1990 PLP 117 (MLD)

K.S. Abdullah Khan v. Faizullah Khan PLD 1950 Pesh. 35 and PLD 1977 Lah. 194 rel. Sardar Muhammad Hussain Khan for Petitioner. S.M. Anwar Shah for Respondents. In this constitution petition, the judgment and decree dated 24-1-1988 pronounced by the learned Civil Judge, Liaqatpur, and those of the learned Additional District Judge, Rahimyar Khan, dated 8-7-1989 have been questioned.

2. The history of the previous litigation between the parties is that Mst. Ghulam Fatima claims to be an owner of the house in dispute, which she is alleged to have purchased from the Town Committee for Rs. 6,

500. The respondent has contended that she was a tenant of this house, which had been attached to a mosque. The ejectment of Mst. Ghulam Fatima was sought through the agency of the learned Rent Controller and an order of ejectment was passed against her. She lodged an appeal before the learned District Judge, which was unsuccessful. She filed a writ petition which also failed.

3. The petitioner then sought the assistance of the learned trial Court for a declaration to the effect that she was an owner of the house in dispute. The respondent filed 'a suit for having the possession of the property in dispute as envisaged under section 9 of the Specific Relief Act. Both the suits were consolidated and were decided against the petitioner. She lodged a revision petition, which was dismissed by the learned Additional District Judge. Now she has come up in this writ petition.

4. Obviously, an ejectment order against the petitioner was pronounced and she was dispossessed from the property in dispute by the ejectment order. It appears that she again took possession of the property in dispute and a suit for her dispossession under section 9 of the Specific Relief Act was lodged.

5. The learned counsel appearing for the petitioner has raised the following three points:

(i) That the consolidation of the suits were not proper. (ii) That the suit riled under section 9 of the Specific Relief Act was barred by time. (iii) That the person, who was dispossessed should have brought a suit and the respondent was incompetent to institute a suit. With reference to Mst. Arifa Begum v. Khulque Muhammad Naqvi PLD 1969 Kar. 193, it has been contended that a suit for declaration of title cannot be consolidated with a suit for possession under section 9 of the Specific Relief Act, 1877. It has been added that in both the suits, the procedure was entirely different and in a title suit, the appeal is competent whereas when a suit for possession under section 9 of the Specific Relief Act is concluded, then a revision petition lies. This proposition of law is correct, but it may be noted that the petitioner had failed to take this plea before the learned lower Courts earlier. In such a situation, such a relief was refused in Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322.

6. The petitioner did not raise the point of limitation in her written statement and in a recent authority, namely, Muhammad Rafiq and others v. Barkat Ali and others 1988 SCMR 1526, it has been adjudicated that the plea of limitation, which was not raised before the learned lower Court, could not be raised subsequently and leave to appeal was refused. Adhering to the said precedent, this point does not help the petitioner at all.

7. The third point taken by the petitioner was that Maulvi Muhammad Saeed was not competent to file a suit under section 9 of the Specific Relief Act because he was not dispossessed, but the tenants, namely, Imam Bakhsh and Nabi Bakhsh were dispossessed and they were competent to file such a suit. He has supported his arguments with reference to K.S Abdullah Khan v. Faizullah Khan PLD 1950 Peshawar 35 and has contended that a person actually dispossessed was only entitled to sue. This point was also not raised before the learned lower Court nor it was taken in the written statement. This point depended on factual matter and such a new point cannot be raised in a constitutional petition, as held in Khadim Hussain v. Assistant Collector and another PLD 1977 Lah. 194.

8. In this manner, the writ petition has no merit and I dismiss the same in limine. A.A./G-273/L Petition dismissed.