Suit for possession of immovable property

Both the parties were co-owners of disputed plot and civil suit pertaining to recovery of possession was pending in Civil Court of competent jurisdiction

There was also an order passed under Section 145 Cr.P.C. to protect peace and possession

Held: Both the parties were in joint ownership and had joint possession

No one was in exclusive possession of the plot which in fact was mandatory for handing over the possession of a semi-constructed plaza to petitioner

Civil suit for possession under Section 9 of Specific Relief Act, 1877 was filed by petitioner and suit for declaration and rendition of accounts and permanent injunction was also filed by respondent and as such both parties had landed their respective claim in Civil Court

Nature of order under Section 145 Cr.P.C. was temporary and short lived only during existence of imminent danger to the breach of peace

Rights and liabilities over such property were not finally determined

Co-owner could not be forcibly dispossessed from his own property

How much constructions were carried out and which side was to be sold for what price or retained by petitioner were dependent upon evidence on the basis of which rights and liabilities would be finally determined by Civil Court

Federal Constitutional Court directed that possession of disputed construction would be regulated by Civil Court where the suits were pending and declined to interfere in the matter

Petition for leave to appeal was dismissed and leave to appeal was refused.

Respondent had claimed possession of the suit land on the basis of ownership, and a suit for possession on the basis of ownership can be filed at any time, thus, no limitation ran against plaintiff/respondent

Hence, the judgments and decrees recorded by the Courts below were liable to be maintained

No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

Decree remained capable of execution till an appeal or revision was filed or such proceedings were pending but no stay order had been passed

No limitation had been provided for execution of a decree of Civil Court which had merged into decree of Appellate Court

Limitation for execution of decree would commence from accrual of right to apply and such right would start when appeal or revision had been finally disposed of by the last higher forum

Limitation period for filing execution petition would be reckoned from the date of appellate decision

Revision was dismissed, in circumstances.

Entries of ownership for the purpose of a suit under S. 9 of Specific Relief Act, 1877 were not be considered and only possession was material

Entries of Khasra Girdawari had presumption of correctness to ascertain possession

Question of title in such suit could not be taken into consideration and same could be decided in a suit for declaration

Plaintiff had been dispossessed from the suit land and entries of Khasra Girdawari had been altered to his disadvantage

Impugned judgments and decrees passed by the Courts below were not based on proper appreciation of evidence on record which were set aside and suit was decreed

Constitutional petition was allowed, in circumstances.

Defendant having possession of suit property being nephew of deceased filed earlier suit for declaration on the basis of gift against public-at-large which was ex parte decreed

Plaintiffs moved application for setting aside of said ex parte decree which was accepted with the consent of defendant wherein he admitted relationship of plaintiffs as widow and son of the allottee

Defendant thereafter withdrew the said suit and filed another suit against the plaintiffs on the basis of gift wherein he also admitted the plaintiffs as widow and son of the deceased

Said suit filed on behalf of defendant was dismissed and thereafter plaintiffs moved an ejectment petition against the defendant wherein he admitted the relationship of plaintiffs with the deceased

Plaintiffs could not prove relationship of landlord and tenant and eviction petition was dismissed and thereafter present suit was filed wherein defendant had denied the relationship of plaintiffs with the deceased

Suit filed on behalf of plaintiffs was decreed concurrently

Validity

Defendant had admitted the relationship of plaintiffs as widow and son of the allottee in the earlier litigations

Admission once made could not be withdrawn at any subsequent stage

Defendant was estopped to develop different stance other than the one already confirmed before the Court of law

Defendant had made allegations of illicit relationship of plaintiffs with the deceased allottee malafidely just for a defence to prolong his unauthorized possession

Defendant had lost his case on the basis of gift and he was bound to part with his possession forthwith

Real owners of suit property had been entangled in baseless litigation one after the other which practice was to be condemned

Defendant had defied the modesty of an old age widow and undermined the personality of her son while claiming him illegitimate child

Plaintiffs had right to independently proceed under the law against the defendant in that regard

Courts should be courageous to impose heavy costs against the defendant for his ill designs

Defendant had managed forged gift and asserted baseless allegations and prolonged his illegal possession over the suit property

Revision was dismissed with costs of Rupees 200,000/

Executing Court was directed to satisfy the decree as well as cost imposed herein within sixty days

Revision was dismissed in limine, in circumstances.

Plaintiff on the basis of demarcation report prepared by Circle Girdawar filed suit for possession which was decreed concurrently

Contention of defendants was that no notice was issued to them in the demarcation proceedings

Validity

Parties were not co-owners in the suit property

No Commission was appointed by the Trial Court for re-demarcation of suit land

Only evidence with regard to alleged encroachment upon the property of plaintiff was the demarcation report of Circle Girdawar

Said report was ambiguous and vague with regard to spot inspection and establishment of Khasra

No site plan/sketch of measurement/spot inspection was prepared by the Girdawar while making demarcation of suit land

Nothing was on record whether Girdawar had followed the rules of demarcation as provided in the High Court (Lahore) Rules and Orders

Revenue officer was bound to first trace some permanent point/structure wherefrom he was to undertake the measurement by establishing each Khasra number intervening the disputed Khasra number keeping in view the description and measurement of each arm of Khasra number as provided in Shajra Kishtwar

Entire measurement should be reflected in separately prepared sketch wherein the encroached property should be separately marked enabling the Court to render definite opinion on encroachment if any made by the defendants

Demarcation report in the present case was not worth reliance as it did not disclose the real controversy between the parties

Nothing was on record to decide the issue of encroachment

Impugned judgments and decrees were based on no/incorrect evidence

Matter could not be left unattended due to deficient demarcation report

Nobody should suffer for negligence and act of public servant

If statutory functionary had failed to perform his duties in accordance with law then plaintiff could not be made to suffer for the said omission/negligence when Court had power to appoint commission for spot inspection

Impugned judgments and decrees passed by the Courts below were set aside

Matter was remanded to the Trial Court for appointing Commission comprised of an expert revenue officer not below the rank of Girdawar for demarcation of disputed land and thereafter to decide the case in accordance with law

Revision was allowed in circumstances.

Execution petition was moved wherein judgment-debtor filed objection that he had made construction over the roof of the shop and decree could not be executed

Executing Court dismissed the objection petition but Appellate Court remanded the matter with the direction to deliver symbolic possession instead of physical possession of roof of the said shop

Validity

Judgment-debtor had never claimed to have raised any alleged construction over the roof of the shop in the written statement and that suit was not maintainable in its existing form

Even no compensation had been claimed by the judgment-debtor for the structure if any in his written statement

Executing Court had rightly concluded that the grounds raised in the objection petition could not be raised at the stage of execution as the subject-matter thereof was a pre-decretal matter which could have been entertained and adjudicated in the suit and not through execution petition

Appellate Court had held that construction over the roof of the shop could not be demolished and only symbolic possession could be delivered

Appellate Court had modified the decree which was for physical possession to a decree for symbolic possession in execution petition

Appellate Court had committed error of law and travelled beyond the jurisdiction while modifying the order of Executing Court or converting the decree in a decree for symbolic possession

Questions pertaining to the pre-decretal matters were to be raised in defence during the trial and could not be allowed to be raised in execution proceedings

Executing Court could not go behind or beyond the decree

Decree passed in favour of decree-holder had attained finality and judgment-debtor could not be allowed during execution proceedings to raise pre-trial matters

Alleged decree was not for symbolic possession rather it mandated delivery of physical possession of the suit property

Judgment-debtor was bound to comply with the direction contained in the decree

Claim of construction could not be entertained during the proceedings for execution of decree

Executing Court was bound to execute the decree strictly in the terms provided therein

Pre-trial questions if not raised during the trial or in the appeal could not be permitted to be urged as objection to the execution of decree

Impugned order passed by the Appellate Court was without jurisdiction and suffering from legal error and same could not be approved

Order passed by the Executing Court was restored and that of Appellate Court set aside

Appeal was allowed, in circumstances.

High Court during pendency of revision petition directed the Notified Officer to produce record of Settlement department pertaining to the suit land

District Officer (Revenue) submitted report that subject land was in the names of plaintiffs but same had been cancelled from their names

Validity

Report submitted by the District Officer (Revenue) did not mention the date when the suit land was cancelled from the names of plaintiffs which needed to be probed into whether such cancellation was done before leasing out land to the defendant or subsequently

Such facts were to be adjudicated on merits

Appellate Court had failed to take any step for a just and proper decision rather confined its findings on technicalities

Appellate Court, could on its own, take necessary steps for doing complete justice

Trial Court had committed material illegality in the proceedings

Appellate Court had failed to exercise its jurisdiction and take steps for a just and proper decision based on justice

Impugned judgments and decrees passed by the Courts below were set aside

Suit was remanded to the Trial Court for fresh decision on merits

Trial Court was directed to call report from Deputy Commissioner (Revenue) and bring the same on record and after verification of official documents pass a fresh decision

Revision was allowed, in circumstances.

Relief under S.9 of Specific Relief Act, 1877 was discretionary in nature and could not be granted to a person who had approached the court with unclean hands or had fabricated the story

Plaintiff had failed to prove that he was dispossessed from the suit property

Stance taken by the plaintiff in his suit was contradicted by the evidence he led

No one could be allowed to adduce evidence which was never pleaded and decision of the case could not rest on such evidence

Courts below had based their findings on title document of plaintiff

Court in a suit under S.9 of Specific Relief Act, 1877 was only required to examine as to whether the plaintiff was in possession of property when he was dispossessed by the defendant

Plaintiff, in order to succeed in such suit was required to prove that he was in possession of the immovable property and was dispossessed without his consent and such dispossession was otherwise than due course of law

Object of S.9 of Specific Relief Act, 1877 was to discourage people from forcibly occupying immovable property by taking law in their own hands

Plaintiff was never in possession of the suit property

Court in a suit under S.9 of Specific Relief Act, 1877 could decide only the claim of possession and was not required to decide title, right or legal character of claimant of suit property

Question of title was ancillary to the proceedings under S.9 which could not be looked into for restoring the possession

Orders passed by the courts below were illegal and violative of law which were set aside

Suit of the plaintiff was dismissed

Constitutional petition was allowed in circumstances.

Plaint was rejected on the grounds that plaintiffs had no legal right, character and title over the suit land and they were not in possession on the suit property

Validity

Relief in a suit filed under S.9 of Specific Relief Act, 1877 was not dependent upon the title of suit property

Said suit was to be decided only on the ground as to whether plaintiffs were dispossessed from the immovable property without their consent and without due process of law

Plaintiffs in such suit could recover possession notwithstanding any other title that might be set up in that suit

Dispute of possession was a bundle of facts which could not summarily be decided while considering an application under O. VII, R. 11, C.P.C.

Impugned orders passed by the Courts below were set aside

Matter was remanded to the Trial Court to frame issues including maintainability of suit and decide the controversy at the earliest within four months

Revision was disposed of in circumstances.

Plaintiffs filed suit for possession on the basis of ownership whereas defendants instituted suit alleging that they were in adverse possession of suit property

Trial Court decreed the suit of plaintiffs whereas suit of defendants was dismissed but Appellate Court dismissed the suit of plaintiffs and decreed that of defendants

High Court set aside the judgment and decree passed by the Appellate Court and restored that of Trial Court

Validity

Right of an owner for instituting suit for possession was automatically extinguished along with remedy to recover possession prior to amendment in S. 28 of Limitation Act, 1908

Defendants had failed to prove their adverse possession over the suit property

Mere non-payment of 'Batai' did not extinguish the right of adverse possession but if a person succeeded to prove his ownership then his right would remain intact which could not be extinguished

Owner of suit property could file a suit for possession at any time for which no limitation had been prescribed

Plaintiffs were owners of suit land whereas defendants were tenants

Mere peaceful possession spreading over decades or possession in absence of land owners could not be regarded as "adverse"

Nothing was on record that defendants were in possession of suit property as owners

No decree in the suit of adverse possession could be passed on the basis of law which was no more available on the statute book

Appeal was dismissed in circumstances.

No illegality, misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed in circumstances.

Plaintiffs had not produced marginal witnesses of sale deed to fulfil the mandatory requirement of Arts. 17(2) & 79 of Qanun-e-Shahadat, 1984

Even buyer and identifier were not produced in the court

Plaintiffs had failed to prove their title and they were not entitled for recovery of possession under S. 8 of Specific Relief Act, 1877

Sale deed on the basis of which suit was filed was not admissible in law

Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed

Revision was allowed in circumstances.

¬Agreement to sell with regard to immovable property did not create or confer any right except to file a suit for specific performance

Even a decree granted in a suit for specific performance in favour of plaintiff was a declaration of maturity of his right to get the property and the right conferred upon the decree holder in execution of decree and not through mere passing of decree

Even though the possession under the agreement to sell had been transferred to the transferee, yet he could not protect his possession or defend the same if suit for possession was filed by the owner i.e. the other party to the agreement on the basis of S.53-A of the Transfer of Property Act, 1882

Protection given under S.53-A of Transfer of Property Act, 1882 would be available to the person who possessed an instrument of transfer which had legal defect in it

Transferee should have performed his part of contract to take benefit of S.53-A of Transfer of Property Act, 1882

Defendant had not performed his part of contract and no suit for specific performance had been filed by him

Defendant could not take benefit of S.53-A of Transfer of Property Act, 1882

Second appeal was dismissed in liminc.

Constitutional petition against the judgment and decree of dismissal of suit for possession filed under S. 9 of Specific Relief Act, 1877 was not competent

Prayer for conversion of constitutional petition into civil revision could not be granted as decree sheet of courts below had not been appended with the same

Limitation would also come in the way when constitutional petition had been filed after more than four and half months of passing the impugned judgment and decree

Conversion of constitutional petition into revision was declined

Constitutional petition was dismissed in circumstances.

Contention of plaintiffs was that they purchased the suit property through registered sale deed and defendant was in occupation of the same as tenant

Defendant had contended that he had purchased the said property through agreement to sell

Suit was decreed concurrently

Validity

Plaintiffs had failed to prove that defendant was inducted into the suit property as tenant

Relationship between the parties as that of landlord and tenant could not be established

Plaintiffs were bound to prove as to how defendant was inducted into the suit property as alleged by them

Defendant took specific plea that he purchased the suit shop after payment of consideration price and possession was delivered to him

Witnesses of agreement to sell had died and defendant produced sons of said witnesses who identified the signatures of their fathers

Plaintiffs had failed to produce any evidence in rebuttal to the evidence led by the defendant

Evidence led by the defendant in absence of rebuttal would be deemed to be true and believed upon in circumstances

Defendant had proved his case in accordance with law

Executant of agreement to sell being one of the legal heirs of her father had share in the property left by him

Said executant could sell it to the extent of her share but she could not sell a specific portion thereof

Where some immovable property was sold for consideration by a transferor to the transferee in writing signed by him/her and possession was also handed over, such writing though not registered would not provide basis for dispossession other than a right provided by the terms of contract

Defendant was protected to the extent of his possession under S. 53-A of Transfer of Property Act, 1882

If plaintiffs wanted to get specific portion of the property, they should have filed a suit for partition while impleading all the legal heirs

Suit for possession merely on the basis of registered sale deed was defective in the eye of law

Both the courts below had committed material illegality while decreeing the suit of plaintiffs

Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed

Revision was accepted in circumstances.

Plaint was rejected by Trial Court but Appellate Court converted the suit for declaration and permanent injunction into a suit for recovery of possession

Validity

Law had specifically barred an appeal against the dismissal of suit under S.9 of Specific Relief Act, 1877

Revision against the impugned appellate order was not maintainable as appeal had been barred by law

Revisional Court could not find any jurisdictional defect in the order passed by the appellate court when appeal was barred by law

Revision would lie when no appeal lay

Phrase "no appeal lies" in S.115, C. P. C could not be equated with the phrase "no appeal shall lie" used in S.9 of Specific Relief Act, 1877

Right and entitlement of the parties could not be determined in the suit under S.9 of Specific Relief Act, 1877

Lawful claimant could file a civil suit for his title and recovery of possession thereof

Revision was dismissed in circumstances.

Defendants contended that as parties were joint owners, decree for possession could not be passed and plaintiff had to file either suit for partition or suit under S. 9 of Specific Relief Act, 1877

Validity

Defendants failed to prove their joint ownership in suit property

Partition could only be sought against co-owners

Suit for possession under S. 9 of Specific Relief Act, 1877 had different parameters, which was not the case of defendants.

Consent decree was obtained by the plaintiffs on the same day without arraying necessary and proper party in the application

Said decree could not be termed as valid decree

Plaintiffs had neither incorporated the same in the record nor that was got executed within prescribed period of limitation

Consent decree, in circumstances, carried value not more than an agreement between the parties to the case

Defendants were not party to the consent decree and same had no binding effect upon them

Judgment passed by the court having no jurisdiction had no legal status

Present suit had been filed for implementation of consent decree after 80 years and 5 months, which was not maintainable

No fresh suit could be filed by the same parties who had failed to act upon the decree

Implementation of decree could not be substituted with fresh suit

No document of title had been produced by the plaintiffs on the basis of which arbitration award was completed

Party could succeed according to what was alleged and proved

Except consent decree there was no other document on the file to show ownership of plaintiffs with regard to disputed property

Plaintiffs were bound to prove the facts alleged by them but no effort was made for the same

Plaintiffs had failed to prove their claim through cogent evidence

Short coming on behalf of defendants would not benefit the plaintiffs

Revision was accepted and impugned judgments and decrees of both the courts below were set aside.

Pedigree table had the status of record of rights and same would carry presumption of truth under S.52 of Khyber Pakhtunkhwa Land Revenue Act, 1967

Name of predecessor of defendants appeared in the pedigree table for year 1895-96 which had been further supported by revenue and settlement record

Long standing entries in the record of rights having presumption of correctness had supported the contentions of defendants

Such entries had not been rebutted by the plaintiffs through documentary or oral evidence as evasive assertion was not sufficient

Plaintiffs had never challenged such entries and they remained silent for more than a century despite the fact that possession of defendants was in their knowledge

Defendants were receiving their share right from the settlement who were owners of suit property

No suit for possession would lie against the owners of suit land

Both the courts below had failed to examine revenue record available on file properly

Claim of defendants was based on entries made in revenue and settlement record

Strong evidence was required to rebut the authenticity of the same

Genuineness and correctness of revenue record and pedigree table were not liable to be disturbed at such a belated stage

Record of rights which remained in existence and un-rebutted for more than a century could not be altered without lawful justification which was lacking in the present case

Illegality had been committed by both the courts below

Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed

Revision was accepted in circumstances.

Plaintiff could not get decree of possession without a mechanism provided under Ss.32 & 34 of Colonization of Government Lands (Punjab) Act, 1912

Trial Court had not passed a specific decree rather a contingent decree for possession was passed subject to allotment of land by the Revenue authorities

Decree passed by the Trial Court was not a judicial verdict as Court was to pass a specific decree without any ambiguity

Revision was dismissed circumstances.

If impugned judgment and decree were obtained by fraud and misrepresentation, remedy of filing an application under S. 12(2), C.P.C. was available before the same court

Defendant was served notice and he filed written statement in the suit instituted by the plaintiff

Defendant could not claim that notices were not served on him after restoration of suit due to collusion of court staff with the plaintiff

Defendant could himself have obtained the information from the court as to whether any restoration application was moved within the period of limitation or not

Defendant having not availed the remedy under S. 12(2), C.P.C., was bound to prove that the ownership of plaintiff was benami but he did not come in the witness box

Nothing was on record to prove the claim of defendant

Value of suit property prevailing at the time of filing of suit would be taken into consideration and not the value of the same at a future date

Revision was dismissed in circumstances.

Trial Court dismissed the suit but same was remanded by the Appellate Court with the direction to find out encroachment over suit property through revenue officer

Validity

During pendency of suit local commission was appointed for spot inspection who submitted his report but same was rejected by the Trial Court

Dispute between the parties was with regard to demarcation of suit property and same could be resolved through revenue officer by determination of encroachment

Trial Court was required to appoint another local commission to confirm encroachment over the disputed property

Trial Court had failed to exercise its jurisdiction properly and had wrongly and illegally dismissed the suit without any just and reasonable cause

Suit for possession on behalf of one co-heir/co-sharer was considered to be for or on behalf of other co-heirs/co-sharers

No error had been committed by the Appellate Court while remanding the present case as demarcation of suit property was necessary through revenue officer for adjudication on merits

Revision was dismissed in circumstances.

Plaintiff had to prove that he was in possession of suit property; that he had been dispossessed by the defendant otherwise than in due course of law and such dispossession had taken place within six months of the suit which should be reckoned from the date of dispossession.

Contention of plaintiff was that defendants were tenants who were residing in the disputed house but they had failed to pay rent in the shape of natural manure/debris/dung of animals

Suit was decreed concurrently

Validity

Owner or landlord of a premises/immovable property might invoke jurisdiction of civil court for dispossession or ejectment of or taking possession back over such property from a person entered upon the same as a tenants or otherwise subject to conditions enumerated under Ss. 8 & 9 of Specific Relief Act, 1877 or the provisions contained in Transfer of Property Act, 1882 in case property was not situated in an urban area otherwise same would be dealt under West Pakistan Urban Rent Restriction Ordinance, 1959

No controversy existed between the parties with regard to landlord and tenants over the suit house

Disputed house was not situated or occupied as site of a building in a village or town but same was used for agriculture purpose and subservient to agriculture

Plaintiff never alleged that defendants were either trespasser or they had forcibly occupied the suit house but his stance was that defendants had defaulted in providing natural manure to his land

Defendants were not defaulter in providing natural manure

Trial Court passed decree for possession on the ground that plaintiff was owner of disputed house which was illegal as present case would not fall under Ss.8 or 9 of Specific Relief Act, 1877

Both the courts below were not having jurisdiction in the present case

When defendants were tenants over the suit house which would fall within the definition of "land" then matter would be within the jurisdiction of Revenue Courts

Judgment rendered in a suit should be based on reasons

Grounds for forfeiture of lease did not attract in the present case as no findings against the defendants were given by both the courts below nor prior notice was given by the plaintiff to the defendants for determination of such lease

No estoppel was applicable against law

Interlocutory order could be assailed in appeal or revision against the final judgment passed by the Trial Court

Revision was accepted in circumstances and impugned judgments and decrees were set aside and plaint was directed to be returned in original to the plaintiff for presenting the same before competent court law.

Contumaciousness and mala fide was on record on the part of appellants as they neither supplied court-fee on the date given nor they appeared even to request for extension of time

Appellants had flouted the direction of Appellate Court to pay court-fee despite giving opportunity to them

No material irregularity or illegality was committed by the Appellate Court while exercising jurisdiction and dismissal of appeal was justified

Revision was dismissed in circumstances.

Contention of plaintiff was that sale deed attested in favour of defendants was illegal, void and ineffective against his rights

Suit was decreed concurrently

Validity

Document alleged to have been procured by fraud and foul-play could be agitated at any time as any fresh entry in the revenue record would give a fresh cause of action

Present suit was therefore within time

Statement of witness could not be considered in isolation rather accumulative effect of the whole statement was to be considered by the court

Party could not be penalized for slip of tongue imprudent/utterance

Court had to visualize and evaluate the veracity, capacity and mental level of witness and should not test and expect from a layman to improve, compose, extempore answers who was not used to face tricky, abrupt and intricate questions

Court should concentrate on theme, pith and substance of a statement and not to chalk out a selective piece of evidence

Impugned sale deed was got attested by practising fraud

Neither original sale deed was produced by the beneficiaries nor any attested or photocopy of the same was produced in secondary evidence

Oral assertions with regard to sale deed could not be taken into consideration as said document was not put to the witnesses during the trial

Beneficiaries of sale deed had failed to produce deed-writer who scribed the impugned sale deed as well as revenue officer who endorsed registration of the same

Best evidence had been withheld by the defendants

Portion of examination-in-chief which was not subjected to cross-examination would be deemed to have been admitted

Appellate Court had rightly dismissed appeal on valid reasons

No misreading or non-reading of evidence or any jurisdictional defect was pointed out in passing the impugned judgments and decrees

Revision was dismissed in circumstances.

Limitation for filing a suit for possession of an immovable property was twelve years from the date of dispossession or discontinuance of possession

Determining factor for limitation was the date of dispossession or discontinuance of possession

To establish such discontinuance of possession it must be shown that the owner had withdrawn the intention of abandoning the property and the gap was filled in by another person who had come to occupy in consequence of such withdrawal.

Trial Court dismissed suit on the point of limitation holding that same was filed under S. 9 of Specific Relief Act, 1877

Validity

Suit filed by the plaintiff would fall within the domain of S. 8 of Specific Relief Act, 1877

Decree passed in a suit filed under S. 9 of Specific Relief Act, 1877 was not a bar to either party for maintaining a regular suit seeking possession by way of establishing a legal, valid and competent title

Impugned judgment and decree passed by the Trial Court were set aside and case was remanded for decision afresh in accordance with law

Appeal was accepted in circumstances.

Meaningful analysis and purposeful perusal of the entire case of the petitioner reflected that no title had vested in the plaintiff on account of illegal, invalid, inadmissible sale

Plaintiff having no perfect title was not entitled to file the suit in question

Suit for declaration, without perfect title was incompetent, therefore liable to be buried at its very inception

Revision petition was dismissed.

Contention of plaintiff was that possession of suit property was given to the defendants being tenants and agreement to sell in their favour was forged document whereas defendants contended that they were owners of suit property to the extent of 72 kanals through agreement to sell

Suit was decreed by the Trial Court but same was dismissed by the Appellate Court

Validity

Cause of action between the parties in the previous suit was not same as in the subsequent one

Previous suit was with regard to specific performance of agreement to sell while present one was regarding mesne profit which could not be termed to be a decided issue

No issue with regard to usufruct was framed in the previous suit and no evidence with that regard was produced by the parties

Previous suit was with regard to 72 kanals while present one was regarding 179 kanals of land

Decree of specific performance to the extent of 72 kanals of land had been passed in favour of defendants but none of the courts had adjudicated upon the issue with regard to rest of property

Appellate Court was bound to give findings with regard to rest of suit property which was claimed by the plaintiff and was decreed by the Trial Court

Said court had failed to frame issue with regard to plea of res judicata which was raised before it

Impugned judgment of Appellate Court was set aside and case was remanded for decision afresh

Revision was accepted partially in circumstances.

Contention of plaintiff was that defendants had constructed house on suit-land which was owned by him whereas defendants contended that they had purchased the same from the plaintiff

Suit was dismissed by the Trial Court but same was decreed by the Appellate Court

Validity

Constructed house was built upon Khasra numbers other than those sold by the plaintiff to the defendants

Appellate Court had not considered such aspect qua the construction of the house over an area other than one claimed by the plaintiff

Affirmative onus was on the plaintiff to prove that the entire area of land underneath the house of the defendants belonged to him which had allegedly been occupied by the defendants

Such onus had not been discharged by the plaintiff through convincing and reliable evidence

Plaintiff had sold out his entire land

Plaintiff was bound to prove his case by showing that in the joint khata he was owner to certain extent and after selling out specified share he still owned some further share in the said khata

Defendants had purchased the suit area and had constructed house over it along with other people

Roads and streets were also on the suit-land and it was difficult to hold that the encroached and excess area occupied by the defendants actually belonged to the plaintiff

Judgment and decree of the Appellate Court was not based on correct appreciation of evidence

Revision was accepted and judgment and decree of the Appellate Court was reversed and that of Trial Court was maintained and suit was dismissed.

Contention of plaintiffs was that defendants acquired land measuring 22-kanals but they had illegally included 7-marlas land in their institute for which neither any award had been issued nor any compensation amount had been paid

Suit was decreed concurrently

Validity

Defendants initially acquired 22 kanals of land and prior to said land there was no other land in the same vicinity or khata belonging to them nor they acquired some additional land from the plaintiffs or other landowners

Inside area of the Institute was measured and total area was 22 kanals and 17 marlas

Defendants were in possession of excess land (more than 22 kanals) than their entitlement for which they had no explanation

Local Commissioner was not an ordinary person but was expert on the subject of measurement being Naib Tehsildar and there was no question of any wrong and false calculation of the area inspected and measured by him

Trial Court instead of passing a decree for possession of excess land of 7 marlas ordered the defendants to pay its compensation to the landowners which was just decision and had fixed market value which was fixed by the Supreme Court in an earlier round of litigation

Both the courts below had assessed and appreciated evidence and material on record correctly and properly and had rightly granted relief to the plaintiffs

No illegality or infirmity in the concurrent findings of the two courts below was found which were maintained

Revision was dismissed in circumstances.

Claim of plaintiffs was based upon sale-deed execution and presentation of which for registration had not been denied by the defendants

Sale-deed being a registered document had presumption of truth

Oral evidence could not take preference over the documentary evidence

Said sale-deed had not been challenged or got set aside by the defendants from any forum

Disputed house was transferred in favour of plaintiffs in the record of Cantonment Board

Act which was performed in the ordinary course of business had presumption of correctness

Defendants had decision of Jirga in their favour but same had no weight as neither scribe nor members of said Jirga appeared before the court to prove said document

Presence of parties had not been marked in the decision of Jirga nor their signatures appeared on the same

Defendants had not produced anybody who was conversant with the hand writing or signatures of members of Jirga to prove said document

Exhibition of document was one thing and its proof was another

Exhibition of document did not mean that same stood proved rather the party relying upon such document was supposed to prove the same in accordance with law

Suit was filed after 9 years and same was not barred by time

Defendants had not raised plea of adverse possession in their written statement

Period of 12 years had been provided for such suit which would start from the date when the possession of plaintiffs had become adverse to the defendants

Both the courts below had properly and lawfully appreciated the evidence available on record

Revision was dismissed in circumstances.

Plaintiff company sought amendment in its plaint, after framing of issues, which application was disallowed by Trial Court

Validity

Plaintiff company was required to indicate in clear terms as to at which part of pleadings, it intended to add or delete some version and in case of addition, the proposed addition must be provided in unequivocal terms

Proposed amendment was not to be vague or evasive

Application moved by plaintiff company was lacking completely in such regard

Nowhere in the application any proposed amendment in clear terms had been provided and similarly it was nowhere mentioned as to at which part of already filed plaint, the proposed amendment was to be added or altered

Plaintiff failed to make out a case for amendment in already filed plaint and also failed to point out as to how financial statements of defendant society would be relevant with regard to issues involved in the suit, seeking declaration as to the title of property and recovery of damages

Order passed by Trial Court did not suffer from any illegality or irregularity so as to warrant interference by High Court in its revisional jurisdiction

Revision was dismissed in circumstances.

Contention of plaintiff was that suit property was obtained by him through lease deed whereas defendants contended that same was vested in the partnership firm and plaintiff was agent of the same

Suit was dismissed by the Trial Court

Validity

Plaintiff had failed to produce evidence on record with regard to business and any source of income for payment of lease money as well as construction cost of suit property

No document had been placed on record to establish independent business

Lease money as well as construction cost was met by the firm

Property acquired with the money of firm would become the property of the firm

Partnership firm itself was not a legal entity

Suit property was to be leased in the name of either one or all of the partners and same was in the name of plaintiff as agent of firm

Plaintiff had admitted the possession of defendants

Suit filed by the plaintiff was rightly dismissed by the Trial Court

Appeal was dismissed in circumstances.

Contention of plaintiffs was that disputed house was rented out to the defendant but he had failed to pay the rent while defendant contended that he was owner of said house

Suit was decreed concurrently

Validity

Plaintiffs were bound to prove the case pleaded by them

Plaintiffs had not mentioned the month of tenancy or whether same was oral

No receipt with regard to payment of rent was on record

Trial Court made comparison of signatures on the document which was not permissible under the law

Ownership of both the parties was not in dispute but matter in issue was as to upon which property suit house was constructed

Copy of rapt roznamcha was not per se admissible in evidence without producing the original record

Trial Court had recorded wrong conclusion

Judgments and decrees passed by both the courts below were nullity in the eye of law

Suit stood dismissed with costs throughout.

Defendants had failed to produce any sale agreement, payment receipt or any documentary proof with regard to payment of sale consideration

No witness of sale transaction had been produced by the defendants to prove that suit property was sold to them

Plaintiffs had produced documentary proof with regard to their ownership in the suit premises whereas the claim of defendants was based on oral assertion

Oral evidence/assertions had no value in presence of documentary evidence

Mere possession or occupation of disputed property would not constitute a legal right to retain the same for indefinite period

Possession or occupation could not sustain the claim to title to the property in possession or occupation

Possession itself could not be equated to that of legal right

Defendants had no locus standi with regard to their claims and their possession on the suit property was illegal

No illegality or infirmity had been pointed out in the impugned orders

Concurrent findings recorded by the courts below could not be disturbed unless same were against the evidence on record

Appeal was dismissed in circumstances.

Contention of plaintiffs was that they were owners in possession of suit property through private partition but they were dispossessed by way of partition through revenue court

Suit was dismissed concurrently

Validity

Plaintiffs and defendant along with others were co-owners in the khewat of disputed land

Defendant moved an application for partition before the revenue court and ex-parte proceedings were conducted against the plaintiffs

Partition deed was prepared and warrant of possession was issued in favour of defendant who was declared owner in possession of suit-land

Private partition or family settlement could not be declared as final partition

Co-owner of joint land could approach the proper forum for partition of the same in accordance with law

Plaintiffs refused the service of notice and they were proceeded against ex-parte by the revenue court

No material was on record to the effect that said service was conducted fictitiously

Forum for redressal with regard to fluctuation/decrease or increase in the quality of land was the revenue court

Official partition was preferred to the private partition

No co-sharer could be deprived of his right due to the fact that other co-sharer was in possession of any land

Plaintiffs filed suit for permanent injunction after issuance of warrant of possession in favour of defendant but same was dismissed for non-prosecution

Plaintiffs were aware about the partition process but they remained absent from partition proceedings

Private partition did not change nature of joint property and same would remain joint unless it was partitioned by the revenue authorities in accordance with law

No suit for possession could be filed by a co-sharer that he was already in possession on a part of disputed land and such suit could not be treated under S.9 of Specific Relief Act, 1877

Suit was filed beyond the time of limitation

Findings recorded by the courts below were based on sound and cogent reasons

Appeal was dismissed in circumstances.

High Court, while exercising constitutional jurisdiction does not scrutinize the findings of fact recorded by the courts below

No reason was available to disagree with the findings recorded by the courts below

Revision had been filed with mala fide after the execution of the decree

Out of 16 defendants 15 had withdrawn their revision and compromised the matter which had not been disclosed in the constitutional petition filed after a period of more than 4-1/2 months

Said act of suppressing the material facts made by the petitioner liable to be burdened with heavy cost

Constitutional petition was dismissed with cost of Rs.50000, against the petitioner.

Inspection report was submitted by the authority and in the said report it was not mentioned that defendants had encroached any portion from the land of plaintiff

Revision was dismissed.