' MUHAMMAD ILYAS, J.-This Letters Patent Appeal is directed against the judgment and decree, dated the 21st March, 1977, passed by a learned Single Judge of the erstwhile High Court of West Pakistan whereby he partly accepted a second appeal preferred, by some of the defendants in a suit and modified the decree passed against them by the trial Court and affirmed by the first appellate Court.
2. The suit related to a site measuring 4 marlas and 79/131 sarsais in the abadi of village Samburi, Tehsil Shakargarh, District Sialkot. The appellants, who had filed the suit, alleged that they along with Wali Dad and Ghani, who were impleaded as (pro forma) defendants Nos, 4 and 5 respectively in the suit, were in exclusive possession of the site in dispute but Munshi, Hasham and Sadiq, who respectively figured as defendants Nos, 1, 2 and 3 in the suit, had unlawfully dispossessed them from that site. The plaintiffs, therefore, prayed for a decree for its possession.
3. The suit was contested by defendants Nos, 1 to 3 only. They contended that the site in dispute formed part of the shamilat and in consequence of a family partition it had fallen to their share, and they were, accordingly, in its exclusive possession since long.
4. The learned Civil Judge, v, who heard the suit, held that the shamilat of the village abadi had not been partitioned as alleged by the contesting defendants and that the plaintiffs and defendants Nos, 5 and 6 remained in exclusive possession of the site in dispute for a very long time and had also constructed a gusaikhana (bathroom) and manger thereon. The suit was, therefore, decreed by the trial Court. The contesting defendants went in appeal before the Senior Civil Judge, Sialkot, with enhanced appellate powers, but without success. Thereupon they preferred a second appeal to this Court.
5. The learned Single Judge who heard that appeal, relied on the case of Joy Gopal Singh and others v. Probodh Chandra Bhattacharjee and others and obseved as follows :- "8. On merits it is clear that if the plaintiff respondents were alleging forcible dispossession, their proper remedy was a suit under section 9 of the Specific Relief Act which they failed to bring.
' Now in the instant case the facts found are that the parties are co-sharers in the site and, therefore, it is clear that the plaintiff-respondents are at the most entitled to joint possession with the present appellants, as they have not brought a suit under section 9 of the Specific Relief Act in which case they would have been entitled to restoration of their possession irrespective of any investigation into the question of title. In the present suit, however, they could get a decree for exclusive possession only if they showed a better title than the appellants, but that they have not done. It seems to me, therefore, that the two Courts below were not justified in granting the plaintiff-respondents a decree for exclusive possession solely on the ground of their having been in such possession before the appellants disturbed that possession. Having entered into possession, the appellants are as much entitled to retain it as would have been the plaintiff-respondents, if they had not been disturbed."
' The learned Single Judge, therefore, accepted the appeal only to the extent that the decree passed by the two Courts below would stand modified to the effect that the plaintiffs-respondents shall be entitled to joint possession with the appellants defendants as co-sharers in the property in dispute.
6. Learned counsel for the plaintiffs, who have filed this Letters Patent Appeal against the order of the learned Single Judge, contended that the dictum in the case of Joy Gopal Singh and others did not hold the field any more. In support of his contention he relied on the cases of Muhammad Amin and others v. Karm Dad and other , Saad Ullah v. Ibrahim , Syed Jamal Shah v. Abdul Qadir Shah and others , Haji Khan Muhammad and others v. Yaqub Khan and others and Ahmad Mianji and others v. Eakub Ali Munshi and others. We have also been able to lay hands on some other authorities which we will like to consider while deciding the case before us. They are the cases of Muhammad Muzaffar Khan v. Muhammad Yousaf Khan, Jalal-ud-Din Khan v. Rampal and others , Pannalal Bhagirath Mar wadi v. Bhawalal Bindraban Pardeshi Tell and Kutijan Bibi v. Zulmat Khan and others.
7. As for the cases relied upon by the learned counsel for the appellants, the view taken by the Lahore High Court in the case of Muhammad Amin and others was as follows :- "Where a co-sharer has been long in possession of a portion of the shamilat land, no other co- sharer can oust him, therefrom or even get joint possession with him, as long as a partition of the shamilat does not take place."
8. In the case of Saad Ullah, it was held by this Court that a co-sharer in shamilat land is not competent to sell proprietary rights in a specific plot out of the shamilat land, but a sale by him nevertheless holds good to the extent of conveying the rights which he can sell, including the right to retain possession till partition. It was further observed that where a co-sharer has been long in possession of a portion of the shamilat land no other co-sharer can oust him therefrom or even get joint possession with him so long as a partition of the shamilat does not take place. A transferee from such a co-sharer, has the same right in the land as his transferor had. He is entitled to undisturbed possession of the land as long as the shamilat is not partitioned, and the other co- sharers have no right to prevent him from building on the land.
9. In the case of Syed Jamal Shah, the Judicial Commissioner's Court at Peshawar made the following observations in regard to the rights of a co-sharer in a joint property and those of persons in whose favour such property is transferred by the co-sharer :- .. a person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of1 2 3 4 5 6 7 8 9 10 the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation."
' Similar view was expressed by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Haji Khan Muhammad and others. It makes the following reading :- "There is authority for the proposition that in case a co-sharer has been in possession of a portion of joint land, exclusively, for a long period and the portion in his possession does not exceed his individual share, the other co-sharers cannot oust him therefrom or even get joint possession with him as long as partition of the joint property does not take place."
10. The view taken by the High Court of Dacca in the case of Ahmad Mianji and others on the question under examination reads thus :- "It is no doubt true that the finding of both the Courts below is that there was no partition by metes and bounds amongst the co-sharers but that does not justify that one co-sharer in exclusive possession of specific plot of land should be dispossessed by another co-sharer. If any such co- sharer is dispossessed from his specific land certainly he has got the right to recover possession of the land he was dispossessed. If any body is aggrieved by such exclusive possession of a portion of joint land let him go to the partition suit for his remedy but so long that is not done the possession of the co-sharer of the specific land must be respected, subject to the determination of the question of title."
11. As for the other cases noted above in the case of Muhammad Muzaffar Khan the question relating to the rights of a vender; of a co-sharer in an undivided khata was considered by the Supreme Court and answered as follows :- "The vendee of co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided khata, does not become a co- sharer in that khata."
12. In the case of Jalal-ud-Din, the High Court of Oudh ruled as under :- ' one co-sharer has no right appropriate to himself a specific portion of the common land and to exclude his co-sharers from all use and enjoyment of the same without a lawful partition. But where a person has been in possession of a piece of joint land for a long time without any let or hindrance by the other co-sharers, the latter have no right to eject him or his transferee or to disturb his possession or enjoyment otherwise that any seeking partition. Such a co sharer or his transferee is entitled to continue in such possession, so long as such user does not interfere with the use by other co-sharers of what is in their possession."
' It was also held in that case that where a co-sharer mortgages with II possession a specific joint plot without any let or hindrance by the other co-sharer or his predecessor-in-interest, the other co-sharer has no right to eject the mortgagee and his action is so ejecting is illegal and unauthorized.
13. In the case of Kutijan Bibi it was ruled by the High Court of Dacca that every co-sharer is entitled to enjoy a joint property but if he enjoys the some exclusively, he, cannot be evicted therefrom by another co-sharer whose remedy lies in a suit for partition.
14. Even in case of Joy Gopal Singh and others, which had been relied upon by the learned Single Judge, a different view was not taken. This is evident from the following observations made in that case :- "If two persons are joint owners and a third person holds the land with the express sanction and acquiescence of one of the co sharers, he cannot be ejected from the whole of the land by the other co-sharer.
15. There is thus ample authority for the proposition that 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.
16. Now, the question which falls for determination is that if the co-sharer occupying a specific portion of the joint property as aforesaid is forcibly ejected therefrom by another co-sharer, what legal remedies are available to him. According to the learned Single Judge, who made the order impugned herein, he can regain possession by filing a suit under section 9 of the Specific Relief Act, 1870 but not by means of an ordinary suit. In taking this view, he placed reliance on the case of Joy Gopal Singh and others, in which the High Court of Calcutta observed as follows :- "If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under section 9, Specific Relief Act, he can only succeed on the strength of his own title."
17. In the case of Ahmad Mfanji and others it was ruled that if any such co-sharer is dispossessed from specific land he has got the right to recover possession of the land of which he has been dispossessed. It was, however, not clarified as to whether the dispossessed co-sharers will be able to regain possession by means of a suit other than the one under section 9 of the Specific Relief Act. In the case of Jalal-ud-Din, a co-sharer was in inclusive possession of a specific part of certain land jointly owned by him with some others. He mortgaged, with possession, that specific part of the land in favour of a stranger. Thereupon, another co-sharer forcibly dispossessed the mortgagee. The High Court held that he had no right to eject the mortgagee and his action in so ejecting him was illegal and unauthorized. In that case the High Court also approved of the order of the two Courts below whereby the co-sharer, who had dispossessed the mortgagee, was directed to restore possession of the land in dispute to the mortgagee and also pay damages to him. It is, however, not known as to whether the suit by the dispossessed mortgagee was under section 9 of the Specific Relief Act or an ordinary suit for possession. The cases of Ahmad Mianji and others and Jalal-ud-Din are, therefore, of little help in resolving the precise question before us.
18. In the case of Pannalal Bhagirath Mar wadi, however, it was held that a person who enters into peaceful possession of land claiming it as his own although he might not have any .Title to the land, can sue, another person who has forcibly ousted him of possession and who has no better title to the land, and if the former is forcibly dispossessed, a suit under section 9 of the Specific Relief Act is not the only remedy open to him for seeking restoration of the possession and that he can also file an ordinary suit for restoration of possession of the property from which he is ousted.
19. The position, therefore, boils down to this that it is only the cases of Joy Gopal Singh and others and Pennalal Bhagirath Mar wadi which have bearing on the precise question as to whether a person who is deprived of the possession of an immovable property can regain its exclusive possession by means of a suit other than a suit under section 9 of the Specific Relief Act without showing that he has better title to the property than a person who has ousted him therefrom. As indicated earlier, conflicting views have been expressed in the said two cases on the aforesaid question, and we are inclined to adopt the view taken in the case of Joy Gopal Singh and others.
20. The main reason for which we would like to follow the dictum in the case of Joy Gopal Singh and others is that it is in consonance with the letter and spirit of sections 8 and 9 of the Specific Relief Act. According to section 8, if a person desires to obtain possession of an immovable property on the basis of his title, he can bring a suit for ejectment in accordance with the relevant provisions of the Code of Civil Procedure. Normally, such a suit can be filed within 12 years of the occupation of the immovable property by a person without title. The person seeking relief, under section 8, cannot succeed unless he demonstrates that he has title to the property claimed by him but the defendant had no such title thereto or, if he (defendant) too has any title, the same is not better than his (plaintiff's). As against this, if he seeks restoration of possession under section 9 of the Specific Relief Act, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the 'fling of the suit. Viewed in the light of this legal position, the appellants before us, who are as good co-sharers of the property in dispute as the respondents, should have filed a suit under section 9 of the Specific Relief Act to regain B possession of the property in suit within six months of their dispossession.
' If they had done so, they would have succeeded notwithstanding the fact that their title was equal but not superior to that of the respondents.
' They, however, brought an ordinary suit, obviously, under section 8 of the Specific Relief Act, which cannot succeed because their title is not better than that of the respondents and as such they are not entitled to retrieve the disputed property from the respondents.
21. The view taken by us is also in accord with the law laid down in the abovecited cases of Muhammad Muzaffar Khan, Muhammad Amin and others, Saeed Ullah, Syed Jamal Shah, Haji Muhammad and others, Jalal-ud-Din, Ahmad Mianji and others and Kutijan Bibi that a co-sharer in possession of a specific portion of a joint property cannot be ousted till the joint property is partitioned. At present, somehow or the other, the respondents are in possession of the property in dispute and, thus, their possession is protected by the aforesaid authorities. As for the consideration regarding possession for a "long" period" it would not make any difference because beyond the period of limitation of six mortems prescribed for a suit under section 9 of the Specific Relief Act there would be no sure test and standard for fixing the period for acquisition of the so- called possessory right.
22. We are, therefore, of the opinion that after their dispossession,) which according to them was forcible, the appellants had two remedies' for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity.
23. We, therefore, hold that the appellants could seek restoration of their exclusive possession of the site in dispute by filing a suit under section 9 of Specific Relief Act against the respondents by whom they had been ousted, but as they did not bring such a suit, they could not ask for the aforesaid relief by instituting an ordinary suit for possession without claiming better title than the one vesting in the respondents.
24. In this view of the matter, we are in respectful agreement with the following observations made by the learned Single Judge while setting aside the judgments and decrees of the lower Courts the two Courts below were not justified in granting the plaintiff-respondents a decree for exclusive possession solely on the ground of their having been I n such possession before the appellants disturbed that possession. Having entered into possession, the appellants are as much entitled to retain it as would have been the plaintiff-respondents, if they had not been disturbed."
25. The result, therefore, in that this appeal fails and is dismissed. As the law point involved in this case was not free from difficulty, we make no order as to costs.
AIR 1935 Cal. 646 69 I C 671 85 I C 553 PLD 1955 Pesh. 26 PLD 1956 Pesh. 96 PLD 1961 Dacca 259 PLD 1959 SC (Pak.) 9 AIR 1927 Oudh. 467 AIR 1937 Nag. 281 PL D 1968 Dacca 172