1972 PLP 602 (SCMR)

ANWARUL HAQ, J.‑This petition for special leave to appeal seeks to call in question an order made by a Division Bench of the Peshawar High Court on the 29th of September 1970, whereby second appeal filed by the petitioner Kalo Khan was dismissed in limine. The petitioner had brought a suit for declaration to the effect that he was the owner in possession of land measuring 144 kanals 17 marlas out of a joint holding measuring 1103 kanal, 5 marlas situate in Mauzas Najam Abad and Mera Parsing in Tonsil Charsadda of the Peshawar District, and that the defendant had no right to deny his title. In the alternative he prayed for joint possession of the land or any portion thereof found in possession of the defendants. He also prayed for a perpetual injunction restraining the defendants from interfering with his possession over the said land. The suit was decreed by the learned Civil Jud e of the 2nd Class at Charsadda. On appeal by tile defendants the decree was set aside by the learned Additional District Judge at Peshawar mainly on the ground that tile defendants had not denied the title of the plaintiff in their written statements, and that they had not done any overt act to interfere with the plaintiff's ownership and possession. The learned Additional District Judge observed that in such circumstances the suit was merely based on apprehension regarding the denial of his title and interference with his possession, although the alleged denial was not likely to materially injure the plaintiff. As regard, certain khasra numbers the learned Additional District Judge further observed that the suit appeared to be barred by limitation under Article 42 of the Limitation Act inasmuch as it sought to challenge an order made by a Magistrate of the 1st Class on 1‑10‑55 is proceedings under section 145 of the Criminal Procedure Code. Aggrieved by the appellate judgment and decree of the District Court the petitioner went up in second appeal which, as already stated, has been dismissed in limine by the High Court. The learned Judges have upheld the view expressed by the lower appellate Court that the suit being based on mere apprehension and the defendants having in no way interfered with the possession of the plaintiff, the discretionary relief under section 47 of the Specific Relief Act had been rightly denied to the petitioner. The High Court has not adverted to the question of limitation in the matter of challenge to the order of .the Magistrate dated the 1st of October 1955. In support of the present petition, it is contended by Mian Mohammad Shafi on the authority of Karam Chand and another v. Dr. Karam Dad Khan and others (A I R 1938 Lah. 465) and Sukh Dev v. Parsi (A I R 1940 Lah. 474) that a co‑sharer is entitled to maintain exclusive possession over specified areas of land, until partition, if his possession does not exceed his share in the joint holding, and therefore, the Courts below were in error in refusing the necessary declaration to the petitioner. We regret we see no merit in this submission. The dictum in the two cases referred to by the learned counsel has no relevance in the facts and circumstances of the preset case, as the petitioner has been ousted mainly on the ground that he had no cause of action, because his title was not being denied and his possession was not being disturbed. Such being the case, the Courts below were justified in 'denying the discretionary relief of declaration under section 42 of the Specific Relief Act. The petition accordingly fails and is hereby dismissed. Petition dismissed.