2007 PLP 315 (MLD)

SYED ASGHAR HAIDER, J.

This petition is directed against the judgment, dated 5-11-2001, passed by the learned Additional District Judge, Mandi Baha-ud-Din, affirming the judgment and decree, dated 6-5-2000, passed by the Civil Judge, Malakwal, whereby suit of the respondent/plaintiff was decreed.

2. Facts necessitating the filing of the present petition are that Respondent No.1 filed a suit for possession against the petitioners, according to the plaintiff/respondent the petitioners and respondents are relatives, the suit property was jointly purchased and mutation in this contest was sanctioned in favour of the predecessor-in-interest of the petitioners and respondents, pursuant to a private partition they raised constructions over their respective shares, planted trees etc. The defendants/petitioners raised construction over the plaintiff/respondent share, he got the property demarcated through the Revenue Officer, the shares were separated, but the defendants/petitioners did not part with the possession, therefore, the present suit was filed, it was contested, written statement was filed, of the divergent pleadings of the parties issues were framed, evidence was led and thereafter the suit was decreed to the extent of 7 marlas of disputed property directing that the defendants/petitioners hand over vacant possession to the plaintiff/ respondent. Aggrieved thereof an appeal was filed by the petitioners, which was dismissed, hence the present petition.

3. Learned counsel for the petitioners contended that suit under section 8 of the Specific Relief Act was not maintainable in view of the precedent Mst. Resham Bibi and others v. Lal Din and others (1999 SCMR 2325), the demarcation by the Revenue hierarchy is not in consonance with law and has no legal sanctity, necessary parties were not arrayed in the suit, therefore, it was not properly constituted and lastly the report of the Patwari is ex parte and remedy was by a suit for partition.

4. Learned counsel for the respondents has contrarily supported the impugned judgments and has controverted the arguments of the petitioners, he contended that proper parties have been arrayed, the suit is maintainable as it was a suit for possession simplicitor and there is concurrent finding against the petitioners, de novo appraisal of evidence cannot be done in the present jurisdiction.

5. I have heard the learned counsel and perused the impugned judgment. Learned counsel for the petitioner has. laid much emphasis upon the maintainability of the suit, according to the learned counsel in view of section 8 of the Specific Relief Act, 1877 and Mst. Resham Bibi and others v. Lal Din and others (1999 SCMR 2325), Muhammad Ramzan Khan (deceased) through his legal representatives and another v. Muhammad Amir Khan and another (2000 CLC 1211) and Nazar Hussain v. Additional District Judge, Chakwal and 4 others (2004 YLR 322) a co-sharer cannot institute suit a against another co-sharer under section 8 of the Specific Relief Acct and the remedy was by a suit for partition and possession. I have seen the plaint, it does not reflect anywhere specifically, that the suit was filed under section 8 of the Specific Relief Act, 1877, the assertions made in the plaint are that the petitioners have illegally and unlawfully occupied share more than their entitlement and prayer for the recovery of the same was made. Further the written statement does not in any way question the maintainability of the suit qua section 8 of the Specific Relief Act, in fact, it has been specifically denied that the petitioner is in occupation of any excess land. than his entitlement. Learned counsel for the petitioner argued the suit for possession is barred, the judgment referred as Mst. Rehsham Bibi and others v. Lal Din and others (1999 SCMR 2325) categorically gives the option to the aggrieved co-sharer to either file suit under section 9 or to file suit for partition. In the present case the respondent has merely filed suit for possession, there is no reference to section 8 of the Specific Relief Act as has been stated by the learned counsel for the respondent, tnerefore, the law cited is distinguishable.

6. Now adverting to the other pivotal points raised by the learned counsel for the petitioner that the demarcation report is not in consonance with the provisions of the Land Revenue Act, 1967. The contention has no force, report was affirmed by the Tchsildar and it has value as collateral evidence. The respondent/plaintiff was able to establish through cogent and reliable evidence especially Exh. P-1 and P-2 and the oral testimony of P.Ws. 1 to 3 that the property was privately partitioned and each shareholder had a demarcated share in this property. It is clear from oral as well as documentary evidence that the petitioner is in occupation of 7 marlas of land beyond his entitlement. As laid down in Qayyum Khan and 19 others v. Zumarad Khan and another (1999 YLR 240) private partition was proved, therefore, suit for partition could not be filed, the remedy was a suit for possession, A which was rightly filed by the .respondent. The evidence tendered by the petitioner/defendant does not match the quality evidence tendered by the respondent/plaintiff no defect qua formal of suit, or non-arraying of parties could be made. Resultantly both the Courts below after careful appraisal of evidence decreed the suit, there is concurrent finding against the petitioner, unless exceptional circumstances are made out concurrent findings cannot be interfered into this jurisdiction, no misreading or non reading of evidence or jurisdictional error has been pointed out, resultantly, this petition has no merits and is dismissed. F. B. /M-602/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.