2/21/2021 2009 S C M R 688

2009 S C M R 688

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Syed Zawwar
Hussain Jaffery, JJ

Contractor Haji MUHAMMAD ALAM (deceased) through Legal Heirs----

Petitioners

Versus

SHAUKAT SULTAN and others----Respondents

C.M.A. No.2889 of 2008 in Civil Petition No.1167 of 2008, decided on 11th February,
2009.

(On appeal from the judgment, dated 28-4-2008 of the Lahore High Court, Rawalpindi
Bench, Rawalpindi passed in Writ Petition No.1542 of 2000).

(a) Specific Relief Act (I of 1877)---

----S. 9---Ingredients of S.9, Specific Relief Act, 1877---Where co-sharer in possession

is dispossessed by another co-sharer, then he has two remedies to avail, he can either
file suit for partition or a suit under S.9, Specific Relief Act, 1877---Where the record
showed that plaintiffs were in possession when they were dispossessed and the
defendants' case was not that possession was taken over with consent of the plaintiff
and suit was filed within 10 days of the dispossession, all the ingredients of S.9,
Specific Relief Act, 1877 having been established, Trial Court had lawfully decreed
the suit for reasons, not open to legitimate exception---Principles.

Where co-sharer in possession is dispossessed by another co-sharer, then he has two

remedies to avail. He can either file suit for partition or a suit under section 9 of the
Specific Relief Act, (I of 1877). Record in the present case, revealed that plaintiffs
were in possession when they were dispossessed on 4-5-1989. It was not even the case
of the defendants that the possession was taken over with consent of the plaintiffs. The
suit was filed after 10 days i.e. 14-5-1989. All the ingredients of section 9 of the Act
having been established, the Trial Court had lawfully decreed the suit for reasons not
open to legitimate exception.

Section 9 of the Specific Relief Act (I of 1877), has four ingredients:---

(i) person suing must have been dispossessed, (ii) such dispossession must be
from immovable property, (iii) dispossession should be without consent and
(iv) dispossession should be otherwise than in due course of law. Under this
provision the Court is not competent to decide the title of the property. It only
relates to possession of immovable property. If the plaintiff had been illegally

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dispossessed then section 9 could be invoked. The plaintiff should establish that
he was actually in physical possession of the immovable property from which
he had been illegally dispossessed without his consent. The plaintiff must
allege and prove actual physical possession either personal or constructive. If a
co-sharer has been in exclusive possession of a certain portion of the joint
property for a long period, he cannot be dispossessed therefrom by another co-
sharer except by bringing a suit for partition of the joint property. A co-owner
in exclusive possession, if dispossessed by other co-owners within 6 months,
can sue under the section. A person in joint possession, of immovable property
is as much in possession of that property as a person who is in exclusive
possession and if the person who was in joint possession is dispossessed, he can
sue to be restored to that possession which he enjoyed before he was
dispossessed.

Sayed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Haji Khan
Muhammad and others v. Yaqub Khan and others PLD 1956 (W.P.) Pesh. 96; Ahmed
Miaji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 259 and
Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC (Pak.) 9 ref.

(b) Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal to Supreme Court---Time -barred---

Condonation of delay---Scope---Mere fact that petitioners, due to lack of proper
instructions by their counsel regarding the limitation for filing the petition, failed to file
petition in time, by itself, does not constitute a valid ground for condonation of delay---
Conduct of petitioners reflected gross negligence in prosecuting the remedy before
Supreme Court---Indulgence by Supreme Court was declined in circumstances.

Tariq Mehmood, Advocate Supreme Court for Petitioner.

Abdul Rashid Awan, Advocate Supreme Court for Respondents.

Date of hearing: 11th February, 2009.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.---This petition, under Article 185(3) of the

Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal, has been filed
by petitioners, against judgment of the Lahore High Court, Rawalpindi Bench,
Rawalpindi dated 28-4-2008, whereby Writ Petition No.1542 of 2000 preferred by the
respondents was allowed, judgment of Additional District Judge, Jhelum, dated 19-6-
2000 was set aside and judgment and decree of the trial Court dated 7-1-1996 was
restored.

2. The petition was dismissed for want of prosecution by this Court vide order, dated
10-10-2008, C.M.A. No.2889 of 2008 has been moved on behalf of the petitioners on

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11-10-2008, for restoration of the petition. The C.M.A. is accepted for the reasons
mentioned therein and the petition is restored.

3. The facts of the case necessary for adjudication of this petition are, that respondents
instituted suit on 14-5-1989 in the Court of Senior Civil Judge, Jhelum, against the
petitioners, under section 9 of the Specific Relief Act (I of 1877), seeking possession
of suit-land, detailed in the plaint, alleging that respondents were continuing in
possession of suit-land since 1995. The predecessor-in-interest of petitioners Nos.1-A
to 1-H has taken forcible possession of suit-land on 4-5-1989 and constructed a
boundary wall and "Kothari", thereon, claiming to be a purchaser from petitioner No.2,
who has never been in possession of it.

4. The suit was resisted on all grounds legal as well as factual. The contesting
respondents denied the claim of the petitioners and asserted their own. In view of the
divergent pleadings of the parties, following issues were adopted for trial:--

(i) Whether the suit has been filed with mala fide intention, if so, its effect?
OPD

(ii) Whether the plaintiffs are estopped by their words and conduct to institute
the present suit based on preliminary objection No.2? OPD

(iii) Whether the suit is bad for non-joinder of necessary parties? OPD

(iv) Whether the suit is barred by time? OPD

(v) Whether the plaintiff No.3 is not in a position to file this suit based on
preliminary objection No.6, if so, its effect? OPD

(vi) Whether the plaintiffs being the owners of the suit property are entitled to
the decree claimed for the main suit? OPP

(vii) Relief.

5. At the conclusion of trial, upon consideration of the material available on record and
hearing arguments of learned counsel for the parties, learned trial Judge, vide
judgment, dated 7-1-1996, decreed the suit. The petitioners, feeling aggrieved thereby,
filed a revision petition in the Court of District Judge, Jhelum, which was assigned to
Additional District Judge, Jhelum, for adjudication. The revision petition was accepted,
vide judgment, dated 19-6-2000. Judgment and decree of the trial Court was set aside
and suit was dismissed. A writ petition was filed by respondents in the Lahore High
Court, Rawalpindi Bench, Rawalpindi which was accepted vide judgment, dated 28-4-
2008, judgment of the Additional District Judge, Jhelum, dated 19-6-2000 was set
aside and the judgment and decree of the trial Court, dated 7-1-1996, decreeing the suit
was restored. Hence instant petition for leave to appeal.

6. We have given patient hearing to the arguments of Mr. Tariq Mehmood, Advocate
for the petitioners and Mr. Abdul Rashid Awan, Advocate for the respondents. We have

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also gone through the material on record with their assistance.

7. Learned counsel for the petitioners, attempted to argue that evidence adduced at the
trial from the petitioners side, has not been appreciated in its true perspective; that
impugned judgment is contrary to the weight of evidence on record and that it is in
conflict with the rule laid down by this Court in the matter of admissibility,
entertainment and acceptance of the evidence and interpretation thereof. The learned
counsel invited our attention to "Khasra Girdawari" and contended that suit-land
remained vacant on the spot for a long period in the past and the same was not under
cultivation of respondents/plaintiffs. The learned counsel also submitted that according
to the registered sale-deed (Exh.P.9), suit-land was sold in favour of the petitioners by
Habib-ur-Rehman and Muhammad Alam vendee attained status of co-owner therefore,
he can retain the possession of the suit-land till it is partitioned amongst the co-sharers
by metes and bounds. This aspect of the case, learned counsel added has escaped
notice of the learned Judge in the High Court, resulting in complete failure of justice.

8. Learned counsel for the respondents, on the other side, controverted the arguments
of learned counsel for the petitioners and supported the impugned judgment whole
heartedly, maintaining that only suit for partition was competent.

9. We have considered the matter from all angles in the light of the material on file. We
find that learned Judge in the High Court has recorded a detailed and well-reasoned
judgment based on proper appreciation of evidence, before arriving at the conclusion
and rightly placing reliance on the case of Muhammad Shafi and others v. Collector
and others NLR 1980 AC 243. The learned counsel for the petitioners despite his best
efforts, failed to persuade us to hold that impugned judgment is tainted with infirmity,
legal or factual or suffers from the vice of misreading and non-reading of evidence. It
is borne out from the record that suit-land comprises in Khasra No.262 min and 262,
measuring 1 Kanal, 4 Marlas. Exh.P.4 is register "Haqdaran Zamin" for the year 1986-
87. According to this document, Shaukat Sultan is recorded in possession along with
Mst. Balqees in Khasra No.262 min measuring 12 Marlas while Kalsoom Begum is
recorded to be in possession of 262 min measuring 12 Marlas. Habib-ur-Rehman and
Muhammad Alam are not recorded in possession of any portion of the land Exh.P.2 is
the "Khasra Girdawari" from Kharif 1987 to Rabi 1989, Nazar Muhammad and
Kalsoom Begum are recorded in possession and later Shaukat Sultan, Balqees Begum
and Kalsoom Begum are recorded in possession. The said Nazar Muhammad had
transferred the land to respondents Nos.1 and 2 vide registered sale-deed dated 2-12-
1985 Exh.P.1. It is well-settled proposition that where co-sharer in possession is
dispossessed by another co-sharer, then he has two remedies to avail. He can either file
suit for partition or a suit under section 9 of the Specific Relief Act, (I of 1877).
Record reveals that petitioners were in possession when they were dispossessed on 4-
5-1989. It is not even the case of the respondents that the possession was taken over
with consent of the petitioners. The suit was filed after 10 days i.e. 14-5-1989. All the
ingredients of section 9 of the Act (ibid) having been established, the learned trial
Court had lawfully decreed the suit for reasons not open to legitimate exception.

11.(sic) Section 9 of the Specific Relief Act (I of 1877), has four ingredients:--

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(i) person suing must have been dispossessed, (ii) such dispossession must be
from immovable property, (iii) dispossession should be without consent and
(iv) dispossession should be otherwise than in due course of law. Under this
provision the Court is not competent to decide the title of the property. It only
relates to possession of immovable property. If the plaintiff had been illegally
dispossessed then section 9 could be invoked. The plaintiff should establish that
he was actually in physical possession of the immovable property from which
he had been illegally dispossessed without his consent. The plaintiff must
allege and prove actual physical possession either personal or constructive. If a
co-sharer has been in exclusive possession of a certain portion of the joint
property for a long period, he cannot be dispossessed therefrom by another co-
sharer except by bringing a suit for partition of the joint property. A co-owner
in exclusive possession, if dispossessed by other co-owners within 6 months,
can sue under the section. A person in joint possession, of immovable property
is as much in possession of that property as a person who is in exclusive
possession and if the person who was in joint possession is dispossessed, he can
sue to be restored to that possession which he enjoyed before he was
dispossessed. Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955
Pesh. 26, Haji Khan Muhammad and others v. Yaqub Khan and others PLD
1956(W.P.) Pesh. 96, Ahmad Miaji and others v. Eakub Ali Munshi and others
PLD 1961 Dacca 259 and Muhammad Muzaffar Khan v. Muhammad Yusuf
Khan PLD 1959 SC (Pak). 9.

12. Office has reported that this petition is barred by 50 days. No plausible ground for
condonation of delay in filing the petition has been shown. The mere fact that
petitioners due to lack of proper instructions by their counsel regarding the limitation
for filing the petition, failed to file petition in time, by itself, does not constitute a valid
ground for condonation of delay. The conduct of the petitioners reflects gross
negligence in prosecuting the remedy before this Court. No indulgence can be shown
to them.

13. In view of the above, finding no substance in this petition, we dismiss the same,
being barred by time as well as bereft of merit and decline to grant leave. We, make no
order as to costs.

M.B.A./M-22/SC Petition dismissed.

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