2015 PLP 1875 (YLR)
AMJAD ALI and 7 others — Petitioners Versus ANWAR SHAH and 10 others — Respondents
| Citation | 2015 PLP 1875 (YLR) |
| Forum / Court | Peshawar |
| Bench Members | Abdul Latif Khan, J |
| Parties | AMJAD ALI and 7 others — Petitioners Versus ANWAR SHAH and 10 others — Respondents |
| Primary Law | Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2015 PLP 1875 (YLR)?
This judgment primarily cites: Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2015 PLP 1875 (YLR)?
The case was heard and decided by the Peshawar bench comprising: Abdul Latif Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2015 PLP 1875 (YLR) (AMJAD ALI and 7 others — Petitioners Versus ANWAR SHAH and 10 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Misbahallah for Petitioners.
- Mazullah Barkandi for Respondents.
- Date of hearing: 25th February, 2015.
- 3. Learned counsel for petitioners referred to his better statement and submitted that original defendant has not filed written statement and the plea of respondents to be impleaded as party was turned down by the Courts below however later on they are arrayed as party in the capacity of legal heirs of defendant and as such could not claim the co-ownership in the suit property nor the plaintiff can be non-suited on this score.
- 4. It is pertinent to mention that the ejectment petition has been filed on 3-3-1994 whereas the respondents have acquired title in the suit property through mutation on 29-6-1993 and sale deed dated 2-12-1993, much prior to institution of the instant suit and cannot be precluded to agitate their title before the Court despite the fact that their plea of impleadment as party in individual capacity, turned down by the Court. Learned counsel for petitioner took the plea that there are two houses having an intervening wall which has been demolished by respondents which is misconceived, as no evidence has been produced to this effect. The plaint, better statement filed by plaintiff and the statement of petitioner as P.W.1 reveals that admittedly Yar Badshah deceased (original defendant) was residing in disputed house since long. He deposed that Yar Badshah was residing prior to his memory as he was not born at that time. He further admitted that the exact measurement of the house is not known to him and has given the details that there are four Kotas and one veranda in the suit house which was constructed by Yar Badshah deceased. It is nowhere mentioned that there were two houses, one purchased by respondents and other was in possession of father of respondent (original defendant) as tenant. The previous litigations between the predecessors of the parties were to the effect that Yar Badshah in Suit No.127/1 claimed adverse possession and his suit was dismissed as the plea of adverse possession was no more available due to repeal of relevant law.
- 5. The plaintiff claims ownership on the basis of revenue record which reveals that the disputed property bearing Khasra No.356/71 measuring 5 Kanals, 2 Kanals Ghair Mumkin Abad and 3 Kanals Nehar kind of land. Learned counsel for petitioners was unable to convince the Court as how the respondents could be ejected and from which portion of the house as the record is silent as to which of the portion is in possession of original defendant/tenant father of present respondent and which of the portion has been purchased by present respondents by dint of mutation and sale deed. It is pertinent to mention that one Hussain son of Mashal who has been shown as Hissadar owner in column of cultivation to the extent of 2 Kanals in the suit property has sold 10 marlas of land in favour of respondents and to this effect a suit was also filed in the Court by said Hussain Khan against the respondents bearing No.188/1 on 5-7-2010 wherein compromise was effected and was dismissed as withdrawn on 30-10-2010, which shows that they were inducted by their vendor Hussain who happens to be the son of Mashal, Hissadar owner in possession of the suit house. The plaintiff has not been able to prove his claim in the suit house rather based his claim on the revenue record wherein Ghair Mumkin Abadi has been shown to the extent of 2 Kanals. Even the existence of house in the said Khasra number has not been proved through cogent evidence. The format of the suit is defective and no proper remedy has been sought by the plaintiff and mere suit for ejectment would not resolve the controversy between the parties especially when the respondents have dual status as legal heirs of the tenant (now dead) as well as purchaser of the property and in such eventuality the previous status would be converted into that of later one as tenancy could not be devolved in inheritance especially when it is not proved through confidence inspiring evidence nor the payment of 'Khak Shora' has been established. The plaintiff has not brought on record any receipt to this effect. Even otherwise both of the status were being inconsistent with each other, so long has not taken place by metes and bounds and as such the moment property acquired, the relation of tenant and landlord ceased to exist however in the instant case neither the respondents are tenant under the plaintiff nor the plaintiff claims as such and to the extent of father of respondent the claim of plaintiff as his tenant has not been established and denied by tenant/father of respondents as evident from suit filed by him claiming adverse possession.
Headnotes / Summary
Ss. 8 & 9
Suit for possession through ejectment
Plaintiff instituted suit for possession through ejectment claiming to be owner and the defendants' father was tenant of property on 'Khak Shora'
Defendants denied relationship of landlord and their father as tenant but claimed themselves to be co-sharers vide mutation and registered deed
Defendants had acquired title prior to institution of present suit and they could not be precluded to agitate their title before the Court
Format of the suit being defective for ejectment was not sufficient to resolve controversy between the parties when defendants had dual status i.e. legal heir of deceased tenant and purchaser of suit property
Tenancy could not devolve in inheritance, specially where not proved through confidence inspiring evidence nor the payment of Khak Shora had been established
Trial Court decreed the suit but lower appellate Court had set aside the decree
When plaintiff was unable to establish defendants' father as tenant, no decree of ejectment could be passed and lower appellate Court rightly dismissed the suit, in circumstances.
Judgment & Decree
ABDUL LATIF KHAN, J.
This revision petition has been preferred against the order/judgment and decree dated 9-7-2010 passed by learned Additional District Judge-XII, Peshawar, whereby while accepting the appeal of respondents the order/judgment and decree dated 26-11-2009 passed by learned Civil Judge, Peshawar, set aside and the suit of the petitioners has been dismissed for want of proof. Arguments heard record perused.
2. A perusal of record reveals that a suit for possession through ejectment was filed by predecessor of petitioners namely Khalil Khan against the predecessor of respondents namely Haji Yar Badshah in respect of suit house on the ground that he was exclusive owner of the suit house and the predecessor of defendants was tenant under him on payment of 'Khaak Shora'. It was also averred that a suit was filed by defendants claiming ownership which was dismissed on 20-6-1990 and appeal filed by him also met the same fate on 19-10-1993. The defendant put his appearance who was directed to file written statement and prior to that the four sons of defendant (present respondents) moved an application for impleadment as party on the ground that they have acquired the land by dint of various mutations and as such became co-sharer in the property. Their plea was turned down and revision filed by them was also dismissed and the case was sent back to the trial Court. In the meanwhile defendant Haji Yar Badshah died and the present respondents were arrayed as party in the capacity of legal heirs of defendant, who filed written statement on 26-7-1999 claiming therein that they are co-sharers in the property by dint of mutations Nos.511 to 514 attested on 29-6-1993 and registered deed attested on 2-12-1993 and cannot be ejected through instant suit.
3. Learned counsel for petitioners referred to his better statement and submitted that original defendant has not filed written statement and the plea of respondents to be impleaded as party was turned down by the Courts below however later on they are arrayed as party in the capacity of legal heirs of defendant and as such could not claim the co-ownership in the suit property nor the plaintiff can be non-suited on this score.
4. It is pertinent to mention that the ejectment petition has been filed on 3-3-1994 whereas the respondents have acquired title in the suit property through mutation on 29-6-1993 and sale deed dated 2-12-1993, much prior to institution of the instant suit and cannot be precluded to agitate their title before the Court despite the fact that their plea of impleadment as party in individual capacity, turned down by the Court. Learned counsel for petitioner took the plea that there are two houses having an intervening wall which has been demolished by respondents which is misconceived, as no evidence has been produced to this effect. The plaint, better statement filed by plaintiff and the statement of petitioner as P.W.1 reveals that admittedly Yar Badshah deceased (original defendant) was residing in disputed house since long. He deposed that Yar Badshah was residing prior to his memory as he was not born at that time. He further admitted that the exact measurement of the house is not known to him and has given the details that there are four Kotas and one veranda in the suit house which was constructed by Yar Badshah deceased. It is nowhere mentioned that there were two houses, one purchased by respondents and other was in possession of father of respondent (original defendant) as tenant. The previous litigations between the predecessors of the parties were to the effect that Yar Badshah in Suit No.127/1 claimed adverse possession and his suit was dismissed as the plea of adverse possession was no more available due to repeal of relevant law.
5. The plaintiff claims ownership on the basis of revenue record which reveals that the disputed property bearing Khasra No.356/71 measuring 5 Kanals, 2 Kanals Ghair Mumkin Abad and 3 Kanals Nehar kind of land. Learned counsel for petitioners was unable to convince the Court as how the respondents could be ejected and from which portion of the house as the record is silent as to which of the portion is in possession of original defendant/tenant father of present respondent and which of the portion has been purchased by present respondents by dint of mutation and sale deed. It is pertinent to mention that one Hussain son of Mashal who has been shown as Hissadar owner in column of cultivation to the extent of 2 Kanals in the suit property has sold 10 marlas of land in favour of respondents and to this effect a suit was also filed in the Court by said Hussain Khan against the respondents bearing No.188/1 on 5-7-2010 wherein compromise was effected and was dismissed as withdrawn on 30-10-2010, which shows that they were inducted by their vendor Hussain who happens to be the son of Mashal, Hissadar owner in possession of the suit house. The plaintiff has not been able to prove his claim in the suit house rather based his claim on the revenue record wherein Ghair Mumkin Abadi has been shown to the extent of 2 Kanals. Even the existence of house in the said Khasra number has not been proved through cogent evidence. The format of the suit is defective and no proper remedy has been sought by the plaintiff and mere suit for ejectment would not resolve the controversy between the parties especially when the respondents have dual status as legal heirs of the tenant (now dead) as well as purchaser of the property and in such eventuality the previous status would be converted into that of later one as tenancy could not be devolved in inheritance especially when it is not proved through confidence inspiring evidence nor the payment of 'Khak Shora' has been established. The plaintiff has not brought on record any receipt to this effect. Even otherwise both of the status were being inconsistent with each other, so long has not taken place by metes and bounds and as such the moment property acquired, the relation of tenant and landlord ceased to exist however in the instant case neither the respondents are tenant under the plaintiff nor the plaintiff claims as such and to the extent of father of respondent the claim of plaintiff as his tenant has not been established and denied by tenant/father of respondents as evident from suit filed by him claiming adverse possession.
6. The learned Court of appeal has decided the lis pending before it with conscious and diligent appreciation of mind, warrants no interference. For the aforesaid reasons, the instant petition being devoid of merit is dismissed. MM/112/P Petition dismissed.