P L D 1963 (W (PLP)

5. The second ground of attack is not correct, because the prayer contained in paragraph 13 of the plaint related to the southern half of the said plot "with structures thereon", and was not questioned in the written statement.

6. The first ground of attack is correct as far as it goes, but it is not conclusive because it leaves out of consideration the stand of the plaintiff‑respondents that they were not parties to the ejectment order. The precise question, therefore, that was before the trial Court was: whether the ejectment order could be executed against the plaintiff‑respondents who were not parties to the ejectment order? The Karachi Small Causes Court had ordered ejectment "as prayed". The prayer in the application was "that warrant of ejectment may be issued in respect of aforesaid premises against the opponent and against all persons who may be in possession thereof under or on behalf of the opponent." The plaintiff‑respondents have alleged in the suit that they protested against their eviction and against the removal of a wooden partition during the execution proceedings, but no attention was paid to their protest. It is obvious that their protests could not prevail if they were founded on the allegations that have been made by them in para. 3 of their plaint to the effect that the present applicants, who had applied for the ejectment of Mamoo s/o Qassim, were the owners of the northern half of the said plot of land only, because the order of ejectment related to the entire premises and was subject to the only exception that the occupants were not in possession thereof under or on behalf of Mamoo s/o Qasim. Their objection ran against the order of ejectment itself, which could not be rectified during the process of execution. After the present applicants were dispossessed, they did not apply to the Karachi Small Causes Court under any provision of the Code of Civil Procedure but instituted the aforesaid suit for delivery of possession under section 9 of the Specific Relief Act.

7. The allegations made in the plaint did not precisely fall within the scope of the section, as indicated above, because they were essentially based on allegations of ownership which were denied in the written statement. That section is as follows :‑ "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 to recover possession thereof. No suit under this section shall be brought against the Central Government, or any State 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." The first question that arose before the Court, in these circum?stances, was as to in what respect the plaintiff‑respondents were dispossessed "otherwise than in due course of law"? The order of ejectment, as we have seen, was not wrong in the circum?stances in which it was given, and its execution with respect to the entire premises was also correct. The only aspect of the execution proceedings, which could be said to be otherwise than in due course of law was that the plaintiff ‑respondents were not parties to the order of ejectment and also that they were not in possession of the premises "under or on behalf of" Mamoo son of Qassim. They did in a way urge this but spoiled the effect of the assertion for purposes of section 9 by mainly claiming ownership and denying the ownership of those in whose favour the ejectment order was given. I shall explain this weakness in the next following paragraphs.

8. If they had applied to the executing Court and brought to its notice that they were not parties to the ejectment order and further that they were .not in possession under or on behalf of Mamoo son of Qasim, their objection would have prevailed. They did not choose to adopt this course and instituted the suit for recovery of possession under section 9 of the Specific Relief Act, leaving entirely out of consideration the point as to whether they had anything to do with Mamoo son of Qasim or not, and justifying their possession by claiming ownership and denying the ownership of the defendant‑applicants. This stand directly brought into prominence the question of title.

9. It was open to them under section 9 to allege title which could be disregarded if their possession was shown to be independent of Mamoo son of Qasim, but the explanation offered by them of their possession was meaningless excepting by the proof of their alleged ownership, and of the alleged absence of the ownership of the defendant‑applicants. What needs to be noted here is the importance of the nature of the alleged possession of the plaintiff‑respondents. The importance lies in the delicacy of the situation that in the event of their being found in possession on behalf of Mamoo son of Qasim, they were liable to be ejected, irrespective of whether they were parties to the ejectment order or not, but if their possession was as owners they could not be ejected.

10. The third ground of attack of counsel for the applicants is to be considered against this background. The angle from which the arguments were addressed by counsel for the applicants did not precisely hit this point of the ground because he cited Ahmad Ali Noorbhoy v. Sakhawat Hussain (P L D 1957 Kar. 790), in which the decision was that a landlord could not "bind the sub‑tenant merely by obtaining a decree against his tenant", because in view of the changes brought about by section 10 of the Karachi Rent Restriction Act, "all the parties in occupation of the premises in dispute should be before the Court in order to pass a binding decree." It was held, therefore, that a sub‑tenant, who is ejected under a decree given against the tenant could sue under section 9 of the Specific Relief Act to recover possession. As a result of this contention, argument proceeded on the question as to whether this view taken at Karachi or the view taken at Peshawar in Mir Ghazan v. Asim Khan (P L D 1952 Pesh. 59), which leads to the contrary conclusion, was the correct one. The discussion of counsel for the parties was thus centered on the question as to what was the precise meaning of the expression "otherwise than in due course of law" which occurs in section 9, so that the Karachi or the Peshawar view may be preferred. Many authorities were cited to explain the meaning; they included (1) Rudhappa v. Narsingrao I L R 29 Bom. 213, (2) Roshanulla v. Hazirmahmud 18 I C 727, (3) Gapalan v. State of Madras A I R 1950 S C 27, (4) Annopchand v. Amerchant A I R 1951 Mys. 101, (5) Smt. Rajwanta Kuer v. Mahabir Rai A I R 1931 All. 205, (6) Murlidhar v. Jainti Prasad A I R 1932 All. 703, and (7) Tamizuddin v. Ashrub Ali I L R 31 Cal.

647. To my mind, this discussion was wide of the precise mark.

11. In this case, the allegation of de facto possession is inseparably connected with the allegation of de jure possession. There are two reasons of this intimate relationship : firstly, the plaintiff‑respondents could have been evicted without being parties to the ejectment proceedings if they were in de facto possession on behalf of Mamoo son of Qasim ; secondly, their only explanation as to why they could not be taken to be in possession under or on behalf of him was that they were the owners of the southern half of the premises and that the defendant‑applicants were the owners of the northern half of it only. Mere de facto possession was not in the circumstances of this case an adequate ground for success. This is why they had to and did allege in their plaint their ownership and the absence of the ownership of the defendant‑applicants. The plaintiffs have actually produced, as the statement of Hassan, plaintiff No. 1, shows, "two notices and an extract from the record of rights" (Exhs. 1 to 3) to prove their ownership. He was, therefore, cross‑examined as follows "The suit property belongs to us. I do not hold any docu?mentary proof except Exhs. 1 to 3, for showing that the property is owned by us. We never paid any tax to the K. M. C. in respect of the suit premises."

12. In the situation explained above, the suit of the plaintiff ‑respondents could not be taken to fall within the strict limits of section 9 of the Specific Relief Act. The issue relating to ownership that was proposed by the Advocate for the defendent‑applicants was erroneously struck off by the trial Court. The suit ought to have been tried as one for establishing possession on the basis of rightful title.

13. In conclusion, I accept the revision application, set aside the judgment and decree of the trial Court dated the 29th of August 1960 and remand the case for re‑trial according to law. The parties shall bear their own costs. K. B. A.?????????????????????? Revision accepted.