This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and revision petition under Section 115 of Code of Civil Procedure, 1908 (C.R. No, 569-D/99) filed by Respondent No, 2, have common features as to the subject matter, parties and the controversy involved. The two petitions arise from the circumstances briefly stated below; Land measuring 229-kanals one marla, Khewat No, 188, Khatuni No, 286 to 293 situated in Mauza Chak Jugna, Tehsil and District Gujranwala was undisputedly owned by late Syed Ashfaq Hussain (the predecessor-in-interest of the petitioners), who died in the year 1980. The petitioners and their sister Mst. Perveen Ashfaq then succeeded and became joint owners therein. The said Mst. Perveen Ashfaq sold her share of 18- kanals (4/2) marlas to National Co-operative Credit Corporation who further sold the land in favour of one Wasif Mahmood and Respondent No, 2 namely Mahboob Ahmed. The share of Respondent No, 2 is stated as 12-kanals 28/9 marlas. Such a sale took place in the year 1991. On 27.4.1995, Mahboob Ahmed, Respondent No, 2, instituted a suit for permanent injunction that he was co-owner in possession of land measuring 12-Kanals 28/9 in khasra No, 405 and Khasra No, 406. His case was that the parties had separated their shares through private partition and he being in possession of specific part of the land was raising construction with which the other co-owners were interfering. It was, thus, prayed by him that the defendants should not interfere into exclusive possession and ownership over the land and should desist from demolishing any part of construction already raised and should be restrained from forbidding the plaintiff to raise the height of the four walls. The said suit was contested by filing the written statement, pleading therein that Khasras Nos, 405 and 406 were in cultivating possession of the defendants and that they were dispossessed through forcible means on 28.4.1995, when their wheat crop was ransacked by Respondent No,
2. While the suit was pending, on 8.10.1995 the attorney of the plaintiff therein,. sought the dismissal of the suit as withdrawn which was dismissed accordingly on that date by the learned trial Court. On 22.10.1995 a suit under Section 9 of the Specific Relief Act, 1877 was brought by the present petitioners impleading Mahboob Ahmed, Respondent No, 2, as defendant alleging forcible dispossession by him in the garb of injunctive order. It was alleged that the respondent/defendant had taken forcible possession on 28.4.1995 by taking law into his hands. The suit was contested in which issues arising out of the pleadings of the parties were framed by the trial Court and evidence that was produced by the parties, was recorded whereafter the suit was dismissed by the learned trial Court vide judgment dated 1.12.1998. That judgment was assailed by filing revision petition which was dismissed by the learned.
Additional. District Judge, Gujranwala on 5.5.2003. The said judgment is subject matter of this writ petition.
While the above mentioned suit under Section 9 of the Specific Relief Act, 1877 was pending before the trial Court, Mahboob Ahmed, Respondent No, 2, instituted a suit for declaration with injunction as consequential relief on 2.9.1997 that he was owner in possession of the suit property i,e, Khasra Nos, 405 and 406 on the basis of private partition and that the defendants (petitioners herein) had no right or interest therein who should be restrained from interfering with the construction raised by him or his possession. The suit was contested by the petitioners. The said suit was dismissed by the learned trial Court on 28.9.1998 in view of the findings recorded on the preliminary issues as to the maintainability of that suit. Respondent No, 2 preferred appeal thereagainst which appeal was dismissed by the learned Additional District Judge, Gujranwala on 26.1.1999. These judgments have been assailed by him through C.R. No, 569-D/99. Since the property and the parties are the same and controversy involved is also identical, both these petition have been argued together by the learned counsel for the parties which shall stand disposed of through this judgment.
2. Fairly lengthy arguments have been addressed by the learned counsel for the parties and several precedents have been cited by them in support thereof.
The hallmark of the case of the petitioners as forcefully projected by Malik Saeed Hassan, Advocate is that the petitioners had been dispossessed from the suit land by forcible means, they should be restored the same position as was prevailing before 28.4.1995 and by setting aside the self contradictory judgment of the Additional District Judge, their suit should be decreed.
On the other hand the bulwark of defence as vehemently pleaded by Mian Nisar Ahmed, Advocate is that scope and summary nature of provisions of Section 9 of Specific Relief Act, 1877 should not be ignored by this Court, as also the limitations of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. After having heard the learned counsel, the order that I am pursuaded to pass tends me to adopt restraint in dilating upon the factual aspects of the matter inasmuch as that the dismissal of the suit of the petitioners by the learned trial Court had been assailed by them before the revisional Court and their revision petition was dismissed on 5.5.2003 by the learned Additional District Judge, Gujranwala who in Paragraph Nos, 10 and 11 of the judgment took such a view which apparently is fraught with contradictions and inconsistencies rendering his judgment as meaningless and illegal.
A portion of Paragraph 10 of the judgment reads as follows: "As for as contention of the petitioners/plaintiffs that respondent/defendant on 28.4.1995 dispossessed them and removed the wheat crop and also got khasra Girdawri in his name collusively, but record does not substantiate it, because khasra Girdawari is always made twice in a year i,e, Kharif and Rabi and that is carried out by the Field Revenue Staff in the months of March and October of every year. But perusal of Khasra Girdawri Rabi, 1995 reveals that sowing of wheat was done by the respondent/defendant and its Girdawri has been made definitely in the month of March 1995. Meaning thereby that the possession by the respondent/defendant must have been prior to March, 1995 and petitioners/plaintiffs have been dispossessed prior to Girdawri i,e, March 1995. So the contention of the petitioners/plaintiffs that they were dispossessed on 28.4.1995 does not prove as it must have been prior to March 1995 and as suit has been filed on 19.10.1995, which has clearly been filed after the lapse of six months or not has been filed within six months from the date of dispossession, so no Relief could be given in this suit."
While dealing crucial aspect of the matter as to whether the suit land was part of joint khata, it was found by him in Paragraph 11 of the judgment that: From the scanning of evidence placed on file, it is proved that suit land is part of joint khasra i,e, Khewat No, 188, Khatuni No, 286, situated at Mauza Chak Jagna, Tehsil and District Gujranwala, and parties are co-sharers, which has not been partitioned, because stated private partition as contended by the respondent/defendant is not proved on the file. The case of the petitioners/plaintiffs in their plaint is that the respondent/defendant has forcibly entered in possession of suit land on 28.4.1995 before the institution of this suit, which was filed on 19.10.1995.
Now the question arises whether a co-sharer, if dispossessed by another co-sharer from the joint property would be entitled to sue for possession on the basis of title as in the present case. It is laid down in Kutijan Bibi v. Roshan and others (PLD 1960 DACCA 359) that co-sharer is entitled to remain in possession of joint property and if enjoys to the exclusion of the other co-sharer and in excess of his own share, he cannot be forcibly evicted from the joint land though he is liable to pay compensation for use and occupation of the land in excess of his own share to the other co- sharers. The remedy of co-sharer not in actual possession, is to bring a suit for partition and get a decree for possession of his specific share on partition. This view has also been appreciated and relied upon in a case titled as Ahmed Miaji and others v. Eakub Ali Munshi and others (PLD 1961 DACCA 259). It is laid down there that if any co-sharer is dispossessed from his specific land, he had certainly got the right to recover possession of the land, from where he was dispossessed but he has to go to the partition suit for his remedy and so long that is not done, the possession of the co-sharer of the specific land must be respected, subject to the determination of their question of title. Meaning thereby, the co-sharer, if once he enters in possession even forcibly cannot be dispossessed unless the joint land is first partitioned. The same view has taken by the superior Courts, while deciding the cases reported as 1996 CLC 275, 1989 CLC 1310, 1995 PSC 207."
It may be noted that the grievance of the petitioners was that Respondent No, 2 had adopted forcible means to dispossess them at the gunpoint by ransacking their standing crop whereas the case of Respondent No, 2 was that he was in possession of the suit land on the basis of a private partition between the parties. The finding recorded in Paragraph 11 of the judgment by the learned Additional District Judge, as reproduced above is that the suit land is part of joint khata, the parties are co-sharers, which land, had never been partitioned and that the private partition alleged by the respondent had not been proved. But despite that the petitioners were non-suited.
As mentioned above, such inconsistency and contradiction in the approach of the Court was not warranted by the circumstances nor can be countenanced. In case the Suit land had been found as jointly owned and parties were co-sharers which had not been partitioned, the principle stated in Ali Gohar Khan v. Sher Ayaz and others (1989 SCM R 130) was attracted that it is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invesion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds." Such co-sharers were justified to seek redressal of their grievance by means of a suit under Section 9 of the Specific Relief Act, 1877 as held in Mst. Resham Bibi and others v. Lal Din and others (1999 SCM R 2325). Similar principle is discernable from, Division Bench ruling of this Court in Muhammad Shafi and 2 others v. Munshi and 3 others (1979 CLC 230). The view, thus, taken by the learned Additional District Judge that the petitioners/plaintiffs should have necessarily filed suit for partition, was erroneous in law. Needless to reiterate the trite law on the subject that possession of a co-sharer/co-owner is deemed to be the possession all, thus, once the suit property had been found as jointly owned and unpartitioned, the applicability of question of limitation had to be considered in that context.
4. In view of such unsustainable approach of the learned revisional Court, the learned counsel for the petitioners urged and wanted me to grant a decree under Section 9 of the Specific Relief Act, 1877 by reversing the judgment of the trial Court whereas the learned counsel for the respondent vehemently opposed adoption of such a course that in writ jurisdiction, this Court could not assume the role of appellate or revisional Court. In view, however, of the limitations and constraints of jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, I find that adoption of such a course is not possible inasmuch as that this Court cannot substitute its own findings and view for that of the Court of competent jurisdiction which is vested with the authority and jurisdiction of appreciating the evidence and deciding the matter in accordance with law. Indeed the revisional Court need to apply its mind afresh, consider and evaluate the evidence on the record and record its findings on objective assessment of the same, in the light of the law applicable. Thus, in view of the principle stated in Begum B.H.Syed v. Mst. Afzal Jahan Begum and another (PLD 1970 SC 29) and Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24), by declaring the judgment of the learned Additional District Judge Gujranwala as illegal, I have to remit the matter to the revisional Court for decision of the revision petition filed by the petitioners afresh in accordance with law.
5. Insofar as C.R.No, 569-D/99 is concerned, suffice it to observe that the same arose out of a declaratory suit, instituted by Mahboob Ahmed, Respondent No, 2, which suit had been filed when the suit filed by the petitioner under Section 9 of the Specific Relief Act, 1877 was pending before the trial Court. His declaratory suit was, however, dismissed by the trial Court in view of the provisions of Order XXIII, Rule 1 and Order II, Rule 2 of Code of Civil Procedure, 1908 as an earlier suit for injunction had been withdrawn by him unconditionally on 8.10.1995. The perusal of the appellate judgment dated 26.1.1999 passed by the learned Additional District Judge Gujranwala (Paragraph 6 and 7) would however, show that the learned appellate Court was much influenced by the finding of the trial Court about the question of private partition in the suit under Section 9 of the Specific Relief Act, 1877. Undoubtedly, the question of private partition is crucial for resolving controversy involved in both the suits. It would be, thus, just and legal that ,any possibility, of confliction of judgments is avoided. Thus, by setting aside the appellate judgment in this case the appeal is ordered to be heard and decided afresh along with the revision petition arising out of suit under Section 9 of the Specific Relief Act, 1877.
In view of the above, by declaring judgment dated 5.5.2003 passed by the learned Additional District Judge, Gurjranwala as illegal, the writ petition is accepted to that extent whereas by setting aside judgment of the learned Additional District Judge, Gujranwala dated 26.1.1999, C.R. No, 569- D/99 is accepted to that extent. As a result, the Revision. Petition (C.R. No, 16/03) filed by the petitioners and the appeal (C.A, No, 152/98) filed by Respondent No, 2 will be deemed pending which shall be heard and decided by the learned District Judge, Gujranwala by himself in accordance with law. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.