P L D 1989 Lahore 103 (PLP)
ANJUM and 2 others‑‑Appellants Versus Mst. SUFAIDAN and 3 others‑‑Respondents
| Citation | P L D 1989 Lahore 103 (PLP) |
| Forum / Court | ‑‑‑S. 48‑‑Limitation Act (IX of 1908), S.28‑‑Execution of decree when not to be required‑ ‑Co‑sharer in possession failing to execute decree for possession‑‑Effect‑‑Where a party was in possession of property, execution of decree was not required at all‑‑Such decree though not executed, yet would be alive and effective qua those rights acknowledged therein‑‑Limitation bars only the remedy, but does not extinguish the right itself unless such case falls within ambit of provisions of S.28, Limitation Act‑‑Person in possession of property has no need to sue execution for possession thereof‑‑Plaintiff being a co‑sharer, even if found to be in possession of land less than his/her entitlement in joint Khata, her right to the property cannot be extinguished, because possession of a co‑owner is, in law, possession of all co‑owners‑‑Co‑owner's right cannot be extinguished unless his exclusion for the statutory period was established from such ‑property. p. 105 B |
| Bench Members | Gul Zarin Kiani, J |
| Parties | ANJUM and 2 others‑‑Appellants Versus Mst. SUFAIDAN and 3 others‑‑Respondents |
Q1: What are the key laws and sections cited in P L D 1989 Lahore 103 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1989 Lahore 103 (PLP)?
The case was heard and decided by the ‑‑‑S. 48‑‑Limitation Act (IX of 1908), S.28‑‑Execution of decree when not to be required‑ ‑Co‑sharer in possession failing to execute decree for possession‑‑Effect‑‑Where a party was in possession of property, execution of decree was not required at all‑‑Such decree though not executed, yet would be alive and effective qua those rights acknowledged therein‑‑Limitation bars only the remedy, but does not extinguish the right itself unless such case falls within ambit of provisions of S.28, Limitation Act‑‑Person in possession of property has no need to sue execution for possession thereof‑‑Plaintiff being a co‑sharer, even if found to be in possession of land less than his/her entitlement in joint Khata, her right to the property cannot be extinguished, because possession of a co‑owner is, in law, possession of all co‑owners‑‑Co‑owner's right cannot be extinguished unless his exclusion for the statutory period was established from such ‑property. p. 105 B bench comprising: Gul Zarin Kiani, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1989 Lahore 103 (PLP) (ANJUM and 2 others‑‑Appellants Versus Mst. SUFAIDAN and 3 others‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Malik Muhammad Zaffar for Appellants. Muhammad Munir Peracha for
- Respondents. Date of hearing: 6th December, 1988.
Headnotes / Summary
(a) Specific Relief Act (I of 1877)‑‑ ‑‑‑S. 42‑‑Suit for declaration on basis of possession‑‑Proof of possession for maintanability of suit‑‑Entries in Revenue record coupled with oral evidence proved possession of plaintiff over suit land beyond dispute‑‑Solitary statement of defendant was insufficient to discredit overwhelming evidence existing on plaintiff's side‑‑Suit for declaration on basis of possession would thus be maintainable. P L D 1967 Pesh. 290 and AIR'1930 Lah. 803 ref. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 48‑‑Limitation Act (IX of 1908), S.28‑‑Execution of decree when not to be required‑ ‑Co‑sharer in possession failing to execute decree for possession‑‑Effect‑‑Where a party was in possession of property, execution of decree was not required at all‑‑Such decree though not executed, yet would be alive and effective qua those rights acknowledged therein‑‑Limitation bars only the remedy, but does not extinguish the right itself unless such case falls within ambit of provisions of S.28, Limitation Act‑‑Person in possession of property has no need to sue execution for possession thereof‑‑Plaintiff being a co‑sharer, even if found to be in possession of land less than his/her entitlement in joint Khata, her right to the property cannot be extinguished, because possession of a co‑owner is, in law, possession of all co‑owners‑‑Co‑owner's right cannot be extinguished unless his exclusion for the statutory period was established from such ‑property. [p. 105] B (c) Co‑Sharer‑‑ ‑‑‑Possession of one co‑owner is, in law, possession of all co‑owners.
Judgment & Decree
This second appeal is by defendants 1 to 3 in the civil suit instituted by Mst. Sufaidan plaintiff for declaration that she was owner in possession of the land in dispute and for perpetual injunction prohibiting the defendants from causing interference therewith. For proper appreciation of the point, it is necessary to narrate some facts. Some land in the revenue estates of Jalalia and Abdur Rehman, Tehsil Attock belonged to one Muzaffar Khan. In matters of succession to and alienation of his land, he was governed by custom. He died without leaving any issue before the enforcement of West Pakistan Muslim Personal Law (Shariat) Act 1948. Upon death cf Mst. Said Nishan widow of Muzaffar Khan in 1955, land owned by Muzaffar Khan was distributed amongst his heirs. Mst. Sufaidan as real sister of late Muzaffar Khan claimed 15/24 shares in his land and filed a suit against Ajun Khan and others in the civil Court at Campbellpur. Her suit for recovery of possession was decreed on 18‑1‑1961. Copy of the decision is Ext.P‑
2. In appeal, this decision was affirmed on 22‑1‑1962 by learned District Judge, Campbellpur. Copy of the decision given in appeal is Ext.P‑
1. It was averred that she was in possession of her share of land and the defendants be restrained from causing interference with her ownership and possessory rights. Defendants 4 to 7 conceded the claim of the plaintiff whereas defendants 1 to 3 and 7 resisted it. Par as 1 to 3 of the plaint were controverted. In para 4 of the written statement, it was submitted that since decree passed by the civil Court was not executed, plaintiff cannot take any benefit out of it. Her possession over the land in dispute was also denied. On 5‑4‑1967, the trial 'Court settled following issues for determination: ‑ (1) Whether the plaintiff is in possession of the suit land and the suit is maintainable in the form brought? O.P. (2) Whether the decree of the civil Court dated 19‑1‑1961 is of no avail to the plaintiff as she failed to get the same executed? O. D. (3) Relief. Upon consideration of evidence, the trial Court found for the plaintiff and gave her decree for the land‑in‑dispute on 25‑10‑1967. It was held that there was overwhelming evidence to prove that the plaintiff was in possession of the suit land and that in all probability is the reason why the plaintiff Mst. Sufaidan did not care to sue for execution of the decree passed in her favour, on 19‑1‑1961. Consequently, issue No.l was found in her favour and so also the issue No.2. Learned District Judge affirmed these findings. It was observed that "It follows, therefore, that the plaintiff has proved her possession of the suit land ,completely. Besides, the plaintiff is recorded as co‑sharer in the ownership column of Jamabandi Ext. P‑4 and according to law, she will be deemed to be in possession in accordance with the doctrine that possession of one co‑sharer is possession of all, until any one of the co‑sharers claims adverse possession by some overt act. This view is supported by P L D 1967 Peshawar
290. It is well‑settled law that if a person has obtained a decree, but is found in possession, her possession will be ascribed to the decree and he need not, therefore, take out the execution. AIR 1930 Lah.803 and 1944 Oudh 1615 are the authorities that can be referred in this behalf". Two points arise for consideration. First is in regard to possession of the plaintiff and second as to the effect of non‑execution of decree passed in favour of the plaintiff on 18‑1‑1961. Plaintiff gave oral evidence to support her possession over the land‑in‑dispute. She also gave evidence that some portion of the land which was under mortgage was got redeemed by her and that the tenants paid her the rent in respect of the land comprised in their tenancies. In defence, Adam defendant No.2 appeared as D.W‑1 and deposed that possession of the land was with the mortgagee but admitted that defendants were not in possession of the land‑in‑dispute. Upon oral evidence and the entries existing in the revenue records, possession of the plaintiff over the land‑in‑dispute was established beyond dispute. Solitary statement of the defendant was insufficient to discredit the overwhelming evidence existing on the plaintiff's side. p It is not denied that in the earlier round of litigation, her title to the land‑in‑dispute was acknowledged by the Courts and she was found entitled to recover possession of the land in accordance with her entitlement. In Mt. Indar Devi v. Kirpa Ram and another AIR 1930 Lah. 803, it was observed that if a party in whose favour a decree for possession was passed went into possession without intervention of the Court, its possession would be ascribed to the decree. It is well‑settled that if a party is in possession of the property, execution of the decree was not required at all and the decree though not executed yet was alive and effective qua the rights acknowledged by it. Limitation bars only the remedy and does not extinguish the right itself unless the case is covered by section 28 of Limitation Act, 1908. A person in possession of the property, has obviously no need to sue execution for possession thereof. Land‑in dispute is comprised in numerous Khasra numbers. Of it, part is in possession of the plaintiff and the rest is shown to be in possession of other recorded cc‑owners. Defendants are not in possession. Plaintiff is a co‑sharer and even if she is found to be in possession B of land less than her entitlement in the joint Khata, her right to the property cannot extinguish because the possession of a co‑owner is, in law, the possession of all the co‑owners. Their rights cannot be extinguished by reason of the possession of the co‑owner unless there is exclusion of the other co‑owners for the statutory period. No such exclusion is established in the case. Upon the existing records, petitioners had no right to deny the entitlement of the plaintiff and cause interference with her possession over the land‑in‑dispute. No case for interference has been made out. Second appeal is properly concluded by findings of the Courts below. In result, appeal fails and is dismissed with costs. A.A. /A‑470/L Appeal dismissed