1988 PLP 1305 (CLC)

This second appeal under section 100, C.P.C. was directed against the judgment and decree, dated 6‑6‑1966 of the learned Additional District Judge, Sargodha, whereby the appeal of Jallan respondent‑plaintiff was accepted and suit was decreed with costs throughout.

2. The facts necessary for the disposal of the second appeal are that a suit for declaration with permanent injunction as a consequential relief was filed by Mst. Jallan deceased‑respondent with the averments that the estate of Tahiri son of Inayat was held by Mst. Roshnai, her widow. Mst. Roshnai died in 1960 and the estate was mutated in favour of Mst. Bano defendant No.22 to the extent of one‑half while the remaining half was mutated in favour of defendants No.l to

21. It was further alleged that Tahiri son of Inayat had four sisters, out of whom Wallan and Jallan died in his life‑time whereas Allan, third sister died 16 years ago and fourth sister Mst. Fazlan alias Feelan died in 1932. Mst. Jallan claimed that she was one of the daughters of Mst. Fazlan whereas defendants No.25 and 26 are sons and defendant No.27 is the daughter of Dallan, the other daughter of Mst. Fazlan. She, therefore, on the above premises claimed the decree prayed for on the basis of the aforenoted assertions. Mst. Bano defendant No.22 accepted her as one ,of the heirs of Tahiri whereas defendants No.1 to 21 repudiated her claim in the written statement filed by them. The learned trial Court on the basis of the pleadings of the parties framed the following issues:‑‑ (1) Whether the plaintiff is in possession of the suit property and the suit can proceed in the present form? O.P. (2)Whether the court‑fee is correct? O.P. (3) Whether the plaintiff is the heir of Tahiri deceased and if so to what extent? O.P. (4) Whether Tahiri deceased was Shia and what is its effect on the suit? O.D. (5) Relief."

3. The parties produced voluminous evidence and after hearing the arguments the learned trial Judge decided issues No. 2 and 3 in favour of the plaintiff. Under issue No. 4 the finding recorded was that Tahiri was not a Shia. Issue No. 1, however, was decided against the plaintiff and it was held that as the plaintiff was out of possession the suit was hit by the provisions of section 42 of Specific Relief Act and was thus, not maintainable in the present form. The suit was accordingly dismissed vide judgment and decree, dated 22‑2‑1965. The first appeal of Mst. Jallan the deceased‑respondent was accepted by the learned Additional District Judge vide impugned judgment, dated 6‑6‑1966. The learned first appellate Court was of the view that firstly even if it was held that the plaintiff was not in possession, the plaint should have been allowed to be amended so as to claim the relief of possession as well. Secondly, possession of one co‑sharer, under the law, is always considered to be the possession on behalf of all other co‑sharers unless there is an ouster of the other co‑sharer in respect of the joint property and that in the instant case ouster has not been established. It was observed that the plaintiff could not be considered to be out of possession in the circumstances of the case and as such the suit was not hit by section 42 of the Specific Relief Act.

4. Learned counsel in support of the second appeal argued that ouster of Bano defendant No.22 stood admitted and as such the suit was rightly held by the learned trial Court to be hit by the provisions of section 42 of Specific Relief Act; that the court‑fee affixed on the plaint was deficient; that in any case, Jallan deceased‑plaintiff/ respondent had failed to establish that Tahiri had any sister and as such the deceased‑plaintiff could not be given any share in the estate left by Tahiri.

5. I have gone through the two judgments as well as the record of the learned Courts below. Learned trial Court has discussed the evidence and has given cogent reasons for coming to the conclusion that Mst. Jallan the plaintiff was daughter of Fazan who in turn was sister of Tahiri. The evidence produced by the defendants in this respect was not accepted for the reasons recorded in the judgment and on the contrary evidence of Gilla P.W.3, Muhammad Hayat P.W.5, Samad P.W.6, Nawab P.W.8, Sardar, Lal Khan and Muhammad Ali P.Ws. accepted observing that they were independent witnesses. No fault could be found by the learned counsel with this finding. He was also not able to point out any misreading or non‑reading of any material piece of evidence.

6. It is pertinent to note that the finding on issue No.3 was not at all adverted to in the judgment by the learned Additional District Judge. It is true that Mst. Jallan was the appellant before the first appellate Court but the present appellants who were respondents had the right to defend the decree of dismissal passed by the learned trial Court on this very ground now urged before this Court. It was not the grievance of the appellants that they had taken this plea but the same was not noticed by the first Appellate Court. Even in the memo. of second appeal no such grievance was made. The finding of fact so recorded by the learned trial Court for the reasons given above warrants no interference in second appeal specially when the said finding remained unchallenged before the first Appellate Court. 6‑A Coming to the question of possession subject‑matter of issue No. 1 , learned counsel was unable to establish ouster of a co‑sharer. Even if it is assumed that Mst. Bano was ousted from the land in her possession, the appellants as well as the other respondents were admittedly in possession. According to law possession of one co‑sharer is always considered to be possession on behalf of all co‑sharers. In B these circumstances the plaintiff need not have sought a decree for Khas possession and the suit as framed claiming joint possession in the capacity of an heir was competent in law. The last plea as to the deficiency of the court‑fee also has no merit as the same was not agitated before the learned lower appellate Court. Even on merits, C this objection is not valid as the objection was based on the ground that suit for possession should have been filed. For the reasons given above, I find no merit in this appeal and the same is dismissed. The parties are, however, left to bear their own costs in this Court.