' This judgment shall decide W.P. No.17067 of 1999 and C.R. No.1479 of 1999 as these proceed against a common judgment of a learned Additional District Judge and were ordered to be heard together.
2. In the first instance on 5-10-1988 respondent No.2 filed a suit against the petitioners and the remaining private respondents on 5-10-1988. In this suit it A was stated that the suit property described in para.1 of the plaint is jointly owned by the said respondent but is in possession of respondent No. 1 . The predecessors of the petitioners had been residing in the property with permission of predecessor of respondent No.] . They sold away the "Malba" and gave up the residence and respondent No.1 is using the property as a courtyard of his house. It was complained that the petitioners are now ' stopping respondent No.1 from raising construction on the suit property and are trying to interfere with his possession. He sought an injunction that the petitioners be restrained from interfering with the possession of respondent No.1 and from stopping him from raising the construction. The petitioners in their written statement stated that this is a false suit and after obtaining an interim injunction respondent No.1 has dispossessed them. Reference was made to a report of a Local Commissioner who was sent to the spot. On merits they stated that the property measures 10 Marlas which is owned by the petitioner No.1 vide order, dated 18-1-1977.
Earlier in the year 1986. Respondent No.1 tried to dispossess them and they reported the matter to the police whereafter a compromise was entered into and petitioner No.1 remained in possession.
He had constructed a house which collapsed partially two years ago but debris are lying at the spot. According to the petitioner respondent No.1 had illegally dispossessed them 4/5 days after institution of the suit by him.
3. On 25-3-1989 the petitioners filed a suit against respondent No.!. According to this plaint the suit property measuring 10 Marlas was transferred to petitioner No.1 by Collector, Sialkot, vide order, dated 18-1-4977. He was continuing in possession. During August, 1988 because of heavy rains the house collapsed. A lock was put on the main door and within boundary wall the debris were present. Respondent No.1 filed an injunction suit which is pending and 4/5 days after the institution of the said suit he took over forcible possession without the consent of the petitioners. In para.8 it was stated that they were dispossessed on 9-10-1988. They sought possession under section 9 of the Specific Relief Act, 1877. The suit was resisted with the pleas already taken in the said suit. Both the suits were consolidated on 20-7-1989 and the following issues were framed:--
(1) Whether Suit No.463 of 1988 is liable to be dismissed in view of P/O No.17? OPD
(2) Whether the above suit is frivolous, vexatious and defendants are entitled to special costs? OPD
(3) Whether the plaintiff is owner in possession of suit property? OPP
(4) Whether plaintiff took over the possession of the land in dispute after 4/5 days of the institution of suit? If so, to what effect? OPD
(5) Whether the description of suit property in both the suits is incorrect. If so, its effect and what is the correct description? OP Parties
(6) Whether plaintiffs in both suits are in possession of a cause of action? OP Parties
(7) Whether Muhammad Khan is entitled for a decree for permanent injunction? OPP
(8) Whether Geroge Masih etc. Have entitlement for a decree for recovery of possession? OPD (8A) Whether Muhammad Khan encroached upon the suit-land along with superstructures of the defendants consisting of four walls and paraphernalis? OPD
(9) Relief.
' Evidence of the parties was recorded. Vide judgment and decree, dated 30-7-1991 the learned trial Court decreed the suit of the petitioners and dismissed the suit of respondent No.
1. Learned Court of appeal remanded the case vide order, dated 31-3-1996 with the observation that the matter of encroachment be determined. After the remand the said issue-8-A was framed and some further evidence was recorded. Vide judgment and decree, dated 15-7-1998 the learned trial Court decreed the suit of the petitioners and dismissed the suit of respondent No.1. A civil revision and a first appeal filed by respondent No.1 were allowed by a learned Additional District Judge, Sialkot, on 1-5-1999 who decreed the suit of respondent No.1 and dismissed the suit of the petitioners.
4. Learned counsel for the petitioners contends that the learned Additional District Judge has acted without lawful authority inasmuch as a case for interference within the meaning of section 115, Cr.P.C. Has not been made out. Similarly upon establishment of the fact that the petitioners had been illegally dispossessed, the respondent No.1 was not entitled to discretionary relief of injunction and that too when it had been proved that he had dispossessed the petitioners after instituting the said suit. Learned counsel further contends that the learned Additional District Judge completely failed to take note of scope of suit under section 9 of Specific Relief Act, 1877. Learned counsel for respondent No.1 on the other hand, contends that the title of his client was established and this being so, the petitioners who had failed to prove that they were in possession could not be granted decree for possession under the said section 9 and as such the learned Additional District Judge has passed a valid order which cannot be interfered with by this Court.
5. I have gone through the copies of the records, appended with both these cases with the assistance of the learned counsel for the parties. Now I find that in the suit filed by respondent No.1 in which his brothers were named as defendants who were stated to be co-owners along with him, made a joint plea along with the petitioners to deny the contents of the said plaint and to state that the possession had been taken a few days after the institution of the suit after obtaining the stay order by respondent No.
1. In injunction suit on 13-10-1988 a Local Commissioner inspected the spot in the presence of the petitioner No.2, respondent No.1 and his two brothers and the other residents of the locality. Now it was stated by respondent No.1 that he is in possession since two years. After inspecting the spot and recording the statements of the persons present he reported that the possession has been taken over a few days ago. This report was not objected to by the respondent No.
1. The Local Commissioner appeared as D.W.1 to prove the report as Exh.D.I. Apart from this the parties produce evidence in support of their respective pleas. This entire evidence was discussed by the learned trial Court and thereafter the suit under section 9 of the Specific Relief Act, 1877 was decreed. Learned counsel for respondent No.1 has not been able to point out any misreading of the evidence by the learned trial Court. Now the learned Additional District Judge while hearing a revision against the said decree in the first instance proceeded to comment upon the consolidation of two suits. According to him the suit under section 9 of the said Act could not be consolidated with the injunction suit. However, he conceded the legal position that no one objected and even the consolidation was not questioned in the earlier appeal when with certain observations the case was remanded by his predecessor in office. Thereafter he wondered as to how an owner of the property can be called upon to deliver possession to a person who is not such as owner. Then without reference to even a single piece of evidence on record he proceeded to observe that there is nothing on record that the petitioners were dispossessed within 6 months prior to the date of their suit. He appears to have freely drawn upon imagination by proceeding to state that the title of the respondent No.1 was admitted; that the petitioners admitted that they had voluntarily handed over the possession to respondent No.1, two years ago, I am afraid I have been unable to find out any such admission anywhere in the record. Now needless to state that the title is wholly irrelevant in a suit under section 9 of the Specific Relief Act, 1877. The plaintiff has only to prove his possession and dispossession without his consent within 6 months prior to the institution of the suit. The petitioners had led evidence and had proved the said fact. Learned trial Court after discussing the evidence had recorded a finding of fact that the petitioners were so in possession and were dispossessed a few days after the institution of injunction suit by respondent No.1. Not a single reason is there in the impugned judgment of the learned Additional District Judge as to how he deemed it proper to set aside the said finding in civil revision.
6. Now so far as the first appeal is concerned, it stood proved that respondent No.1 was not in possession on the day he instituted the suit. Consequently he was not at all, entitled to the discretionary relief of injunction.
7. Having thus examined the records I do find that the learned Additional District Judge has acted without lawful authority while . Setting aside the consolidated judgment and decree passed by the learned trial 'Court. The writ petition as well as civil revision are allowed. The impugned judgment and decree, dated 1-5-1999 of the learned Additional District Judge, Sialkot, is set aside and one passed by the learned trial Court on 15-7-1998 is restored. No order as to costs.