2003 and suit of the petitioner was dismissed with cost.

2. Mian Muhammad Younas Shah, Advocate, appearing on behalf of the petitioner vehemently contended that judgment of the learned revisional Court suffers from the vice of gross misreading and non‑reading of the material on record and it cannot be allowed to remain intact. The learned counsel maintained that sufficient material was available on. the file to demonstrate that the petitioner was actual owner of suit‑land and he was dispossessed of the same forcibly and illegally by respondents Nos. 1 and 2 which motivated him to seek redress through Civil Court but his evidence was ignored without any justifiable reason which has materially prejudiced the interest of the petitioner. The learned counsel submitted that judgment of the trial Judge is supported by actual evidence on record which has been interfered with by the revisional Court without any justifiable reason.

3. We have heard the arguments of learned counsel for the petitioner and have perused the material on record. Section 9 of the Specific Relief Act, 1877 provides a summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. The purpose of this section is to discourage forcible dispossession. Where there has been no forcible dispossession section 9 of the Act would not apply. The cases in which this section comes into operation are those where the plaintiffs are deprived of the actual physical possession of the immovable property. A person coming under section 9 is required to show that he had actual physical possession of the immovable property from which he was dispossessed without his consent by the defendant within six months prior to the institution of the suit. A decree under section 9 of the Act can be passed when it is proved that the plaintiff was dispossessed from the property in dispute by the defendant otherwise than in due course of law within six months of the institution of the suit. Abdul Jamil v. Haroon PLD 1969 Karachi 78 and Abdul Aziz v. Daulat Bibi PLD 1973 Lahore

125. In the instant case, we find that the petitioner has totally failed to prove dispossession at the hands of respondents Nos.1 and 2 within six months as rightly pointed out by the learned revisional Court. The mere assertion of the learned counsel that evidence in this case has not been properly appreciated by the learned revisional Court, without a positive attempt on his part to substantiate the same, is of no consequence. The learned counsel has not been able to demonstrate the existence of circumstances justifying the interference of this Court in its extraordinary Constitutional jurisdiction. The writ petition is not maintainable. The same is dismissed in limine. M.H./47/P Petition dismissed.