2006 PLP 1096 (YLR)

SYED ZAHID HUSSAIN, J.

A suit for possession under section 9 of Specific Relief Act, 1877 qua the suit property comprising Khasra No.1891 /8/2 was tiled by the respondents against the petitioner whereas the petitioner also instituted a suit for injunction qua the same property. Both the suits were tried together by the learned trial Court. Vide judgment dated 10-7-2001 the suit of the respondents (section 9 of the Specific Relief Act, 1877) was decreed whereas the suit of the petitioner (permanent injunction) was dismissed. The judgment was assailed through a revision petition and an appeal by the petitioner, which were dismissed by the learned Additional District Judge-I, Mianwali on 25-2-2004. The present petition has been tiled qua the judgments of the Courts below in the suit for possession whereas C.R. No.956 of 2004 has been filed to assail the judgments arising out of the injunction suit filed by the petitioner.

2. It is contended by the learned counsel for the petitioner that the respondents/plaintiffs were never in possession of the suit property, there was, therefore, no question of their dispossession and suit under section 9 of the Specific Relief Act, 1877 was not maintainable. According to him the respondents/plaintiffs had failed to prove their assertion that they had been dispossessed by the petitioner. It is contended that in such circumstances the suit of the respondents was liable to be dismissed whereas the suit filed by the petitioner for injunction was to be decreed. The learned counsel for the respondents on the other hand emphasizes upon the fact that there are concurrent findings recorded by the two Courts below and it has been found as a fact that the respondents were in possession who had been dispossessed forcibly by the petitioner and they were rightly granted the decree under section 9 of the Specific Relief Act, 1877.

3. Respective contentions of the learned counsel for the parties have been considered and material brought on record has been perused with their assistance.

4. Both sides i.e. the respondents and the petitioner were claimant of having purchased land measuring 5 Kanals and 10 Marlas from a joint Khata through separate mutations. The land about which the respondents had instituted the suit was claimed by them in their possession from their forefathers. For that purpose they had relied upon the entries in the Revenue Record, such as Khasra Girdawari Exh.P.3, which showed that Karam Shah their grandfather had been in possession of the A land till Kharif 1997 whereafter the name of Jehan Khan petitioner appeared in the Khasra Girdawari Exh.P.4. This entry in favour of the petitioner was assailed by the respondents and correction thereof was ordered by the Collector vide order dated 6-4-1998 Exh.P.7, which order was maintained by the learned Additional Commissioner by dismissing the appeal of the petitioner on 21-5-1999 Exh.P.9. It is informed that the revision tiled by the petitioner there against was dismissed by the Board of Revenue. This documentary evidence substantiates the. assertion of the respondents that they/their predecessor-in?interest had been in possession of the suit property since long. Any discrepancy in the statement of Ghulam Shabbir one of the plaintiffs who appeared as P.W. in the Court was of no material significance in presence of the material available on the record. Their assertion that possession was taken by the petitioner on 23/24-1-1998 has also been found by the Courts below to have been proved. The suit, therefore, B brought by them on 27-1-1998 under section 9 of the Specific Relief Act, 1877 was justified in such circumstances. The contention of the learned counsel for the petitioner that the respondents were not entitled to relief under section 9 of the Specific Relief Act, 1877 is thus untenable in the circumstances. Suffice it to observe that findings recorded by the two Courts below on due appreciation and appraisal of the evidence on the record cannot be reopened as re-appreciation and appraisal of the evidence is not the function of this C Court in writ jurisdiction. It may be observed that the findings recorded by the two Courts below as to the possession of the respondents/plaintiff and their dispossession by the petitioner is purely a question of fact, interference with which is not called for in writ jurisdiction. Reference in this context may be made to Abdul Ghafoor v. Nazir Ahmad and others 1987 CLC 826; Raja Sher Ali v. District Judge, Jhelum and 9 others 1989 CLC 219; Abdul Wahid Mirza v. Vth Additional District Judge (South) Karachi and 3 others 1989 CLC 957 and Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325. It may further be observed that the scope of writ jurisdiction is restricted and limited, which cannot be converted into an appellate forum to appreciate the evidence over again or to substitute the findings of the lower forum. I, therefore, find no illegality having been committed by either of the Courts below in the matter, which could warrant interference by this Court. As a result the writ petition as also the civil revision are dismissed accordingly. F.M./J-48/L???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.